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Shaw v. District of Columbia

United States District Court, District Circuit

May 13, 2013

PATTI HAMMOND SHAW, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Patti Hammond Shaw ("Shaw"), a transgender woman who has undergone sex reassignment surgery and had her sex legally changed to female, alleges that on three separate occasions she has been arrested in the District of Columbia and subjected to treatment by the Metropolitan Police Department ("MPD") and the United States Marshals Service ("USMS") in violation of the Fourth and Fifth Amendments to the United States Constitution, the Federal Tort Claims Act, the D.C. Human Rights Act, and D.C. tort law. (First Am. Compl., Sept. 17, 2012 [ECF No. 27] ("Compl.").) She brings this action against the District of Columbia ("District"); MPD Chief of Police Cathy Lanier, in her official capacity; Lieutenant Merrender Quicksey, an MPD officer, in her individual capacity; the United States; Benjamin E. Kates, Steve Conboy and Troy Musgrove, USMS Marshals, in their individual capacities (collectively the "USMS defendants"); and other unknown MPD and USMS employees.[1]

Before the Court are three motions to dismiss: one filed jointly by the USMS defendants ("USMS Mot.") [ECF No. 28]; one filed by Quicksey ("Quicksey Mot.") [ECF No. 41]; and one filed by Lanier ("Lanier Mot.") [ECF No. 37]. For the reasons stated herein, the Court will (1) grant the USMS defendants' motion as to the claims against Conboy, but deny it as to the claims against Kates and Musgrove; (2) deny Quicksey's motion; and (3) grant Lanier's motion.

BACKGROUND

I. FACTS

The following factual recitation is based on the allegations in plaintiff's complaint and must, for purposes of these motions, be accepted as true. Plaintiff is now, and was at all times relevant to this case, a female whose legal name is Patti Hammond Shaw.[2] (Compl. § 2.) Plaintiff is also a "transgender woman, "[3] who has "undergone sex reassignment surgery, " and "had her sex legally changed [from male] to female."[4] ( Id. § 2.)

Since changing her sex to female, plaintiff has been arrested by the MPD on three occasions: June 18, 2009, December 10, 2009, and June 6, 2012. ( Id. §§ 15, 44, 73.) In the District, the first time a person is arrested, he/she is assigned a unique Police Department identification number ("PDID"), which is recorded in the MPD's computerized record system. ( Id. §§ 96-97.) When plaintiff was first arrested by the MPD she was male, and neither the name nor sex associated with her PDID number has ever been changed. ( Id. §§ 98-100.)

After each of the three arrests that are the subject of plaintiff's complaint, the MPD held her with the male detainees, first at the Sixth District police station ("6D")[5] and then at the MPD's Central Cellblock. (Compl. §§ 17, 46, 74.) At 6D, plaintiff was held in a single cell in the male area, facing the men who were in the cell across from her. ( Id. ) Similarly, in the Central Cellblock plaintiff was held in a single cell in the men's area, facing the male detainees in the cell across from her.[6] At both locations, the male detainees verbally and physically harassed her, as did one MPD officer.[7] ( Id. §§ 19, 48, 52, 53, 76, 81, 82.) During December 2009 and June 2012, Quicksey was the manager of the Central Cellblock ( id. §§ 5, 51), "the individual designated by the Commanding Officer to be responsible for managing all aspects of the station/holding facility area on a 24-hour basis." MPD Standard Operating Procedures for Holding Facilities at 2 (May 30, 2003) ("MPD Holding Facilities Procedures"). The complaint alleges that he failed to train, supervise or discipline MPD employees in the Central Cellblock in the proper treatment of female transgender detainees. (Compl. §§ 153, 156).

Essentially, the MPD treated plaintiff as if she were a male, despite knowing that she was a transgender female, [8] and in apparent violation of its own policy, which provides that "[w]hen male and female prisoners are detained in the holding facility for adults... the male and female prisoners shall be separated by sight and sound." MPD Holding Facilities Procedures at 11.[9] The MPD's General Order for "Handling Interactions with Transgender Individuals" was also in effect at the time of plaintiff's arrests. See MPD General Order 501.02 (Oct. 16, 2007) ("MPD Transgender Order"). Its provisions "supplement" existing orders unless "a directive involving the same operation is clearly contradictory, " in which case the provisions "supersede and amend the contradictory language." Id. at 10. It provides, in the section headed "Processing and Housing of Transgender Arrestees, " that "[w]henever practical, transgender arrestees shall be placed in a cell by him/herself, even when more than one transgender person is in custody at the same MPD facility at the same time."[10] Id. at 7. It also provides that "[m]embers shall bring conflicting gender information to the attention of the U.S. Marshal's Service when the arrestee is remanded to their custody." (MPD Transgender Order at 8.) When the MPD Transgender Order was adopted in 2007, Conboy was the U.S. Marshal for the Superior Court.

