UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAXINE RUSSELL Plaintiff,

v. Civ. No. 17-313 (EGS)

CORRECTIONS CORPORATION OF AMERICA, THE DISTRICT OF COLUMBIA Defendants.

MEMORANDUM OPINION

Plaintiff Maxine Russell brings this suit against

Corrections Corporation of America (“CCA”) and the District of

Columbia (“the District”) seeking compensation for alleged

injuries she suffered when she was a pretrial inmate at the

Correctional Treatment Facility (“CTF”) after she fell in her

dark cell. She has since been released, and brings several

claims against the defendants alleging violations of state and

federal law in a seven-count complaint.

The Court previously dismissed one count of her complaint.

Pending before the Court is defendants’ motion for summary

judgment on the remaining six counts. Ms. Russell has failed to

oppose the motion or file any response. Upon consideration of

the motion, the relevant case law, and the entire record, the

Court GRANTS defendants’ motion for summary judgment. I. Background

The following facts are undisputed. Ms. Maxine Russell was

incarcerated at the Correctional Treatment Facility (“CTF”), a

correctional facility then-operated by Corrections Corporation

of America 1 in Washington, D.C. pursuant to a correctional

services agreement with the District. Defs.’ Statement of Facts

(“SOF”), ECF No. 64-1 at ¶ 1–3. 2 Ms. Russell was at CTF from

January 28, 2014 through March 4, 2014. Id. ¶ 1.

At CTF, Ms. Russell was in Unit E-2-A, Cell #9 from January

28 until February 20, 2014, the date of her accident. Id. ¶¶ 1,

5. This cell was equipped with one set of bunk beds, one light

fixture on the ceiling equipped with two bulbs, and a light

switch that inmates could control. Id. ¶ 6. The light switch was

located near the door of the cell, which was out of the reach of

the bunk beds. Id. ¶ 8. The cell had two windows that allowed

light from the outside, and one window in the cell door that

allowed in light from the hallway so that security personnel

could see into the cell to conduct security checks at night. Id.

¶¶ 12-14. Security lights and parking lot lights illuminated the

cell at night, as well as 24-hour lighting from the hallway and

dayroom. Id. ¶ 15.

1 Corrections Corporation of America has since changed its name to CoreCivic. 2 Ms. Russell has failed to dispute the defendants’ statement of

facts, or any of the documents provided to support those facts.

2 Ms. Russell alleges that shortly after she was

incarcerated, the light bulb in her cell began to flicker. Id. ¶

20. Sometime thereafter, the light stopped working. Compl., ECF

No. 1-1 ¶ 10. Additionally, she claims that her windows were

covered with film. SOF, ECF No. 64-1 ¶ 19. Ms. Russell claims

she told CTF staff about the lighting problem, and they said

that it would be fixed. Id. ¶ 21. On February 13, 2014, a week

prior to the accident, a CTF employee submitted a work order to

fix the lightbulb. Id. ¶ 22.

On February 20, 2014, Ms. Russell was seen by a Unity

Health provider in the medical unit for reasons independent of

her accident which would happen later in the day. Id. ¶ 23.

There, she stated she could not sleep in the dark and that being

“locked up” was “getting to her.” Id. Ms. Russell also stated

she was suffering emotional distress from the recent death of a

close family member. Id. Ms. Russell returned to her cell from

the medical unit at approximately 9:10 p.m. Id. ¶ 24. At

approximately 10:45 p.m., the inmates were told to return to

their cells from the dayroom and the TV room for a formal count,

which was conducted at 11:00 p.m. Id. ¶¶ 25-26. The housing unit

officer completed the count by 11:12 p.m. Id. ¶ 27.

At 11:24 p.m., the housing unit officer was notified that

Ms. Russell needed medical assistance because she fell from her

3 top bunk and hit her head and back on the wall. Id. ¶ 28–29. 3 The

housing unit officer medical staff responded and entered the

unit at approximately 11:38 p.m. Id. ¶ 30. Medical staff and

security personnel then escorted Ms. Russell to the medical

unit. Id. ¶ 31. Unity Health provider notes indicate she was

able to move and walk with minimal assistance. Id. ¶ 32. Ms.

Russell was returned to her unit and transferred to the bottom

bunk of a different cell at 1:50 a.m. on February 21, 2014. Id.

¶ 33. Ms. Russell visited the medical unit for follow-up visits

seven more times before being released from CTF on March 4,

2014. Id. ¶ 34.

Ms. Russell filed her complaint against defendants alleging

that she suffered physical and emotional injuries resulting from

being kept in a small, dark, and dingy cell. See Compl., ECF No.

