                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
RONALD HARDY, et al.,         )
                              )
          Plaintiffs,         )
                              )
          v.                  )      Civil Action No. 07-415 (RWR)
                              )
DISTRICT OF COLUMBIA, et al., )
                              )
          Defendants.         )
 _____________________________)


                  MEMORANDUM OPINION AND ORDER

     After allegedly being assaulted by fellow inmates,

plaintiffs Denis Garcia and Martell Legrand filed suit against

former Director of the D.C. Department of Corrections Odie

Washington and former D.C. Jail Warden Steven Smith in both their

official and individual capacities, and the District of Columbia,

seeking damages under 42 U.S.C. § 1983 for alleged violations of

the Fifth and Eighth Amendments.1   Defendants Washington and

Smith have moved to dismiss the claims against them, insisting

that the official capacity claims should be brought solely

against the District of Columbia and that they are entitled to

qualified immunity from suit.    Because the same claims against

Washington and Smith in their official capacities are also



     1
      Plaintiff Ronald Hardy and defendant Prison Realty Trust,
who were respectively a plaintiff and a defendant originally, are
no longer parties. The complaint also asserts negligence claims
against the District of Columbia.
                                   -2-

brought against the District of Columbia, they are redundant and

will be dismissed as to Washington and Smith.    Because the Fifth

Amendment, rather than the Eighth Amendment, applies to pretrial

detainees’ rights, the plaintiffs’ Eighth Amendment claims will

be dismissed.   Washington and Smith’s motions to dismiss the

plaintiffs’ Fifth Amendment claims because of qualified immunity

will be denied because the plaintiffs have alleged violations of

actual Fifth Amendment rights that were clearly established at

the time.

                            BACKGROUND

     While incarcerated in the D.C. Jail as pretrial detainees,

plaintiffs Garcia and Legrand were each allegedly assaulted, on

separate occasions in 2004 and 2005, by inmates2 who threw

scalding liquid on them while they were locked in their jail

cells.   (See Compl. ¶¶ 32, 36).    Each plaintiff reports suffering

severe burns as a result of the assault against him.    (Id.)   In

their complaint, Garcia and Legrand allege that “[n]o prison

guard saw, heard, or was present at the time of the assault[s] to

supervise, monitor or deter the assault[s.]”    (Id. ¶¶ 33, 37).

The plaintiffs insist that “[d]espite the officials’ longstanding

awareness of the conditions of confinement at the Jail and the


     2
      Garcia alleges an assault by inmate Marquee Venable, “a
predatory inmate with a documented history of assaulting other
detainees” that included a previous incident of assaulting
another inmate “by throwing scalding liquid at him while the
inmate was sitting in his cell.” (Compl. ¶¶ 30(1), 32-33.)
                                  -3-

clearly established constitutional requirements for the facility,

defendants adopted a custom or policy with respect to the

operations of the Jail that was deliberately indifferent to, and

recklessly disregarded, the safety and security of the detainees

and the inmates housed there.”    (Id. ¶ 31.)    Plaintiffs allege

that Washington and Smith violated their Fifth and Eighth

Amendment rights by failing to protect the plaintiffs from known

dangerous conditions, including the threat of violence by other

inmates.   In response, Washington and Smith have moved under

Federal Rule of Civil Procedure 12(b)(6) to dismiss the

complaint, insisting that it fails to state a claim against them

and that they are entitled to qualified immunity from suit.

                            DISCUSSION

     A complaint may be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted.   See Fed. R. Civ. P. 12(b)(6).     “A Rule 12(b)(6) motion

is intended to test the legal sufficiency of the complaint.”

Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C.

Cir. 2003) (citations omitted).    “‘Rule 12(b)(6) is not a device

for testing the truth of what is asserted or for determining

whether a plaintiff has any evidence to back up what is in the

complaint. . . .   The issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims.’”       Scott v. District of Columbia,
                                 -4-

Civil Action No. 05-1853 (RWR), 2006 WL 1409770, at *2 (D.D.C.

May 23, 2006) (quoting ACLU Foundation of So. Cal. v. Barr, 952

F.2d 457, 467 (D.C. Cir. 1992) (quotations and citations

omitted)).   “On review of a 12(b)(6) motion a court ‘must treat

the complaint’s factual allegations as true . . . and must grant

plaintiff the benefit of all inferences that can be derived from

the facts alleged.’”    Holy Land Found. for Relief & Dev. v.

Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (quoting Sparrow v.

United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss

does not need detailed factual allegations, a plaintiff’s

obligation to provide the grounds of his entitle[ment] to relief

requires more than labels and conclusions . . . .”    Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

and quotations omitted) (alteration in original).    “Factual

allegations must be enough to raise a right to relief above the

speculative level[.]”    Id.

