United States District Court, District of Columbia
ROSEMARY M. COLLYER, District Judge.
Plaintiff Jacqueline Colbert brought this suit in her individual capacity, as next friend of her intellectually disabled adult daughter Katina Colbert (K.C.), and as personal representative of the Estate of T.C., K.C.'s deceased infant child. While she allegedly is unable to consent to sexual activity, K.C. became pregnant while residing in a group home for disabled adults. The group home was operated by Total Care Services, under contract with the District of Columbia. With little or no prenatal care, K.C. gave birth to a daughter, T.C. T.C. had significant medical problems and died when she was just over a year old. Based on an alleged violation of K.C.'s constitutional rights as well as numerous other grounds, Jacqueline Colbert seeks damages from Total Care and the District of Columbia.
On January 12, 2015, the Court dismissed, inter alia, Ms. Colbert's claim under the Rehabilitation Act, 29 U.S.C. § 794(a), for failure to state a claim. Ms. Colbert now moves for reconsideration and reinstatement of the Rehabilitation Act claim. As explained below, the motion for reconsideration will be denied.
In September 2008, K.C. was 31 years old and living in an emergency shelter for the homeless in the District of Columbia. Am. Compl. [Dkt. 29] ¶ 87. She had three small children who were in the custody of D.C. Child and Family Services. Id. For reasons that are unexplained, K.C. was hospitalized and referred for a psychological assessment. Id. Dr. Tonya Lockwood, a licensed psychologist, conducted the assessment. Dr. Lockwood determined that K.C. had an IQ of 53; that she functioned "within the moderate range of mental retardation cognitively and adaptively;" that she needed "medical and psychiatric stabilization;" that she needed to be referred to a neurologist to "rule out... dementia;" that she suffered from "symptoms of Post Traumatic Stress Disorder;" and that she had "symptoms of depression as well as grief related to the loss of her children and her own mortality." Surreply [Dkt. 51], Ex. 2 (Lockwood Report) at 1, 8. Dr. Lockwood determined that K.C. was "unable to make independent decisions with regard to her finances, medical treatment, housing, habilitation, and life planning, " and recommended "emergency residential placement in a community residential facility with on-site medical support as well as 24-hour supervision." Id. at 8. Soon thereafter, K.C. moved into a group home operated by Total Care, under contract with the District. It is unclear whether K.C. was voluntarily or involuntarily committed to the custody of the District of Columbia.
Due to K.C.'s "retardation and low developmental age, " Ms. Colbert alleges that K.C. was and is incapable of consenting to sexual activity. Id. ¶ 11. Even so, K.C. became pregnant and delivered T.C. on April 3, 2011. K.C. and Ms. Colbert shared joint legal custody of T.C., and Ms. Colbert was awarded sole physical custody. Id. ¶¶ 3, 5, 21. T.C. was born with medical conditions that required surgery, hospitalization, and medical care; T.C. died on April 18, 2012. Id. ¶¶ 17, 54.
Ms. Colbert, for herself, on behalf of K.C., and on behalf of the Estate of T.C., filed a fifteen count Amended Complaint. The Counts are asserted against both the District of Columbia and Total Care, unless otherwise noted:
Count II-Wrongful Birth;
Count III-Breach of Fiduciary Duty arising from special relationship;
Count IV-Negligent Infliction of Emotional Distress;
Count V- Intentional Infliction of Emotional Distress;
Count VI-Wrongful Death;
Count VII-Survival Act;
Count VIII-Violation of D.C. Code § 44-504(a)(3) and (4) (negligence per se) (against Total Care);
Count IX-Violation of D.C. Code §§ 7-1301.02 et seq. and 7-1305.14 (right to care of persons with ...