From MPD custody, plaintiff was transferred to the USMS cellblock at Superior Court and to USMS custody.[11] ( Id. §§ 21, 58, 86.) The USMS also knew that plaintiff was legally a female, [12] but treated her as if she were a male. Each time she was transferred to the USMS cellblock, she was searched by male USMS employees ( id. §§ 23-26, 58-59, 87), even when female USMS employees were available.[13] The USMS Policy Directive on "Body Searches, " the purpose of which is to set forth the "procedures necessary for conducting both reasonable and legal searches, " provides that an "[i]n-custody [s]earch" is conducted "upon acceptance of a prisoner at the USMS cellblock."[14] USMS Policy Directive 99-25, Body Searches at 3 (July 7, 1999) ("USMS Search Policy"). An "in-custody" search requires removal of outer clothing for inspection and a visual inspection of the detainee.[15] Id. at 2-3. A "strip search" is also authorized under certain circumstances. Id. at 3. It differs from an in-custody search in that it involves a "complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities, " but is similar in that it " should not involve touching the skin surface."[16] Id. Generally, both types of searches are to be conducted "by a deputy of the same sex, " although "in extenuating circumstances, or when the need for security dictates, an in-custody search may be conducted by a deputy of the same sex." Id. at 5.

As alleged, the searches of plaintiff did not comply with the USMS search policy for "in-custody" or "strip searches" as they were conducted by male USMS employees, in view of male detainees. In addition, during the searches, male USMS employees verbally harassed her ( id. §§ 26, 59)[17] and intimately and inappropriately touched her.[18] ( Id. §§ 25, 87.) In December 2009, the search was conducted by Musgrove, the USMS District Security Officer at the Superior Court. ( Id. §§ 10, 58, 59.)

Plaintiff was also held in a bullpen with male detainees ( id. §§ 30, 64, 86), even after requesting to be moved.[19] While there, she was harassed by the male detainees ( id. §§ 31, 65)[20] and subjected to other indignities.[21] ( Id. § 34.) The USMS employees who were present did nothing to help stop the harassment, even when plaintiff complained. ( Id. §§ 34, 65.)

When the MPD's Transgender Order was adopted in 2007, Conboy was the U.S. Marshal for the Superior Court. ( Id. § 9.) The complaint alleges that in response to that order he established policies of having "male USMS marshals search female transgender detainees" ( Id. §§ 126, 130, 134) and of "intentionally disregarding gender information about transgender detainees communicated by employees of the Metropolitan Police Department to members of the United States Marshals Service upon remand of the detainee to the custody of the United States Marshals Service" ( id. §§ 9, 28, 39, 40, 61, 68, 69, 90), and that these policies remained in effect at the time of plaintiff's arrests. In 2009, Kates was the U.S. Marshal for the Superior Court. ( Id. § 8.) The complaint alleges that he maintained Conboy's policies and failed to train, supervise or discipline USMS employees in the proper treatment of female transgender detainees. ( Id. §§ 119, 123, 127, 140).

II. PROCEDURAL HISTORY

Based on her treatment following each arrest, plaintiff filed two separate complaints, which were consolidated in the above-captioned case. ( See Memorandum Opinion and Order, Sept. 17, 2012 [ECF No. 26].) The operative complaint is the First Amended Complaint, which includes eleven separate claims, four of which are addressed by the motions to dismiss filed by the USMS defendants, Quicksey and Lanier.[22] Those claims are: (1) a Fourth Amendment Bivens claim against Conboy, Kates, Musgrove and other unknown USMS employees based on the three searches that took place which plaintiff was in USMS custody (Count VI) (Compl. §§ 122-134) ("Fourth Amendment Bivens Claim"); (2) a Fifth Amendment Bivens claim against Conboy, Kates, and other unknown USMS employees based on the conditions of confinement while she was in USMS custody (Count VIII) ( id. §§ 137-147) ("Fifth Amendment Bivens Claim"); (3) a Fifth Amendment § 1983 claim against Quicksey and unknown MPD employees based on the conditions of confinement while plaintiff was in MPD Custody (Count IX) ( id. §§ 148-156) ("Fifth Amendment § 1983 Claim"); and (4) a D.C. Human Rights Act claim against the District of Columbia, Lanier, and unknown MPD employees, for discrimination on the basis of gender identity and expression (Count X) (i d. §§ 157-64) ("D.C. Human Rights Act Claim").

