UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOZELL BROWN, : Individually and as the Personal Representative : of the Estate of Reuel Griffin, : Civil Action No.: 14-750 (RC) : Plaintiff, : Re Document Nos.: 282, 284, 285, 286 : v. : : DISTRICT OF COLUMBIA, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 284); GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 285); GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 282); AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 286)

I. INTRODUCTION

Plaintiff Mozell Brown, representing the estate of Reuel Griffin, brings this action against

the District of Columbia and several other Defendants based on the care Griffin received during

his commitment to Saint Elizabeths Hospital. 1 Three groups of Defendants brought motions for

summary judgment. First, the District moves for partial summary judgment of Plaintiff’s claim

for denial of substantive due process under the Fifth Amendment and

based on

causation. 2 Second, several higher-level hospital employees move for summary judgment of

Plaintiff’s 1983 claim based on qualified immunity, and of Plaintiff’s negligence claim based on

1 See Min. Order (Apr. 17, 2017) (“Mozell Brown shall be substituted as the Personal Representative of the Estate of Reuel Griffin in this matter”). 2 D.C.’s Mem. P. & A. Supp. Partial Mot. Summ. J., ECF No. 284-1 (“D.C. Mem.”); Pl.’s Opp’n D.C.’s Mot. Partial Summ. J. (“Pl.’s D.C. Opp’n”), ECF No. 296; D.C.’s Reply Pl.’s Opp’n D.C.’s Mot. Summ. J. (“D.C. Reply”), ECF No. 303. failure to prove duty or breach. 3 Third, several lower-level hospital employees move for

summary judgment of Plaintiff’s 1983 claim based on qualified immunity. 4 Plaintiff moves for

partial summary judgment on liability of the 1983 and negligence claims against the District and

several individual Defendants. 5 For the reasons given below, the qualified-immunity defenses

succeed and the motions are granted to that extent, but the motions are otherwise denied.

II. FACTUAL BACKGROUND

A. Saint Elizabeths’ Payments for External Care

Saint Elizabeths Hospital “is the public psychiatric hospital for the District of Columbia”

operated by the D.C. Department of Behavioral Health (“DBH”). Pl.’s Statement of Undisputed

Material Facts (Corrected) (“Pl.’s SUMF”) ¶¶ 1, 3, ECF No. 289-2. During the relevant time,

the following individuals held the following roles at Saint Elizabeths: Patrick Canavan: CEO;

Anthea Seymour: COO; Bernard Arons: Medical Director; Edger Potter: Supervisory General

Medical Officer. For patients’ medical care, some routine medical services are provided on site,

3 Mem. P. & A. Supp. Mot. Summ. J. by Defs. Canavan, Seymour, Arons & Potter (“Defs.’ Higher-Level Mem.”), ECF No. 285-1; Pl.’s Opp’n Mot. Summ. J. by Defs. Canavan, Seymour, Arons & Potter (“Pl.’s Higher-Level Opp’n”), ECF No. 295; Reply Pl.’s Opp’n Mot. Summ. J. by Defs. Canavan, Seymour, Arons & Potter (“Defs.’ Higher-Level Reply”), ECF No. 302. 4 Defs.’ Mem. P. & A. Supp. Mot. Summ. J. (“Defs.’ Lower-Level Mem.”), ECF No. 282-1; Pl.’s Opp’n Defs.’ Mot. Summ. J. Dkt. 282-1 (“Pl.’s Lower-Level Opp’n”), ECF No. 297; Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. Summ. J. 282-1 (“Defs.’ Lower-Level Reply”), ECF No. 301. 5 Pl.’s Mem. P. & A. Supp. Mot. Partial Summ. J. (Corrected) (“Pl.’s Mem.”), ECF No. 289-1; Defs.’ Mem. P. & A. Opp’n Pl.’s Mot. Summ. J. (“Defs.’ Opp’n”), ECF No. 293; Pl.’s Reply Supp. Mot. Partial Summ. J. (Corrected) (“Pl.’s Reply”), ECF No. 311-2. Plaintiff served corrected versions of the briefing for this motion. Compare Pl.’s Mem. and Pl.’s Reply with Pl.’s Mot. Partial Summ. J., ECF No. 286, and Pl.’s Reply Supp. Mot. Partial Summ. J., ECF No. 309. Because Defendants have not objected to these corrected versions, and in fact responded to the corrected version of Plaintiff’s opening brief, see, e.g., Defs.’ Opp’n at 1 n.1 (citing ECF No. 289-1 as Plaintiff’s memorandum), the Court will treat the corrected versions as the operative versions.

2 but patients must be referred to external providers for “non-psychiatric specialty medical

services.”

.

As part of the scheduling process for external medical appointments, “[t]he hospital

routinely provided a Not Guilty By Reason Of Insanity patient’s Medicaid or Medicare [sic], if

the patient had a Medicaid or Medicare number.” Defs.’ Resp. Pl.’s Statement of Material Facts

(“Defs.’ SUMF Resp.”) ¶ 27, ECF No. 293-2 (quoting District’s interrogatory response).

Antoinette Quander-Clemons was responsible for scheduling outside appointments but was not

responsible for billing; nurse Bernadeane Greene acted as Quander-Clemons’s assistant during

the relevant time. Defs.’ Lower-Level SUMF ¶¶ 31, 38, ECF No. 282-3. Greene scheduled the

August 4, 2011 appointment discussed below for which Griffin was not seen due to lack of

insurance.

.

The federal Medicaid statute has an exclusion for institutions for mental diseases (“IMD

exclusion”). Under the IMD exclusion, Federal Financial Participation (“FFP”)—funds paid by

the federal government to states for Medicaid expenditures—is generally unavailable for

“payments with respect to care or services for any individual who has not attained 65 years of

age and who is a patient in an institution for mental diseases.” Virginia Dep’t of Med. Assistance

Servs. v. HHS,

(D.C. Cir. 2012) (quoting 42 U.S.C. § 1396d(a)(B)). The

parties agree that the IMD exclusion applies to Saint Elizabeths. Defs.’ SUMF Resp. ¶ 22.

Several high-level officials at Saint Elizabeths were aware of the IMD exclusion before and

during the relevant events. See, e.g., Pl.’s SUMF ¶¶ 26. Despite the IMD exclusion, the D.C.

Department of Healthcare Finance (“DHCF”) “generally paid” outpatient medical claims for

IMD patients because DHCF does not track whether claims are submitted for IMD patients.

Pl.’s Higher-Level SUMF Resp. ¶ 4, ECF No. 295-1.

3 An “issue regarding Medicaid federal fund participation availability (FFP) . . . arose in

late Spring 2011 when the Hospital had difficulty scheduling external appointments.” Defs.’

SUMF Resp. ¶ 34; see also id. ¶ 36 (acknowledging that some “emails do suggest that Saint

Elizabeths was having difficulty scheduling outside medical appointments”). Multiple

individuals testified that external providers refused to accept Medicaid as the payment method

for Saint Elizabeths patients. See, e.g., id. ¶¶ 32–34. Plaintiff points to numerous alleged

instances of patients experiencing delays in receiving external medical treatment throughout

2011 and 2012, though Defendants dispute the cause of delays for many of these. See Defs.’

SUMF Resp. ¶¶ 37–38. Between April 2011 and April 2012, many emails among Saint

Elizabeths and District employees, including upper management at Saint Elizabeths, refer to

difficulties getting external medical appointments because Medicaid was not being approved or

accepted. See Pl.’s SUMF ¶ 41. The District “did not generally obtain financing or payment for

external medical care before scheduling or transporting patients to external medical

appointments until it was notified that it needed to pay for its IMD patients.” Id. ¶ 42.

Defendants cite evidence showing efforts from Saint Elizabeths and District personnel to figure

out how to pay for external care for IMD-exclusion patients. See, e.g., Defs.’ Higher-Level

SUMF ¶¶ 15, 17, ECF No. 285-3.

In September 2011, another method to pay for external medical care was developed:

Purchase Cards (“P-Cards”), which were essentially credit cards, could be used. Pl.’s SUMF

¶ 44. P-Cards were used to pay for at least one instance of external care in 2011, although there

is testimony that the P-Cards had problems, such as some external providers not accepting it. Id.

In June 2013, Saint Elizabeths began using Letters of Financial Responsibility (“LOFR”) to

4 directly pay for external care. Id. ¶ 45. “Today, the LOFR remains the protocol in place to pay

for external care.” Id.

B. Griffin’s Care Relating to External Appointments

“Reuel Griffin was involuntarily committed to St. Elizabeths Hospital in 1983 pursuant to

(d)(1) after he was adjudicated Not Guilty By Reason of Insanity (NGBRI) on

charges of Destroying Property and Assault.” Pl.’s SUMF ¶ 47. Griffin was transferred to D.C.

Jail in March 2010 on charges of inappropriately touching a staff member, and he returned to

Saint Elizabeths on February 24, 2011. Defs.’ SUMF Resp. ¶¶ 48, 51. While at the Jail in mid-

November 2010, Griffin suffered a Lisfranc fracture in his left foot.

. 6 Also while in Jail,

Griffin’s Medicaid coverage lapsed and was not renewed. Pl.’s Higher-Level SUMF Resp. ¶ 2. 7

On the day Griffin returned to Saint Elizabeths, Dr. Danilo Garcia did a physical evaluation of

Griffin in which he “noted that Griffin had gait abnormality and walked with a limp.” Pl.’s

SUMF ¶ 51. “On February 25, 2011, Dr. Garcia made a referral for an x-ray and an orthopedic

consult for Griffin’s foot and knee because he believed Griffin needed medical treatment from

orthopedics. The x-ray was performed onsite at Saint Elizabeths Hospital and showed abnormal

widening between the 1st and 2nd metatarsal.”