I.   OFFICIAL CAPACITY CLAIMS

     “Claims brought against government employees in their

official capacity are treated as claims against the employing

government and serve no independent purpose when the government

is also sued.”   Scott, 2006 WL 1409770, at *3 (citing Kentucky v.

Graham, 473 U.S. 159, 166 (1985); Arnold v. Moore, 980 F. Supp.

28, 36 (D.D.C. 1997); Cooke-Seals v. District of Columbia, 973 F.
                                  -5-

Supp. 184, 187 (D.D.C. 1997)     (“[A]n official capacity suit

against an individual is the functional equivalent of a suit

against the employer[.]”)).     Because plaintiffs make claims

against the District of Columbia, the same claims against

Washington and Smith in their official capacities are redundant

and will be dismissed.

II.   EIGHTH AMENDMENT CLAIMS

      “The Eighth Amendment prohibits the government from

inflicting ‘cruel and unusual punishment’ on prison inmates,

which includes ‘[a] prison official’s ‘deliberate indifference’

to a substantial risk of serious harm to an inmate.’”     Powers-

Bunce v. District of Columbia, 479 F. Supp. 2d 146, 152-53

(D.D.C. 2007) (quoting Farmer v. Brennan, 511 U.S. 825, 828

(1994)).   However, “the Amendment’s prohibition applies only to

persons who are subject to ‘punishment’ by the government, which

the Supreme Court has defined to mean persons against whom the

government ‘has secured a formal adjudication of guilt’ . . .

[and] does not apply to pretrial detainees . . . who have not

been adjudicated guilty of any crime.”     Id. at 153 (quoting Bell

v. Wolfish, 441 U.S. 520, 535 n.16 (1979)).     Instead, “detainees

have an independent due-process right under the Fifth and

Fourteenth Amendments to be free from [detaining] officials’

‘deliberate indifference’” to detainees’ needs and safety.       Id.;

see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)
                                -6-

(recognizing that a person apprehended by the police in need of

medical care has a due process right to be provided care).

Because the plaintiffs represent in their complaint that they

were pretrial detainees when the alleged harms occurred (see

Compl. at ¶¶ 46, 51), they “had no Eighth Amendment rights that

could have been violated.”   Powers-Bunce, 479 F. Supp. 2d at 153.

Accordingly, the motions to dismiss the plaintiffs’ Eighth

Amendment claims against Washington and Smith will be granted.

III. QUALIFIED IMMUNITY

     “The doctrine of qualified immunity protects government

officials ‘from [personal] liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’”   Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see

Owen v. City of Independence, Mo., 445 U.S. 622, 652-54 (1980)

(discussing qualified immunity as protecting public officials

from personal liability)).   “[Q]ualified immunity is ‘an immunity

from suit rather than a mere defense to liability[.]’”   Pearson,

129 S. Ct. at 815, 818 (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)).   Whether a defendant is protected by qualified

immunity should be resolved at the “earliest possible stage” so

that the “costs and expenses of trial are avoided where the
                                -7-

defense is dispositive.”   Saucier v. Katz, 533 U.S. 194, 200-01

(2001); see Pearson, 129 S. Ct. at 815.

     To determine if an official is protected by qualified

immunity and therefore entitled to dismissal of the claims

against him, a court must ask “whether the plaintiff has alleged

the deprivation of an actual constitutional right,” and “whether

that right was clearly established at the time of the alleged

violations.”   Int’l Action Ctr. v. United States, 365 F.3d 20, 24

(D.C. Cir. 2004) (quotations and citations omitted).3    The second

inquiry “must be undertaken in light of the specific context of

the case, not as a broad general proposition. . . .     ‘The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.’”   Saucier, 533 U.S. at 201-02 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).   The question

is whether “it would be clear to a reasonable [official] that his

conduct was unlawful in the situation he confronted.”     Id.   “It

is no defense that an official was unaware of a law, as a

‘reasonably competent public official should know the law

governing his conduct.’”   Barham v. Ramsey, 338 F. Supp. 2d 48,

55 (D.D.C. 2004) (quoting Harlow, 457 U.S. at 818-19).     “If the

officer’s mistake as to what the law requires is reasonable,



     3
      Either prong of the qualified immunity test may be analyzed
first. Pearson, 129 S. Ct. at 818.
                                    -8-

however, the officer is entitled to the immunity defense.”

Saucier, 533 U.S. at 205.