ANALYSIS

To survive a Rule 12(b)(6) motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal 556 U.S. 662, 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Facial plausibility requires "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotations omitted)."

The USMS defendants have filed a motion to dismiss the Fourth and Fifth Amendment Bivens Claims against them on the ground of qualified immunity (all defendants) or insufficient allegations of personal involvement to state a claim (Conboy and Kates);[23] Quicksey has filed a motion to dismiss the Fifth Amendment § 1983 Claim against her on the ground of qualified immunity; and Lanier has filed a motion to dismiss the D.C. Human Rights Act Claim against her on the ground that service was improper or, in the alternative, that it is redundant. Accordingly, the Court will now turn to the three pending motions to dismiss.

I. QUALIFIED IMMUNITY

Conboy, Kates, Musgrove, and Quicksey each seek to dismiss the constitutional claims against them on the ground that the doctrine of qualified immunity protects them from personal liability. "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see Jones v. Horne, 634 F.3d 588 (D.C. Cir. 2011). As laid out by the Supreme Court, the two pertinent questions in determining whether qualified immunity applies are (1) "whether a constitutional right would have been violated on the facts alleged, " and (2) "whether the right was clearly established" at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001).[24] "Clearly established' for purposes of qualified immunity means that the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.'" Brosseau v. Haugen, 543 U.S. 194, 198 (2004); see also Wilson v. Layne, 526 U.S. 603, 614-15 (1999). The inquiry as to whether a right is "clearly established" "must be undertaken in light of the specific context of the case, not as a broad general proposition." Anderson v. Creighton, 483 U.S. 635, 640 (1987); Wilson v. Layne, 526 U.S. 603, 615 (1999) ("the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established"); Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) (what is "clearly established" is not to be defined at a "high level of generality"). However, "[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has been previously held unlawful." Wilson, 526 U.S. at 615. Officials can be on notice that their conduct violates established law even in "novel factual circumstances, " and there is no requirement that previous cases be "fundamentally similar." See Hope v. Pelzer, 536 U.S. 730, 741 (2002).

A. Fourth Amendment Claim

Plaintiff claims that she was subjected to three unconstitutional searches in violation of the Fourth Amendment while she was in USMS custody, and she seeks to hold the USMS defendants personally liable for those violations. (Compl. §§ 123, 127, 131.) The USMS defendants claim they are entitled to qualified immunity because none of the searches violated a clearly established constitutional right.[25] (USMS Mem. at 15.) For purposes of this argument, the USMS defendants do not distinguish among themselves or the particular searches, even though their potential liability rests on different theories and the facts of each search are not identical.

"The Fourth Amendment prohibits only unreasonable searches." Bell v. Wolfish, 441 U.S. 520, 558 (1979). "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. at 559. The balancing inquiry set forth in Bell "remains the same regardless of how one characterizes the search." See BNSF Ry. Co. v. Dep't of Transp., 566 F.3d 200, 208 (D.C. Cir. 2003). In the particular context of a detention facility, the question of reasonableness requires "balancing the significant and legitimate security interests of the institution against the privacy interest of the inmates." Bell, 441 U.S. at 560. However, an "abusive" search is never reasonable. Id. ("on occasion a security guard may conduct the search in an abusive fashion... such an abuse cannot be condoned").

The USMS defendants argue that "[a]t the time of the searches in June 2009, December 2009, and June 2012, the state of the law was not clearly established as to the classification and searches of transgender female detainees." (USMS Mot. at 12.) To support their argument, the USMS defendants rely primarily on the fact that the "D.C. Circuit has not reviewed the constitutional bounds of transgender arrestees" and the absence of "any cases from any jurisdiction that address whether a male law enforcement officer may constitutionally search a transgendered woman who is listed as being male in law enforcement records." ( Id. ) The flaw in this argument is that it fails to account for the fact that plaintiff is legally a female[26] and that the USMS employees knew it. Thus, contrary to what the USMS defendants argue, the searches of plaintiff were "cross-gender" searches. As the law on cross-gender searches is relevant, the absence of cases directly addressing the constitutional bounds of searches of transgender arrestees is not dispositive.