(citations omitted).

Subsequently, Dr. Richard Smith became Griffin’s primary doctor.

. “On March

1, 2011, Dr. Smith reviewed the x-ray of Mr. Griffin’s left foot and ankle, and noted that it

showed ‘some probable effusion of the ankle joint and chronic changes of the foot including

6 Defendants try to dispute this fact, but one of their responses to a request for admission was: “Defendants respond that Plaintiff sustained a Lisfranc fracture in mid-November 2010.” Pl.’s Mem. Ex. 46 at 6, ECF No. 289-8. 7 Whether Griffin’s Medicaid coverage was active or lapsed does not, at this time and for these motions, appear material. Similarly, the details of the District’s decisions regarding allowing NGBRI patients to enroll in Medicaid, see, e.g., Defs.’ Higher-Level SUMF ¶¶ 21–24, do not appear to be material at this time.

5 arthritis of the M-P joint.’”

Smith referred Griffin for an orthopedics appointment, but it was

not scheduled. 8

On May 25, 2011, “Smith observed that Griffin was experiencing

‘increasing discomfort in his knees’ and requested an MRI for both of Mr. Griffin’s knees.”

. The MRI appointment was not made.

“On July 30, 2011, after noting that there was

increased swelling and pain in Mr. Griffin’s left foot, Dr. Smith sent Mr. Griffin to the

Emergency Room at Washington Hospital Center for evaluation. The x-ray at WHC confirmed

the lisfranc fracture.”

. “[A]n orthopedics consult to WHC was placed by Dr. Smith on

July 31, 2011, but the referral to the WHC orthopedic clinic never occurred . . . .”

. On

August 4, 2011, Smith sent Griffin out for an MRI of his knees, but Griffin was not seen because

he did not have insurance. Defs.’ SUMF Resp. ¶ 58 (not disputing that Griffin “was rejected

because he did not have insurance”). On October 6, Smith requested an orthopedics referral for

Griffin’s knees and foot. Pl.’s SUMF ¶ 59. “On October 25, 2011, Dr. Garcia saw Griffin and

noted the continuing left foot deformity and his foot fracture.”

. On January 11, 2012,

Potter recommended an orthopedic referral “to determine whether Griffin would benefit from a

knee replacement.” Defs.’ SUMF Resp. ¶ 61. Griffin never received surgery for his Lisfranc

fracture.

. There is evidence that Griffin had difficulty walking during this time.

. Griffin died on January 31, 2012, as discussed in more detail below. Pl.’s SUMF ¶ 69.

C. Griffin’s Internal Care at Saint Elizabeths

Numerous individuals participated in Griffin’s care relevant to the asserted claims. “Dr.

[Peter] Thura prescribed ‘600 milligram PO3 times a day as-needed for joint pain’” on

8 For several instances of outpatient care being ordered for Griffin that never occurred, Plaintiff cites some evidence, such as deposition testimony or notes from Griffin’s medical records (the admissibility of which has not been determined), indicating that Griffin was not seen due to insurance issues. See, e.g., Pl.’s Mem. Ex. 8, Quander-Clemons Dep. 94:16–19, ECF No. 289-3 (testifying that Quander-Clemons told Smith that “we can’t schedule appointments with Mr. Griffin because he doesn’t have any insurance”).

6 September 25, 2011. Defs.’ Lower-Level SUMF ¶ 6, ECF No. 282-3. Potter treated Griffin on

November 10, 2011, and January 11, 2012.

. “Dr. Potter examined Griffin’s peripheral

joints, performed an arthrocentesis on Griffin’s knee, collected 200cc of bloody fluid from the

swollen portion of his knee, and injected his knee with lidocaine and Kenalog.”

.

Enyioma Anyatonwu was a charge nurse for Griffin’s ward at Saint Elizabeths from

October 13, 2011, through his death. Pl.’s SUMF ¶ 70. Florence Nwonye and Amma Pokuaah

were nurse Team Leaders for Griffin’s unit.

¶¶ 71–72. Griffin used crutches for at least

some of the time between February 2011 and January 2012. See

¶¶ 97–98. He also

occasionally shadowboxed, sometimes “very hard to the point of him almost losing his balance,”

and at least one nurse, Anyatonwu, would tell him to sit down to avoid injuring himself. 9 See

; Defs.’ Lower-Level SUMF ¶¶ 14, 17, 22. At least one nurse, Nwonye, “encouraged Griffin

to walk with crutches rather than b[ear] weight on his foot.” Defs.’ Lower-Level SUMF ¶ 16.

Pokuaah instructed Griffin to elevate his feet when possible.

.

Evidence suggests that Griffin presented some difficulties for the nurses. Regarding

Griffin’s self-care, there is evidence that Griffin, in addition to shadowboxing, would walk

without the wheelchair he had been prescribed and participated in a dance contest. Defs.’ Opp’n

at 31. Regarding the safety of treating Griffin, there is evidence that Griffin had physical

altercations with other patients that included striking other patients, experienced delusions, and

slapped a nurse. See

at 31–32.

The Saint Elizabeths nursing pain assessment policy required that “[a]ny time a patient

makes a complaint regarding pain it is the nurse’s responsibility to conduct a full pain

9 “Shadowboxing is a combat sport exercise in which a person throws punches at the air as though there is an opponent.” Shadowboxing, Wikipedia, https://en.wikipedia.org/wiki/ Shadowboxing.

7 assessment and to complete the pain assessment form.” Pl.’s SUMF ¶ 77. Pain assessments do

not require visualizing the area in all instances. Defs.’ SUMF Resp. ¶ 80. Between February

2011, and January 31, 2012, Griffin was given 282 administrations of Motrin and 14 pain

assessments were conducted. Pl.’s SUMF ¶¶ 84–85. Nwonye gave at least 19 of these Motrin

administrations and never filled out a pain assessment form.

. Pokuaah gave at least 3 of

these Motrin administrations in March and May 2011 without completing a pain assessment.

. From November 2011 through January 2012, Griffin was given 59 administrations of

Tramadol for pain with 11 pain assessments completed.

. Anyatonwu and Nwonye had

copied and pasted old nursing notes instead of drafting new ones and were eventually removed

from Griffin’s unit.

. Plaintiff cites documents, which may or may not be admissible,

indicating that Griffin’s nurses did not follow Saint Elizabeths policy regarding pain

assessments. See Pl.’s SUMF ¶¶ 111–14. The parties dispute whether, and to what extent,

Griffin refused to take his medication. See, e.g., Pl.’s Lower-Level SUMF Resp. ¶ 15, ECF No.

297-1.

During the last ten days of Griffin’s life, he was regularly given Motrin and Tramadol.

See Pl.’s SUMF ¶ 115. In January 2012, Griffin frequently rated his pain an eight on a ten-point

scale. Defs.’ SUMF Resp. ¶ 76. “Anyatonwu noted on January 30, 2012 that Reuel Griffin had

gained 12 pounds in a short period of time.” Pl.’s SUMF ¶ 94. On the morning of January 31,

2012, Griffin stated that he could not move and his legs were in pain.

. Griffin had 3+

pitting edema at this time.

. The extent to which Griffin’s legs were examined in the

days leading to his death is disputed, but the only evidence cited by Defendants to dispute the

assertion that Griffin’s legs were not physically assessed or visualized during his final days is

citation to medical records from January 31, 2012, the day Griffin died. Defs.’ SUMF Resp.

8 ¶ 119. On that day, medical records indicate that at some time in the morning, nurse Bernadette

Williams documented edema in Griffin’s feet and immediately notified Daphne Jackson, the

nursing supervisor; Anyatonwu examined Griffin around 6:51 a.m. and requested that a doctor

see Griffin; at Anyatonwu’s request, Thura examined Griffin at around 7:00 or 7:28 a.m., with

Anyatonwu telling Thura “that Griffin had chronic leg pain and that his legs were swelling”;

Thura prescribed Motrin and a diuretic to address leg swelling; at 8:20 a.m., a psychiatrist was

told by “staff” that Griffin complained of shortness of breath, and the psychiatrist “informed the

staff to call a Code Blue” 10; several unsuccessful calls were made to get a doctor between 8:46

a.m. and 8:59 a.m. after Griffin had shortness of breath and vomiting and rated his pain a ten out

of ten; some of these calls were likely made by Jackson, who ordered Williams to bring a crash

cart to Griffin’s room; and it appears that a Code Blue (or, indirectly, 911) was called at 9:07

a.m. Pl.’s SUMF ¶ 120; Defs.’ Lower-Level SUMF ¶¶ 7–9, 23–25. Plaintiff cites at least some

non-expert testimony that the Code Blue should have been called at 8:46 a.m. Pl.’s SUMF

¶ 122. Griffin was pronounced dead at 10:07 a.m.

.

The parties appear to agree that Griffin’s cause of death was cardiac related, although

they dispute the exact cardiac issue. No medical records show cardiac care performed on Griffin

between February 2011 and January 2012. D.C. SUMF ¶ 1, ECF No. 284-3. None of Griffin’s

referrals for external appointments concerned cardiac care.

. Plaintiff’s cardiology expert

opines that Griffin was overprescribed Motrin, a type of NSAID (nonsteroidal anti-inflammatory

drug), which “contributed to the cardiovascular disease.” Pl.’s D.C. SUMF Resp. ¶ 6, ECF No.

