UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ANTOINE JONES, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1027 (RJL) ) RACHEL LIEBER, et al., ) ) Defendants. ) ---------------------------) MEMORANDUM OPINION

Plaintiff Antoine Jones filed this pro se complaint under

against Dennis

Harrison, then the Acting Warden of the District of Columbia's Central Detention Facility ("D.C.

Jail"), and others, 1 alleging violations of plaintiffs rights under the First, Eighth, and Fourteenth

Amendments. Harrison has filed a motion to dismiss the complaint on multiple grounds,

including a failure to state a claim upon which relief may be granted. The plaintiff has filed an

opposition. Because the complaint fails to state a claim against Harrison, the claims against him

will be dismissed and the complaint will be dismissed. See 28 U.S.c. § 1915(e)(2)(B)(ii).

BACKGROUND

In late October 2005, Jones was taken into custody awaiting his trial along with several

codefendants on federal charges of cocaine trafficking? In November, and again in December,

J Jones' claims against other defendants named in this action have already been dismissed. See Order, Jan. 3, 2008 (dismissing claims against defendant Norma Home), Mem. Op. & Order, Sept. 30,2008 (dismissing claims against defendant Rachel Lieber).

2 Jones has since been convicted by ajury and, on May 2, 2008, sentenced to life in

prison for his cocaine trafficking. See Criminal Case No. 05-386 (ESH) (D.D.C.). His appeal from that conviction and sentence is pending. See Case No. 08-3034 (D.C. Cir.). that year, the United States Attorney's Office, concerned about Jones engaging in improper

communications with cooperating witnesses and/or unindicted codefendants, requested that Jones

be segregated from the general population and that his telephone, mail, and social contacts be

restricted. (See CompI., Appendix at 3/ Mem. from Assistant United States Attorney to Warden,

District of Columbia Jail, Dec. 22,2005.) The complaint alleges that

Mr. Dennis Harrison was the Acting Warden at the time when the D.C. Jail Administration place[d] me in S-1 [a segregated housing unit in the jail]. D.C. Jail Administration [increased] my security level from a minimum to maximum security, and subjected me to segregation without a proper hearing, and denied me re-entry into the prison popUlation without a court order from the judge.

(CompI. at 5.) The complaint appends a memorandum, dated March 1,2006, from Harrison to

the plaintiff, which, in its entirety, states:

In response to your grievance the Housing Board conducted a housing hearing on December 15,2005 to determine your housing status. Per the U.S. Attorney's Office request you are to be placed on Total Separation from the general population, also phone restriction and mail privileges. Therefore, you were placed on status total separation, which was explained during your initial review and the unit case manager conducted all follow-up reviews. Your case was shared with chief unit case manager, Ms. Leona Bennett for further resolution. Therefore, this matter is considered resolved.

(CompI., Appendix at 36.) In his opposition, the plaintiff further articulates his claim against

Harrison.

Jones' complaints were neglected and Mr. Harrison and his administration displayed unprofessional conduct in this matter. Mr. Harrison should have recognized the communication from [Assistant United States Attorney] Rachel Lieber to put Mr. Jones in Total Separation was not a court order.

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3 The page numbers cited refer to the page numbers assigned by the Clerk's ECF system, not the numbers on the hard copy of the documents, because the latter are either missing or not umque.

2 Based on the statements made in this memorandum signed by Acting Warden Harrison, Jones claims that the Acting Warden was therefore responsible for his action, his decision and the actions of the unit case manager, chief unit case manager, and his administration.... Acting Warden Harrison, Department of Corrections, District of Columbia Government, ... are responsible for professional misconduct, foul play and lack of professionalism.

(Opp'n at 3-4.)

The complaint further alleges that plaintiffs First, Eighth, and Fourteenth Amendment

protections were violated as a result of his placement in S-1. (Compl. at 6.) The complaint

offers factual details of the conditions of confinement that Jones alleges to be violations of his

constitutional rights. (ld. at 6-12.) For example, it describes disgusting and potentially harmful

physical conditions in his cell in the segregated housing unit (id. at 9-10), alleges that Jones was

denied access to a Bible and other religious reading materials (id. at 8), and alleges that one

occasion Jones was denied permission to place a telephone call to his court-appointed lawyer (id.

at 7).

DISCUSSION

A court may dismiss a complaint for failure to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). A court considering a Rule 12(b)(6) motion to dismiss

assumes all factual allegations to be true, even if they are doubtful. Bell Atlantic Corp. v.

Twombly,

(2007); Kowalv. MCICommc'ns Corp.,

(D.C. Cir. 1994) (noting that a court must construe the complaint "liberally in the plaintiffs'

favor" and "grant plaintiffs the benefit of all inferences that can be derived from the facts

alleged"). A court need not, however, "accept inferences drawn by plaintiffs if such inferences

are unsupported by the facts set out in the complaint. Nor must [a] court accept legal conclusions

cast in the form of factual allegations." Kowal,

. In deciding a 12(b)(6) motion, a

3 court is limited to considering "the facts alleged in the complaint, documents attached as exhibits

or incorporated by reference in the complaint, and matters about which the Court may take

judicial notice." Gustave-Schmidt v. Chao,

(D.D.C. 2002) (citations

omitted). A court may take judicial notice of public records from other proceedings. Covad

Commc 'ns Co. v. Bell Atlantic Corp.,

, 1222 (D.C. Cir. 2005) (permitting judicial

notice of facts in public records of other proceedings).

To state a claim under

, a complaint must allege facts sufficient to show

that (1) a person (2) acting under color of state, territorial, or 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. City of Oklahoma City v. Tuttle,

(1985). A municipal corporation is a "person" for purposes of § 1983 liability.