1 ¶¶ 11-12. Defendants moved to dismiss Count Seven, a Monell

claim for municipal liability based on several theories of

liability, which the Court granted on June 17, 2019. See Mem.

Op., ECF No. 62. Six claims now remain against defendants:

Negligence (Count One); Intentional Infliction of Emotional

Distress (“IIED”) (Count Two); Negligent Infliction of Emotional

3 In her Complaint, Ms. Russell claims she tripped and fell in her cell. Compl., ECF No. 1–1 ¶ 12. However, in her deposition, she stated that she slipped off of the ladder while climbing to her bed, but does not remember exactly how she fell. SOF, ECF No. 64-1 ¶ 35.

4 Distress (Count Three); Negligent Training or Supervision (Count

Four); Failure to Protect (Count Five); and Inadequate Medical

Care (Count Six). See generally Compl., ECF No. 1.

Defendants have moved for summary judgment on all remaining

counts in Ms. Russell’s complaint. See generally Defs.’ Mot. for

Summ. J., ECF No. 64. Ms. Russell has failed to oppose, or in

any way respond to, defendants’ motion for summary judgment.

Subsequently, defendants filed a motion for summary disposition.

Defs.’ Mot. for Summ. Disposition, ECF No. 66. Ms. Russell did

not oppose or respond to the motion for summary disposition.

Defendants’ motions are ripe for adjudication.

II. Legal Standard

Summary judgment should be granted if “there is no genuine

dispute as to any material fact and the [moving party] is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Under Rule 56, summary judgment is appropriate if the

“pleadings, depositions, answers to interrogatories, admissions

on file, and affidavits show that there is no genuine issue of

material fact.” Carter v. Greenspan,

(D.D.C. 2004). Indeed, “[a] moving party is ‘entitled to

judgment as a matter of law’ against ‘a party who fails to make

a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.’” Waterhouse v. District of

5 Columbia,

(D.C. Cir. 2002)(quoting Celotex

Corp. v. Catrett,

(1986)). The non-moving

party is required to provide evidence that would permit a

reasonable jury to find in its favor. Laningham v. United States

Navy,

(D.C. Cir. 1987).

Even when there is no opposition filed, the burden is

always on the movant to demonstrate why summary judgment is

warranted. Grimes v. D.C.,

(D.C. Cir. 2015). “If

a party . . . fails to properly address another party's

assertion of fact . . . the court may . . . grant summary

judgment if the motion and supporting materials—including the

facts considered undisputed—show that the movant is entitled to

it.” Fed. R. Civ. P. 56(e)(3). Accordingly, a “district court

must always determine for itself whether the record and any

undisputed material facts justify granting summary judgment.”

Grimes,

.

III. Analysis

In Ms. Russell’s complaint she alleges violations of

various state and federal laws. See generally Compl., ECF No. 1–

1. The Court discusses each count in turn.

A. Tort Law Claims

1. Count One: Negligence

Ms. Russell alleges that defendants were negligent because

they “knew or ought to have known that keeping an inmate in a

6 dark and dingy cell . . . could lead to severe mental and/or

physical injuries.” Compl., ECF No. 1-1 ¶ 15. She also alleges

that as “a direct and proximate consequence of the negligence of

the defendants, directly or indirectly [,she] sustained

injuries.” Id. ¶ 16. A plaintiff bringing a negligence claim

must establish: (1) the standard of care; and (2) that a

violation of the standard was the proximate cause of the injury.

Jones v. Safeway Stores, Inc.,

(D.C. 1974).

Furthermore, “[i]n the District of Columbia, in order to make

out a prima facie case of liability based on the existence of a

dangerous condition, a plaintiff must show that the defendant

‘had actual notice of the dangerous condition or that the

condition had existed for such length of time that, in the

exercise of reasonable care, its existence should have become

known and corrected.’” Hickey v. WMATA,

(D.D.C. 2004).

Under District of Columbia law, expert testimony is

generally required to prove a deviation occurred from the

applicable standard of care in a negligence action. Edwards v.

Okie Dokie, Inc.,

(D.D.C. 2007). If “the

subject in question is so distinctly related to some science,

profession or occupation as to be beyond the ken of the average

layperson,” the plaintiff must present expert testimony to

establish the applicable standard of care.

When expert

7 testimony is necessary to establish such a standard, a

plaintiff’s failure to name an expert constitutes grounds for

dismissal.

