The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Melodie Venee Shuler brought this suit pro se against D.C. Department of Corrections Captain Nora Talley and the District of Columbia, alleging violation of the equal protection component of the Fifth Amendment due to Captain Talley's alleged refusal to allow Ms. Shuler to visit her husband at the D.C. Jail. Ms. Shuler claims she was denied the right to visit based on her race and gender. Captain Talley and the District now move for summary judgment, because there is no evidence of discriminatory purpose and because there is no evidence of an unconstitutional custom or policy. As explained below, the motion will be granted.
Ms. Shuler's claim*fn1 generally arises from a District of Columbia criminal contempt action against her husband, Melvin Delaney,*fn2 and from difficulties Ms. Shuler encountered when she attempted to visit Mr. Delaney while he was held at the D.C. Jail. Mr. Delaney was incarcerated at the D.C. Jail from May 29, 2007 to September 25, 2007. Compl. ¶¶ 19-20. Ms. Shuler is an attorney, and she sought to assist Mr. Delaney in dealing with his legal problems.
Count 12 of the Complaint alleges that the District and Captain Talley are liable for violating Ms. Shuler's right to equal protection because Captain Talley refused to allow Ms. Shuler to visit Mr. Delaney in the D.C. Jail on June 4, 2007 and July 27, 2007 based on Ms. Shuler's gender (female) and race (African-American). See Compl. ¶¶ 155-60. More specifically, that portion of the Complaint alleges:
157. Discrimination based on race when Ms. Shuler was treated different that other persons solely based on race, because the DOC do not monitor persons of other races, selection of monitoring based on race, did not check the verification of cases to determine if attorney's were attorney's on record before July of 2007, do not inquire about documents or items shown to inmates, do not follow, harass, insult, defame character, state will call bar association or counsel to have something done to the persons based solely on their race.
159. If the Plaintiff was of another sex or race these incidents from June 2007 to September of 2007, would not have occurred. Several Correctiona Officers, including the defendant Captain Nora Talley . . . and the District of Columbia had and have a policy, practice and custom of discriminating against young, black and/or African-American males by:
a. targeting, young, black female attorneys by constant surveillance the communication between the client and the attorney, questioning the purpose of the attorney visit and reviewing the paper work of the attorney during the visitation without taking the same action of other attorneys [sic] [ ] and failing to have a penological interest or any other legally justified basis but only have knowledge that the attorney is females are black and/or African-American, young,
b. continuously refusing to get young, black females property locked in the locker but having not [sic] difficulty in getting the property of older persons of other races, ethnicities and sexes property without a problem.
e. denying or interfering with young, black females rights to enjoy privileges other citizens of different races, cultural ethnicities, and male citizens enjoy without any legally penological or sufficient basis; those privileges include[ ] being able consult with their clients at the D.C. Jail without having Correctional Officers interfere with or deny young, black females the same privileges other citizens are not denied or interfered with.
160. As a result of the Defendants' intentional, reckless, and malicious disregard for the Plaintiff's rights Ms. Shuler suffered on or about June 4, 2007 and July 27, 2007, . . . Ms. Shuler suffers from reoccurring headaches, loss of interest in visiting her clients incarcerated at the D.C. Jail which is a necessary consultation of her clients, unusual irritability and a diminished ability to think or concentrate, inconvenience, annoyance, humiliation, embarrassment, nervousness, and injury to her reputation.
Id. ¶¶ 157-60 (errors in original). Count 12 alleges that Captain Talley acted pursuant to a custom or policy of the District of Columbia and thus that both the District and Captain Talley are liable. See id. ¶ 159.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 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, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, summary judgment is properly granted against a party that "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Id.; Celotex, 477 U.S. at 322.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present ...