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Smith v. District of Columbia

United States District Court, District of Columbia

March 30, 2018

GREGORY SMITH, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al, Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON United States District Judge.

         In 2014, plaintiff Gregory Smith was held at the D.C. jail for twenty-three days after a judge ordered that he be released. The District of Columbia has not suggested that there was any legal justification for this undisputed "overdetention"; what is at stake is whether plaintiff has founded his claims for redress on the appropriate legal theories, and whether he has come forward with sufficient evidence to support them.

         Plaintiff sued the District of Columbia and two individuals who worked for the Department of Corrections ("DOC"): Jeanette Myrick and Jack Jones. He brought claims against all three defendants under 42 U.S.C. § 1983 for alleged violations of his Fifth Amendment rights, as well as common law claims alleging false imprisonment and negligence. He also brought a claim alleging negligent supervision and training against the District of Columbia. Defendants moved for summary judgment on all of the counts except the negligence claim, see Defs.' Mot. for Partial Summ. J [Dkt. # 73] ("Defs.' Mot."), and plaintiff filed a cross-motion for summary judgment on all four counts. See Pl.'s Opp. to Defs.' Mot. & Pl.'s Cross-Mot. for Summ. J. on Liability & Entry of a Permanent Inj. [Dkt. ## 75, 77] ("Pl.'s Cross-Mot.").

         Defendants moved for summary judgment on the section 1983 claims in Count I on the grounds that: (1) plaintiff has not established the necessary predicate violation of his constitutional rights; (2) the individual defendants are entitled to qualified immunity; and (3) plaintiff has not satisfied the prerequisites for establishing municipal liability under section 1983, that is, the existence of a policy or practice that caused the constitutional deprivation. The Court concludes that there are genuine disputes of material fact on the questions of whether plaintiff s constitutional rights were violated, and whether the District had a custom or practice concerning its receipt of paperwork that caused plaintiff s overdetention, and those disputes preclude the entry of summary judgment for plaintiff or the District on Count I. However, the individual defendants are both entitled to qualified immunity, so summary judgment on Count I will be granted in their favor, and the other theories advanced by plaintiff for section 1983 liability will not move forward.

         The Court will grant summary judgment on the false imprisonment claim in Count II in favor of plaintiff because no reasonable juror could find that he was lawfully detained. Since plaintiff did not move for summary judgment on his negligence claim in Count III on proper grounds, the Court will deny his motion on that count without prejudice. Finally, the Court will grant the District's motion for summary judgment on the negligent supervision and training claim in Count IV because plaintiff has not come forward with expert testimony to establish the existence of a national standard of care that was breached in this instance.

         BACKGROUND

         The following facts regarding plaintiffs overdetention are undisputed.[1]