With respect to the law on cross-gender searches, the USMS defendants argue that the searches of plaintiff are akin to the cross-gender searches held to be reasonable in Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988), Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985), Schmidt v. City of Bella Villa, 557 F.3d 564, 572-73 (8th Cir. 2009), and Farkarlun v. Hanning, 855 F.Supp.2d 906, 924 (D. Minn. 2012). The USMS defendants are correct that cross-gender searches are not "per se" unconstitutional. See, e.g., Farkarlun, 855 F.Supp.2d at 924. But they ignore the fact that in each case they cite, the "cross-gender" search that the court found to be reasonable was significantly less intrusive than the searches of plaintiff in manner and scope. In particular, none of the approved cross-gender searches involved unnecessary and intimate physical contact in conjunction with verbal harassment. See Michenfelder, 860 F.2d at 332 (cross-gender searches not unreasonable if "visual only, involving no touching"); Grummett, 779 F.2d at 494 (cross-gender strip searches not unreasonable because "[f]emale guards [are]... assigned [to positions that] require infrequent and casual observation, or observation at a distance"); id. (routine cross-gender pat-down searches which includes the groin area not unreasonable because "searches do not involve intimate contact with an inmate's body" and the "guards have conducted themselves in a professional manner"); Schmidt, 557 F.3d at 572-73 (unzipping pants to allow photograph of female detainee's tattoo by male officer was not unreasonable); Farkarlun, 855 F.Supp.2d at 927-28 (visual strip search was not unreasonable).

In contrast, the cross-gender searches of plaintiff did involve intimate physical contact.[27] In similar cases, courts have consistently held that, absent emergency circumstances, such a search is unreasonable. For example, in Byrd v. Maricopa County Sheriff's Dep't, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc), the Ninth Circuit held that a cross-gender strip search of pretrial detainee's genital area absent exigent circumstances and in the presence of onlookers was unreasonable. Id. at 1142 (searching officer touched [the pretrial detainee's] inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts, " and "moved his penis and scrotum in the process of conducting the search"). The court explained that the "scope of this intrusion totally thwarted any desire on [the detainee's] part to shield [his] unclothed figure from [the] view of strangers... of the opposite sex...." Id. (quoting York v. Story, 324 F.2d 450, 455 (9th Cir. 2011)). The USMS defendants try to distinguish Byrd as too recent to constitute a "clearly established" right. But the court in Byrd was considering conduct that took place in 2009, and it concluded, after an extensive review of earlier cases, that the "litany of cases over the last thirty years has a recurring theme: cross-gender strip searches in the absence of an emergency violate an inmate's right under the Fourth Amendment to be free from unreasonable searches." Id. at 1146 (citing and discussing cases). Indeed, the USMS's own regulations do not permit physical touching of any kind for either an "in-custody" or a "strip search." See USMS Search Policy at 2-3 ("A strip search (visual examination) should not involve touching the skin surface.")

In the end, the ultimate question for purposes of qualified immunity is whether a reasonable officer would have known that the searches of plaintiff were unreasonable. Based on the alleged facts, which must at this stage be accepted as true, the Court concludes that a reasonable officer would have known that a cross-gender search of a female detainee by male USMS employees that included intimate physical contact, exposure of private body parts, and verbal harassment, all in front of male detainees and male USMS employees in the absence of an emergency, was unreasonable. All of the relevant factors - "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted" - support a finding of unreasonableness. And unlike the cross-gender searches which other courts have found to be reasonable, the searches here were not limited to distant visual observation or touching of outer garments only. In addition, certain aspects of these searches could be found to have been abusive given their highly intrusive nature, the unnecessary verbal harassment, and the unauthorized physical contact. Nor, at least as alleged, were there any extenuating circumstances or security interests that might justify otherwise unreasonable searches.

Accordingly, the Court concludes that plaintiff has alleged a violation of clearly established Fourth Amendment rights and, therefore, that the USMS defendants are not entitled to have those claims dismissed on the ground of qualified immunity.

