Second, and apart from a theory of respondeat superior liability, if the Plaintiff is suing Dr. Allen in his official capacity, the suit is to be treated as a suit against the District of Columbia. See Kentucky v. Graham, 473 U.S. at 166. Under § 1983, local governments can be sued only where the entity is a "moving force" behind the violation. Id. In other words, a municipality may be sued where the alleged unconstitutional conduct "implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. 690 at 690-91 .
In the instant case, the Plaintiff's Complaint fails to assert a challenge to a municipal policy which would give rise to municipal liability under § 1983. Instead, Plaintiff's allegations consist of specific unconstitutional and negligent conduct on the part of Defendants, namely extensive delays and lack of treatment for serious medical needs. Despite Plaintiff's well-supported and specific factual allegations, Plaintiff's Complaint does not assert that an official policy, or even a government custom, is responsible for a deprivation of his Constitutional rights. See id. Because Plaintiff has not demonstrated that the District of Columbia is the "moving force" behind the alleged Eighth Amendment violation of his rights, the Court finds that jurisdiction is lacking over Dr. Allen in his official capacity.
In the unlikely event that Plaintiff's suit is against Dr. Allen in his personal or individual capacity, Plaintiff's Motion for Summary Judgment should be denied since Plaintiff has failed to demonstrate that he is entitled to judgment as a matter of law on that basis. Fed. R. Civ. P. 56. To establish personal liability in this § 1983 action, Plaintiff, must show that Dr. Allen, acting under the color of state law, caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. at 166. As to Plaintiff's Eighth Amendment claim, the Supreme Court has found that in order to state a cognizable claim of cruel and unusual punishment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251 , 97 S. Ct. 285 (1976). An express intent to inflict unnecessary pain is not required. Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251 , 106 S. Ct. 1078 (1986). On the other hand, to constitute cruel and unusual punishment, conduct must involve more than ordinary lack of due care for prisoners' interest or safety; mere negligence will not suffice. Id.; Morgan v. District of Columbia, 263 App. D.C. 69, 824 F.2d 1049, 1057 (D.C. Cir. 1987).
Although Plaintiff's factual allegations in the aggregate amount to a well-argued claim of cruel and unusual punishment under the Eighth Amendment, the evidence actually involving or implicating Dr. Allen is minimal. Dr. Allen is held responsible for replying to counsel's letters on Plaintiff's behalf, and for producing a memorandum indicating that Plaintiff's treatment would be completed as soon as possible. See Pltf. Complaint at 6; Pltf. Facts at P14. No other conduct is attributed to Dr. Allen. Even taking into account his supervisory responsibility for the entire dental staff at the D.C. Department of Corrections, Dr. Allen's conduct, in and of itself, does not rise to the level of deliberate indifference required by the Eighth Amendment. Thus even if, arguendo, Plaintiff's claim is against Dr. Allen in his individual capacity, this Court cannot grant the Plaintiff the relief that he seeks.
II. DISTRICT OF COLUMBIA CODE
Plaintiff also seeks a declaratory judgment regarding his right to adequate medical treatment pursuant to D.C. Code § 24-442. In particular, Plaintiff recommends that this Court adopt the general principles of medical malpractice as controlling the standard of "reasonable care" required by D.C. Code § 24-442. The Plaintiff, however, has not supported this request with legal precedent. The Court is unable to find precedent linking this Code provision with claims of medical malpractice. Therefore, the Court declines, in its discretion, to retain pendent jurisdiction or to issue a declaratory judgment on this pendent statutory claim regarding an unsettled area of local law. See Financial General Bankshares, Inc. v. Metzger, 220 App. D.C. 219, 680 F.2d 768, 775-78 (D.D.C. 1982).
Accordingly, for all of the reasons previously stated, it is, by the Court, this 9th day of April, 1992,
ORDERED that Plaintiff's Motion for Summary Judgment shall be, and hereby is, DENIED; and it is,
FURTHER ORDERED that this case shall be, and hereby is, dismissed from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT COURT