• On March 15, 2014, the Department of Corrections ("DOC") received commitment orders in two different D.C. Superior Court misdemeanor cases, 2012 CMD 007806 and 2014 CMD 00445, ordering that plaintiff be committed to the custody of the DOC until further order of the Court. See Defs.' SOF ¶¶ 1-2; Pl.'s Resp. SOF ¶¶ 1-2; Pl.'s SOF ¶ 2; Defs.' Resp. SOF ¶ 2; see also Ex. 13 to Pl.'s Cross-Mot. [Dkt. # 75-191 ("Court View No. 2014 CMD 004452"); Ex. 14 to Pl.'s Cross-Mot. [Dkt. # 75-20] ("Court View No. 2012 CMD 007806").
• On March 18, 2014, plaintiff was transported from D.C. jail to Superior Court, and a judge ordered him to be released in both cases. Defs.' SOF ¶ 3; Pl.'s Resp. SOF ¶ 3; Pl.'s SOF ¶ 4; Defs.' Resp. SOF ¶ 4; see Ex. 1 to Pl.'s Cross-Mot. [Dkt. # 75-71, Ex. 5 to Pl.'s Cross-Mot. [Dkt. ## 75-11, 79] at 30-31 (together, "Release Order No. 2012 CMD 007806"); Ex. 2 to Pl.'s Cross-Mot. [Dkt. # 75-8], Ex. 5 to Pl.'s Cross-Mot. [Dkt. ## 75-11, 79] at 35 (together, "Release Order No. 2014 CMD 004452"); see also Court View Case No. 2014 CMD 00452; Court View No. 2012 CMD 007806.
• DOC received and processed the release order for case number 2014 CMD 004452 on the same day. Defs ' SOF ¶ 22; Pl.'s Resp. SOF ¶ 22.
• Although the DOC received the release order in case number 2012 CMD 007806 on March 18, 2014, the order was not processed. Defs.' SOF ¶ 23; Pl.'s Resp. SOF¶23; Pl.'s SOF ¶ 19; Defs.' Resp. SOF ¶ 19; see also Release Order No. 2012 CMD 007806.
• DOC did not release plaintiff from custody on March 18. Pl.'s SOF ¶ 5; Defs.' Resp. SOF ¶ 5.
• Plaintiff was held at the D.C. jail until April 10, 2014. Defs.' SOF ¶ 24; Pl.'s Resp. SOF ¶ 24

         The process by which prisoners are supposed to be released is also largely undisputed.

         After a Superior Court judge authorizes an inmate's release during a court appearance, the courtroom clerk generates a release order and prints two copies, both of which are signed by the judge, the clerk, and the U.S. Marshal in charge of the prisoner. Defs.' SOF ¶¶ 4-5, 7; Pl.'s Resp. SOF ¶¶ 4-5, 7. The clerk maintains the court's copy and is responsible for submitting it to the scanning department at the D.C. Superior Court, where the release order is then scanned into a computerized database called Court View. Defs.' SOF ¶¶ 6, 8; Pl.'s Resp. SOF ¶¶ 6, 8. This information is also reflected in another court system called MyJUSTIS. See Defs.' SOF ¶ 17; Pl.'s Resp. SOF ¶ 17. The Marshal retains the second copy and takes the release order and the prisoner to the main cellblock in the courthouse. Defs.' SOF ¶¶ 6, 9-10; Pl.'s Resp. SOF ¶¶ 6, 9-10.

         The Marshal hand delivers the release order to a Legal Instrument Examiner ("LIE") or Lead Legal Instrument Examiner ("LLIE") located at a Department of Corrections satellite office within the courthouse, and the DOC employee then uploads the document into a database called the Transaction Management System ("TMS"). See Defs.' SOF ¶ 12; Pl.'s Resp. SOF ¶ 12; Ex. 7 to Defs.' Mot. [Dkt. # 73-9] at 19:1-10;[2] Ex. B to Pl.'s Cross-Mot. [Dkt. # 75-25] at 54:l-22.[3]Once the release order is uploaded in TMS, a Legal Instrument Examiner located in the Records Office at the D.C. jail itself will access the document in TMS and begin processing the inmate's release by performing the series of actions specified by the system. See Defs.' SOF ¶ 12; Pl.'s Resp. SOF ¶ 12; see also Brown Dec. 2015 Dep. at 19:11-20.

         Usually, the first step involved in processing the release order is to time stamp it. Pl.'s SOF ¶ 40; Defs.' Resp. SOF ¶ 40.[4] The LIE then pulls the hard copy of the inmate's institutional file to ensure that the release order matches the commitment order, and that the inmate's identifying information matches that of other records in the institutional file. See Defs.' SOF ¶ 13; Pl.'s Resp. SOF ¶ 13; see also Brown Dec. 2015 Dep. at 20:4-12; Ex. 8 to Defs.' Mot. [Dkt. # 73-10] at 16: l-8.[5] If all of the information matches, the LIE then goes into an internal database called JACCS and makes sure that all of the documents contained in the inmate's institutional file are also in JACCS, and again, that all of the information is consistent across the commitment and release orders. See Defs.' SOF ¶ 14; Pl.'s Resp. SOF ¶ 14; Ex. I to Pl.'s Cross-Mot. [Dkt. # 75-31] at 20:6-19 (describing how once the LIE pulls the institutional file, the LIE enters the data from the order into JACCS).[6] If all of the information is consistent, the LIE closes out the case in JACCS, prints the release order, and scans it into another DOC internal system called Paper Clips. See Defs.' SOF ¶¶ 14-15; Pl.'s Resp. SOF ¶¶ 14-15.[7]