Ms. Russell has not established that the defendants had a

duty to change the flickering light in her cell because they

were on notice it was a dangerous condition and failed to remedy

it in a reasonable time. See

The evidence in the record

establishes that a week before Ms. Russell fell, a CTF employee

submitted a work order to fix a light bulb in her cell. SOF, ECF

No. 64-1 ¶ 22. Ms. Russell has not provided expert testimony

establishing that a week was not a reasonable time for prison

maintenance to be completed under the circumstances in this

case. The reasonable amount of time that prison maintenance

employees should complete certain tasks, like replacing a

flickering light bulb in a cell that has other sources of light,

is a subject distinctly related to the correction profession

such that it would require correctional expert testimony. Cosio

v. D.C.,

(D.C. 2008)(stating that matters

such as “appropriate inspection and maintenance schedules for

prison facilities” would require expert testimony to establish

the standard of care).

Similarly, Ms. Russell failed to provide expert testimony

to show that the flickering light was a dangerous condition. The

undisputed evidence shows that there were other light sources

8 that illuminated the cell. SOF, ECF No. 64-1 ¶ 15 (stating cell

was lit by lights in parking lot and lights in hallway). The

amount of light needed to safely move through a prison cell at

night, when the cell has other sources of light, is also outside

of the ken of a regular person, and therefore expert testimony

is required to demonstrate that the lighting in Ms. Russell’s

cell fell below the standard of care. See Briggs v. WMATA,

, 845–46 (D.C. Cir. 2007)( stating that although “lay

persons can certainly distinguish between illumination and

complete darkness, there is nothing to indicate that common

knowledge includes a universal standard of ‘adequate’

lighting”). Without expert testimony, there is insufficient

evidence to prove that a deviation from the applicable standard

of care occurred in this case. Therefore, Ms. Russell cannot

establish that defendants breached a duty owed to her.

Accordingly, defendants’ motion for summary judgment on Count

One is GRANTED.

2. Count Two: IIED

Ms. Russell alleges that defendants intentionally inflicted

emotional distress on her, arguing defendants’ “conduct was

extreme, outrageous, and contrary to basic concepts of human

decency.” Compl., ECF No. 1-1 ¶ 18. To maintain a cause of

action for IIED, District of Columbia law “requires the

plaintiff to show (1) extreme and outrageous conduct by the

9 defendant which (2) intentionally or recklessly (3) cause[d] the

plaintiff severe emotional distress.” Ben-Kotel v. Howard Univ.,

(D.D.C. 2001)(quotations and citations

omitted). “Liability will be imposed only for conduct so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Thompson v. Jasas Corp.,

(D.D.C.

2002)(citing Homan v. Goyal,

(D.C.

1998))(internal quotation marks omitted).

The conduct alleged by Ms. Russell does not rise to the

level of “atrocious, and utterly intolerable in a civilized

community.”

The undisputed evidence shows that a work order

for the light bulb was placed after she complained about the

lighting issues in her cell. SOF, ECF No-64-1 ¶ 22. Moreover,

after she fell, Ms. Russell was seen by medical staff at least

seven times, id. ¶ 34, and she has not provided any evidence

that an employee engaged in any behavior that could be

classified as extreme. The defendants’ actions in this case

“[do] not approach the high extreme and outrageous” conduct

required to support an IIED claim. See Hollis v. Rosa Mexicano

DC, LLC,

(D.D.C. 2008). Accordingly,

defendants’ motion for summary judgment on Count Two is GRANTED.

10 3. Count Three: Negligent Infliction of Emotional Distress

Ms. Russell alleges that defendants negligently inflicted

emotional distress on her, arguing that their “conduct was

grossly negligent and defendants ought to know or knew that such

conduct would provoke extreme emotional distress.” Compl., ECF

No. 1-1 ¶ 23. To prevail on a claim of negligent infliction of

emotional distress, a plaintiff must establish, among other

things, that defendants acted negligently. Wright v. U.S.,

(D.D.C. 1997). Furthermore, “[i]n a negligent

infliction case, there can be recovery for mental and emotional

distress only if the plaintiff's injuries are ‘serious and

verifiable.’” Bahura v. S.E.W. Investors,

(D.C. 2000)(citation omitted).

