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February 26, 2004.

DISTRICT OF COLUMBIA, et al, Defendants

The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge


Edward Ashford, a pro se plaintiff, is presently incarcerated at Pleasant Valley State Prison in Coalinga, California, where he is serving a lengthy sentence for crimes committed in the District of Columbia. Mr. Ashford was arrested, jailed, and tried in D.C. in 1985-86 prior to his transfer to various State prisons and transfer to the care of the Federal Bureau of Prisons ("BOP"). This lawsuit alleges that the District and two employees of the D.C. Department of Corrections are liable to Mr. Ashford for injuries resulting from an attack on him by other D.C. inmates at the United States Penitentiary in Beaumont, Texas ("USP Beaumont"), in 2001.

On April 8, 2003, the District of Columbia filed a motion to dismiss, which Mr. Ashford opposes.*fn1 A little over two months later, Mr. Ashford filed a motion for partial Page 2 summary judgment on the issue of liability. The District opposes this motion. Having carefully considered the complaint, as amended, the parties' briefs, and the entire record, the Court will grant in part and deny in part the motion to dismiss and deny the motion for partial summary judgment.

 I. Background

  On October 21, 1985, Mr. Ashford was a pretrial detainee in the custody of the D.C. Department of Corrections. He was being held in protective custody in the D.C. Jail because his father worked there as Officer-in-Charge of the SW-1 housing unit, which housed inmate Kelvin "Hollywood" Smith. See Am. Compl. ¶¶ 4-6. Nonetheless, Mr. Ashford asserts that he was not kept separate from Mr. Smith and that he was attacked by Mr. Smith and other inmates on a "court bus" en route from D.C. Superior Court to the B.C. Jail. Id. ¶ 5. Mr. Smith later got into a "physical altercation" with the Mr. Ashford's father and vowed to "get even[.]" Id. ¶ 6. As a result, a second separation order was issued ("Separation Order") and made a permanent part of Mr. Ashford's file. Id. ¶¶ 6-7. The exact cause of the hostility between Messrs. Ashford and Smith is not stated in the amended complaint.

  In August 1997, Mr. Ashford was transferred to the care of the BOP. He eventually wound up at the United States Penitentiary in Terre Haute, Indiana, in 1998. Apparently, Mr. Smith was also placed at that facility and was "attempting to rally other B.C. Offenders to attack plaintiff[.]" Id. ¶ 12. Mr. Ashford claims to have notified his correctional counselor of this threat, but nothing happened. Page 3

  On November 14, 2001, Mr. Ashford was transferred to USP Beaumont from the Federal Correctional Complex at Beaumont. Id. ¶ 14. Unbeknownst to Mr. Ashford, Mr. Smith was already at USP Beaumont. Id. On November 16, 2001, as Mr. Ashford exited the prison commissary, he was approached by D.C. inmates Kobi Mowatt and Mark Bundy, who allegedly attacked him with homemade knives after stating, "`[Y]our [sic] about to get paid, Hollywood (Smith's nickname) sent us[.]'" Id. ¶ 15. Mr. Ashford was stabbed 13 times, requiring a three-week hospitalization to recover from his injuries. Some of his wounds appear to be permanent and may require additional medical treatment. Id. ¶¶ 15, 16.

 II. Legal Standards

  A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. The Court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the Court does not need to accept as true any of the plaintiff's legal conclusions. See Alexis v. District of Columbia, 44 F. Supp.2d 331, 336-37 (D.D.C. 1999). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This procedural device is not a "disfavored legal shortcut" but a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of Page 4 material fact exists, the Court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). To be "material" and "genuine," a factual dispute must be capable of affecting the substantive outcome of the case. Anderson, 477 U.S. at 247-48; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

 III. Analysis

  The amended complaint sets forth two causes of action: (1) a claim under 42 U.S.C. § 1983 alleging violations of the Eighth and Fourteenth Amendments to the U.S. Constitution, and (2) a common law negligence claim. Mr. Ashford asserts that the District and its "Interstate Compacts Administrators," Ms. Britton and Mr. Mathews, had a duty to relay any information about threats to the personal safety of inmates who were transferred elsewhere to serve their sentences.*fn2 See Compl. ¶ 17. He also contends that the failure of the D.C. Department of Corrections to notify receiving institutions that there was a permanent separation order in his file resulted from "a local Municipal custom, policy and practice . . . to effect the objectives of the District . . . to effect the transfers of inmates outside the ambit of the D.C. Department of Corrections" who otherwise would Page 5 not have been accepted by a State prison system or the BOP. Id. ¶ 18. This local custom, policy and practice was allegedly "based on negligence and recklessness pursuant to an official policy of the District of Columbia." Id. ¶ 19.

  A. Section 1983

  The District of Columbia argues for dismissal of the § 1983 claim on the grounds that Mr. Ashford "cannot prove the actions attributed to Defendants were a custom or policy of the District to violate plaintiff's constitutional rights . . .[and that] plaintiff has no constitutional right to be segregated." Def's Mot. to Dismiss at 4. Basically, the District asserts that any cognizable claim by Mr. Ashford — if one exists — lies only in common law negligence, not the U.S. Constitution. See Daniels v. Williams, 474 U.S. 327, 328 (1986) ("[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.") (emphasis in ...

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