         In order to further verify an inmate's paperwork, the LIE must check MyJUSTIS, a court-based system that reflects information that was entered by the court. See Defs.' SOF ¶¶ 16-17; Pl.'s Resp. SOF ¶¶ 16-17. The LIE checks MyJUSTIS to confirm that a release order has been issued in the relevant case, and that there is no commitment order from another case for that inmate. See Defs.' SOF¶¶ 16-17; Pl.'s Resp. SOF ¶¶ 16-17; see also Jones Dep. at 17:3-18:10. The LIE must also check the Washington Area Law Enforcement System ("WALES") (also known as eAgent) and National Crime Information Center ("NCIC") to make sure there are no outstanding active warrants for the inmate. Defs.' SOF ¶ 19; Pl.'s Resp. SOF ¶ 19.

         Once this process is complete, a supervisory LIE is required to double check all of the LIE'S work. Defs.' SOF ¶ 20; Pl.'s Resp. SOF ¶ 20. Then, the supervisor prepares a release authorization form. Defs.' SOF ¶ 21; Pl.'s Resp. SOF¶2l. While much of this work takes place at the jail, misdemeanor inmates are supposed to be released directly from D.C. Superior Court. Pl.'s SOF ¶ 50; Defs.'Resp. SOF ¶ 50.

         PROCEDURAL HISTORY

         Plaintiff filed this lawsuit in D.C. Superior Court on November 14, 2014, see Compl. [Dkt. #1-1], and defendants removed it to this Court on February 2, 2015. See Notice of Removal [Dkt. #1]. Plaintiff amended his complaint on April 21, 2016 after the Court granted defendant William Smith's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Smith v. District of Columbia, 149 F.Supp.3d 128 (D.D.C. 2015); see also Am. Compl. [Dkt. # 36].

         On December 8, 2016, defendants filed their first motion for summary judgment. Defs.' Mot. for Summ. J. [Dkt. # 56]; Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. [Dkt. # 56]. In support of their motion, defendants asserted that the Department of Corrections did not receive a release order in case number 2012 CMD 007806 until April 10, 2014. Id. at 1-2.

         However, on February 8, 2017, defendants notified the Court that DOC had discovered that it had indeed received a copy of the release order for case number 2012 CMD 007806 on March 18, 2014, and that it was time stamped on March 18 at 9:33 PM. Notice of Filing [Dkt. # 69]. In light of this revelation, the Court allowed the parties to undertake additional limited discovery, and the Court denied the pending cross-motions for summary judgment as moot. See Min. Order (Feb. 21, 2017).

         On March 31, 2017, defendants filed the pending motion for partial summary judgment on Counts I, II, and IV. See Defs.' Mot.; Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 73] ("Defs.' Mem."). Plaintiff opposed the motion and filed a cross-motion for summary judgment on all four counts. See Pl.'s Cross-Mot.; Pl.'s Mem. of P. & A. in Supp. of Pl.'s Mot. [Dkt. # 75-1] ("Pl.'s Cross-Mem."). The motions are fully briefed.[8]

         FACTS RELATED TO PLAINTIFF'S OVER DETENTION

         Although the parties agree on the general procedure for processing a release order, the circumstances surrounding the processing of the two release orders in this case have not been definitively established.