B. Fifth Amendment Claims

Plaintiff claims that her Fifth Amendment right to due process was violated by the conditions of confinement while she was in USMS custody and in MPD custody. (Compl. §§ 137-156). Specifically, she objects to the USMS's decision to hold her in a bullpen with male detainees, have her urinate in a cup in front of male detainees, transport her while chained to male detainees, and have her searched by male USMS employees and the MPD's decision to hold her in a single cell in the male area of the Central Cellblock. ( Id. §§ 35, 36, 51, 52, 62, 66, 69, 84-86, 141, 142, 143, 145, 150, 152, 155.) Conboy, Kates and Quicksey all argue that they are entitled to qualified immunity because none of these actions violated a clearly established constitutional right. (USMS Mem. at 15; Quicksey Mem. at 3.)

The Due Process Clause, rather than the proscriptions of the Eighth Amendment against cruel and unusual punishment, governs the validity of the conditions and restrictions of confinement for detainees charged with crimes but not yet convicted. See Brogsdale v. Barry, 926 F.2d 1184, 1188 (D.C. Cir. 1991). However, because the due process rights of a pretrial detainee "are at least as great as the Eighth Amendment protections available to a convicted prisoner, " City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998); Hardy v. District of Columbia, 601 F.Supp.2d 182, 190 (D.D.C. 2009), a pretrial detainee's rights are violated if she is "incarcerated under conditions posing a substantial risk of serious harm" and the detaining official's "state of mind is one of deliberate indifference' to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)); see, e.g., Hardy v. District of Columbia, 601 F.Supp.2d 182, 190 (D.D.C. 2009) (violation of constitutional rights of pretrial detainee if the officials "knowingly disregarded a substantial risk of serious harm of which they were aware"). A serious risk of harm includes harm that could be inflicted by other detainees or guards. See, e.g., Farmer, 511 U.S. at 834. To show deliberate indifference, "it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842. The question of "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id.

Plaintiff claims that the conditions of her confinement while in USMS and MPD custody exposed her to a substantial risk of serious harm, that USMS and MPD employees "knew that such harm was likely to occur based on a report from the D.C. Office of the Inspector General, an MPD General Order [the MPD Transgender Order], MPD Standard Operating Procedure [the MPD Transgender Order], and complaints or reports from previous detainees and advocacy groups" (Compl. §§ 20, 35, 40, 48, 52, 65, 69, 77, 85), and that the employees "intentionally, deliberately, or recklessly disregarded that risk." ( Id. §§ 141-43, 143, 145, 151-56.) She concludes that these actions reflected a "deliberate indifference to [her] safety and dignity" in violation of her Fifth Amendment right to due process. ( Id. §§ 143, 145, 150-56; see also id. §§ 20, 35, 36, 40, 48, 52, 65, 66, 69, 77, 85, 139, 141, 142.)

Defendants argue that they are entitled to qualified immunity because plaintiff's due process right not to be held in the alleged conditions of confinement is not clearly established. Specifically, defendants rely on the absence of any cases specifically holding that a female transgender detainee has the right not to be held with male detainees or otherwise treated as if she were male. They also point to the conclusion by a district court in Arizona that a transgender immigration detainee "does not have a clearly established constitutional right to be housed in a women's detention facility or in a single-occupancy cell in a men's detention facility or to be released from detention based solely on her status as a transgender woman." See Guzman-Martinez v. Corrections Corp. of America, 2012 WL 2873835, at *9 (July 13, 2012).

Defendants' arguments again miss the significance of the fact that plaintiff is legally a female and that defendants are alleged to have known that. Thus, the absence of transgender cases is not itself dispositive. Nor is the decision in Guzman-Martinez controlling, because the transgender detainee plaintiff in that case was not legally female. See id. at *2 ("Plaintiff describes herself as a transgender woman, who was born biologically male, but self-identifies as female. She has undergone surgical alterations to her breasts, buttocks, hips, and legs to appear more feminine and, at the time she was detained, was taking hormones and estrogen to prepare for gender reassignment surgery. She does not claim to be biologically female presently.") Rather, as with the Fourth Amendment claim, plaintiff's "clearly established" rights include the same rights as any other female detainee.