296-1.

10 Calling a Code Blue signifies an emergency requiring immediate response in a potentially life-threatening situation. Defs.’ Lower-Level Mem. at 7 n.4.

9 D. Procedural Background

Plaintiff filed the complaint for this case on April 29, 2014. It includes four counts:

medical negligence (Count I); wrongful death (Count II); Survival Act (Count III); and section

1983 (Count IV). Compl., ECF No. 1. As described above, Defendants move for summary

judgment on various grounds for Counts I and IV, and Plaintiff moves for partial summary

judgment on liability for Counts I and IV.

III. LEGAL STANDARD

A court may grant summary judgment when “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). A “material” fact is one capable of affecting the substantive outcome of the

litigation, see Anderson v. Liberty Lobby, Inc.,

(1986), while a dispute is

“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-

movant, see Scott v. Harris,

(2007).

The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. See Celotex Corp. v. Catrett,

, 323–24 (1986). The movant bears the initial

burden of identifying portions of the record that demonstrate the absence of any genuine issue of

material fact. See Fed. R. Civ. P. 56(c)(1); Celotex,

. In response, the non-

movant must point to specific facts in the record that reveal a genuine issue that is suitable for

trial. See Celotex,

. In considering a motion for summary judgment, a court

cannot make credibility determinations or weigh the evidence. See Czekalski v. Peters,

(D.C. Cir. 2007). All underlying facts and inferences must be analyzed in the light

most favorable to the non-movant. See Anderson,

. That said, conclusory

10 assertions offered without any evidentiary support do not establish a genuine issue for trial. See

Greene v. Dalton,

, 675 (D.C. Cir. 1999).

“‘The burden is always on the movant to demonstrate why summary judgment is

warranted. The nonmoving party’s failure to oppose summary judgment does not shift that

burden.’ The District Court ‘must always determine for itself whether the record and any

undisputed material facts justify granting summary judgment.’” Winston & Strawn, LLP v.

McLean,

(D.C. Cir. 2016) (quoting Grimes v. District of Columbia,

(D.C. Cir. 2015) (Griffith, J., concurring)).

IV. ANALYSIS

The Court first lays out the law applicable to the parties’ arguments. Defendants’ three

motions are then addressed, which cover, in order, municipal liability, liability for higher-level

Saint Elizabeths employees on more supervisory and administrative bases, and liability for

caregivers and lower-level administrators. Last, Plaintiff’s motion for partial summary judgment

on liability is addressed to the extent the issues are not resolved by the Court’s decisions on

Defendants’ motions. Ultimately, the Court denies the District’s motion for partial summary

judgment, grants Defendants’ motion for summary judgment for the higher-level employees on

qualified-immunity grounds only, grants Defendants’ motion for summary judgment for the

lower-level employees, and denies Plaintiff’s motion for partial summary judgment.

A. Legal Frameworks

The four motions largely turn on two legal issues: the Fifth-Amendment right to medical

care of a patient committed after a Not Guilty by Reason of Insanity (“NGBRI”) finding (via

), and qualified immunity. The following explanation of these legal frameworks

will govern the Court’s analysis of the parties’ motions.

11 1. Fifth-Amendment Right to Medical Care

The Due Process Clause of the Fifth Amendment imposes on “the State . . . an

affirmative duty to ensure the safety and general well-being of an involuntarily committed

mental patient.” Harvey v. District of Columbia,

(D.C. Cir. 2015) (citing

Youngberg v. Romeo,

(1982)). This includes an “affirmative duty . . . to provide

necessary medical care.”

“To constitute a substantive due process violation, the defendant

official’s behavior must be ‘so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.’”

at 1049 (quoting Estate of Phillips v. District of Columbia,

(D.C. Cir. 2006)). “This stringent requirement exists to differentiate substantive

due process, which is intended only to protect against arbitrary government action, from local

tort law.” Butera v. District of Columbia,

(D.C. Cir. 2001). Merely proving

negligence is “categorically beneath the threshold of constitutional due process.”

(quoting

Cnty. of Sacramento v. Lewis,

(1998)).

The parties dispute what constitutes conscience-shocking care for individuals committed

to psychiatric hospitals by way of NGBRI. Plaintiff argues that the professional-judgment

standard applies. See, e.g., Pl.’s Mem. at 8 (“Under Youngberg v. Romeo,

(1982), liability against a governmental agency for failure to provide safety and general well-

being for involuntarily committed mental patients ‘may be imposed only when the decision by

the professional is such a substantial departure from accepted professional judgment, practice, or

standards as to demonstrate that the person responsible actually did not base the decision on such

a judgment.’” (quoting Costa v. Bazron,

, 134 (D.D.C. 2020))). Defendants

sometimes advocate for the more protective deliberate-indifference standard and sometimes

appear to accept the professional-judgment standard. Compare, e.g., Defs.’ Higher-Level Mem.

12 at 18 (“These are not the actions of officials who are deliberately indifferent to the needs of

NGBRI patients.”), and Defs.’ Lower-Level Mem. at 17 (“An individual in state custody states a

claim for inadequate medical care under the Fifth Amendment’s Substantive Due Process Clause

if he or she can show (1) a serious medical need, and (2) that government officials acted with

deliberate indifference toward that need.”), with Defs.’ Opp’n at 19 (“Plaintiff may be correct

[that the professional-judgment standard applies in this case], but the professional judgment

standard is not meaningfully more stringent than the deliberate indifference standard.” (citing

Jordan v. District of Columbia,

, 57–58 (D.D.C. 2016), aff’d,

(D.C. Cir. 2017))). No party cites a case from this circuit that is precisely on point.

This Court recently discussed these standards at length to determine what standard

applies to civilly committed individuals. After acknowledging that it is “debatable” whether the

professional-judgment standard “is meaningfully more stringent” than the deliberate-indifference

standard, and “that the precise standard to apply when assessing a civilly committed individual’s

substantive due process claim is not firmly established in this circuit,” the Court decided to apply

the professional-judgment standard to civilly committed individuals. Jordan, 161 F. Supp. 3d at

54–59.

Patients committed via NGBRI are sufficiently analogous to civilly committed patients to

justify the same standard. “The purpose of commitment following an insanity acquittal, like that

of civil commitment, is to treat the individual’s mental illness and protect him and society from

his potential dangerousness. The committed acquittee is entitled to release when he has

recovered his sanity or is no longer dangerous.” Jones v. United States,

(1983). The D.C. statute governing NGBRI states that persons acquitted solely due to insanity

“shall be committed to a hospital for the mentally ill until such time as he is eligible for release.”

13

. Commitment following NGBRI, therefore, is not intended to punish. See

Jones,

(“As he was not convicted, he may not be punished. His confinement

rests on his continuing illness and dangerousness.”). Accordingly, NGBRI commitment is

analogous to civil commitment and should be analyzed under the professional-judgment standard

for violations of the Fifth Amendment’s Due Process Clause.

2.

Claims for constitutional violations may be brought under

:

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 . . . .

. “‘Tort law proximate cause principles apply to § 1983 action[s],’ and

‘[p]roximate cause requires both a causal relationship between the [wrongful] act and the

plaintiff’s injury and foreseeability of the injury.’” Brown v. Hill,

(D.D.C. 2016) (quoting Elkins v. District of Columbia,

(D.D.C. 2009));

accord Hampton v. District of Columbia,

(D.D.C. 2011) (“[A] plaintiff

alleging a violation of a constitutionally protected interest under § 1983 must demonstrate that

the violation was the proximate cause of the plaintiff’s injury.”).

“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must

plead that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Ashcroft v. Iqbal,

(2009). Accordingly, “[i]n order

for the District to be held liable for the acts of a wrongdoer under its authority, a plaintiff must

show that the District was the ‘moving force’ behind the alleged constitutional deprivation, as

evidenced by an official policy or ‘practices so persistent and widespread as to practically have

14 the force of law.’” Moreno v. District of Columbia,

(D.D.C. 2013)

(cleaned up) (quoting Monell v. N.Y. City Dep’t of Social Servs.,

(1978); and

Connick v. Thompson,

, 61 (2011)); see also Smith v. District of Columbia,

(D.C. Cir. 2005) (“We have equated moving force with proximate cause.”). Put another

way, municipal liability under section 1983 requires both (1) a predicate constitutional violation

and (2) that a policy or custom of the municipality caused that constitutional violation. Monell,

; accord Harvey,

(“To sustain a claim against a municipality

under § 1983, a plaintiff must show that the policy or custom of the municipality caused a

violation of the plaintiff’s constitutional rights.”). “[A] municipality cannot be held liable under

§ 1983 on a respondeat superior theory.” Monell,

. “There are four basic

categories through which [a plaintiff] may establish municipal liability against the District: (1)

express municipal policy; (2) adoption by municipal policymakers; (3) custom or usage; and (4)

deliberate indifference.” Singh v. District of Columbia,

(D.D.C. 2014).

3. Qualified Immunity

Qualified “immunity protects all but the plainly incompetent or those who knowingly

violate the law.” White v. Pauly,

(2017) (internal quotation marks omitted).

It accomplishes this by “shield[ing] federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-

Kidd,

(2011) (quoting Harlow v. Fitzgerald,

(1982)). “It is

[the plaintiff’s] burden to show that the particular right in question—narrowly described to fit the

factual pattern confronting the [officials]—was clearly established.” Dukore v. District of

Columbia,

(D.C. Cir. 2015); see also Kyle v. Bedlion,

,

15 388 (D.D.C. 2016) (“A defendant bears the burden of raising the defense of qualified immunity

in response to a claim brought under section 1983, and once the defense is asserted, ‘the burden

of proof then falls to the plaintiff to show that the official is not entitled to qualified immunity.’”