         Plaintiff appeared in Superior Court on two misdemeanor cases before the same judge, case numbers 2012 CMD 007806 and 2014 CMD 00452, on March 18, 2014. The Superior Court's Court View database reveals that an order to release plaintiff was entered into the system, and "sent" to the D.C. jail, in case number 2012 CMD 007806 at 1:26 PM, and in case number 2014 CMD 00452 at 1:28 PM. See Court View No. 2014 CMD 00452; Court View No. 2012 CMD 007806. Plaintiff was ordered to return to court on April 9, 2014 in both cases. See Court View No. 2014 CMD 00452; Court View No. 2012 CMD 007806.

         The record that has been provided to the Court does not include testimony from a U.S. Marshal, or other evidence, concerning what was done with the paper copies of the release orders that were supposed to travel with plaintiff to the cell block and then into the hands of an LIE at the DOC's office in the courthouse. But the record does include one copy of a release order signed by a Deputy U.S. Marshal on March 18, 2014 in case number 2012 CMD 007806. See Ex. 5 to Pl.'s Cross-Mot. [Dkt. ## 75-11, 79] ("Institutional File") at 30.

         It is undisputed that DOC both received and processed the release order for case number 2014 CMD 004452 on March 18, 2014. Defs.' SOF ¶ 22; Pl.'s Resp. SOF ¶ 22. There is no direct evidence indicating what steps, if any, were taken by the LIE located at the courthouse. Jack Jones, an LIE who works in the Records Office at the D.C. jail, Defs.' SOF ¶ 25; Pl.'s Resp. SOF ¶ 25, testified that he processed this release order. Jones Dep. at 36:22-37:22. He knew that he did so because his hand-written initials appear in the upper left-hand corner of the document. Id.; see also Institutional File at 35.

         How Jones went about processing this order is somewhat unclear. He testified that he wrote "PS" on the document with his initials to indicate that he had both printed and scanned the order. Jones Dep. at 53:14-20; see also Institutional File at 35. But see Jones Dep. at 37:10-14 (explaining that the "P" stands for "posted, " and "S" for "scanned"). But he did not specify at what point in the process he printed it out, or what system he then scanned it into. Further, he admitted that he failed to time stamp the release order, notwithstanding the DOC policy that required him to time stamp every document he processed. Id. at 53:2-54:17. And the document he worked with that bears his initials does not include the signature of a U.S. Marshal. Id. at 43:1-7; see also Institutional File at 35. There is no evidence in the record regarding whether Jones checked the various external systems, such as MyJUSTIS, as he was required to do.

         Turning to the order in case number 2012 CMD 007806, the parties agree that DOC received the release order on March 18, 2014 because it bears a time stamp for March 18 at 9:33 PM. Defs.' SOF ¶ 23; Pl.'s Resp. SOF ¶ 23; Release Order No. 2012 CMD 007806; see also Brown Mar. 2017 Dep. at 20:1-22; id. at 33:14-3 (testifying that she knows DOC received the order because of the time stamp). But one cannot discern from the document whether it was time stamped by a Department of Corrections LIE at Superior Court, or by an LIE at the Records Office located at the jail. Compare Brown Mar. 2017 Dep. at 22:4-20; id. at 33:4-6 (testifying that the first step to processing a release order is to time stamp it, and then to input the data into TMS, which occurs at the courthouse), with Jones Dep. at 53:2-54:17 (testifying that LIE's were required to time stamp release orders when they were received at the jail).

         It is also unclear whether the release order in the 2012 case was ever uploaded to TMS. Robilyn Brown, a supervisory LIE, testified that she did not believe it was, since the information contained in the release order never made its way into JACCS. Brown Mar. 2017 Dep. at 23:2-8 (testifying that uploading the document into TMS was not "done with respect to this document" because she "did a JACCS audit, and it wasn't in there, the information wasn't uploaded into JACCS"); id. at 34:7-16; see also Ex. C to Pl.'s Cross-Mot. [Dkt. # 75-33] ("Myrick Mar. 2016 Dep.") at 54:10-55:6 (testifying that DOC has no "transaction" dated for March 18, and that all documents "received from D.C. Superior Court . . . would be uploaded within TMS so that the staff could maintain processing of that document").