Because Ms. Russell’s negligence claims fail, her negligent

infliction of emotional distress claims also fail. See Wright,

(stating negligent infliction of emotional

distress claim may only proceed when there is sufficient

evidence that defendant acted negligently). Additionally, under

District of Columbia law, “[e]xpert testimony is necessary to

demonstrate a causal link between a defendant’s act and a

plaintiff’s harm ‘in cases presenting medically complicated

questions due to multiple and/or preexisting causes.’” Halcomb

v. Woods,

(D.D.C. 2009)(requiring expert

11 testimony where plaintiff’s emotional distress was potentially

traceable to at least three different sources and manifested

itself in a variety of ways). Ms. Russell failed to provide

expert testimony establishing the requisite causal link between

defendants’ alleged tortious conduct and her emotional distress.

Absent such an expert, or evidence sufficient to show that

defendants acted negligently, she cannot maintain a claim for

negligent infliction of emotional distress. Accordingly,

defendants’ motion for summary judgment on Count Three is

GRANTED.

4. Count Four: Negligent Failure to Train or Supervise

Ms. Russell alleges that defendants failed to adequately

“train, supervise and discipline its agents and employees.”

Compl., ECF No. 1-1 ¶ 25. She further alleges that as “a direct

and proximate consequence of the customs, policies and practices

[of defendants] [she] sustained injuries.” Id. ¶ 27. Under a

negligent supervision or training theory, a plaintiff must show

“that an employer knew or should have known its employee behaved

in a dangerous or otherwise incompetent manner, and that the

employer, armed with that actual or constructive knowledge,

failed to adequately supervise the employee.” Brown v.

Argenbright Sec., Inc.,

(D.C. 2001). A

plaintiff claiming negligent supervision “bears the burden of

presenting evidence which establishes the applicable standard of

12 care, demonstrates that this standard has been violated, and

develops a causal relationship between the violation and the

harm complained of.” Tarpeh–Doe v. United States,

(D.C. Cir. 1994)(quoting Morrison v. MacNamara,

(D.C. 1979)).

Ms. Russell has not provided any expert testimony that

would demonstrate the applicable standard of care under these

circumstances. Moreover, Ms. Russell has not provided any

evidence to show that there was a causal relationship between

her light flickering and her alleged injuries sustained during

the fall. Similarly, Ms. Russell has not provided any evidence

that would show that the defendants had “actual or constructive

knowledge,” that any of its employees behaved in a “dangerous or

otherwise incompetent manner.” See Brown,

.

Because the plaintiff has not identified a standard of care,

presented any evidence of a deviation from that standard,

presented any evidence that the District knew about this

deviation, or that the deviation caused her injuries, summary

judgment is warranted on this theory of liability. See Smith v.

District of Columbia,

(D.C. 2005) (finding

directed verdict on negligence claim warranted where plaintiff

failed to introduce expert testimony as to the applicable

standard of care). Accordingly, defendants’ motion for summary

judgment on Count Four is GRANTED.

13 B. Federal Law Claims

The final two counts of Ms. Russell’s complaints are

brought under

for alleged violations of her

constitutional rights under a theory of municipal liability. See

Compl., ECF No. 1-1 ¶¶ 28–36. To state a claim under

, a court must conduct a two-step inquiry. Baker v. Dist.

of Columbia,

(D.C. Cir. 2003). First, a

court must determine whether the plaintiff establishes a

predicate constitutional or statutory violation.

If so, a

court then determines whether the complaint alleges that a

custom or policy of the municipality caused the violation. Id.;

see also Monell,

(1978). Ms. Russell brings

two theories of liability under Section 1983: (1) defendants

failed to protect her against a violation of her constitutional

rights; and (2) she was provided inadequate medical care as a

result of defendants’ deliberate indifference of those rights.

The Court addresses each claim in turn. See Compl., ECF No. 1-1

¶¶ 28–36.

1. Count Five: Failure to Protect

Ms. Russell alleges that defendants knew of and acquiesced

in “the substantial risk of harm to [her] by their neglect.”

Compl., ECF No. 1–1 ¶¶ 30–32. She further alleges that

defendants “deliberate[ly] disregard[ed] . . . [her]

constitutional rights [by] fail[ing] to remove the threat [to

14 her] welfare . . . thereby knowingly exposing [her] to physical

and emotional harm.” Id. ¶ 30.

Ms. Russell has not provided any evidence to support her

claim under Section 1983. Her complaint is devoid of facts

sufficient to allege a policy or custom that amounts to a

“consistent” or “widespread” practice of failing adequately to

supervise and protect inmates. See Richardson v. District of

Columbia,

(D.D.C. 2018)(stating that to

hold a municipality liable under Section 1983, a plaintiff must

establish that a custom or policy of the municipality caused the

violation). Although it is true that the failure to train,

supervise, or discipline city employees can constitute such a

policy or custom if it amounts to deliberate indifference

towards the constitutional rights of a plaintiff, see Daskalea

v. Dist. of Columbia,

(D.C. Cir. 2000), Ms.

