The opinion of the court was delivered by: Judge Royce C. Lamberth, United States District
Before the Court is defendants' Motion [77 & 80] to Dismiss or for Summary Judgment. In this class action lawsuit a class of prisoners who were incarcerated by the District of Columbia Department of Corrections ("D.O.C.") allege that D.O.C. officers violated their constitutional rights under the First and Eighth Amendments, and committed common law torts, while transporting the prisoners between correctional facilities in Ohio and Virginia in 1999. The defendants -- the District of Columbia and the individual guards -- have moved to dismiss for failure to state a claim, or, in the alternative, for summary judgment. Having considered matters outside the pleadings, the Court treats the motion as one for summary judgment.
Upon consideration of the motion, the memorandum in support, the opposition and the reply thereto, the stipulations between the parties, and the entire record herein, the motion is denied as to the District of Columbia. As to the individual defendants, the Court holds that plaintiffs have adequately alleged that they violated the prisoners' constitutional rights. The Court tentatively concludes, however, that the individual defendants are entitled to qualified immunity on the Eighth Amendment claims, on the basis that the Eighth Amendment rights in question were not clearly established at the time. Since this issue has not been briefed by the parties, the Court orders that plaintiffs shall either voluntarily dismiss the individual defendants, or shall file within 10 days of this date a memorandum of points and authorities explaining why the individual defendants are not entitled to qualified immunity. The Court's reasoning is explained more fully below.
I. STANDARD ON SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, a court grants summary judgment only when the pleadings, affidavits, depositions, answers to interrogatories, and admissions of record disclose no genuine issues of material fact and show that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The movant initially bears the burden of demonstrating the absence of a genuine, material fact issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A disputed issue of material fact is genuine and thus precludes summary judgment where the Court determines that a reasonable jury could conceivably find in favor of the non-moving party on that fact issue. Anderson, 477 U.S. at 248.
A court generally must "assume the truth of all statements proffered by the party opposing summary judgment" and construe all evidence in favor of the non-moving party. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). See Anderson at 255; Carter v. Greenspan, 304 F. Supp. 2d 13, 21 (D.D.C. 2004). Indeed, the Court must "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). See also Washington Post Co. v. United States Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).
In addition to the affidavits submitted on behalf of plaintiffs, the parties have stipulated as follows: "Each plaintiff class representative in his interrogatory answers verified under oath the truth of those allegations in plaintiffs' First Amended Complaint that the complaint indicates are within his personal knowledge." Stipulation . The First Amended Complaint is, for the most part, therefore treated as a verified complaint.
Plaintiffs are a class of District of Columbia criminal convicts who were transported from a prison in Youngstown, Ohio to one in Waverly, Virginia in 1999. First Amended Complaint  ("1AC") ¶ 1. The prisoners were transported by bus in two groups; one traveled on February 15-16, 1999, in a trip alleged to last at least 15 hours, while the other group traveled on March 1-2, 1999, in a trip that allegedly took 10 or more hours. The prisoners were, at all relevant times, being held under the custody of the District of Columbia. They were incarcerated in facilities in other states because of the District's practice of contracting with other states for prison space, due to space shortages in the District's facilities.
Plaintiffs allege that the defendant District of Columbia, through its Department of Corrections ("D.O.C."), as well as the individual defendants, who are or were D.O.C. corrections officers, were responsible for the bus transports from Youngstown.*fn1
The named class representatives in this case had participated in a class action lawsuit against Corrections Corporation of America, the private company that ran the Northeast Ohio Correctional Facility at Youngstown.*fn2 The suit challenged prison conditions at Youngstown. Because the District of Columbia housed prisoners in the Youngstown prison, the suit had received some publicity in the Washington, D.C. area. After the suits were brought, plaintiffs in this case were scheduled to be transferred from the prison at Youngstown to the Sussex II correctional facility in Waverly, Virginia.
The D.C. guards were responsible for preparing and loading the prisoners on the buses at Youngstown, transporting them by bus to Sussex II, and unloading them upon arrival. Plaintiffs describe each trip as a "ride from hell." First and foremost, the prisoners allege that the guards secured their restraints far too tightly. The prisoners wore handcuffs which were secured with a "black box," a black device that fits between each hand and provides for a tighter, more rigid, and presumably more secure restraint. Apparently, at least some of the plaintiffs also had belly chains applied -- chains that are secured around the waist and then fastened to the handcuffs, thus limiting a prisoner's range of mobility -- and had ankle shackles.
According to the complaint, each prisoner's restraints were applied far too tightly, with the handcuffs cutting off circulation and digging into and sometimes cutting the skin. There are also some complaints about ankle shackles being applied too tightly. The restraints remained too tight throughout the trip, despite the prisoners' complaints. Upon arrival at Sussex, prisoners all experienced pain and discomfort; several had injuries, ranging from minor ones to serious injuries requiring ongoing medical attention. The most common complaint is of bleeding lacerations around the wrist.
Plaintiffs allege other forms of abuse. For instance, some were not given food or anything to drink, though meals and drinks had been packed for them at Youngstown. Factoring in the time between their last meal or drink at Youngstown and their first meal or drink at Sussex II, this meant that some prisoners went as long as 24 hours without food or drink. Plaintiffs point out that they were not allowed to eat even when the buses stopped so that the guards could eat at fast food restaurants. Other prisoners were not allowed to use the toilets on the buses, with the result that all plaintiffs complain of experiencing the discomfort of having to restrain themselves from urinating or defecating, and many plaintiffs complain of having actually urinated or defecated on themselves.
Several prisoners also complain that they were not allowed to take prescription medications during the trip, despite requests to do so.*fn3 See, e.g., 1AC ¶¶ 42, 45, 46, 53, 56, 58, 67, 73, 76, 79, 83. Prisoners were denied a range of medications, including those for the treatment of high blood pressure, diabetes, and asthma. Some of the prisoners who were denied medication reported dizziness and fatigue as a result. A few prisoners reported more serious effects. See id. ¶ 58 (denial of insulin led to diabetic suffering dizziness and severe headache, then vomiting and losing consciousness); ¶ 64 (denial of anti-seizure medication caused prisoner to lose consciousness twice during trip); ¶ 83 (denial of blood pressure and diabetes medications led prisoner to suffer severe headache and vomit).
Finally, the prisoners allege that they complained many times about each of these conditions. These complaints and requests were generally met by denials and abusive remarks that referred to the Youngstown lawsuit. See, e.g., id. ¶ 22 ("We have a place for all of y'all that want to sue CCA."); ¶ 23 ("You will have a whole lot to sue about before you get off this bus."); ¶ 24 (in response to complaints about restraints and lack of food, officer said "You sued Ohio, sue me."). The prisoners allege that they were subjected to this taunting from the time they were picked up at Youngstown until the time they entered Sussex II.
The prisoners brought this class action lawsuit, alleging that the conditions they were subjected to during the transports to Sussex II constituted cruel and unusual punishment in violation of the Eighth Amendment. They also allege that the guards subjected them to these conditions in retaliation for their participation in the Youngstown suit, a separate violation of their First Amendment rights. They further assert pendant common law claims for assault and battery, negligence, and intentional infliction of emotional distress. On June 26, 2002, this Court certified a plaintiffs' class. See Order . The parties have conducted discovery, and have identified a group of class representatives whose liability claims are to be tried first.