                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
WALTER SAMPSON,                )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 12-1933 (RWR)
                               )
D.C. DEPARTMENT OF             )
CORRECTIONS,                   )
                               )
          Defendant.           )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Walter Sampson, a corrections officer employed by

the defendant District of Columbia Department of Corrections

(“DOC”), filed a one-count amended complaint against the DOC

alleging disability discrimination in violation of the Americans

with Disabilities Act of 1991 (“ADA”), 42 U.S.C. § 12111 et seq.

The DOC moves to dismiss Sampson’s amended complaint for naming a

defendant that cannot be sued and for untimely service of process

upon the defendant.   Because service of process was timely and

the District of Columbia can be substituted as the defendant, the

motion will be denied.

                            BACKGROUND

     The amended complaint alleges the following facts.   The DOC

hired Sampson as a corrections officer in January 2000.   Am.

Compl. ¶ 6.   In August 2006, an inmate threw feces into Sampson’s

face.   Sampson was later diagnosed by a psychiatrist,

Dr. David Fischer, with post-traumatic stress disorder and
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permanently restricted to light duty without inmate contact.     In

December 2007, Dr. Bruce Smoller conducted an independent medical

examination of Sampson, and he also concluded that Sampson should

have no direct contact with inmates.     Id. ¶¶ 7-9.   Sampson

returned to work in September 2008.     He was assigned to a light

duty position escorting contractors to their work sites, a

position that did not involve contact with inmates.      In

December 2008, Sampson was assigned to another position that did

not require inmate contact.     However, on January 2, 2009, Sampson

was reassigned to a position at the Central Detention Facility at

the District of Columbia jail, where he would transport inmates

from the jail to Southeast Hospital, or transport inmates from

halfway houses to the jail.     Dr. Fisher did not approve of this

assignment.   Id. ¶¶ 10-13.    Dr. Fisher treated Sampson on

January 6, 2009, and informed Sampson that he was a danger to

himself and others and not fit for duty.     Sampson was admitted

for in-patient treatment to the Washington Hospital Center on

February 23, 2009 for “depression and suicidal tendencies.”      He

was discharged on March 2, 2009, but continued weekly sessions

with Dr. Fisher through September 2009.     Id. ¶¶ 14-15.

     According to the amended complaint, in March 2009, the DOC

“denied reinstatement” of Sampson’s temporary total disability

benefits.   Am. Compl. ¶ 16.    In September 2009, the District’s

Office of Workers’ Compensation Office found that Sampson
                                 -3-

incurred a work-related injury based upon his January 2009

reassignment.    In September 2011, the EEOC determined that the

DOC violated the ADA when it stopped accommodating his

disability.    Id. ¶ 17.

     Sampson filed the original complaint in this action on

November 29, 2012.    He filed his amended complaint on March 26,

2013 alleging that the DOC denied him a reasonable accommodation

in violation of the ADA by removing him from a position where he

did not have contact with inmates.     Am. Compl. ¶¶ 18-19.   The DOC

has since moved to dismiss Sampson’s amended complaint under

Federal Rule of Civil Procedure 12(b)(6), arguing that the DOC

lacks the capacity to be sued, and under Rule 4(m), arguing that

Sampson failed to serve the complaint within 120 days.     Sampson

opposes dismissal, arguing that the complaint was timely served,

and seeking leave to amend his complaint again by substituting

the District for the DOC as a defendant.

                             DISCUSSION

     “‘A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted.’”    Howard Univ. v. Watkins, 857 F. Supp. 2d 67, 71

(D.D.C. 2012) (quoting Peavey v. Holder, 657 F. Supp. 2d 180, 185

(D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6))).     Motions to

dismiss under Rule 12(b)(6) test the legal sufficiency of a
                                -4-

complaint.   Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d

123, 129 (D.D.C. 2009).