Accordingly, the cases involving the sexual harassment of female prisoners are not, as defendants suggest, "irrelevant." And those cases establish that a female detainee has the right not to be sexually harassed, verbally or physically, by other detainees or guards. See Women Prisoners of the District of Columbia Dep't of Corrections v. D.C., 877 F.Supp. 634, 664-67 (D.D.C. 1994) (sexual assault, coercion and harassment of the sort alleged by plaintiff violate contemporary standards of decency and can cause severe physical and psychological harm); see also Farmer v. Brennan, 511 U.S. at 834 (1994) (unsolicited sexual touching, harassment, and coercion are "simply not part of the penalty that criminal offenders pay for their offenses against society" (internal quotations omitted)); Hudson v. McMillian, 503 U.S. at 6-7 (where no legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the harassment itself may also be sufficient evidence of a malicious and sadistic state of mind"). Moreover, at least in this Circuit, "the threshold for establishing a constitutional violation is clearly lower for the pretrial detainees." See Brogsdale, 926 F.2d at 1187 n.4.[28] Considering the allegations in the complaint, applicable MPD policies, and existing caselaw, the Court concludes that a reasonable officer would know that treating a female detainee as plaintiff was treated ( i.e. holding her with male detainees and otherwise treating her as if she were male) exposed her to a substantial risk of serious harm, [29] and, therefore, would know that those actions violated her constitutional rights.

None of the defendants' other arguments alter this conclusion. For example, Quicksey argues that she is entitled to qualified immunity "based on the fact that MPD personnel followed [the MPD Transgender Order] which requires that whenever practical, transgender arrestees shall be placed in a cell by him/herself, even when more than one transgender person is in custody at the same MPD facility at the same time.'" (Quicksey Mot. at 5 (quoting MPD Transgender Order at 7).) However, as plaintiff points out, the MPD employees also failed to comply with the requirement in the MPD Holding Facilities Procedures that male and female detainees be separated by sight and sound, even though there does not appear to be any direct conflict between these two policies.

Conboy and Kates argue that "reports, regulations, and professional guidelines are not independent sources of constitutional rights and certainly do not articulate clearly established constitutional rights." (USMS Mot. at 15 (citing Davis v. Scherer, 468 U.S. 183, 194 & n.12 (1982) ("Official sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision"). Plaintiff does not dispute that this is the law, but points out that her citation to outside sources is not "to establish independent sources of constitutional rights, ' but rather to provide factual grounding to support the inference that the risk to transgender detainees was obvious, well-documented, and known to [d]efendants." (Pl. Opp. to USMS Mot. at 19 (quoting USMS Mot. at 15).) Plaintiff notes, correctly, that the Supreme Court and this Circuit have recognized that "regulations and reports may provide a defendant with notice that... conduct is unconstitutional." Hope, 536 U.S. at 741; Estate of Gaither v. District of Columbia, 833 F.Supp.2d 110, 124 n.7 (D.C. 2011).[30]

Finally, Conboy and Kates also argue that the USMS employees cannot have known that more action was necessary to protect transgender detainees based upon reports and orders from the District of Columbia government. (USMS Reply at 8 (citing Wormley v. United States, 601 F.Supp.2d 27, 41-42 (D.D.C. 2009) (rejecting argument that BOP director should have known to provide more training based on past overdetentions by District of Columbia Department of Corrections officials).) However, given the close interaction and overlapping responsibilities between the MPD and the USMS for post-arrest detentions, plaintiff's contention is not implausible.

Accordingly, the Court concludes that plaintiff has alleged a violation of clearly established Fifth Amendment rights based on the conditions of her confinement while in USMS and MPD custody and, therefore, that neither Kates, Conboy, or Quicksey is entitled to have those claims dismissed on the ground of qualified immunity.[31]

II. SUPERVISORY LIABILITY

As an alternative ground for dismissal, Conboy and Kates each argue that the allegations of the complaint are insufficient to state a claim because they fail to allege that either had "personal involvement" in the alleged constitutional violations. (USMS Mot. at 18.)

To state an individual capacity claim against a government official for damages under Bivens, a plaintiff "must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id.; see also Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C. Cir. 1997) (plaintiff must allege that official "was personally involved in the illegal conduct"). "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. " Iqbal, 556 U.S. at 676. The absence of vicarious liability does not mean, however, that an official who does not directly participate in the constitutional violation can never be personally liable. Rather, in addition to "direct participation" in a constitutional violation, a government official may be held liable in damages for constitutional wrongs resulting from the "establishment of unconstitutional policies" ("Policymaking Liability") or from the "failure to supervise or train subordinates adequately" ("Supervisory and Training Liability"). Haynesworth, 820 F.2d 1245, 1259, 1263 (D.C. Cir. 1987), rev'd on other grounds, Hartman v. Moore, 547 U.S. 250 (2006).