Russell alleges in a conclusory manner that “[t]he need for

training was so obvious that failure to address it was likely to

result in a constitutional violation.” Compl., ECF No. 1-1 ¶ 38.

She has not alleged any deficiencies with respect to the

training provided to employees at CTF, or connected any such

deficiencies in training with any violation of her

constitutional rights. See City of Canton, Ohio v. Harris,

(1989)(“Only where a municipality's failure to

train its employees in a relevant respect evidences a

15 ‘deliberate indifference’ to the rights of its inhabitants can

such a shortcoming be properly thought of as a city ‘policy or

custom” that is actionable under § 1983.”).

Ms. Russell alleges only legal conclusions such as that

defendants had a “deliberate disregard for the plaintiff’s

constitutional rights” and that defendants “callous and

deliberate disregard to the plaintiff’s safety and welfare”

resulted in her injury. See Compl., ECF No. 1-1 ¶ 30–31. She has

failed to provide any evidence in support of her allegations

that defendants “knew of and acquiesced in the substantial risk

of harm to the plaintiff”--the undisputed evidence establishes

that she did not file any written grievances related to her

light fixture until after she had fell. SOF, ECF No. 64-1 ¶ 37.

Because Ms. Russell has failed to support her claim with any

evidence, or to dispute any of the evidence provided by the

defendants, the defendants’ motion for summary judgment on Count

Five is GRANTED.

2. Count Six: Inadequate Medical Care

Ms. Russell alleges that defendants should have known of

the excessive risk of leaving her in a dark and dingy cell and

disregarded that risk. Compl., ECF No. 1-1 ¶ 33–36. She further

alleges that as a direct and proximate consequence of these

failures, her “medical condition deteriorated as there was no

monitor[ing] and adequate care of her medical needs.” Id. ¶ 36.

16 Defendants move for summary judgment on Ms. Russell’s claim on

the basis that all medical services in CTF are provided by an

independent contractor, Unity Health, not the defendants. Defs.’

Mot. for Summ. J., ECF No. 64 at 7–8. 4 In Ms. Russell’s

opposition to defendants’ partial motion for summary judgment,

she clarified that she has not brought a claim for “defect of

medical care provided or medical malpractice” but rather her

“allegations are that she was denied care by the defendants, due

to their indifference.” Pl.’s Opp’n to Mot. for Partial Summ.

J., ECF No. 19 at 3. Ms. Russell contended that the District’s

policies barred her from receiving any medical treatment, and

that if there exists a factual dispute as to whether she

received treatment then summary judgment is inappropriate. Id.

at 3–4.

Ms. Russell’s arguments fail for several reasons. First,

there is no factual dispute as to whether Ms. Russell received

medical care after she was injured. Ms. Russell’s answers to the

District’s interrogatories unequivocally show that she received

treatment for her injuries. See Russell Interrrog., ECF No. 45-

4. In her answers to her interrogatories she stated that after

she fell “she [w]as treated at CCA clinic, and was taken to ER,

4 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

17 but [did] not recall which.” Id. at 5. She also stated that

“[f]or mental health, [she] went to see the psychiatrist and

mental care provider upstairs at the facility, [was] also seen

at the DC Department of Behavioral Health, then upon release

seen by [a] [t]herapist.” Id. Furthermore, Ms. Russell’s

deposition testimony confirms that she had no complaints about

the treatment she received, and the record shows that she saw

physicians at Unity Health Care at least seven times after her

fall. SOF ECF No. 64-1 ¶¶ 34–36. Accordingly, there is no

genuine factual dispute as to whether she received treatment,

rather, she concedes that she received both medical and mental

health treatment. See Carter,

(D.D.C.

2004)(summary judgment is appropriate if the “pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits show that there is no genuine issue of material

fact.”).

Second, to the extent Ms. Russell has clarified that Count

Six is a claim for a violation of 42 U.S.C § 1983 due to

deliberate indifference, she has failed to show either a

constitutional violation or that a custom or policy exists such

that the District can be liable for any such violation. See

Brown, 514 F.3d at 1283 (stating to hold the District liable

under

a plaintiff must establish a

constitutional violation and that a policy or custom of the

18 District caused that violation). Accordingly, defendants’ motion

for summary judgment on Count Six is GRANTED.

IV. Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment on all remaining counts in plaintiff’s

complaint is GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 18, 2019

19