(cleaned up) (quoting Winder v. Erste,

(D.D.C. 2012))).

Judges may “exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan,

(2009); Jones v. Kirchner,

(D.C. Cir. 2016). It is “often beneficial” to consider the violation prong first and the

“clearly established” prong second, especially when “there would be little if any conservation of

judicial resources to be had by beginning and ending with” the “clearly established” prong.

Pearson,

. But in cases where “it is plain that a constitutional right is not clearly

established but far from obvious whether in fact there is such a right,” it may be a better use of

“scarce judicial resources” to begin with the “clearly established” prong.

at 236–37.

For a constitutional right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton,

(1987). This requires “existing precedent” to

“have placed the statutory or constitutional question beyond debate,” although it is not necessary

to have “a case directly on point.” al-Kidd,

. If there is no controlling authority,

then there must be “a robust ‘consensus of cases of persuasive authority.’”

at 742 (quoting

Wilson v. Layne,

(1999)). The Supreme Court has cautioned lower courts “not

to define clearly established law at a high level of generality,” such as arguing “that an

unreasonable search or seizure violates the Fourth Amendment,” because that “is of little help in

determining whether the violative nature of particular conduct is clearly established.”

16 Although, as discussed above, the Court applies the professional-judgment standard to

Griffin’s claims, the deliberate-indifference standard must be used to analyze the “clearly

established” prong of qualified immunity. In this case, qualified immunity is raised as a defense

to alleged violations of Griffin’s substantive-due-process right to adequate medical care. As

explained above, there is no controlling precedent in this circuit deciding whether the

professional-judgment or deliberate-indifference standard applies to patients like Griffin.

Therefore, for Griffin’s right to have been clearly established at the time of alleged violation

regarding specific conduct, it must have been clearly established that the conduct in question met

the deliberate-indifference standard because that standard is arguably more permissive. If the

standard itself was not clearly established—which it could not be if there is not even a circuit

case on point for this purely legal question—then it could not have been clearly established at the

time that any failure of professional judgment constituted a Fifth Amendment violation, even

though the Court today holds that the professional-judgment standard is in fact applicable. By

the same logic, because the deliberate-indifference standard is no more strict than the

professional-judgment standard, it was at least clearly established that deliberate-indifference

violations would violate Griffin’s rights; no party suggests that a standard more permissive than

deliberate indifference applies, such as “a purpose to cause harm,” Sacramento,

,

and the Court sees no reason that a more-permissive standard would apply.

That said, it is debatable whether the deliberate-indifference standard is in fact more

permissive than the professional-judgment standard. Jordan,

. Therefore,

the choice of standard here is unlikely to have an impact on the ultimate questions of qualified

immunity.

17 B. Municipal Liability

The District moves for partial summary judgment on two grounds. First, the District

argues that Plaintiff has not pleaded a 1983 claim against the District for Griffin’s death, as

opposed to other injuries. Second, the District argues that no facts connect Griffin’s death to a

District custom, policy, or practice. For the reasons given below, the District’s motion is

denied. 11

1. Plaintiff Adequately Pleads a 1983 Claim Against the District for Griffin’s Death

The District’s first argument for summary judgment is that the Monell (i.e., municipal

liability) claim against the District in Plaintiff’s complaint does not cover Griffin’s death. See

D.C. Mem. at 6–8. As explained below, the Court holds that Plaintiff has adequately pleaded a

1983 claim against the District that includes Griffin’s death.

According to the District, there is no factual basis in the complaint connecting Griffin’s

death to a lack of payment protocol for specialty outpatient care. D.C. Mem. at 6. Griffin

11 The District does not argue that the municipal 1983 claim must fail if the 1983 claims against all the individual Defendants fail. The law does not appear to require that result in all circumstances, but the Court will not opine on this issue without hearing from the parties. See, e.g., Hunter v. District of Columbia,

(D.D.C. 2011) (explaining that individual officers need not be named “at all[] in order for municipal liability to attach” as long as “the underlying constitutional violation” is proven); see also, e.g., Glisson v. Indiana Dep’t of Corr.,

(7th Cir. 2017) (en banc) (“[A]n organization might be liable even if its individual agents are not.”); Fairley v. Luman,

(9th Cir. 2002) (“If a plaintiff establishes he suffered a constitutional injury by the City, the fact that individual officers are exonerated is immaterial to liability under § 1983.”); id. (“These alleged constitutional deprivations were not suffered as a result of actions of the individual officers, but as a result of the collective inaction of the Long Beach Police Department.”); Barrett v. Orange Cnty. Hum. Rts. Comm’n,

, 350 (2d Cir. 1999) (“We agree with our sister circuits that under Monell municipal liability for constitutional injuries may be found to exist even in the absence of individual liability, at least so long as the injuries complained of are not solely attributable to the actions of named individual defendants.”).

18 ultimately died from a disputed cardiac issue, yet the 1983 claim concerns Griffin’s knee and

foot conditions. Id. at 7; see D.C. Reply at 2 (“Plaintiff did plead a Monell claim for missed

outpatient medical appointment payment mechanism for Griffin’s knee and foot.”). Although

Count IV incorporates by reference earlier paragraphs referring to Griffin’s death, including

references to failure to diagnose bradycardia and failure to provide timely resuscitation, the

District argues that this “boilerplate” incorporation does not explain the scope of the 1983 theory

Plaintiff pursues against the District for Griffin’s death. D.C. Mem. at 7. And that lack of

explanation means that “Plaintiff did not put the District on notice of a § 1983 claim arising from

Griffin’s death.” Id. at 7–8. The theory that Plaintiff now pursues—that failure to treat Griffin’s

foot and knee issues led to overprescription of Motrin, which then led to Griffin’s heart failure

and death—was not spelled out in the complaint. D.C. Reply at 1. The District also notes that

respondeat superior is not applicable to 1983 claims, so Plaintiff must show how the District

itself violated Griffin’s rights. D.C. Mem. at 8. 12

Plaintiff argues that death is merely another damage, such as pain and suffering from

delayed foot and knee treatment, caused by the District’s payment custom. Pl.’s D.C. Opp’n at

1. Accordingly, a jury should make the fact-dependent determination of whether the District’s

payment custom proximately caused Griffin’s death. Id. at 2. Plaintiff argues that it is

unnecessary to plead damages with particularity because “discovery will shed light on the nature

of the damages.” Id. at 5 (quoting Democracy Partners v. Project Veritas Action Fund, 285 F.

Supp. 3d. 109, 126 (D.D.C. 2018)).

12 The parties also discuss whether this issue should have been raised earlier as a motion to dismiss and whether the District previously admitted certain respondeat superior liability. See Pl.’s D.C. Opp’n at 4; D.C. Reply at 2–3. Because the Court rules against the District’s motion and resolution of these issues could only help Plaintiff, there is no need to resolve them.

19 Plaintiff also argues that the complaint did put the District on notice that the Monell claim

covered Griffin’s death. Paragraph 47 of the complaint references “[t]he actions and policies of

these Defendants” that violated Griffin’s Fifth-Amendment rights “by preventing the

administration of necessary medical and nursing care and causing Griffin’s death.” Id. at 6

(emphases added). Plaintiff notes that only the District could have a policy. Id.

Although the complaint does not contain much factual detail, it provides the District

notice that Plaintiff pursues a 1983 claim that encompasses Griffin’s death. Federal Rule of

Civil Procedure 8 requires only “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleadings must ‘give the defendants

fair notice of what the claim is and the grounds upon which it rests,’ but the Rule ‘does not

require detailed factual allegations.’” Jones v. Kirchner,

(D.C. Cir. 2016)

(cleaned up) (quoting Twombly,

; and Ashcroft v. Iqbal,

(2009)). And a complaint “must be construed so as to do justice.” Fed. R. Civ. P. 8(e).

Given the allegations in this case, which concern the medical care provided to a single

plaintiff who died while involuntarily committed in the District’s custody, the District cannot

reasonably be surprised that Plaintiff intended to include Griffin’s death in all of its claims,

despite admittedly sparse factual pleading. In a paragraph within the “Facts” section of the

complaint—not specifically related to one count—Plaintiff alleges: “As a consequence of

Defendants’ failure to provide appropriate medical intervention, Mr. Griffin’s condition

worsened over the following months and he died on January 31, 2012.” Compl. ¶ 21. Within

the section of the complaint specifically for the 1983 claim, Plaintiff alleges that the “actions and

policies of these Defendants . . . violated the constitutional rights of Griffin under the Fifth

Amendment by preventing the administration of necessary medical and nursing care and causing

20 Griffin’s death.” Compl. ¶ 47 (emphasis added). Plaintiff does not explicitly spell out the

Motrin-overprescription theory, but alleging that Griffin was not given necessary medical care

due to a District policy regarding payment to outside medical providers and that he subsequently

died is enough to have put the District on notice that Plaintiff was seeking recovery for Griffin’s

death in the Monell claim. See Richardson v. District of Columbia,

(D.D.C. 2018) (“‘If a complaint alleging municipal liability under § 1983 may be read in a way

that can support a claim for relief, thereby giving the defendant fair notice of the claim, that is

sufficient’ to survive dismissal.” (quoting Baker v. District of Columbia,

(D.C. Cir. 2003))).