         But, it is undisputed that the release order from case number 2012 CMD 007806 did ultimately make its way into plaintiffs institutional paper file. See Pl.'s SOF ¶ 19; Defs.' Resp. SOF ¶ 19; see also Brown Dec. 2015 Dep. at 51:4-16 (acknowledging that the 2012 release order was contained in plaintiffs institutional file); Myrick Mar. 2016 Dep. 53:17-54:9 (testifying that the release for case number 2012 CMD 007806 was found within plaintiffs institutional file). However, the record does not establish how long it has been there. See Brown Mar. 2017 Dep. at 32:17-33:13 (testifying that she could not confirm if the release order had been in plaintiffs institutional file since March 18, 2014); Ex. 17 to Defs.' Reply [Dkt. # 82-7] ("Myrick Decl.) ¶ 7 ("Release orders are placed in an inmate's institutional file when they are received which may be at the time of issuance or sometime thereafter."); Myrick Mar. 2016 Dep. at 55:7-10 (agreeing that "all documents received from the D.C. Superior Court are also included in the inmate's institutional file").

         Although plaintiff was scheduled to return to Superior Court on April 9, 2014, he failed to appear because DOC did not transport him there. Ex. A to Pl.'s Cross-Mot. [Dkt. # 75-24] ("Smith Dep.") at 60:8-61:6. As a result, the Superior Court judge issued a bench warrant. See Court View No. 2014 CMD 00452; Court View No. 2012 CMD 007806. Plaintiff was brought to the courthouse the next day for a status hearing, and two more release orders were issued. See Ex. 3 to Pl.'s Cross-Mot. [Dkt. # 75-9]; Ex. 4 to Pl.'s Cross-Mot. [Dkt. # 75-10]; see also Institutional File at 5-6, 29, 33 (release orders from both cases that were signed by the judge and U.S. Marshal and dated on April 10); see Id. at 30 (release order from case number 2012 CMD 007806 that includes the U.S. Marshal signature from March 18, but is time stamped on April 10).

         Plaintiff was released from custody on April 10, 2014. Defs.' SOF ¶ 24; Pl.'s Resp. SOF¶24. After he was released, no investigation took place; no report concerning his overdetention was created, Pl.'s SOF ¶¶ 13-14; Defs.' Resp. SOF ¶¶ 13-14; see Myrick Nov. 2015 Dep. at 70:21-71:3; and no employee was disciplined. See Myrick Nov. 2015 Dep. at 37:15-22. Plaintiff is not counted in the 2014 overdetention statistics contained in the reports submitted as evidence in this case. See Ex. 9 to Pl.'s Cross-Mot. [Dkt. # 75-15] ("Second Overdetention Report"); Ex. 10 to Pl.'s Cross-Mot. [Dkt. ## 75-16, 81] ("Third Overdetention Report"). These circumstances do not comport with the standards announced by the DOC's Correctional Program Administrator, Jeanette Myrick. Defs.' SOF ¶ 31; Pl.'s Resp. SOF ¶ 31; see also Myrick Nov. 2015 Dep. at 36:18-21; id. at 37:2-14.

         Myrick is responsible for overseeing the daily operations of the Records Office and for ensuring that inmates are released and documents are received and processed. Pl.'s SOF ¶ 11; Defs.' Resp. SOF ¶ 11. She supervises three correctional program officers, six supervisors, eight lead legal instruments examiners, and approximately eighteen legal instruments examiners - including Jack Jones. See Myrick Nov. 2015 Dep. at 27:7-16. Myrick testified that as part of her responsibilities, it is her practice to prepare an overdetention report after each instance of overdetention, Pl.'s SOF ¶ 12; Defs.' Resp. SOF ¶ 12; Myrick Nov. 2015 Dep. at 17:17-18:11, and to transmit those reports to the deputy director. Myrick Nov. 2015 Dep. at 18:15-17. She also testified that after she learns of an overdetention, employees are often disciplined. Id. at 36:18-21.

