Way v. Johnson , 893 F. Supp. 2d 15 ( 2012 )

UNITED STATE'S DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN L. WAY, SR., )
)
Plaintiff, )
)
v. ) Civil Case No. 11-1182 (RJL)
)
ISAAC JOHNSON, et al., )
)
Defendant. )
)
)
h--
MEMORANDUM OPINION
(September26,,2012)JDkt. ##19, 21, 22, 29]
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This matter is before the Court on defendants' motions to dismiss. For the reasons
discussed below, the motions are GRANTED.
BACKGROUND
On August 24, 2010, plaintiff was arrested pursuant to a warrant issued by the
United States Parole Commission ("Commission"). Compl. [Dkt. #1] at 5. A hearing
examiner found probable cause to believe that plaintiff had violated three conditions of
his parole: he had used dangerous and habit-forming drugs (Charge No. 1), he failed to
submit to drug testing (Charge No.2), and he failed to participate in a drug treatment
program (Charge No. 3). D.C. Probable Cause Hearing Digest dated Aug. 31, 2010,
Exs. B-1- B-4 to Compl. [Dkt. #1-1]. Revocation proceedings were suspended,
however, so that plaintiff could participate in a residential drug treatment program:
Your final revocation hearing has been postponed for you to
participate and successfully complete the secure portion of
the treatment program. If the Commission is informed by the
treatment program ·that · ydu' ; have been discharged
unsuccessfully from the program, you will be scheduled for a
final revocation hearing within 21 days of receipt of such
notification. If you successfully complete the secure portion
of the treatment program, the Commission will issue a
separate Notice of Action ordering that you be reinstated to
supervisiOn.
Notice of Action dated Sept. 15, 2010, Ex. A to Compl. [Dkt. #1-1]. On October 1,
2010, plaintiff was admitted to the 180-day Secure Residential Treatment Program
("SRTP"), a program "overseen exclusively" by employees of the Court Services and
Offender Supervision Agency for the District of Columbia ("CSOSA") and housed in a
unit of the Correctional Treatment Facility ("CTF"), a facility "privately owned and
operated by the Corrections Corporation of America ('CCA')." Mem. ofP. & A.
("Johnson Mem.") [Dkt. #21] at 4-5; Aff. of Rebecca Richards ("Richards Aff."), Ex. 1 to
Johnson Mem. [Dkt. #21-2], ~ 3 ("CCA owns and operates CTF pursuant to an operations
and management agreement with the District of Columbia to house inmates designated by
the D.C. Department of Corrections at CTF .").
Plaintiff was deemed ineligible to continue the SRTP following an incident which
occurred on January 21, 2011. Mem. dated Jan. 28, 2011, Ex. C to Compl. [Dkt. #1-1].
Plaintiff was transferred to a Special Management Unit at the CTF, and was "place[ d) on
lock down in the mental health unit on suicide watch." Compl. at 6-7. He was
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transferred from the CTF to the District's Central Detention Facility ("D.C. Jail") on or
about January 28, 2011. !d. at 7.
On January 30, 2011, plaintiff filed an inmate grievance, Inmate Complaint-
Informal Resolution, Ex. D to Compl. [D~t. #1-1], which Simon T. Wainwright, Warden
of the D.C. Jail, forwarded to the Office qflnternal Affairs for the District of Columbia
Department of Corrections ("DOC"), Mem. elated Feb. 4, 2011, Ex. E to Compl. [Dkt.
#1-1]. According to plaintiff, Warden Wainwright "considered [the matter] resolved."
ld, see Compl. at 7-8. Plaintiff also wrote letters to the Commission's Chair, Isaac
Fulwood, id at 8, to CSOSA officials, id., and to DOC officials, id at 9. See also Letter
dated Mar. 8, 2011 & Letter date Mar. 17,2011, Exs. F & J to Compl. [Dkt. #1-1].
Had plaintiff successfully completed the SRTP, he states that he would have been
released from custody on March 30, 2011. Compl. at 5. He contends "that the
defendants in this case [have] violated [his]..Constitutional[ly] Protected Rights, when
they discharged [him] from the [SRTP based on] a false allegation by another [SRTP
participant] who claimed to have problems with homosexuals." !d. at 3. Plaintiff avers
that the defendants failed to investigate the allegedly false allegation prompting
plaintiffs discharge from the SRTP and disciplinary transfer to the D.C. Jail. !d.