In the abstract, the District’s argument that it could not move to dismiss a claim that it did

not know existed is reasonable. See D.C. Reply at 2 (“[T]he District could not move to dismiss a

claim that was not pleaded”). But here, where the District knew at the time of the complaint’s

filing that Griffin had died while in Saint Elizabeths’ custody, it is far less persuasive. The

complaint put the District on notice that Griffin’s death was part of the allegations. Even if the

complaint did not so clearly refer to Griffin’s death, the fact that the complaint was filed two

years after Griffin’s death and contains allegations of insufficient medical care provided

sufficient notice. Additionally, in a status conference on August 16, 2017, in response to

Defendants’ counsel stating that “what killed Mr. Griffin . . . was not related to anything

involving the payment mechanism” and that “[t]he policy, practice, and custom piece of the case

involves this broken foot that had nothing to do with his death,” the Court responded, “I

understand that that’s in controversy,” and Plaintiff’s counsel confirmed that Plaintiff did not

agree with Defendants on this point. Status Conf. Tr. 12:1–14 (Aug. 16, 2017), ECF No. 113.

After that status conference, and more than three years before the District filed this motion, the

21 Court twice stated in the first sentence of opinions that “Plaintiff . . . filed this action against the

District of Columbia and several other defendants . . . based on the death of Reuel Griffin.”

Raynor v. District of Columbia,

(D.D.C. 2017) (emphases added) (citing

the complaint); accord Raynor v. District of Columbia, No. 14-cv-0750,

, at *1

(D.D.C. Feb. 12, 2018). All of this constitutes further notice that Plaintiff and the Court

understood the complaint’s Monell claim to encompass Griffin’s death, with no actions by the

District taken to the contrary for several years.

The District cites cases stating that a plaintiff cannot pursue a legal theory not found in

the complaint, or otherwise cure pleading defects via summary-judgment briefing. See D.C.

Reply at 2–3. This is true, but the facts of those cases more clearly constitute attempts to rely on

theories not contained in the complaint. In Navajo Nation v. U.S. Forest Service,

(9th Cir. 2008) (en banc), the court held that the plaintiffs “failed sufficiently to present this

NEPA claim to the district court” when the plaintiffs “d[id] not explain why their complaint

is . . . sufficient to state” the claim in question, conceded that “the specific allegations at issue

were not included” in the complaint, and argued explicitly that the claim “was adequately

presented to the district court” because it was briefed at summary judgment.

at 1079–80. In

Trudel v. SunTrust Bank,

(D.C. Cir. 2019), the plaintiff tried to use fundamentally

different facts under an already-pleaded claim for relief. See

(“[T]he theory that

plaintiffs sought to pursue (concealment of an unclaimed account in the early 2000s) reflected a

‘fundamental change’ from the theory that they pleaded (concealment of contractor relationships

during litigation, almost 15 years later).”). In SEC v. Brown,

(D.D.C. 2012),

the Securities and Exchange Commission argued in summary-judgment briefing that a statute of

limitations should be tolled based on when the SEC discovered, or should have discovered

22 through due diligence, that it was injured.

. But the complaint did not allege when the

SEC discovered the injury or that the SEC was unaware of the relevant conduct until within the

tolled limitations period.

Here, in contrast, the District was on notice that Plaintiff was

pursuing claims relating to Griffin’s death due to failure to provide appropriate medical care.

Plaintiff’s failure to specifically plead the theory that overuse of Motrin led to Griffin’s death is

not fatal to Plaintiff’s claim. Unlike the cited cases, Plaintiff’s theory is well within the contours

of the complaint. The complaint could have been more detailed, but Plaintiff does not seek to

rely on wholly different arguments as the plaintiffs did in the cited cases.

2. Sufficient Evidence Connects Griffin’s Death to a District Custom, Policy, or Practice

The District’s second argument for summary judgment is that there are not sufficient

facts to connect Griffin’s death to a District custom, policy, or practice. See D.C. Mem. at 9–16.

As explained below, the Court holds that Defendants have not shown that there is insufficient

evidence from which a reasonable jury could find that a District custom, policy, or practice

caused Griffin’s death for purposes of municipal liability.

This argument concerns the requirement for 1983 liability specific to municipalities that,

beyond showing a constitutional violation, a plaintiff must show that the municipality was the

“moving force” behind the violation, i.e., that a municipal custom, policy, or practice caused the

constitutional violation. Monell,

; accord Harvey,

. This

ensures that the municipality itself caused the violation, as opposed to merely that, for example, a

District employee caused the violation. The District focuses in its motion not on whether a

municipal custom, policy, or practice existed, but whether one caused Griffin’s death. In other

words, the issue is whether such a custom, policy, or practice was the moving force behind the

23 alleged violation. “We have equated moving force with proximate cause,” which includes

elements of cause in fact and foreseeability. Smith,

.

The District argues that no expert testimony or medical documentation connects Griffin’s

death to his knee and foot issues or Saint Elizabeths’ payment practices. D.C. Mem. at 9. For

example, Plaintiff’s orthopedic surgeon expert testified that Griffin’s death was not related to his

knees or foot, and Plaintiff’s nursing care experts “do not link” the knee and foot care to

Griffin’s death.

The District points to other opinions of Plaintiff’s experts that also do not

directly connect Griffin’s death with his knee and foot issues or the outpatient appointments that

Plaintiff alleges were not carried out due to Saint Elizabeths’ payment practices. See, e.g., D.C.

Mem. at 10 (“Dr. Schwartz identifies no appointments that any Saint Elizabeths doctor

recommended, referred, or ordered that were missed and would have prevented Griffin’s cardiac

arrest.”). Similarly, “Griffin’s missed outpatient medical [appointments] were not related to his

cardiac care.” Id. at 12. Griffin’s medical records show care provided by Saint Elizabeths and

referrals to outside medical providers related to his knees and foot, but none related to cardiac

care. See id. at 12–15. Because Griffin died from cardiac issues and none of this performed or

unperformed medical care related to Griffin’s cardiac health, the District argues that no facts

demonstrate causality between Griffin’s death and the District’s alleged custom, policy, or

practice relating to payment for outside medical care. See id. at 16.

Regarding Plaintiff’s theory that the delayed knee and foot care led to overprescription of

Motrin, which then led to cardiac problems, the District argues that “Plaintiff has no evidence or

expert testimony that supports her claim that Griffin received more Motrin because he missed

outpatient medical appointments, or that Griffin would have received fewer Motrin had the

outpatient appointments been kept,” or that being prescribed less Motrin would have avoided

24 Griffin’s heart failure. D.C. Reply at 5. According to the District, such a complex medical

theory must be supported by expert medical testimony. Id.

Plaintiff argues that there is sufficient evidence that the District’s custom of not having a

viable payment method for outpatient appointments caused Griffin’s death. See Pl.’s D.C. Opp’n

at 7–11. As acknowledged by the District, Plaintiff’s cardiology expert opined that Griffin was

overprescribed Motrin. Id. at 7. But the District does not acknowledge that Plaintiff’s

cardiology expert also opined that the overprescription of Motrin was a cause of Griffin’s

cardiovascular disease that led to his death. Id. The District also ignores the opinion of another

of Plaintiff’s experts that it was below the standard of care to treat Griffin’s foot and knee issues

with only pain medication, and that these large doses of Motrin contributed to Griffin’s

cardiovascular condition. Id. at 7–8. Plaintiff argues, without citation, that “[t]he excessive

prescription of Motrin only occurred because Defendant’s Custom resulted in untreated painful

orthopedic conditions.” Id. at 7. Plaintiff also advances a second, related theory of municipal

causation of Griffin’s death: failure to treat Griffin’s foot and knee conditions led to

overprescribing Motrin, which created the need for pain assessments, which Saint Elizabeths

nurses failed to perform, and which would have revealed signs of congestive heart failure. Id. at

9.

There is sufficient evidence from which a reasonable jury could find that the District’s

alleged custom of having no way to pay for external medical care was the moving force of

Griffin’s death. When Plaintiff’s experts opine that Griffin’s death was not from an orthopedic

problem, those opinions do not necessarily exclude Plaintiff’s theory that Griffin died from

excessive medication that was given due to an orthopedic problem. Plaintiff has proffered expert

testimony that Griffin was overprescribed Motrin and that the overprescription led to his death.

25 And there is evidence from which a reasonable jury could conclude that the excessive medication

was given due to the failure to have Griffin receive external medical care for his knees and foot.

A jury is capable of inferring, without expert testimony, that failure to treat painful injuries or

conditions can result in additional prescription of pain medication. It is not necessary for

Plaintiff to have had an expert opine on each link in this chain of causation when some links can

be inferred by the jury based on common sense. See Hudson v. Am. Fed. of Gov’t Emps., No.

17-cv-2094,

, at *8 (D.D.C. Nov. 2, 2021) (“While it may have been wise for

Plaintiff to have other witnesses (perhaps including an expert) testify to his damages, ‘it does not

take an expert to confirm the jury’s common sense with respect to both their existence and

cause.’” (quoting Daskalea v. District of Columbia,

(D.C. Cir. 2000))); Keys

v. Washington Metro. Area Transit Auth.,

(D.D.C. 2008) (“Expert

testimony is irrelevant if it . . . ‘relates to matters of common sense’ that a jury can decide for

itself.”); cf. In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig.,

Nos. 2:18-md-2846, 2:18-cv-1320,

, *6 (S.D. Ohio Oct. 22, 2021) (“[N]o

expert need . . . supply every link in the chain of Plaintiff’s theory of the case for his opinion to

be relevant.”). It is also unclear what other evidence the District thinks Plaintiff would need to

connect the alleged District policy to Griffin’s death. The District does not move for summary

judgment on whether such a policy or custom existed. It only moves for summary judgment on

whether the complaint adequately pleaded the Motrin theory of municipal liability and whether

Plaintiff has sufficient evidence to “link Griffin’s death to his knee or foot outpatient care . . .