     To survive a motion to dismiss, a complaint must
     contain sufficient factual matter, acceptable as true,
     to “state a claim to relief that is plausible on its
     face.” . . . A claim has facial plausibility when the
     plaintiff pleads factual content that allows the court
     to draw the reasonable inference that the defendant is
     liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).

“The complaint must be construed in the light most favorable to

the plaintiff and ‘the court must assume the truth of all

well-pleaded allegations.’”   Watkins, 857 F. Supp. 2d at 71

(quoting Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir.

2004)).

     A motion dismiss for “failure to properly serve process may

be granted when a plaintiff fails to ‘demonstrate that the

procedure employed satisfied the requirements of Rule 4 and any

other applicable provision of law.’”   Brookens v. United States,

Civil Action No. 12-502 (RWR), 2013 WL 5518903, at * 3 (D.D.C.

October 7, 2013) (quoting Light v. Wolf, 816 F.2d 746, 751 (D.C.

Cir. 1987)).   After a motion to dismiss for insufficient process

is filed, “the plaintiff is obligated to establish that he has

properly effected service.”   Brookens, 2013 WL 5518903, at *3

(citing Strong-Fischer v. Peters, 554 F. Supp. 2d 19, 23 (D.D.C.

2008)).
                                 -5-

I.    DOC

      The DOC moves to dismiss Sampson’s amended complaint in its

entirety arguing that the DOC, as an agency of the District of

Columbia, lacks the capacity to be sued.   Def.’s Mem. in Supp. of

Mot. to Dismiss, at 3-4.    When a plaintiff erroneously names as a

defendant a District of Columbia agency instead of the District

of Columbia itself, a court may substitute the District as a

defendant for its agency.   See Hunter v. D.C. Child & Family

Servs. Agency, 710 F. Supp. 2d 152, 157 (D.D.C. 2010) (citing

Ennis v. Lott, 589 F. Supp. 2d 33, 37 (D.D.C. 2008)).   Therefore,

the defendant’s motion to dismiss the complaint against the DOC

will be construed as a motion to substitute the District of

Columbia for the DOC as the defendant.   See Bennett v. Henderson,

Civil Action No. 10-1680 (RWR), 2011 WL 285871, at * 1 (D.D.C.

January 28, 2011) (construing motion to dismiss as one for

substitution, and substituting the District of Columbia for the

District of Columbia Public Schools as defendant).   Accordingly,

the District of Columbia will be substituted for the DOC as the

defendant in this action, and the amended complaint will be

construed as one alleging claims against the District of

Columbia.

II.   TIMELY SERVICE

      The DOC next moves to dismiss Sampson’s amended complaint

because, according to the DOC, Sampson failed to comply with Rule
                                 -6-

4(m)’s requirement that a plaintiff serve a complaint within 120

days after it was filed.    Def.’s Mem. in Supp. of Mot. to

Dismiss, at 4-5.    Service of the complaint must be effected

“within 120 days after the complaint is filed” unless “the

plaintiff shows good cause for the failure” to meet this

deadline.    Fed. R. Civ. P. 4(m); see also Strong-Fischer v.

Peters, 554 F. Supp. 2d 19, 23 (D.D.C. 2008) (holding that

plaintiffs carry the burden of showing good cause for failure to

meet the deadline).    Here, the docket reflects that the original

complaint was filed on November 29, 2012, and that the amended

complaint was served on the District 119 days later, on March 28,

2013.    See docket entries # 6, # 7.   Accordingly, service was

timely, and the District’s motion will be denied.


                        CONCLUSION AND ORDER

     Sampson timely served the amended complaint, but because the

DOC is non sui juris, the District of Columbia will be

substituted for the DOC as the defendant.      Therefore, it is

hereby

     ORDERED that the District of Columbia be, and hereby is,

SUBSTITUTED for DOC as a defendant, and the defendant’s motion

[8] to dismiss be, and hereby is, DENIED.
                          -7-

SIGNED this 4th day of March, 2014.


                                /s/
                          RICHARD W. ROBERTS
                          Chief Judge