Policymaking Liability: To state a claim against a government official for personal liability in damages "for constitutional infringements resulting from the establishment of unconstitutional policies, " a plaintiff must plausibly allege (1) "that the official against whom liability is asserted has the power - vested either formally or as a practical matter - to formulate policy"; (2) that the official "has exercised that policymaking authority to generate improper practices"; and (3) that there is a "causal connection between the policy established and the wrong committed."[32] Haynesworth, 820 F.2d at 1263-64; see also Weise v. Jenkins, 796 F.Supp.2d 188, 197 (D.D.C. 2011) ("[T]o establish a claim for policymaking liability under Bivens, a plaintiff must show that the official (1) established a policy (2) that was unconstitutional and (3) caused the plaintiff to be injured.").

Supervisory and Training Liability: Alternatively, to state a claim against a government official for damages based on a failure to supervise or train, "[t]he party seeking to impose liability must demonstrate that the official had an obligation to supervise or train the wrongdoer in the manner alleged, that the duty was breached, and that this breach was a proximate cause of the injury."[33] Haynesworth, 820 F.2d at 1260. "[M]ore than mere negligence [is required] to forge the affirmative link' required "between the constitutional infringement and the supervisor's conduct." Id. at 1261. Rather, "[t]he duty to supervise is triggered by proof that, absent effective supervision, harm was not merely foreseeable, but was highly likely, given the circumstances of the case." Id.; see Elkins v. District of Columbia, 690 F.2d 554, 566 (D.C. Cir. 2012); see also Int'l Action Ctr. v. United States, 365 F.3d 20, 28 (D.C. Cir. 2004) (liability will attach where the supervisor "know[s] about the conduct and facilitate[s] it, approve[s] it, condone[s] it, or turn[s] a blind eye for fear of what they might see").[34] Failure to train liability "is triggered only when a supervisor fails to provide more stringent training in the wake of a history of past transgressions by the agency or provides training so clearly deficient that some deprivation of rights will inevitably result absent additional instruction.'" Elkins, 690 F.3d at 566 (quoting Int'l Action Ctr., 365 F.3d at 27); see also Barham v. Ramsey, 434 F.3d 565, 578 (D.C. Cir. 2006) ("Merely being [the alleged wrongdoer's] supervisor was not enough to attach liability to [the Chief of Police]."

As previously noted, plaintiff's Fourth and Fifth Amendment claims against both Conboy and Kates are predicated on their service as U.S. Marshals for the Superior Court, with responsibility "for setting policies regarding the detention of individuals in the United States Marshals Service cellblock and the training, discipline and direct supervision of Unknown U.S. Marshals Service Employees." (Compl. § 8.) However, their situations are not identical. Plaintiff seeks to hold Conboy liable based on policies he allegedly created while he was the Superior Court Marshal, even though he ceased to hold the position in 2008, before any of the incidents giving rise to the complaint occurred, whereas she seeks to hold Kates liable for the June 2009 and December 2009 incidents, which occurred while he was the Superior Court Marshal, based on an alleged failure to train, discipline or supervise. ( Id. §§ 123, 127, 138, 140, 143, 144, 145).[35] Accordingly, the Court will address each defendant separately.

A. Conboy

Conboy is alleged to have "created" two unconstitutional policies when he was the Superior Court Marshal. The first policy, "a policy of having male U.S. Marshals search female transgender detainees" ( id. §§ 126, 130, 134) is alleged to have "caused the unconstitutional cross-gender search[es]" in violation of the Fourth Amendment. ( Id. §§ 126, 130, 134.) The second policy, "an official policy, custom, or practice of intentionally disregarding gender information about transgender detainees communicated by employees of the Metropolitan Police Department to members of the United States Marshals Service upon remand of the detainee to the custody of the United States, "[36] is alleged to have caused the Fifth Amendment violations. ( Id. §§ 28, 39, 61, 68, 90, 139.)