[or] to his insurance issues or to the District’s ‘policy’ or ‘custom’ regarding the ‘IMD

Exclusion.’” D.C. Mem. at 9. Although such expert testimony might have been useful on more

targeted questions that require specialized knowledge and might carry more weight—such as

26 whether, based on Griffin’s particular medical history, the unfulfilled external medical

appointments would have led to treatment of Griffin such that less Motrin would have been

prescribed—a lack of such specific expert testimony or record evidence is not fatal. Plaintiff has

expert testimony where it is needed. The District is free to present evidence and argument that,

even if Griffin had received outpatient care, Griffin would have died in the same way or been

prescribed the same or similar amounts of Motrin. But Plaintiff’s claim does not fail for lack of

evidence when a lay person can infer that failing to treat painful foot or knee problems can lead

to higher use of pain medication.

C. Higher-Level-Employee Liability

Defendants move for summary judgment on Plaintiff’s claims against four higher-level

Saint Elizabeths employees: Canavan, Seymour, Arons, and Potter. First, Defendants move for

summary judgment on Plaintiff’s 1983 claim (Count IV) against these Defendants, arguing that

they are entitled to qualified immunity. Second, Defendants move for summary judgment on

Plaintiff’s medical negligence claim (Count I), arguing that Plaintiff cannot prove that these

Defendants breached a duty of care to Griffin. For the reasons given below, Defendants’ motion

is granted regarding the 1983 claim and denied regarding the negligence claim.

1. The Higher-Level Employees Are Entitled to Qualified Immunity

Defendants’ first argument for summary judgment regarding the higher-level employees

is that they are entitled to qualified immunity. Defs.’ Higher-Level Mem. at 9. Based on the

facts of the alleged constitutional violation and the relevant law, the Court believes that, for these

Defendants, “it is plain that a constitutional right is not clearly established.” Pearson,

. Accordingly, the qualified-immunity analysis for these Defendants begins and ends with

the “clearly established” prong. As explained above, Defendants’ burden is merely to raise

27 qualified immunity as a defense; it is Plaintiff’s burden to show that the rights at issue were

clearly established. Dukore,

. Also as explained above, it was not clearly

established that the professional-judgment standard applies to situations like Griffin’s.

Therefore, qualified immunity in this case requires showing that it was not clearly established

that Defendants’ conduct fails the deliberate-indifference test. “To establish a constitutional

violation under that standard, [a plaintiff] must show that the District was deliberately indifferent

to [the patient’s] serious medical needs.” Harvey,

. This can be shown when an

official had “subjective knowledge of the patient’s serious medical need and recklessly

disregard[ed] the excessive risk to his health or safety from that risk.”

(cleaned up) (quoting

Baker,

).

The most important part of deciding whether a right has been clearly established is

determining the appropriate level of generality for the right. Courts are instructed “not to define

clearly established law at a high level of generality,” such as arguing “that an unreasonable

search or seizure violates the Fourth Amendment,” because that “is of little help in determining

whether the violative nature of particular conduct is clearly established.” al-Kidd,

. But the right should also not be defined such that it is limited to only the facts of this case.

Plaintiff proposes a right at too high a level of generality. Namely, Plaintiff argues that

the right at issue is Griffin’s “undisputed constitutional right to receive adequate medical care

while committed” to Saint Elizabeths’ custody. Pl.’s Higher-Level Opp’n at 9–10; accord id. at

11 (“The ‘clearly established right’ upon which Griffin’s Complaint rests is his right to adequate

medical care while committed to the custody of Saint Elizabeths Hospital.”). Plaintiff is correct

that this right exists and was clearly established, but wrong that this is the appropriate level of

generality. “[T]he broad right” “to adequate medical care[] and to be free from deliberate

28 indifference to . . . serious medical needs” “cannot, without more, defeat qualified immunity.”

Bernier v. Allen, No. 16-cv-00828,

, at *2 (D.D.C. Aug. 22, 2019); accord

Barkes v. First Corr. Med., Inc.,

, 327 n.12 (3d Cir. 2014) (rejecting district court’s

characterization of the relevant right for qualified immunity as the “constitutional right to

adequate medical care” because “this characterization fails to sufficiently particularize the

asserted right”), rev’d on other grounds sub. nom. Taylor v. Barkes,

(2015). Even

if the Court agreed that this was the correct level of generality, Defendants’ qualified-immunity

defense would likely succeed for this right because knowing that there is a right to adequate

medical care could not have put Defendants on notice that their particular conduct would violate

that right. This knowledge would not have put the constitutionality of Defendants’ conduct

“beyond debate.” al-Kidd,

.

It is also critical to remember that these claims must be analyzed individually for each

Defendant, not collectively. See Iqbal,

(“[A] plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.”). Plaintiff must demonstrate that, for each Defendant, the relevant rights were

clearly established such that the individual Defendant was on notice that their conduct would

violate Griffin’s Fifth-Amendment rights. For these analyses, it is irrelevant whether there was a

clearly established right to overall care from Saint Elizabeths that was superior to the care Griffin

received. The question for each Defendant is whether Griffin’s rights were so clearly established

that it was beyond debate whether that Defendant’s conduct violated Griffin’s rights.

It is difficult to define the appropriate right for each Defendant because, in response to

Defendants’ qualified-immunity arguments that largely differentiate between Canavan, Seymour,

Arons, and Potter, Plaintiff offers a response that largely addresses them collectively. Plaintiff

29 does not focus on the specific responsibilities or actions of the four Defendants. Plaintiff argues

that the four Defendants “are being sued in their individual capacity in their roles as

administrators of the Hospital for their own personal involvement in failing to ensure that Griffin

received adequate medical care,” and that they “were all either personally aware of Griffin’s

denied medical appointments or aware that the Hospital was experiencing trouble with

scheduling external appointments for its patients as of Spring 2011.” Pl.’s Higher-Level Opp’n

at 14. Because of their “high-level administrative positions,” they were required to be

knowledgeable of the rules governing facilities like Saint Elizabeths, including regarding the

IMD exclusion.

Plaintiff argues that these Defendants failed to make the appropriate efforts

to ensure that patients could receive the appropriate outpatient care. Id. at 16. The only

differentiation among the Defendants is Plaintiff’s argument that Canavan, Arons, and Seymour

“failed to exercise professional judgment in their administrative positions as articulated in

Plaintiff’s Motion for Summary Judgment,” and that Potter “failed to exercise professional

judgment when he failed to ensure that [Saint Elizabeths Hospital] staff adhered to professional

standards and practice and failed to ensure medical coverage for Griffin as required for someone

in his position.” Id. at 16.

Based on this argument, the Court sees no reason that these particular Defendants could

have known that their conduct ran afoul of clearly established rights. Plaintiff cites no case law

beyond the most generic definitions of the right to adequate medical care. See Perniciaro v. Lea,

(5th Cir. 2018) (granting qualified immunity under professional-judgment

standard for mental-health facility’s CEO, chief of staff, and treating physician where plaintiff

“has not cited a single case”—other than the professional-judgment standard itself—“clearly

establishing that the particular conduct at issue here violates the professional-judgment

30 standard”); Marten v. Haire, No. 6:17-cv-31,

, at *6 (D. Mont. Apr. 25, 2019)

(“Although Youngberg stands for the general proposition that the State has a duty to provide

involuntarily committed mental patients with adequate medical care, it does not clearly establish

what constitutes adequate medical care.” (citation omitted)). There is no reason to believe that

there was binding case law or a robust collection of persuasive authority putting Defendants on

notice, largely because there is almost no discussion of what specifically these Defendants

should have done differently.

Out of an abundance of caution, the Court turns to Plaintiff’s motion for partial summary

judgment regarding these Defendants for any indication that the rights they are alleged to have

violated might have been clearly established for purposes of qualified immunity. 13 As explained

below, the Court sees no such indication from Plaintiff’s opening summary-judgment brief.

Plaintiff’s argument that Canavan, the hospital CEO, violated Griffin’s rights is

essentially that, because Canavan is the ultimate policymaker for the hospital and allegedly had

no knowledge of a protocol for payments for external care when he joined Saint Elizabeths, he

should have ensured that an acceptable policy was in place to pay for external care and advised

his subordinates to stop using Medicaid. See Pl.’s Mem. at 24–25. Taking these facts as true,

the Court cannot imagine that there was clearly established law putting Canavan on notice that

he was committing conscience-shocking behavior such that the unlawfulness of his actions was

apparent, and Plaintiff has not cited any. Defendants correctly respond that Plaintiff’s

allegations against Canavan are “highly generalized” and Plaintiff cites no case to demonstrate

clearly established rights. Defs.’ Opp’n at 22.

13 Plaintiff does not move for partial summary judgment regarding Potter.

31 Plaintiff’s argument that Seymour, the hospital COO, violated Griffin’s rights is similar.

Seymour was responsible for Saint Elizabeths’ day-to-day operations, was one of the people

responsible for arranging payment for external services, and was aware of difficulties obtaining

external medical care using Medicaid. Pl.’s Mem. at 22–23. Seymour became aware in the

summer of 2011 that Griffin had been denied outpatient care on one occasion.