         During discovery, Myrick produced an overdetention report detailing the overdetentions that have occurred at the DOC between October 2010 and October 2014. See Third Overdetention Report. Plaintiffs overdetention was not included in the total, but the report revealed that there were seventy-two others in that time period; thirty-two of which were attributed to "staff error, " which is generally not specified. Id. Some of the staff errors identified in the Third Overdetention Report are described in more detail in the Second Overdetention Report, which was reported to the D.C. Council. See Second Overdetention Report.[9]

         For example, both reports include inmates who were released a few days late because their "sentence[s] [were] computed in error." Compare Second Overdetention Report at 3, with Third Overdetention Report at 24; compare Second Overdetention Report at 8, with Third Overdetention Report at 2; compare Second Overdetention Report at 6, with Third Overdetention Report at 20. Both also identify inmates who were released late because "good time credit [was] not applied to [their] sentence[s]." Compare Second Overdetention Report at 3, with Third Overdetention Report at 24; compare Second Overdetention Report at 6, with Third Overdetention Report at 23; compare Second Overdetention Report at 5, with Third Overdetention Report at 16.

         Further, the reports reveal a number of reasons other than DOC staff error for the detention of inmates past their release dates. For example, both reports identify inmates who were detained a few days past their release dates because the WALES program indicated the existence of an outstanding warrant. Compare Second Overdetention Report at 9, with Third Overdetention Report at 11; compare Second Overdetention Report at 9, with Third Overdetention Report at 16. Once DOC personnel determined that the detainee was not the correct wanted person, the inmate was processed and released. See, e.g., Third Overdetention Report at 11, 16. Other overdetentions were attributed to errors made by court staff and not DOC personnel. Compare Second Overdetention Report at 8-9, with Third Overdetention Report at 8-9; compare Second Overdetention Report at 9, with Third Overdetention Report at 9-10.

         PREVIOUS OVERDETENTION CASES AGAINST THE DISTRICT OF COLUMBIA

         This case arises against a backdrop of previous litigation against the District of Columbia involving alleged overdetention at the D.C. jail.

         In 2002, a class of inmate plaintiffs sued the District of Columbia. They alleged that officials at the D.C. jail unlawfully strip searched and overdetained inmates who returned to the jail after receiving release orders from the court. See Bynum v. District of Columbia, 257 F.Supp.2d 1 (D.D.C. 2002) (denying defendants' motion to dismiss the case). In 2006, the court approved a settlement between the parties. Bynum v. District of Columbia, 412 F.Supp.2d 73, 83 (D.D.C. 2006). As part of the settlement, DOC agreed to implement major changes such as the completion of an Inmate Processing Center, which would provide adequate processing facilities for intake and release. Id. Funds allocated to the center would be used "to improve or assist in processing inmates for release and to reduce incidents of over-detention." Id.

         As the Bynum case neared settlement, DOC adopted a policy of diverting in-custody defendants who had been ordered released or who were otherwise entitled to release to a holding facility on the grounds of DC. General Hospital where they would be processed, which meant that inmates were not returned to the jail population and would not be subjected to strip searches. See Barnes v. District of Columbia, 242 F.R.D. 113, 115 (D.D.C. 2007) (describing the Bynum litigation). But inmates who were entitled to release still slipped through the cracks, and some were returned to the D.C. jail and subjected to the same search and detention procedures that were at issue in the Bynum case. See id.

         Therefore, in 2006, a new group of plaintiffs filed suit challenging the DOC's system. Id. at 116. The Barnes case was based on the same legal theories as the Bynum case, and the parties reached a settlement in 2013. See Barnes v. District of Columbia, 38 F.Supp.3d 131 (D.D.C. 2014) (modifying court's final order approving settlement).