     Plaintiffs have brought constitutional claims under 42

U.S.C. § 1983 against Washington and Smith in their individual

capacities.       “[I]n order to state a claim under § 1983, . . . a

plaintiff must allege that the defendant violated a right

protected by the Constitution” or a federal statute.       Powers-

Bunce, 479 F. Supp. 2d at 152; see Gonzaga Univ. v. Doe, 536 U.S.

273, 279 (2002) (noting “that § 1983 actions may be brought

against state actors to enforce rights created by federal

statutes as well as by the Constitution”).4      “‘As a general rule,

government officials may be sued in their individual capacities

for constitutional violations only if they are directly

responsible for the alleged violations.’”       Banks v. York, 515 F.

Supp. 2d 89, 100 (D.D.C. 2007) (quoting Caldwell v. Hammonds, 53

F. Supp. 2d 1, 9 (D.D.C. 1999)).       In their complaint, plaintiffs

allege that Washington and Smith acted to violate plaintiffs’

Fifth Amendment rights while they were pretrial detainees in D.C.

Jail.       “The question under Rule 12(b)(6) is whether the facts

alleged, if shown to be true, would establish that [d]efendants

violated rights guaranteed by th[at] Amendment[].”       Powers-Bunce,

479 F. Supp. 2d at 152.



        4
      Section 1983 applies to District of Columbia officials.        42
U.S.C. § 1983.
                                -9-

     “While a convicted prisoner is entitled to protection only

against ‘cruel and unusual’ punishment [under the Eighth

Amendment], a pretrial detainee, not yet found guilty of any

crime, may not be subjected to punishment of any description.”

Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citing City

of Revere, 463 U.S. at 244).   Accordingly, since before the

plaintiffs’ alleged injuries in 2004 and 2005, “[c]ourts have

consistently held that [the] right belonging to pretrial

detainees [under the Fifth Amendment] is at least as great as the

analogous Eighth Amendment right[.]”   Powers-Bunce, 479 F. Supp.

2d at 153 (emphasis added and internal quotation marks omitted);

see City of Revere, 463 U.S. at 244 (concluding that “the due

process rights of a person [in police custody] are at least as

great as the Eighth Amendment protections available to a

convicted prisoner”); Barber v. City of Salem, 953 F.2d 232, 235

(6th Cir. 1992) (holding that “the Eighth Amendment rights of

prisoners are analogous to pretrial detainees’ due process

rights” and applying the Eighth Amendment “deliberate

indifference” standard to conduct toward detainee).   Because a

pretrial detainee’s rights under the Fifth Amendment are at least

as great as those afforded to a convicted prisoner under the

Eighth Amendment, applying the Eighth Amendment “deliberate

indifference” standard to measure whether the plaintiffs have
                                -10-

alleged a violation of their clearly established Fifth Amendment

rights is appropriate.

     Under the Eighth Amendment, prisoners have a right to

“humane conditions” and prison officials have a duty to “‘take

reasonable measures to guarantee the safety of inmates,’” Farmer,

511 U.S. at 833 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984), which includes “‘protect[ing] prisoners from violence at

the hands of other prisoners.’”    Id. (quoting Cortes-Quinones v.

Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)).     However,

“[p]rison officials cannot be held answerable every time an

inmate in an overcrowded prison commits an act of violence[.]”

Marsh v. Barry, 824 F.2d 1139, 1145 (D.C. Cir. 1987).     For a

prisoner to succeed on a failure-to-protect claim, he must show

(1) “that he is incarcerated under conditions posing a

substantial risk of serious harm” and (2) that a prison official

acted with “deliberate indifference” to protect the prisoner from

that harm.    Farmer, 511 U.S. at 834.

     Here, the plaintiffs allege a history pre-dating their

detention of inadequate security staffing and monitoring capacity

in overcrowded settings, abandoned security posts, and violence

by predatory inmates in unguarded cellblocks causing injuries and

fatalities.    (See Compl. ¶¶ 28, 30.)   They also allege that

before the scalding attacks that injured the plaintiffs, Garcia’s

very assailant, Venable, committed a similar scalding attack
                                -11-

against an inmate in a cell using water heated in an unguarded

microwave.   (Id. ¶ 30(l).)   The plaintiffs contend that the

locations where their own assaults occurred were inadequately

staffed with corrections officers and resulted in the assaults

taking place without any corrections officers in the vicinity to

witness the incidents.   (See id. ¶¶ 33, 37.)   These allegations

amply plead conditions of detention that “pos[e] a substantial

risk of serious harm.”   Farmer, 511 U.S. at 834; see also Benner

v. McAdory, 34 F. App’x. 483, 485 (7th Cir. 2002) (finding a

substantial risk of serious harm in an instance where scalding

water was hurled at inmate plaintiff by an fellow inmate who had

previously committed a similar assault); see also Paradis v.

