The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Patti Hammond Shaw, a transgendered female who has undergone sex reassignment surgery and had her sex legally changed to female, brings this civil damages action against defendant District of Columbia (the "District") alleging that her treatment upon her arrest and while she was detained violated her rights under the Eighth Amendment to the United States Constitution and District of Columbia statutory and common law. Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, the District has moved to dismiss or, in the alternative, for summary judgment.*fn1 (District Mot. to Dismiss, July 27, 2011 [Dkt. No. 7] ("District Mot.").) For the reasons stated herein, the District's motion will be GRANTED IN PART AND DENIED IN PART. Plaintiff's Eighth Amendment claim, brought under 42 U.S.C. § 1983, and her claims for assault, battery, negligence, and punitive damages will be dismissed; plaintiff's remaining, non-federal, claims, alleging violations of the D.C. Human Rights Act and intentional or negligent infliction of emotional distress will be remanded to the Superior Court of the District of Columbia.
As alleged in the Amended Complaint, at the time the events giving rise to this action occurred, plaintiff, a 44-year old transgendered African-American, had undergone sex reassignment surgery and had her sex legally changed to female. (Amended Compl. ¶ 3.) On May 24, 2009, at around 10:30 p.m., she dialed 911 to report that she thought her friends had stolen her purse from her house. (Id. ¶ 8.) Some time later, she called 911 again to ask why the police had not yet arrived. (Id. ¶ 9.) Eventually, and before any police appeared, she found her purse in the house. (Id. ¶ 10.)
Later that same evening, plaintiff was in her front yard with her dogs when she was robbed by two young men. (Id. ¶ 11.) She called 911 again and, around midnight, two Metropolitan Police Department (MPD) officers arrived at her house. (Id. ¶¶ 12, 13.) Plaintiff described the robbery and also explained that she had made a mistake when she called about the theft of her purse. (Id. ¶ 13.) The officers told plaintiff that they were going to ask a detective to come to her house and, about ten to fifteen minutes later, Detective Kevin Tighe of the MPD arrived. (Id. ¶¶ 13, 14.) Plaintiff tried to tell her story to Detective Tighe, but he was "rude," and, "[i]nstead of asking about the incident," he "questioned her about personal information such as whether she was married, who lived with her and whether she takes medication." (Id. ¶¶ 14, 15.) Detective Tighe also asked plaintiff for her social security number and looked around the inside of her home. (Id. ¶ 15.)
A few days later during a telephone conversation, Detective Tighe told plaintiff that he disbelieved her story and that he was going to issue a warrant for her arrest for making a false report to a police officer. (Id. ¶¶ 15, 16.) Detective Tighe executed a warrant which noted that plaintiff had identified herself to the responding police officers as a female, but that he would consider her a male for purposes of his criminal complaint. (Id. ¶¶ 16, 17.) Despite plaintiff's efforts to explain the situation, on June 13, 2009, she was served with a letter stating that there was a warrant for her arrest and requesting that she turn herself in. (Id. ¶¶ 17, 18.) On June 18, 2009, at 4:00 a.m., plaintiff turned herself in to the Sixth District Police Department, located at 100 42nd Street NE, Washington, DC. (Id. ¶ 19.)
After taking plaintiff's fingerprints, the MPD officers on duty learned that plaintiff was previously a man named Melvin Hammond. (Id. ¶ 20.) Plaintiff informed the officers that her sex had been legally changed to female, and she presented identification showing that to be the case. (Id. ¶ 21.) Nonetheless, plaintiff was placed in the men's lockup unit, albeit in a cell by herself, and held there for approximately four hours. (Id. ¶¶ 22, 23.) During that time, the male inmates verbally harrassed plaintiff by requesting to see her vagina, breasts and buttocks. (Id. ¶ 23.) In addition, as plaintiff was being removed from her cell, the male inmate who was being brought in touched her on the buttocks. (Id. ¶ 24.)
From the men's lockup unit, MPD officers took plaintiff to the District of Columbia Superior Court, located at 500 Indiana Avenue NW, Washington, DC, where they turned her over to the United States Marshals Service ("Marshals Service"). (Id. ¶ 25.) Once in the custody of the Marshals Service, plaintiff was repeatedly asked her to state her name and when she answered by providing her legal female name, she was told that she was wrong, that she was a man, and that her "real" name was Melvin, even though plaintiff repeatedly stated that she was female and showed them her legal identification which stated "F" under "Sex." (Id. ¶ 26.) A female marshal was prepared to search plaintiff, but then one of the male deputy marshals, stating that plaintiff was a man and should be searched by a man, took her to another room where male inmates were being processed and searched her. (Id. ¶ 27.) In the course of his search, which lasted about five minutes, that deputy marshal groped plaintiff's breasts, buttocks and between her legs repeatedly and excessively. (Id. ¶ 27.) During this time, deputy marshals also verbally harassed plaintiff, making jokes about her breasts and gender such as, "those must be implants, because hormones don't make breast stand up so perky like that" and "he's the best I've ever seen." (Id. ¶ 28.)
Around 8:00 a.m., deputy marshals put plaintiff in a holding facility with approximately thirty men that were going to traffic court. (Id. ¶ 29.) Several of the men in the holding facility touched her inappropriately, verbally harassed and propositioned her, threatened to punch her if she did not show her breasts and shook their penises at her. (Id.) Plaintiff asked to be moved, explaining to the deputy marshals that she should not be held with the men, but she was left in the holding facility until late afternoon. (Id. ¶ 30.) During that time, plaintiff's request that she be taken to another location to urinate was denied, so she was forced to urinate into a cup in full view of the men in the holding facility. (Id. ¶ 31.) Around 4:00 p.m., deputy marshals took plaintiff and five other detainees to a courtroom. (Id. ¶ 32.) They were all in handcuffs attached by chains to their waists. (Id.) One of the other detainees touched plaintiff inappropriately several times. (Id.) When plaintiff complained, deputy marshals told the man to stop and told plaintiff to ignore him. (Id.) When the man continued his inappropriate behavior, the deputy marshals took no further action. (Id.) Plaintiff was released after her court appearance.*fn2 (Id. ¶ 33.)
On November 24, 2009, plaintiff notified the District that she intended to file a lawsuit seeking damages for her treatment by MPD police officers and deputy marshals while in custody on June 18, 2009. (Def.'s Mot., Ex. 1.) On February 2, 2011, plaintiff initiated the above-captioned action by filing a complaint in Superior Court against the District, as well as the Marshals Service and the United States Attorney General. (Compl., Feb. 2, 2011.) That complaint included claims under the D.C. Human Rights Act, and for the common law torts of assault, battery, intentional and negligent infliction of emotional distress, and negligence. (Id.) On May 16, 2011, plaintiff amended the complaint to claim that defendants had violated her right under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment. (Am. Compl. ¶¶ 88-96.) After plaintiff added the federal claim, the District, with the consent of the federal defendants, removed the case to federal court. (Notice of Removal, May 20, 2011 [Dkt. No. 1].)
On June 30, 2011, the United States filed a motion to dismiss all claims against the federal defendants. (United States' Mot. to Dismiss, June 30, 2011 [Dkt. No. 5].) After plaintiff failed to respond, that motion was granted as conceded. (Order, July 19, 2011 [Dkt. No. 6].) On July 27, 2011, the District filed the pending motion seeking dismissal or summary judgment as to each of plaintiff's claims, which plaintiff opposes. (Pl.'s Opp'n, Aug. 11, 2011 [Dkt. No. 9].)
The motion is now ripe for the Court's consideration.