.

“Quander-Clemons would typically contact her about denials by external medical providers.”

Plaintiff argues that Seymour is liable because she failed to ensure that Griffin “received

recommended medical services and procedures by external providers” and failed to advise others

to stop using Medicaid to schedule Griffin’s appointments.

Again, the Court cannot imagine

that Seymour was on clear notice that her conduct, as described by Plaintiff, would violate

Griffin’s Fifth-Amendment rights. Plaintiff cites no case that would have provided sufficient

notice.

Plaintiff’s argument that Arons, the Director of the Office of Medical Affairs, violated

Griffin’s rights is essentially that he had a supervisory role regarding medical affairs, was aware

of the IMD exclusion, and knew that Griffin had been denied outpatient care due to lack of

insurance.

at 25–26. According to Plaintiff, the fact that Griffin did not receive the

appropriate outpatient treatment for months shows that Arons failed to supervise the medical

clinic personnel regarding using Medicaid and ensure that a functioning payment protocol was in

place.

. Once again, the Court cannot imagine that there was clearly established law

putting Arons on notice that this conduct would violate Griffin’s Fifth-Amendment rights, and

Plaintiff cites no cases beyond the most general.

Therefore, the Court remains unconvinced that the relevant rights were clearly

established. For these claims, it is not enough for Plaintiff to proffer evidence from which a

32 reasonable jury could find that there was some negligence involved in Griffin’s care, or that

these Defendants specifically were negligent, or even that the aggregate care received by Griffin

violated his Fifth-Amendment rights through conscience-shocking, deliberately indifferent

conduct. Instead, it is Plaintiff’s burden to demonstrate for each individual Defendant that it was

clearly established that that Defendant’s conduct would sufficiently shock the conscience to

constitute a Fifth-Amendment violation. See Est. of Williams by Rose v. Cline,

(7th Cir. 2018) (“Our cases demonstrate a painstaking commitment to an individualized

qualified-immunity analysis, especially when the facts relative to the alleged constitutional

violation differ from defendant to defendant.”). Plaintiff makes no attempt to meet this burden.

And this is a difficult burden for Plaintiff to meet for Defendants such as these whose connection

to Griffin’s treatment is attenuated and with responsibilities shared to various extents among

many individuals. See Glisson v. Indiana Dep’t of Corr.,

(7th Cir. 2017) (en

banc) (regarding deliberate indifference under the Eighth Amendment, describing as unlikely

that the numerous medical providers who “had a hand” in providing care “personally did

anything that would qualify as ‘deliberate indifference’” because “[m]ost of them had so little to

do with” the care provided);

(explaining that, “[w]ithout the full picture, each person

might think that her decisions were an appropriate response to a problem” and that “failure to

situate the care within a broader context could be at worst negligent, or even grossly negligent,

but not deliberately indifferent”); see also Crowson v. Washington Cnty.,

(10th Cir. 2020) (explaining that municipal policies that “devolve[] responsibility across multiple

officers” may result in no individual officers committing constitutional violations yet be

themselves unconstitutional “precisely because they fail to ensure that any single officer is

positioned to prevent the constitutional violation”). Other types of liability may still apply in

33 these circumstances, but Plaintiff has not shown that each Defendant was on clear notice that

their individual behavior would shock the conscience sufficiently to violate a patient’s

constitutional rights. Defendants’ motion for summary judgment on qualified immunity for

these four Defendants is therefore granted.

2. Defendants Have Not Shown that Plaintiff Cannot Prove a Breach of Duty

Defendants’ second argument for summary judgment regarding the higher-level

employees is that Plaintiff does not have the required expert testimony to prove a breach of duty.

See Defs.’ Higher-Level Mem. at 33. “[I]n any negligence action, ‘[t]he plaintiff must establish

by competent evidence a standard of care; that the defendant violated that standard; and that such

violation proximately caused injury to the plaintiff.’” District of Columbia v. Carmichael,

(D.C. 1990) (second alteration in original) (quoting Hughes v. District of

Columbia,

(D.C. 1981)). Defendants’ chief complaint is that neither

Plaintiff’s cardiac experts nor Plaintiff’s “expert on the District’s liability for an alleged policy

failure,” Andrew J. Phillips, mention Canavan, Seymour, Arons, or Potter specifically. Defs.’

Higher-Level Mem. at 33. Accordingly, Defendants seem to argue that Plaintiff cannot prove

duty or breach for these Defendants. See id. at 34 (criticizing Phillips for failing “to state what

duty [Defendants] had or how they violated any duty”). In support, Defendants cite cases for the

proposition that “the ‘intricacies’ of operating a psychiatric hospital [are] far too complex for the

average juror to understand without the assistance of competent expert testimony.” Id. at 34–35.

Defendants argue that there is no evidence concerning what those in Defendants’ specific

positions had authority to do, as opposed to responsibilities that lay elsewhere, such as those

covered by DBH. See Defs.’ Higher-Level Reply at 3. Regarding the standard of care put forth

34 by Plaintiff’s expert, Defendants argue that it is based on internal policies which cannot establish

standards of care. Id. at 4.

Plaintiff responds that there is sufficient evidence of duty and breach. Pl.’s Higher-Level

Opp’n at 4–9. For support, Plaintiff points to guidance from Clark v. District of Columbia,

(D.C. 1997), one of the cases cited by Defendants: “[T]he expert must clearly relate the

standard of care to the practices in fact generally followed by other comparable governmental

facilities or to some standard nationally recognized by such units.”

. The Clark court

also stated that “the plaintiff may, in certain circumstances and under specified conditions rely

on a statute or regulation as proof of the applicable standard of care.”

(cleaned up).

Plaintiff believes that her evidence meets these standards. Phillips points to federal regulations

that govern institutions such as Saint Elizabeths. Pl.’s Higher-Level Opp’n at 5. He opines that

the regulations require an agreement with outside service providers for medical care that the

institution cannot provide itself, and that medically necessary services must be provided. Id. at

6. Phillips testified that his opinions were based on his experience “and national standards

derived from JCAHO and Medicare and Medicaid service standards.” Id. at 7. When asked in

his deposition who breached the standard of care, Phillips responded, “[s]enior staff,” and named

Canavan, Seymour, and Arons in particular. Id. Plaintiff also argues that Defendants’ own

depositions confirm that they were required to be familiar with the governing rules “and that

their duties and responsibilities included ensuring the provision of medical care to [Saint

Elizabeths Hospital] patients, including Griffin.” Id. at 8.

The Court will not grant Defendants’ motion on this ground. The thrust of Defendants’

argument is that there is no expert testimony regarding each of Defendants’ specific

responsibilities and powers. See, e.g., Defs.’ Higher-Level Reply at 3–4 (“The absence of

35 specific standard of care testimony applicable to each of these Defendants and the positions they

held, or any actual record evidence creating any disputed issue of material fact about whether

these Defendants even had authority to do anything about contracting or budgeting for outside

medical care, is fatal to Plaintiff’s negligence claim . . . .”). But Defendants do not dispute

Phillips’s core testimony regarding the standard of care, which is that “the institution must have

an agreement with an outside source of these services to ensure that they are immediately

available or a satisfactory agreement must be established for transferring patients to a general

hospital that participates in the Medicare program.” Pl.’s Higher-Level Opp’n at 6. The Smith v.

District of Columbia,

(D.D.C. 2018), opinion, cited in Defendants’ brief for

the proposition that “[e]xpert testimony is required to explain the ‘intricacies’ of operating a

psychiatric hospital, which is far too complex for the average juror to understand without the

assistance of competent expert testimony,” is a useful comparison. Defs.’ Higher-Level Mem. at

34–35. The court there held that the plaintiff failed to prove the standard of care for the District

regarding a certain aspect of operating a prison. Smith,

. The plaintiff’s

expert opined regarding the standard of care for federal prisons, but “failed to connect this

evidence of what the federal government requires to what is done at the state and local pretrial

facilities across the United States.”

He also “provided no evidence from which one can

conclude that the BOP protocol is in fact the national standard of care for jails.”

Therefore,

the issue in Smith was whether the expert’s standard of care for federal prisons covered the

pretrial jail facility in question. Defendants do not raise the same challenge here by arguing that

Phillips’s testimony does not apply to Saint Elizabeths. The other case cited by Defendants on

this point, Clark,

, also does not explain what expert testimony is required to

delineate responsibilities among higher-level officials. The court there found that the expert’s

36 testimony “amounted to no more than his personal opinion, or at best an unsupported assertion as

to the national standard of care.”

. Without any support for their theory that expert

testimony is needed specifically targeting each Defendants’ responsibilities, the Court will not

grant Defendants’ motion on this ground.

D. Lower-Level-Employee Liability

Defendants move for summary judgment on Plaintiff’s 1983 claim (Count IV) against ten

lower-level Saint Elizabeths employees: “Dr. Edger Potter, Dr. Peter Thura, Enyioma

Anyatonwu, Daphne Jackson, Amma Pokuaah, Bernadette Williams, Florence Nwonye . . . ,

Toni Quander-Clemons, . . . Bernadeane Greene,” and Arons. 14 Defs.’ Lower-Level Mem. at 1.