Monell v. Dep't ofSoc. Servs.,

(1978). The third requirement - that the

person must be alleged to have caused the plaintiff s deprivation of rights - means that § 1983

liability cannot rest on respondeat superior theory, whether the person sued is a municipality,

Monell,

, or is a person sued in his personal capacity, Kentucky v. Graham,

(1985) (stating that "to establish personal liability in a § 1983 action, it is enough

to show that the official, acting under color of state law, caused the deprivation of a federal

right"). See also Arnold v. Moore,

(D.D.C. 1997) ("High level public

officials are not employers of their subordinates, but rather are fellow governmental servants and

thus cannot be held liable on the basis of respondeat superior. "); Price v. Kelly,

(D.D.C. 1994) (stating that a respondeat superior theory of liability against a defendant

sued in his personal capacity is "not a sufficient basis for a valid [§ 1983] claim"); Nowlin v.

4 Director, Dist. a/Columbia Dep 'f a/Carr.,

(D.D.C. 1988) (stating that

personal-capacity liability under § 1983 can be premised only on a "showing of direct

responsibility for the improper action").

The complaint does not explicitly state that the suit is brought against Harrison in his

official capacity. The complaint repeatedly refers to "the Jail Administration" as an actor (see

Compi. at 5, 6, 9, 11, and 12), but does not name the D.C. Jail, the D.C. Department of

Corrections (neither of which is sui juris) or the District of Columbia as a defendant. The

plaintiff s opposition suggests that Harrison is sued in his official capacity, as supervisor of "his

administration" and the case managers. (Opp'n at 3.) If Harrison is sued in his official capacity,

then the suit is one against the governmental entity that stands behind Harrison, the District of

Columbia, a municipal corporation. Graham,

. In a § 1983 suit against a

municipality, liability attaches "only when an official policy or custom causes the complainant to

suffer a deprivation ofa constitutional right." Carter v. District a/Columbia,

(D.C. Cir. 1986) (internal quotation marks and citation omitted). The policy or custom itself

must be the moving force behind the constitutional violation.

Here, the complaint does not

allege that any District of Columbia custom or policy caused the alleged violations of plaintiff s

rights. Therefore, the complaint fails to state a claim upon which relief may be granted under

§ 1983 against Harrison in his official capacity, that is, against the District of Columbia.

Although Harrison is individually named as a defendant (see Compi. at 3, 4, and 5), the

complaint does not explicitly state that Harrison is sued in his personal capacity. To state a claim

against a person in his personal capacity, the complaint must allege conduct caused by the

defendant that deprived the plaintiff of a constitutional protection. The complaint does not allege

5 any conduct by Harrison except his authorship of the March 1, 2006 memorandum in response to

plaintiffs grievance. That memorandum does not constitute evidence that Harrison personally

encroached on any of the plaintiffs federal rights. The implication that Harrison violated

plaintiff s federal rights because he "should have recognized the communication from [the

Assistant United States Attorney] to put Mr. Jones in Total Separation was not a court order"

(Opp'n at 3), is baseless. Even pretrial detainees are subject to conditions of confinement that

are imposed in furtherance of, and are reasonably related to, a legitimate government interest.

See Bell v. Wolfish,

(1979). There is no rule that such measures require a

court order. To the contrary, it is clear that prison officials are not only entitled to, but are

sometimes required to, impose upon a pretrial detainee whatever restrictions or disabilities are

reasonably necessary to ensure the internal security of the institution, and to prevent prisoners

from intentionally inflicting harm or creating unreasonable risks of harm to others. Brogsdale v.

Barry,

,1190 & n.7 (D.C. Cir. 1991).

The complaint is devoid of any other allegations of conduct by Harrison. For example,

the complaint states that "[o]n February 23, 2006, I attempted to call my attorney but I was put

out of the Unit Office and denied the right to a legal phone call by Case Manager Reece. This

incident was witnessed by C.O. Root .... ,,4 (CompI. at 7.) Putting aside for the moment that the

conduct alleged does not, without much more, approach a violation of plaintiffs First

Amendment right of access to the courts, the complaint does not allege that Harrison was

involved in this incident or caused the result. Similarly, the complaint alleges that the plaintiff

was denied his "right" to "attend bible [sic] study, to attend worship services in the Chapel,

4 Throughout this time period, plaintiff was represented by a court-appointed defense attorney in his criminal case.

6 access to a bible [sic] or religious reading materials, communication and inspiration from a

Chaplain, minister from the community as well as contact with any religious service personnel."

(Id. at 8.) Again, there is nothing that indicates that these decisions were made by Harrison or

directed by Harrison. The complaint identifies by name more than a dozen individuals who

provided no satisfaction to plaintiff in his demands for what he believed was his due process in

connection with being placed in administrative segregation, but Harrison is not among them.

(See id. at 7 (identifying 13 persons).) Harrison is also not mentioned in connection with the

conditions of confinement in S-1 that plaintiff alleges violated his constitutional rights. (See id.

at 8-11.) Without reaching the question of whether the conduct alleged is actionable under

§ 1983, Harrison cannot be held liable under § 1983 for the conduct of others, and therefore the

complaint fails to state a claim against him in his personal capacity for actions taken by others.

CONCLUSION

Because the complaint does not allege factual allegations sufficient to state a claim under

§ 1983 for constitutional violations against defendant Harrison either in his official or personal

capacity, Harrison's motion to dismiss will be granted and the claims against Harrison will be

dismissed. Because no claims remain in this case, the complaint will be dismissed. A separate

order accompanies this memorandum opinion.

United States District Judge

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