Conboy has moved to dismiss on the ground that the complaint fails to allege two of the elements necessary to state a claim for policymaking liability under Haynesworth: (1) the existence of an unconstitutional policy; and (2) that Conboy was personally involved in the creation of any policy with respect to the treatment of transgender detainees. (USMS Mot. at 19; USMS Reply at 8-10.) The Court agrees with the USMS that the complaint's "conclusory allegations" are insufficient "to establish Conboy's personal involvement in formulating a policy of ignoring' gender information presented by MPD employees and a policy of having male U.S. Marshals search female transgender detainees." (USMS Reply at 10.) Plaintiff cannot simply allege that the official she seeks to hold liable created a unwritten or de facto policy that led to her constitutional injuries absent any factual basis for that allegation. See, e.g., Weise v. Jenkins, 796 F.Supp.2d 188, 200 (D.D.C. 2011) ("Although Defendants undoubtedly had the formal power to formulate a national policy, Plaintiffs must establish that Defendants actually exercised that power to generate improper practices."). Everything that happened to plaintiff happened after Conboy was no longer the Superior Court Marshal, thus her treatment while in custody, while it might support an inference that these policies existed, does not support the allegation that Conboy created such policies during his tenure. Nor does the complaint allege that any other transgender detainee experienced treatment similar to plaintiff's while Conboy was Superior Court Marshal. Finally, although the MPD issued the MPD Transgender Order while Conboy was the Superior Court Marshal, that alone is not sufficient to support an inference that Conboy created the alleged policies in response thereto. Accordingly, the claims against Conboy will be dismissed on the ground that the complaint fails to plausibly allege that he created either a policy of having male USMS employees search female transgender detainees or a policy of ignoring a detainee's transgender status.

B. Kates

Kates is alleged to have failed to train, supervise or discipline subordinate USMS employees in the appropriate treatment of female transgender detainees. (Compl. §§ 27, 38.) His motion to dismiss contends that the allegations of the complaint are insufficient to state a claim because neither his "ultimate authority" nor the allegations that "focus on his training and supervision" are sufficient to "render [him] personally liable for the alleged wrongful acts of individual USMS employees."[37] (USMS Mot. at 18.) There is no question that Kates cannot be held liable for the actions of subordinates based solely on his position as the Superior Court Marshal (his "ultimate authority"), but that is not what plaintiff alleges.[38] ( See Compl. §§ 27-28.) As for his alleged failure to train, supervise or discipline, he argues that the allegations are insufficient to establish that he had an obligation to train or supervise in the manner plaintiff alleges - on not treating female transgender detainees as if they are male.[39] (USMS Reply at 9.) Relying on Elkins, Kates asserts that the complaint (1) fails to allege "any history of constitutional transgressions by USMS" and thus "no pattern of constitutional violations to put [the official] on notice that training was required'" (USMS Reply at 9 (quoting Elkins, 690 F.3d at 566); and (2) fails to allege "training that is so clearly deficient... that some deprivation of constitutional rights will inevitably result." ( Id. )

Plaintiff appears to concede the first point, but not the second. As she points out, the complaint alleges that Kates engaged in no training or supervision as to the treatment of female transgender detainees despite knowing the harm that was "likely to occur" if plaintiff were treated as if she were male. (Pl. Opp. to USMS Mot. at 22-23.) The question is not whether plaintiff's claim against Kates will ultimately succeed, but only whether these allegations are sufficient to adequately allege an obligation to train or supervise as to the appropriate treatment of female transgender detainees. Kates focuses on "plaintiff's citation to a Management Alert Report issued by the D.C. Office of the Inspector General issued on April 4, 2008, " arguing that there is no basis to infer from that report any awareness of the type of problem that ultimately occurred. However, that report is not the only basis for plaintiff's allegation that harm was likely and that Kates knew it. ( See id. at 22-23 (citing § 35 (allegations that harms was likely to occur based on numerous complaints and reports)).) These reports, along with the "obviousness" of the risk of harm when a female detainee, transgender or not, is treated as plaintiff was, are sufficient to allege an obligation to train or supervise and allow the claims against Kates to proceed.

III. CLAIMS AGAINST CHIEF OF POLICE LANIER

Lanier argues that the claims against her under the D.C. Human Rights Act should be dismissed for lack of proper service or because they are duplicative of the claims against the District. (Lanier Mot. at 1.) The Court agrees that Lanier has not been properly served as Lanier was not named as a defendant prior to the filing of the First Amended Complaint. Thus, service of process must satisfy Federal Rule of Civil Procedure 4, not Superior Court Civil Rule 5. Accordingly, the claims against Lanier will be dismissed without prejudice.[40]

CONCLUSION

Accordingly, and for the reasons stated above, the USMS defendants' motion to dismiss will be granted as to the claims against Conboy, but denied as to the claims against Kates and Musgrove; Quicksey's motion to dismiss will be denied; and Lanier's motion to dismiss will be granted. A separate Order accompanies this Memorandum Opinion.


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