United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Andrea Richardson, a transgender woman, claims that she was
sexually assaulted by her male cellmate while incarcerated in
the District of Columbia jail-specifically, its Central
Detention Facility in Southeast D.C. She brought this lawsuit
against the District and several jail officials alleging that
they failed to protect her from the assault. The defendants
have moved for summary judgment on some of her claims,
including her claim that the jail officials violated the
Eighth Amendment by acting with deliberate indifference
toward the risk of her assault.
Eighth Amendment claim names, as defendants, Warden William
Smith in his individual and official capacities and several
unknown jail officials designated as “John Does
I-X.” Richardson concedes that because she did not
identify the John Doe defendants during discovery, her Eighth
Amendment claim against them should be dismissed without
prejudice. As for Warden Smith: The undisputed facts
concerning his role in the alleged assault show that he did
not violate Richardson's clearly established
constitutional rights. He is therefore entitled to qualified
immunity in his individual capacity. And Richardson has
offered no evidence that a District policy or practice of
ignoring inmates' concerns about the risk of assault
caused the purported Eighth Amendment violation here, as
would be required to support her official-capacity claim
against Smith. The Court will therefore grant summary
judgment on Richardson's Eighth Amendment claim. And
because that is her sole federal claim, the Court will remand
the rest of the case to the District of Columbia Superior
District of Columbia's Department of Corrections has a
formal policy for housing “transgender, transsexual,
inter-sex, and gender variant persons who are
incarcerated.” Defs.' Mot. Summ. J. Ex. G
(“Housing Policy”), at 1. It enacted these
protocols in the wake of the Prison Rape Elimination Act of
2003 (“PREA”), 34 U.S.C. §§
30301-30309, a statute that prompted the creation of national
standards for state prisons and jails to take effect in 2012.
See 28 C.F.R. §§ 115.11-115.93.
time of Richardson's incarceration, the Department's
policy provided as follows: When individuals arrived in D.C.
jail whose “gender-related expression, identity,
appearance, or behavior differ[ed] from their biological sex,
” those individuals were to be housed alone during the
intake process and assessed to determine whether they should
be designated as transgender. Housing Policy at 3-4. Inmates
designated as transgender then had a right to go before the
Transgender Housing Committee within 72 hours of their
arrival. Id. at 4-5. The Committee was made up of a
physician, a mental health worker, a jail supervisor, a case
worker, and a volunteer who is a member of the transgender
community or an expert on transgender issues. Id. at
3. In its hearings, the Committee would consider the
inmate's “records and assessments, including an
interview with the inmate, ” to decide whether the
inmate should be housed in the general male population, the
general female population, or “protective
custody.” Id. at 5. An inmate would be housed
in protective custody when there was “reason to believe
the inmate presents a heightened risk to him/herself or to
others or where the inmate fears he or she will be vulnerable
to victimization in any other housing setting.”
Id. at 5-6. The protective custody could last
“only for the period during which the heightened risk
and/or fear exists, ” id. at 6, a limitation
demanded by the PREA, 28 C.F.R. § 115.43; see also
id. § 115.42 (barring jails from placing
transgender inmates “in dedicated facilities, units, or
wings solely on the basis of such identification or
status” unless required by consent decree).
Committee would forward its housing recommendation to the
jail's warden for final approval. If the warden disagreed
with the Committee's recommendation, he needed to explain
his disagreement in writing to the Director of the
Department, who then had the power to override the Committee.
could also waive the right to a hearing by agreeing to be
housed with the general population of their biological sex
and signing a form to that effect. That is what Richardson
did when she arrived at D.C.'s Central Detention Facility
in June 2014. At that time, she identified as female and was
undergoing hormone therapy in preparation for
sex-reassignment surgery. She had fully developed breasts,
dressed in traditionally feminine clothing, and wore make-up.