Plaintiff alleges that the defendants' actions were biased and discriminatory because of
plaintiffs homosexuality and HIV+ status, id., and that defendants "acted with malice,
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vindictiveness, intolerance and prej~dice," id. at 4. 1 For these alleged violations of
plaintiffs right to due process, id. at 13, he is "seeking judgment for compensatory
damages in the amount of$ 500,000.00 and punitive damages in the amount of
$ 500,000.00." !d. at 3, 14.
DISCUSSION 2
I. The Court May Treat Defendants' Motions As Conceded
All defendants moved to dismiss the complaint, and certain defendants moved
alternatively for summary judgment. See Warden Simon T. Wainwright's Mot. to
Dismiss or in the Alternative for Summ. J. [Dkt. #19]; Def. Isaac Johnson's Mot. to
Dismiss or, in the Alternative, for Summ. J. [Dkt. ##21, 22]; Defs.' Mot. to Dismiss [Dkt.
#29]. On February 2, 2012, the Court issued Orders [Dkt. #30-31] advising plaintiff of
Plaintiff further alleges, see Compl. at 4, a violation of the District of Columbia
Human Rights Act, but the provision he cites, D.C. Code. § 2-1401.01 (2007), is merely a
general statement that "[ e]very individual shall have an equal opportunity to participate
fully in the economic, culture and intellectual life of the District," D.C. Code § 2-
1401.01. In light ofthe Human Rights Act's support of"an equal opportunity to
participate in ... employment, ... places of accommodation, resort or
amusement, ... educational institutions, ... public service, and ... housing and
commercial space accommodations," id., it is unclear whether or how this provision
applies to plaintiffs participation in a residential drug treatment program at the
Commission's direction.
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For purposes of the Memorandum.Opinion, the Court presumes, without deciding,
that service of process has been effected properly as to all defendants and that the Court
may exercise personal jurisdiction over them. The Court declines to discuss defendants'
arguments for dismissal, see Johnson Merri. at ·10-11; Richards Aff. ~~ 3-7; Mem. ofP. &
A. in Supp. of Defs.' Mot. to Dismiss ("Defs.' Mem. to Dismiss") [Dkt. #29] at 5-7; see
Declaration of Eugene F. Chay ("Chay Decl:"), Ex. to Defs.' Mem. to Dismiss [Dkt. #29-
1], ~~ 3-4; Declaration of Rockne Chickinell ("Chickinell Decl."), Ex. to Defs.' Mem. to
Dismiss [Dkt. #29-2], ~ 2 (paragraph number designated by the Court), under Rule
12(b)(2) ofthe Federal Rules of Civil Procedure for lack of personal jurisdiction and Rule
12(b)(5) for insufficient service of process.
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his obligations under the Federal Rules of Civil Procedure and the local rules of this
Court to respond to the motions, and specifically warned plaintiff that, if he did not file
oppositions by February 29, 2012, the Cou.r.twould treat the motions as conceded.
. . .
Local Civil Rule 7(b) of this Court provides:
Within 14 days of the date of service or at such other time as
the Court may direct, an opposing party shall serve and file a
memorandum of points and authorities in opposition to the
motion. If such a memorandum is not filed within the
prescribed time, the Court may treat the motion as conceded.
LCvR 7(b) (emphasis added). A motion for summary judgment may be granted as
conceded if the non-moving party fails to file a timely opposition. FDIC v. Bender, 127
FJd 58, 67-68 (D.C. Cir. 1997) (upholding the treatment of the plaintiffs summary
judgment motion as conceded because the defendant filed its opposition late). "It is
understood in this Circuit that when a plain~iff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded." Buggs v. Powell, 293 F.
Supp. 2d 135, 141 (D.D.C. 2003) (citations omitted); Stephenson v. Cox, 223 F. Supp. 2d
119, 121 (D.D.C. 2002).
Plaintiffs Opposition to Defendants['] Motion to Dismiss [Dkt. #32], though
timely filed, sets forth no substantive arguments in response to defendants' motions. In
this circumstance, the Court treats defendants' motion as conceded, and GRANTS each
motion. Notwithstanding this conclusion, the Court briefly addresses defendants'
arguments. ;. i
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II. Exhaustion ofAdministrative Remedies
The Prison Litigation Reform Act ("PLRA") in relevant part provides that "[n]o
action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
other Federal law, by a prisoner confined to any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
This exhaustion requirement is mandatory and "applies to all prisoners seeking redress
..
for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002);
see Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot be brought in court.").
