The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Richard Moonblatt -- a Caucasian, Jewish, homosexual male -- was incarcerated on three separate occasions at the Correctional Treatment Facility located in the District of Columbia. He brings this case against defendants for the alleged violation of his civil rights on account of his race, religion, and sexual orientation. Defendants are the District of Columbia; the Corrections Corporation of America ("CCA"); Steve Smith, a warden employed by the District; Fred Figueroa and John Caulfield, wardens of the Correctional Treatment Facility and employees of CCA; and John Does 1 through 8, alleged employees of the District of Columbia at the Correctional Treatment Facility. Moonblatt seeks damages pursuant to 42 U.S.C. § 1983 (Count I) and 42 U.S.C. § 1981 (Count II) for violation of his constitutional rights. He further requests relief for injuries sustained due to the District's negligent failure to supervise, hire, and train correctional officers (Counts III and IV), as well as the District's negligence in caring for him and intentional infliction of emotional distress (Count V). Finally, Moonblatt seeks damages for defendants' violation of the D.C. Human Rights Act ("DCHRA") (Count VI). On each count, Moonblatt seeks compensatory damages in the amount of five million dollars, punitive damages in the amount of five million dollars, plus interest, costs, and attorney's fees.
The District of Columbia has moved to dismiss this action pursuant to Fed. R. Civ. P. 12 (b)(6), or in the alternative for summary judgment in its favor pursuant to Fed. R. Civ. P 56(c). The District moves on the following grounds: (1) Moonblatt has failed to establish the requisite state custom or practice that caused the alleged constitutional violation under 42 U.S.C. § 1983; (2) Moonblatt has failed to allege that the District infringed upon his ability to make and enforce contracts or engaged in a policy or custom that caused him harm as required under 42 U.S.C. § 1981; (3) Moonblatt has failed to allege that he was harmed by persons employed by the District; and (4) Moonblatt has failed to make a timely claim under the DCHRA. The District further contends that because some of Moonblatt's allegations rest upon principles of respondeat superior, which according to the District is inapplicable to municipalities under either § 1983 or § 1981, those claims must be dismissed. CCA, a private company that manages and operates the Correctional Treatment Facility, and Fred Figueroa, an employee of CCA and a warden of the Correctional Treatment Facility, join the District's motion on Counts I, II, and VI.*fn1 Upon careful consideration, and for the reasons set forth below, the Court will deny defendants' motions to dismiss.*fn2
Moonblatt was incarcerated in District of Columbia correctional facilities operated by CCA during the following approximate periods: (1) January 6, 2004 through October 29, 2004; (2) November 22, 2005 through February 28, 2005; and (3) February 16, 2006 through December 30, 2006. Compl. ¶¶ 8, 11. He filed this complaint on October 25, 2007. During his first period of incarceration, Moonblatt alleges that: (1) he was consistently refused medical treatment for his brain tumor and ignored by medical staff, see Compl. ¶¶ 12, 25, 29; (2) he was at various times denied mandatory recreation time, kosher or vegetarian meals, sick call, adequate clothing, and running water, see Compl. ¶¶ 13, 15 18, 44; (3) he was not removed from his cell after being sexually harassed, see Compl. ¶ 16; (4) he was threatened, attacked, beaten, spit upon, assaulted, and stabbed by other inmates in the presence of correctional officers who did not attempt to aid him, see Compl. ¶¶ 36, 38, 39, 41-43, 52-53; (5) he was physically and verbally assaulted by Sergeant McIntyer, Corporal Gordon, Corporal Knight (who referred to him as a "filthy Jew"), Lieutenant Holmes (who referred to him as a "fag"), Officer Murray (who called him a "filthy Jew," punched him, and spit in his face), Corporal Thomas (who directed racist and homophobic remarks towards him), Officer William (who directed homophobic and racist remarks towards him and physically threatened him), Officer Davis (who directed racist and homophobic remarks towards him and physically threatened him), Officer Little (who made explicit sexual remarks and threatened him), Officer Marion, Officer Cooper (who assaulted him and called him "Jew boy," "fag," and "whitey"), Officer Jordon, Officer Jackson, Officer Cob, and Officer Drummond (who directed homophobic and religious slurs towards him), see Compl. ¶¶ 14, 17, 19, 21, 23-24, 31, 33, 46-51; and (6) he was sodomized by Officer Robert, see Compl. ¶ 35.
During Moonblatt's second period of detention, he alleges that he was assaulted by other inmates in the presence of correctional officers who did not intervene on his behalf, see Compl. ¶¶ 52-53. Finally, during his third period of incarceration, Moonblatt alleges that: (1) he was denied medical treatment for his brain tumor and then given incorrect medication on subsequent occasions, see Compl. ¶¶ 56, 61-62; (2) he was verbally harassed by correctional officers, who referred to him as a "fagot" [sic] and consistently directed other racial and religious slurs towards him, see Compl. ¶¶ 54, 58, 65; (3) he was physically assaulted on multiple occasions, including one incident during which a correctional officer slammed his head against a concrete wall, see Compl. ¶¶ 57, 59, 60, 66; and (4) he was physically and verbally assaulted in the presence of correctional officers who did not intervene and refused to transfer him to another cell pursuant to his requests, see Compl. ¶¶ 55, 64. Moonblatt also alleges that he repeatedly gave written notice to the District pursuant to D.C. Code § 12-309 that he would seek relief for his mistreatment, thereby providing adequate notice of his claims. See Compl. ¶ 71.
The Federal Rules of Civil Procedure require only that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). However, a court "must not make any judgment about the probability of the plaintiff's success, for a complaint 'may proceed even if it appears that a recovery is very remote and unlikely'" or that the plaintiff "will fail to find evidentiary support for his allegations." Aktieselskabet AF 21. November 21 v. Fame Jeans, Inc., 525 F.3d 8, 17 (D.C. Cir. 2008).
The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 127 S.Ct. at 2200 (citing Bell Atl. Corp., 127 S.Ct. at 1965)). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint."
Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "legal conclusions cast in the form of factual allegations." Aktieselskabet AF 21. November 21, 525 F.3d at 17; see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan, 478 U.S. at 286)
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true, accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
I. Count I: 42 U.S.C. § 1983 Claims Against the District, ...