In her interactions with inmates and prison employees, she
went by Andrea rather than by her legal name, Andre. During
her intake, Richardson opted to waive her hearing and to be
housed in the general male population, and she signed the
required form indicating that. Defs.' Mot. Summ. J. Ex.
A. She testified that she made this choice because she
believed, based on statements of Committee members, that she
was choosing between (1) being celled alone or with another
transgender female within the larger male population or (2)
being housed “essentially in isolation.”
Pl.'s Opp'n at 6; see Defs.' Mot. Summ.
J. Ex. D (“Richardson Depo.”), at 79 (Richardson
testifying that the Housing Committee told her “that if
you wanted to be housed with your sexual expression . . . you
would be segregated from everyone else”).
William Smith, who had begun his tenure at the Central
Detention Facility only a few months before Richardson's
arrival, signed off on her decision. He testified in his
deposition that he was not particularly aware of Richardson
or of any attributes that placed her at a high risk of sexual
violence relative to other transgender inmates. Pl.'s
Opp'n Ex. 2 (“Smith Depo.”), at 25-26, 28-29.
had her own cell for the first few months of her detention.
But on July 18, 2014,  following two inmate suicides, the
Department's Director ordered that all inmates in the
general jail population be required to share cells.
Richardson was transferred to a cell with a male inmate,
Richard Glover. She testified that as soon as she was told
that she was being moved, she explained to a prison guard
that she was not supposed to be bunked with men, and she
“begged him not to move [her] in a cell with a
man.” Richardson Dep. at 81.
alleges that as soon as the two began sharing a cell, Glover
began sexually harassing her, groping her, and even telling
her that “one day I am going to rape you.” Compl.
¶ 15. She says that on several occasions she complained
to at least three guards and her case manager about
Glover's behavior and asked to be moved to a different
cell. Richardson Dep. at 82-88. She also claims to have
submitted three written grievances, though no written records
of these grievances were produced during discovery.
Id. at 84-85.
to Richardson, her complaints were to no avail because on
August 25, 2014, Glover raped her. Compl. ¶ 22. Glover
purportedly threatened to kill Richardson if she told anyone.
Id. ¶ 23. But Richardson told a guard about the
attack as soon as she was able. She was taken to a nearby
hospital and a rape kit was administered. Glover was later
charged in D.C. Superior Court with first degree sexual
abuse, kidnapping, and threatening to kidnap or injure a
the alleged assault, there was no express indication in
Glover's record that he posed a high risk of committing
sexual abuse. See Defs' Mot. Summ. J. Ex. F, at
4-5. (The jail's policies, consistent with the PREA,
require that officials evaluate inmates for a risk of sexual
violence and indicate any such risk in their records.
See 28 C.F.R. 115.41(e).) A penological expert,
however, has opined that because Glover was “a fully
sexual functioning male career criminal, who was facing a
lengthy stay in federal prison, ” it was
“eminently foreseeable that at some time [he] might
sexually assault Ms. Richardson.” Pl.'s Opp'n
Ex. 3, at 4.
November 2015, Richardson filed suit in D.C. Superior Court
against the District of Columbia, Warden Smith in his
individual and official capacities, and ten unknown
Department of Corrections employees (designated “John
Does I-X”) in their individual and official capacities.
She brought tort claims under D.C. law for negligence;
intentional infliction of emotional distress; negligent
infliction of emotional distress; and negligent supervision,
retention, and training. She also alleged, pursuant to 42
U.S.C. § 1983, that Warden Smith and the John Doe
defendants violated her rights under the Eighth Amendment.
The defendants removed the case to federal court on the basis
of her federal § 1983 claim. Notice of Removal, ECF No.
2; see 28 U.S.C. § 1441(b).
discovery, the defendants filed a motion for partial summary
judgment. They sought judgment on Richardson's claims for
negligent infliction of emotional distress; negligent
supervision, retention, and training; and violation of the
Eighth Amendment. Richardson agrees that her
negligent-supervision claim should be dismissed, ...