Exhaustion under the PLRA requires "proper exhaustion," Woodford v. Ngo, 548 U.S. 81,
93 (2006), meaning that a prisoner must comply with the procedural rules of the prison
grievance process, including filing deadlines, as a precondition to filing a civil suit in
federal court, regardless of the relief offered through the administrative process, id.;
Booth v. Churner, 532 U.S. 731, 741 (2001),' Thus, a prisoner may file a civil action
concerning conditions of confinement under federal law only after he has exhausted the
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prison's administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269
(D.C. Cir. 2001 ). All the defendants argue that plaintiff failed to exhaust his
administrative remedies prior to filing this action, and the motions may be granted on this
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basis. 3
There are inmate grievance processes at both the CTF and the D.C. Jail. See
generally Affidavit of Joyce Allen ("Allen Aff."), Ex. 2 to Johnson Mem. [Dkt. #21-3];
see Inmate/Resident Grievance Procedures effective July 9, 2007, Attach. A to Allen
Aff.; D.C. Dep't of Corrections Program Statement 4030.1G, Inmate Grievance
Procedures (IGP) dated Mar. 9, 2010, Ex. A to Mem. ofP. & A. in Supp. of Warden
Simon T. Wainwright's Mot. to Dismiss or in the Alternative for Summ. J. ("Wainwright
Mem. ") [Dkt. # 19-1]. The grievance process at the CTF is a five-step process beginning
with the submission of an Informal Resolution Form (Step One) and culminating with an
appeal ofthe Warden's response (obtained in Step Four) to the Contract Monitor (Step
Five). Allen Aff. ~ 8. "If an inmate fails to follow this procedure or omits any part of it,
he has not exhausted the administrative remedies available." Allen Aff. ~ 9. Similarly,
the District's IGP process begins with the submission of a grievance and ends with an
appeal to the DOC Director. See generally DOC Program Statement, Ex. A to
Wainwright Mem., ~~ 20-23.
The CTF's Facility Grievance Officer is responsible for coordinating "the
3 "Exhaustion is 'an affirmativ6 defertse that the defendants have the burden of
pleading and proving."' Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005)
(quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)); Anderson v. XYZ Carr.
Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005) ("[A]n inmate's failure to exhaust
his administrative remedies must be viewed as an affirmative defense that should be
pleaded or otherwise properly raised by the defendant."). Although the federal
defendants have not supported their exhaustion argument with declarations or other
exhibits, see generally Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss [Dkt. #29] at
8-9, the Court relies on the submissions of the remaining defendants.
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grievance procedure at CTF, assigning a n~rnber to each grievance, coordinating the
investigation of grievances relating to CCA, ... and maintaining all grievance records
and documents, including the permanent grievance log." Allen Aff. ~ 4. Her review of
"the grievance and informal resolution logs'~ reveals "no record that [plaintiff] did, at any
time since [January 21, 2011, when] he would have become aware of a change in his
housing status and the filing of this lawsuit, submit any Informal Resolution or
Inmate/Residence Grievance regarding his allegations in the Complaint with respect to
his claims against CCA employees Warden Johnson and Investigator Richards." ld. ~ 12.
At the D.C. Jail, "incoming prisoner grievances are scanned and entered into a
computer database which can be searched· by the name of the sender." Affidavit of Hazel
Lee ("Lee Aff."), Ex. 2 to Wainwright Mem. [Dkt. #19-2], ~ 3. The Grievance
Coordinator's review of the database for calendar year 2011 shows that plaintiff "sent an
informal grievance resolution form on January 30, 2011," that he received a response
from Warden Wainwright on February 4, 2011, and that he "did not appeal Warden
Wainwright's response." ld. ~ 6.
At most, plaintiff has completed the first step of the lOP at the D.C. Jail. He did
not file a grievance at all with respect to any action taken by an official or employee at
the CTF. He failed to complete the administrative remedy processes, and therefore his
claims against Wardens Wainwright and Johnson and Investigator Richardson are
dismissed.
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III. Plaintiff Fails to State Claims Under 42 U.S. C.§ 1983
In order to state a claim under 42 U.S.C. § 1983 for a violation of a constitutional
right, a complaint must allege facts sufficient to support a reasonable inference that "( 1) a
person (2) acting under color of[District of Columbia] law (3) subjected the plaintiff or
caused the plaintiff to be subjected (4) to the deprivation of a right secured by the
Constitution or laws of the United States." 4 City of Oklahoma City v. Tuttle, 471 U.S.
808, 829 (1985). A civil action under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), "is the federal analog to suits brought against
state officials under ... § 1983." Marshall v. Fed. Bureau of Prisons, 518 F. Supp. 2d
190, 193 (D.D.C. 2007) (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)
(internal citation omitted)). Under Bivens, a plaintiff has "an implied private action for
damages against federal officers alleged to have violated [his] constitutional rights."