Blair, No. 1:07-CV-94, 2007 WL 3223222, at *2 (D. Vt. Oct. 29,

2007) (finding that plaintiff, at whom another prisoner had

thrown scalding water, had sufficiently plead “substantial risk”

by noting previous similar “inmate-on-inmate scalding incidents”

and “routine access to pots of scalding hot water”); Edmonds v.

Mahoning Cty., No. 4:04CV2211, 2005 WL 1076113, at *4 (N.D. Ohio

May 5, 2005) (same).   But see Harris v. Jones, Civil Action 97-

0191-BH-M, 1999 U.S. Dist. LEXIS 3314, at *25 (S.D. Ala. Feb. 3,

1999) (finding that plaintiff had not established

“incarcerat[ion] under conditions that presented a substantial

risk of serious harm” where “the only evidence of harm alleged

was hot water thrown onto him”).
                                -12-

     For the second part of the Farmer test, a plaintiff must

show that the defendant had “subjective” knowledge of the risk

that he then disregarded.    Farmer, 511 U.S. at 837; Powers-Bunce,

479 F. Supp. 2d at 156.   In other words, “[an] official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference.”   Farmer, 511 U.S. at 837.   In appropriate

situations, subjective “knowledge ‘can be inferred from the

obviousness of the risk.’”   Powers-Bunce, 479 F. Supp. 2d at 156

(quoting Payne for Hicks v. Churchich, 161 F.3d 1030, 1042 (7th

Cir. 1998)).

     The plaintiffs allege that “Washington and Smith were at the

top of the chain of command” at the D.C. Jail and “possessed

complete knowledge of the long history of [c]onstitutional

violations at the D.C. Detention Facility and of current . . .

continuing security problems leading to inmate injuries.”     (Pls.’

Opp’n at 3, 5.)   In their complaint, they allege that the

defendants’ knowledge of the “substantial and unreasonable risk

to detainee and inmate safety stemmed from identified

     court orders, studies, technical and expert reports
     that were provided to the District, testimony and
     documents generated at City Council oversight hearings,
     lawsuits filed against the District and CTF,
     settlements entered into by the District, adverse
     verdicts delivered against the District by juries, a
     long line of inmate assaults at the Jail, and by other
     means.
                               -13-

(Compl. ¶ 31.)   For example, the plaintiffs contend that on the

day before Garcia’s March 2, 2004 assault, both Washington and

Smith were present at a D.C. Council hearing at which testimony

described significant and multiple instances of violence in

unguarded locations occurring in the jail since 2002.    (Id.

¶ 30(n).)   In addition, the plaintiffs point to the previous

scalding assault by the same inmate who scalded Garcia as

evidence of the particular risk to inmates of an assault by

thrown scalding liquid.   (See id. ¶ 30(l).)   The plaintiffs

further contend that, despite this knowledge, the defendants

refused to take reasonable measures to fulfill their duty to

protect inmates, such as properly screening pretrial detainees,

ensuring adequate staffing at the jail, installing metal

detectors, and conducting frequent “shakedowns” of inmates and

their facilities.   (See id. ¶¶ 24-27).   Because the plaintiffs

have alleged that Washington and Smith knowingly disregarded a

substantial risk of serious harm of which they were aware,

plaintiffs have adequately alleged a violation of their Fifth

Amendment right under a failure-to-protect theory.

     Inadequate training or supervision also may serve as the

basis for § 1983 liability “where the failure to train amounts to

deliberate indifference[.]”   City of Canton v. Harris, 489 U.S.

378, 388 (1989).

     “[I]t may happen that in light of the duties assigned
     to specific officers or employees the need for more or
                                -14-

     different training is so obvious, and the inadequacy so
     likely to result in the violation of constitutional
     rights, that the [officials] can reasonably be said to
     have been deliberately indifferent to the need.”

Harvey v. Brown, Civil No. 06-1891(RMB), 2007 WL 2893193, at *6

(D.N.J. Sept. 28, 2007) (quoting Canton, 489 U.S. at 390).     “In

order to succeed on this theory, however, [plaintiffs] must

demonstrate that the deliberate conduct alleged was the ‘moving

force’ behind the injury.”   Id. (citing Bd. Of Cty. Comm’rs of

Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)).