         The judge in the Barnes litigation observed that the District had made little or no improvements to its "paper-bound and Byzantine release process, " as it was supposed to do after the Bynum case settled. Barnes v. District of Columbia, 793 F.Supp.2d 260, 279-80 (D.D.C. 2011) (observing that "a move to a paperless system to process releases" was "either rejected by the DOC or remain[ed], to this day, caught in a whirlpool of delays"). However, the court recognized that the DOC took a "significant step toward reducing the number and duration of overdetentions" by implementing the "courthouse release" program in 2008, which released inmates charged with misdemeanors directly from Superior Court. Id. at 280.

         STANDARD OF REVIEW

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324.

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

         "The rule governing cross-motions for summary judgment... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989) (alteration in original), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In assessing each party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.

         ANALYSIS

         I. The Court will deny in part and grant in part the motions for summary judgment on Count I for Section 1983 liability

         In Count I, plaintiff claims that the District and two DOC employees are liable under 42 U.S.C. § 1983 for the unconstitutional deprivation of his liberty. See Am. Compl. ¶¶ 25-36. Defendants maintain that plaintiff has not suffered a constitutional violation. Defs.' Mem. at 6- II. The District also argues that it is entitled to summary judgment because plaintiff has not produced sufficient evidence to support municipal liability under section 1983, and the individual defendants contend that they are entitled to qualified immunity. Id. at 4-14. Plaintiff has also moved for summary judgment on this count. Pl.'s Cross-Mem. at 17-36.

         A. Municipal Liability Under Section 1983

         Section 1983 of the Civil Rights Act provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42U.S.C.§1983.

         To establish that a municipality is liable under section 1983, a plaintiff must prove both (1) "a predicate constitutional violation" and (2) "that a custom or policy of the municipality caused the violation." Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003), citing Collins v. City of Harker Heights, 503 U.S. 115, 124 (1992).

         A municipality cannot be held liable for the unconstitutional conduct of its employees based on a theory of respondeat superior. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (noting that "while Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others") (emphasis in original) (citation omitted). "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edits or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694.

         As a result, "[p]laintiff's who seek to impose liability on local governments under § 1983 must prove that 'action pursuant to official municipal policy' caused their injury." Connick v. Thompson, 563 U.S. 51, 60 (2011), quoting Monell, 436 U.S. at 691; see also Monell, 436 U.S. at 694 (noting that the policy must be "the moving force of the constitutional violation"). The D.C. Circuit has explained:

[T]here are a number of ways in which a "policy" can be set by a municipality to cause it to be liable under § 1983: the explicit setting of a policy by the government that violates the Constitution . . .; the action of a policy maker within the government . . .; the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become "custom" . . .; or the failure of the government to respond to a need (for example, training of employees) in such a manner as to show "deliberate indifference" to the risk that not addressing the need will result in constitutional violations.

Baker, 326 F.3d at 1306 (internal citations omitted). Each prong of the test "is separate and serves different purposes." Id.

         1. There is a genuine dispute of material fact as to whether plaintiff has established a predicate constitutional violation.

         In their motion for summary judgment, defendants argue that plaintiff has not established the predicate for a section 1983 action: a constitutional violation. See Defs.' Mem. at 6-9. The amended complaint alleges that plaintiff was deprived of "his constitutional right to liberty and deprived . . . of this liberty without due process of law as required by the Fifth Amendment" when he was detained for twenty-three days after he was ordered to be released. Am. Compl. ¶ 26; see also Pl.'s Cross-Mem. at 17-18 (arguing that his overdetention "establishes the predicate constitutional violation"). Given the evidence that has been adduced in this case, the Court finds that plaintiff has come forward with sufficient evidence to create a genuine issue of material fact on whether the conduct in this case was so egregious that it violated his due process rights under the Fifth Amendment.