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
A. The District of Columbia and Simon T. Wainwright
Plaintiff names Simon T. Wainwright, Warden of the D.C. Jail, as a defendant to
this action. The Court presumes that plaintiff intends to sue Wainwright in both his
official and individual capacities.
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In pertinent part, 42 U.S.C. § 1983 provides that:
[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects ... 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[.]
42 U.S.C. § 1983.
9.
A suit against a government official in his official capacity "generally represent[ s]
only another way of pleading an action against an entity of which an officer is an agent,"
and "an official capacity suit is, in all respects other than name, to be treated as a suit
against the entity." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations
omitted). "Under 42 U.S.C. § 1983, a municipality, such as the District [of Columbia], is
only liable for the acts of its employees if a plaintiff can show that: (I) he was deprived
of a constitutional right; and (2) such deprivation was the result of a government policy
or custom." Hampton v. District of Columbia, 764 F. Supp. 2d 147, 150 (D.D.C. 2011)
(citing Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004)); see Monell v.
Dep't ofSoc. Servs. of New York, 436 U.S. 658,691-94 (1978); Rogala v. District of
Columbia, 161 F.3d 44, 56 (D.C. Cir. 1998) ("A municipality may be sued under[§]
1983 for implementing or executing a policy or custom that causes the deprivation of an
individual's constitutional rights."). "Respondeat superior, or vicarious liability, will not
attach under § 1983, and therefore a municipality cannot be held liable solely because it
employs a tortfeasor." Burnett v. Sharma, 511 F. Supp. 2d 136, 141 (D.D.C. 2007)
(citations and internal quotation marks omitted).
It is plaintiffs burden to plead the existence of a municipal policy, custom or
practice that violated his federal constitutiorlal 'or statutory rights. See, e.g., Bonaccorsy
v. District of Columbia, 685 F. Supp. 2d 18,26 (D.D.C. 2010). Nowhere in his complaint
does plaintiff allege that a District of Columbia policy, custom or practice resulted in the
violation of a constitutional right, and plaintiffs failure to set forth such factual
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allegations renders the complaint subject to dismissal. See Dant v. District of Columbia,
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829 F.2d 69, 77 (D.C. Cir. 1987); Olaniyi v. District ofColumbia, 763 F. Supp. 2d 70, 97
(D.D.C. 2011) ("[T]o survive a motion to dis.rn.iss, a complaint asserting a § 1983 claim
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must allege a predicate constitutional violation which was caused by a policy of the
District of Columbia.").
The sole allegation of the complaint mentioning defendant Wainwright pertains to
Wainwright's response to plaintiffs institutional grievance. See Compl. at 7-8. Plaintiff
does not allege that Wainwright was personally or directly involved in any violation of
his constitutional rights. Absent such allegations, plaintiffs § 1983 claim against
Wainwright in his individual capacity fails. See Cameron v. Thornburgh, 983 F.2d 253,
258 (D.C. Cir. 1993).
B. The Commission and CSOSA
The Commission and CSOSA move to dismiss on the ground that, as federal
entities, they do not act under color of District of Columbia law and, therefore, § 1983
does not apply to them. See Mem. ofP. & A. in Supp. ofDefs.' Mot. to Dismiss ("Fed.
Defs.' Mem.") [Dkt. #29] at 9-11. The argument applies equally to the individual federal
defendants who presumably have been sued in their official capacities. As stated above,
a suit against a government official in his official capacity is treated as if it were a suit
against the government entity itself. Accordingly, plaintiffs claims against Mays-Jacks,
Singletary, Williams, Barno, Williams, and Young are treated as if they were brought
against CSOSA directly, and his claims against Isaac Fulwood, Chair of the Commission,
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are likewise treated as if they were brought against the Commission directly.
By its terms, § 1983 does not apply to any federal government entity or to federal
officials acting under federal law. See Settles v. US. Parole Comm 'n, 429 F .3d 1098,
1104 (D.C. Cir. 2005). Notwithstanding its authority to "provide supervision ... for
offenders on probation, parole, and supervised release pursuant to the District of
Columbia Official Code," D.C. Code§ 24-133(c)(l) (2007), CSOSA is a federal
government entity, D.C. Code§ 24-133(a) (2007) (establishing CSOSA "within the
executive branch of the Federal Government"); see Epps v. US. Attorney General, 575 F.
