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August 10, 1990

ALTON A. BEST, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the common law of the District of Columbia, alleging violations of their privacy rights. Plaintiffs are 23 D.C. Code offenders who were videotaped without their consent while they were hand-cuffed and chained by the feet and around their waists. Defendants move to dismiss or for summary judgment. Defendants have also moved for a protective order limiting discovery pending decision on the Motion to Dismiss. For the reasons stated herein, the defendant's motion to dismiss or for summary judgment will be denied and the motion for a protective order is rendered moot.


 Plaintiffs were inmates at the Lorton Reformatory in Lorton Virginia. During the night of December 14, 1988, plaintiffs were roused from their cells without warning and taken to a Lorton gymnasium where they were chained in hand-cuffs, leg-irons, and belly chains. At approximately 2:30 a.m. on the morning of December 15, 1988, plaintiffs were transported to Dulles Airport, placed aboard a plane, and flown to the state of Washington where they were placed in the Spokane County Jail in Spokane, Washington. They were accompanied by Department of Corrections personnel, including defendant Officer Raymond Ballard and defendant Patricia Britton, the Coordinator of Special Projects. From time to time during the flight, defendant Ballard walked through the rear of the plane where plaintiffs were seated and videotaped plaintiffs. Some of the plaintiffs objected, some hid their faces, some tried to hide their faces but the hand-cuffs and chains prevented them from doing so, and others were sleeping.


 The government moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative for summary judgment. Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim only if, construing the allegations in the complaint in favor of the plaintiff, it is beyond doubt that plaintiff can prove no set of facts that would justify relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Summary judgment is proper only when there is no genuine issue of material fact. Fed. R. Civ. P. 56.

 Certain of the claims in defendants' Motion are appropriately treated under summary judgment because defendants have submitted, attached to their Motion, a "Statement of Material Facts not in Dispute" and a "Declaration of Patricia B. Britton," which constitute matters outside the pleadings. When such matters are considered, a motion for dismissal under Rule 12(b)(6) is treated as a summary judgment motion pursuant to Fed. R. Civ. P. 12(b). With respect to those claims in defendants' Motion to which the Statement and Declaration do not apply, the Motion will be treated as a Motion to Dismiss under Rule 12(b)(6).


 Defendants' initial contention is that the District of Columbia is not a suable entity under 42 U.S.C. § 1983. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or Territory or the District of Columbia [deprives any citizen of their rights under the Constitution or laws] shall be liable to the party injured . . .

 The Supreme Court has clearly held that a municipality is a "person" and may be held liable under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), overruling Monroe v. Pape, 365 U.S. 167, 187-91, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). In contrast, however, the Court has recently held that a state is not a "person" within the meaning of § 1983 and may not be sued under that section. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).

 The District of Columbia is a "body corporate for municipal purposes." D.C. Code § 1-102(a). In addition, the District has been treated as a municipality by courts. See, e.g., Haynesworth v. Miller, 261 App. D.C. 66, 820 F.2d 1245, 1271-72 (D.C. Cir. 1987). The question therefore is whether, as asserted by defendants, the District of Columbia also qualifies as a state for purposes of the definition of "person" under § 1983. Will does not so hold. The Court's reasoning in Will was based largely on Eleventh Amendment considerations and the Court clearly limited its holding to entities protected by the Eleventh Amendment:

Prior to Monell the Court had reasoned that if municipalities were not persons then surely states also were not. And Monell overruled Monroe, undercutting that logic. But it does not follow that if municipalities are persons then so are States. States are protected by the Eleventh Amendment while municipalities are not, and we consequently limited our holding in Monell "to local government units which are not considered part of the State for Eleventh Amendment purposes." Conversely, our holding here does not cast any doubt on ...

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