         The Fifth Amendment states that "[n]o person . . . shall be . . . deprived of life, liberty, or property, without due process of law ..." U.S. Const, amend. V.[10] "In order to establish [the] predicate constitutional violation, neither District of Columbia policy makers nor employees need be implicated. All that is being established ... is that there is some constitutional harm suffered by the plaintiff, not whether the municipality is liable for that harm." Baker, 326 F.3d at 1306.

         "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause." Foucha v. Louisiana, 504 U.S. 71, 80 (1992). But there is no bright-line rule that detaining an inmate who is entitled to release for a particular length of time is per se unconstitutional. See Barnes v. District of Columbia, 793 F.Supp.2d 260, 275-76 (D.D.C. 2011) ("Temporarily retaining custody over an inmate who is entitled to release ... is not per se unconstitutional, . . . [but] inmates' due process rights may be violated if they are not released within a reasonable time after the reasons for their detentions have ended") (citations omitted); Berry v. Baca, 379 F.3d 764, 771 (9th Cir. 2004) ("Courts have not settled on any concrete number of permissible hours of delay in the context of post-release detentions."); Lewis v. O'Grady, 853 F.2d 1366, l37O(7thCir. 1988) (observing that administrative tasks incident to a prisoner's release may require the prisoner to remain detained for a period of time, but concluding that the reasonableness of the eleven-hour overdetention was a jury question); Davis v. Hall, 375 F.3d 703, 718-19 (8th Cir. 2004) (concluding that the jury must determine if the plaintiffs fifty-seven day overdetention rose to the level of a constitutional due process violation). But see Douthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980) (holding that the plaintiff established a prima facie case at trial that defendant violated his constitutional rights because "Retention of a prisoner thirty days beyond the expiration of his sentence in the absence of a facially valid court order or warrant constitutes a deprivation of due process").

         In the context of detention after arrest pending a probable cause determination, the Supreme Court has held that a detention greater than forty-eight hours may rise to the level of a constitutional violation. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). When considering whether to adopt this standard in the context of detaining inmates once the basis for confinement has ended, some courts have observed that forty-eight hours, or even less, may be the appropriate benchmark for finding a constitutional violation. See, e.g., Barnes, 793 F.Supp.2d at 276 ('[C]ourts appear to agree that the maximum permissible administrative delay in the overdetention context likely falls well short of the 48-hour horizon set out in McLaughlin"); Brass v. County of Los Angeles, 328 F.3d 1192, 1200 (9th Cir. 2003) ("One might conclude that when a court orders a prisoner released - or when, for example, a prisoner's sentence has been completed-the outer bounds for releasing the prisoner should be less than 48 hours."). The detention here extends well beyond that threshold, so there is no serious dispute that plaintiffs right to liberty was abridged.

         The defense points to case law that holds, though, that the question "is not simply whether a liberty interest has been infringed, but whether the extent or nature of the restraint... is such as to violate due process." Youngberg v. Romeo, 457 U.S. 307, 320 (1982). In Youngberg, the Court recognized that "[i]n determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance the liberty of the individual and the demands of an organized society, " id. (internal citation omitted); "[accordingly, whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Id. at 321. Here, of course, defendants have not suggested that there could be a legitimate state interest in holding an accused after a judge has ordered his release. But defendants argue that since the obvious infringement of plaintiffs liberty is only potentially attributable to negligence on their part, the deprivation does not rise to the level of a constitutional violation for section 1983 purposes. See Defs.' Mem. at 8, 14.

         The Supreme Court has made it clear that a plaintiff must show more than mere negligence to establish a violation of his substantive due process rights. "We have emphasized time and again that the touchstone of due process is protection of the individual against arbitrary action of government.... Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense." County of Sacramento v. Lewis,523 U.S. 833, 845-46 (1988) (internal citations omitted); see also United States v. Salerno,481 U.S. 739, 746 (1987) ("So-called 'substantive due process' prevents the government from ...


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