     “The deliberate indifference standard similarly applies to

the failure to supervise analysis.”    Id.   Plaintiff must show

“that the official ‘was responsible for supervising the

wrongdoer; that a duty to instruct the subordinate to prevent

unconstitutional harm arose from the surrounding circumstances;

and that, as a result of the official’s failure to instruct, the

plaintiff was harmed[.]’”    Banks, 515 F. Supp. 2d at 114 (quoting

Haynesworth v. Miller, 820 F.2d 1245, 1262 (D.C. Cir. 1987)).      On

the other hand, because deliberate indifference requires the

official to have subjective knowledge of the substantial risk of

harm, the D.C. Circuit has held that supervisory liability cannot

be applied “absent any allegation that the supervisors in

question ‘had actual or constructive knowledge of past

transgressions or that the supervisors were responsible for or

aware of clearly deficient training.”    Id. (citing Int’l Action

Ctr., 365 F.3d at 28).
                                -15-

     Here, the plaintiffs allege that Smith and Washington were

deliberately indifferent to the “negligent supervision of

correctional officers” and “lack of staff training[,]” and that

such deliberate indifference “directly and proximately caused

plaintiffs’ injuries[.]”   (Compl. ¶¶ 47-49, 53, 59-65.)    As is

discussed above, the plaintiffs present facts suggesting that

defendants, as officials at the top of the “chain of command” at

the D.C. Jail, “had been aware [of the issues] for many years and

. . . they had been advised by both courts and experts to act on

numerous occasions.”   (Id. ¶ 56.)     For example, plaintiffs allege

that at the March 1, 2004 D.C. Council hearing that Washington

and Smith attended, the testimony warned that significant

injuries and assaults occurred repeatedly either when guards

abandoned their posts or “when housing unit posts were left

unstaffed.”   (Id. ¶ 30(n).)   A pattern of abandoned or unstaffed

posts under the circumstances plaintiffs describe could reflect

training or supervision failures.      These allegations, construed

liberally in plaintiffs’ favor, are sufficient to state a claim

for a violation of plaintiffs’ Fifth Amendment rights, insofar as
                                -16-

the claim relates to defendants failure to train and supervise.5

See Banks, 515 F. Supp. 2d at 115.

     Thus, the plaintiffs have adequately alleged violations of

their Fifth Amendment rights.   In addition, the plaintiffs’ Fifth

Amendment rights were clearly established at the time of the

events in question.   Prior to the time of the plaintiffs’

detention in the jail, the Supreme Court had expressly identified

a prison official’s duty to take reasonable precautions “‘to

protect prisoners from violence at the hands of other

prisoners[,]’” Farmer, 511 U.S. at 833 (quoting Cortes-Quinones,

842 F.2d at 558), by “‘tak[ing] reasonable measures to guarantee

the safety of inmates[.]’”   Id. at 832 (quoting Hudson, 468 U.S.

at 526-27).   In light of this explicit duty, Washington and Smith

should have known that any deliberate failure to take reasonable

measures to protect the plaintiffs from the known risk of

scalding injuries, caused either by inmate Venable, or another

inmate employing similar means, was unlawful and violated the

plaintiffs’ rights.   Accordingly, because the plaintiffs’ right

to be reasonably protected from violence caused by fellow inmates

was clearly established at the time the plaintiffs were injured,



     5
       “To the extent that plaintiff[s] seek[] to hold defendants
[] liable for the unconstitutional actions or omissions of
[their] subordinates on a theory of respondeat superior, however,
such a theory cannot survive.” Banks, 515 F. Supp. 2d at 101-02
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);
Cameron v. Thornburgh, 983 F.2d 253 (D.C. Cir. 1993)).
                                 -17-

Washington and Smith’s motion to dismiss plaintiffs Fifth

Amendment claims against them due to the qualified immunity they

invoke will be denied.

                         CONCLUSION AND ORDER

     Because the plaintiffs make official capacity claims against

Washington and Smith that are identical to those made against the

District of Columbia, the official capacity claims are redundant

and will be dismissed.    The plaintiffs’ Eighth Amendment claims

will be dismissed because the Eighth Amendment did not protect

the plaintiffs as pretrial detainees.      However, the plaintiffs

have stated violations of a Fifth Amendment right to be detained

in humane conditions that was clearly established at the time of

the alleged violation, and Washington and Smith’s motions to

dismiss these Fifth Amendment claims on the basis of qualified

immunity will be denied.    Accordingly, it is hereby

     ORDERED that Washington and Smith’s motions to dismiss [9,

17] be, and hereby are, GRANTED IN PART and DENIED IN PART.

Washington and Smith’s motions to dismiss the plaintiffs’ Eighth

Amendment claims are GRANTED.    The defendants’ motion to dismiss

the plaintiffs’ Fifth Amendment claims are DENIED.

     SIGNED this 6th day of March, 2009.



                                        ________/s/_________________
                                        RICHARD W. ROBERTS
                                        United States District Judge