Supp. 2d 232, 234 n.l (D.D.C. 2008) (noting that CSOSA is a federal agency); see also
Ali v. D.C. Court Servs. & Offender Supervision Agency, 538 F. Supp. 2d 157, 161
(D.D.C. 2008) (concluding that sovereign immunity barred a suit against CSOSA and its
employees in their official capacities and dismissing the complaint brought by a parolee
as to the individual defendants, including·a Court Supervision Officer and her
supervisor). Likewise, despite its "role in administering parole for D.C. Code offenders,"
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the Commission is a federal entity and "retains the immunity it is due as an arm of the
federal sovereign." Settles, 429 F.3d at 1106. Thus, plaintiff cannot maintain a§ 1983
action against CSOSA or the Commission because the provision "does not apply to
federal officials acting under color of federal law." !d. at 1104.
C. Isaac Fulwood
Plaintiffbrings this action in part under Bivens, 403 U.S. 388 (1971), against the
individual defendants in their individual capacities. Critical to a Bivens claim is an
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allegation "that the defendant federal official was personally involved in the illegal
conduct." Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C. Cir. 1997); Voinche
v. Obama, 744 F. Supp. 2d 165, 177 (D.D.C. 2010). Allegations ofFulwood's personal
involvement in plaintiffs case are missing from plaintiffs complaint. Even without this
pleading defect, plaintiffs claim still fails. As a parole commissioner, Fulwood performs
a quasi-judicial function, and, therefore, he is absolutely immune from suit. See Jones v.
Fulwood, No. 11-0935, 2012 WL 1710381, at *5 (D.D.C. May 16, 2012) ("[T]he
Commissioners are absolutely immune from a lawsuit such as this which is predicated on
acts taken in their quasi-judicial or quasi-legislative capacity." (internal quotation marks
and citation omitted)); Pate v. United States, 277 F. Supp. 2d 1, 11 (D.D.C. 2003)
(holding that Chair of former District of Columbia Board of Parole was protected by
absolute immunity); see also Mowatt v. U.S. Parole Comm 'n, 815 F. Supp. 2d 199, 206
(D.D.C. 2011) (extending absolute immunity to Commission case analyst).
D. Sharon Mays-Jacks, Ms. Singletary, Russell Williams, Mr. Barno,
Thomas H. Williams, and Bryan Young
Plaintiffs Bivens claims against Sharon Mays-Jacks, Ms. Singletary, Russell
Williams, Mr. Barno, Thomas H. Williams, and Bryan Young in their individual
capacities also fail because these defendants are protected by qualified immunity.
"[G]overnment officials performing discretionary functions generally are shielded
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
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known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether
qualified immunity applies, the Court conducts a two-step analysis to determine
( 1) "whether the facts that a plaintiff has alleged or shown make out a violation of a
constitutional right," and (2) whether the right at issue was clearly established at the time
of the defendant's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
The sequence of this analysis is not mandatory, and the Court may "exercise [its] sound
discretion in deciding which of the two prongs ... should be addressed first in light of the
circumstances in the particular case at hand." !d. at 236.
Plaintiffs claims fail at the first prong. There is no protected interest in parole,
see generally Ellis v. District ofColumbia,,84 F.3d 1413, 1415-20 (D.C. Cir. 1996), even
if parole initially is granted and rescinded.prior to the prisoner's actual release, see Jago
v. VanCuren,454 U.S.14, 17(198l)(percuriam). Noristhereaprotectedinterestina
prisoner's place of confinement, see Olim v. Wakinekona, 461 U.S. 238,245 (1983), or
participation in a particular program such as the SRTP, see Forrester v. Fed. Bureau of
Prisons, No. 06-1954, 2007 WL 2616916, at *2 (D.D.C. Sept. 12, 2007) ("[P]risoners do
not have a due process right to participate in vocational and educational programs, let
alone one oftheir choosing.") (citations omitted); Williams v. Moore, 899 F. Supp. 711,
714 (D.D.C. 1995) (concluding that the District of Columbia had not created a liberty
interest in a work furlough program). Even if these defendants' actions brought about
plaintiffs expulsion from the SRTP; they do not rise to the level of a constitutional
violation.
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CONCLUSION
Plaintiff has failed to file a timely and substantive opposition to defendants'
motions, and the Court accordingly treats defendants' motions as conceded. Even if
plaintiff had filed a meaningful opposition, all of his claims fail. Defendants have
demonstrated that plaintiff did not exhaust his administrative remedies, and summary
judgment properly is GRANTED for the District of Columbia, Wardens Wainwright and
Johnson, and Investigator Richardson. Plaintiff otherwise fails to state claims under
§ 1983 and Bivens upon which relief can be granted, and these claims must be
DISMISSED. An Order accompanies this Memorandum Opinion.
United States District Judge
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