Defendants argue that they are entitled to qualified immunity. Id. at 20. As opposed to the

motion regarding higher-level employees, discussed above, the Court finds it appropriate to

begin with the constitutional-violation prong of the qualified immunity test for these individuals,

largely because Defendants focused less on the “clearly established” prong in this motion and

there are more specific facts regarding each Defendant’s conduct. As explained above, the

professional-judgment standard applies. Under Youngberg, that standard is violated when there

is “such a substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base the decision on such a judgment.”

14 Plaintiff states that “Plaintiff is not pursuing

Claims against Lisa DeLoatch or James Robinson.” Pl.’s Lower-Level Opp’n at 1. Defendants’ motion for summary judgment is therefore granted as to Plaintiff’s 1983 claim against Defendants DeLoatch and Robinson. Additionally, Defendants do not list Arons in their brief or proposed order as one of the Defendants moving for summary judgment. See Defs.’ Lower-Level Mem. at 1; Defs.’ Lower- Level Proposed Order, ECF No. 282-2. However, Arons was included in the ECF entry as one of the movants for this motion, the motion argues that “the Court should grant [Arons] qualified immunity,” Defs.’ Lower-Level Mem. at 27–28, and Plaintiff addresses Arons in response to the motion, see Pl.’s Lower-Level Opp’n at 17–18. The Court therefore considers Arons to be a movant for this motion.

37 Jordan, 161 F. Supp. at 58 (quoting Youngberg,

). Also as explained above, it is

critical to analyze these Defendants individually because there is no respondeat superior liability

for 1983 claims. Therefore, each individual Defendant’s conduct, standing alone, must

constitute a failure to exercise professional judgment that accordingly shocks the conscience.

For the reasons given below, the Court grants Defendants’ motion.

1. Potter

During Griffin’s time at Saint Elizabeths, Potter served as the Supervisory General

Medical Officer. Defs.’ Lower-Level Mem. at 20. Defendants acknowledge that Potter was one

of several Saint Elizabeths employees that attended to Griffin’s knee or foot during his time at

the hospital. Id. at 3. However, Defendants describe Potter’s encounters with Griffin as limited

to a “consultive capacity.” Id. at 4. According to Defendants, Potter treated Griffin on three

occasions, although it is unclear which is the third. Id. at 20. Upon referral from Garcia, Potter

assessed Griffin’s knee on November 10, 2011, performing an arthrocentesis, collecting fluid,

and injecting him with lidocaine and Kenalog. Id. at 3–4. Potter referred Griffin for a

consultation about a potential knee replacement. Id. at 4. During a follow-up on January 10,

2012, Potter told Garcia that Griffin needed to be referred for a knee-replacement consult. Id.

Potter also directed that Griffin’s 600mg of Motrin be a standing order with each meal, and

increased Griffin’s Tramadol. Id. Defendants argue that it was not Potter’s responsibility to

ensure the consult occurred. Id. at 4–5. Defendants note that none of Plaintiff’s experts

identified any instance where Potter deviated from his duty of care to Griffin. Id. at 21. By

contrast, Defendants state that Potter’s treatment “improved Griffin’s condition.” Id. at 5.

In response, Plaintiff stresses that Potter’s several interactions with Griffin made him

aware of Griffin’s serious conditions and the need for outside referrals. Pl.’s Lower-Level Opp’n

38 at 8. In his deposition, Potter agreed that his job description included the responsibility to

“assure[] adequate medical care and treatment of the patients and inform[] superiors of any

inadequacies of resources in the care and treatment of such patients.” Id. at 8–9. He also

testified that “[g]iving appropriate and timely medical care” and “mak[ing] sure they have good

outcomes” are the most important policies for doctors to follow. Id. at 9. Accordingly, Plaintiff

contends that Potter had a responsibility to guarantee that Griffin received adequate and timely

medical care, and that his failure to meet this duty precludes his claim for qualified immunity.

Id. at 9–10.

Viewing the facts in the light most favorable to Plaintiff, no reasonable jury could find

that Potter failed to exercise professional judgment. It is undisputed that Potter checked on and

cared for Griffin during his time at Saint Elizabeths. There is no evidence that Potter ignored or

disregarded Griffin’s pain. Instead, Potter treated Griffin and referred him for outside consults

twice. Plaintiff does not put forth any expert testimony about the need or urgency of obtaining

the referrals. See Farabee v. Yaratha,

, 105 (4th Cir. 2020) (explaining that,

absent evidence “that a decision not to offer a particular treatment was completely out of

professional bounds, . . . a choice not to offer a certain treatment—like a choice not to order an

X-ray—is a classic example of a matter for medical judgment” (internal quotation marks

omitted)). No reasonable jury could find that Potter’s failure to personally ensure that certain

referrals were carried out—despite Potter not being Griffin’s primary physician—was a failure to

exercise any professional judgment such that it shocks the conscience.

2. Thura

During Griffin’s time at Saint Elizabeths, Thura was a General Medical Officer

(“GMO”)—a doctor providing day-to-day psychiatric and routine medical care. Defs.’ Lower-

39 Level Mem. at 21. Thura treated Griffin twice. In September 2011, Thura was asked by a nurse

to assist Griffin with his pain.

. Thura reviewed Griffin’s medical history, including labs,

and prescribed Motrin.

Around 7:00 a.m. on January 31, 2012, the day of Griffin’s death,

Anyatonwu called Thura to examine Griffin due to his complaints of leg pain.

Before seeing

Griffin, Thura reviewed “all the information in the computer,” such as Griffin’s medication,

medical problems, and physical exam reports.

. From this, Thura learned about Griffin’s

arthritis, leg edema, hypertension, and ongoing medical history, including the outstanding

consult for Griffin’s legs.

Thura viewed edema on Griffin’s knee and prescribed Motrin and

a diuretic to address the edema fluid.

Before his shift ended at 8:00 a.m., “Thura emailed

other doctors alerting them of Griffin’s condition and the treatment that he provided.”

Plaintiff responds that Thura’s “glaring omissions” on January 31, 2012, “made the

difference between life and death.” Pl.’s Lower-Level Opp’n at 10. Thura failed to notice that

Griffin had gained twelve pounds in ten days and one of Plaintiff’s experts testified that 911

should have been called immediately because it was an emergency situation.

at 10–11.

Plaintiff’s expert pathologist opines that “[t]here was ample opportunity to recognize the signs”

of congestive heart failure, including the significant accumulation of fluid, and that calling 911

earlier could have saved Griffin’s life.

Viewing the facts in the light most favorable to Plaintiff, no reasonable jury could find

that Thura failed to exercise professional judgment. While Plaintiff argues that Thura “failed to

take any action” to save Griffin,

, this is not true. Both times that Thura treated Griffin,

Thura reviewed Griffin’s medical history, examined him, and prescribed treatment. See

Youngberg,

(“[T]he decision, if made by a professional, is presumptively valid;

liability may be imposed only when the decision by the professional is such a substantial

40 departure from accepted professional judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on such a judgment.” (footnote omitted)).

Plaintiff’s arguments address negligence, not professional judgment. See Jordan,

(“[T]he question whether . . . additional diagnostic techniques or forms of treatment is

indicated is a classic example of a matter for medical judgment.” (ellipsis in original) (quoting

Estelle v. Gamble,

(1976))). Thura did not ignore Griffin or take any action

that would demonstrate a conscience-shocking failure to exercise professional judgment.

Plaintiff cites evidence that Thura should have acted differently, but that alone is insufficient to

show a failure of professional judgment. See, e.g., Mitchell v. Washington,

, 443–

44 (9th Cir. 2016) (affirming summary judgment for doctors under professional-judgment

standard where doctors did not prescribe certain treatment despite medical texts “suggesting that

administration of [that treatment] is the preferred treatment course” because texts did not suggest

that doctor’s treatment decision, “based on the individualized circumstances of [plaintiff’s]

health, was unreasonable”). Plaintiff’s evidence could, at most, support a finding of negligence.

See Harvey,

(“As the Supreme Court has frequently reminded us, the due

process right ‘does not transform every tort committed by a state actor into a constitutional

violation.’” (quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

(1989))).

3. Anyatonwu

Anyatonwu was a charge nurse on Griffin’s unit providing him with regular care during

his time at Saint Elizabeths. Defs.’ Lower-Level Mem. at 22. Defendants concede that

Anyatonwu did not perform several pain assessments in January 2012. Id. at 23. However,

Defendants argue that Anyatonwu engaged in other “ongoing efforts” to care for Griffin,

41 including his knee and foot issues. Id. “Anyatonwu regularly observed Griffin shadowboxing,

standing up[,] and moving his feet.” Id. at 6–7. Anyatonwu urged Griffin to stop because he

could further injure himself. Id. at 7, 23. Griffin refused medication from Anyatonwu on at least

four occasions, although Plaintiff disputes that fact. Id. at 7. On the day of Griffin’s death,

Anyatonwu noticed the edema on one of his legs and called Thura. Id. at 22. Per Thura’s

directions, Anyatonwu placed Griffin on sick call. Id. Defendants argue that, “[a]t most,

Anyatonwu’s failure to adequately document Griffin’s care amounted to medical malpractice,

not a constitutional violation.” Id. at 23.

In opposition, Plaintiff argues that Defendants misrepresent the cited instances where

Griffin allegedly refused medication from Anyatonwu. Pl.’s Lower-Level Opp’n at 11. Instead,

Plaintiff highlights that part of Anyatonwu’s job is to “administer prescribed medications and

therapeutic measures.” Id. at 12. As a result, Plaintiff says, even if Griffin refused or asked for

different medication at any point, Anyatonwu still needed to administer it. Id. Plaintiff likewise

disputes Defendants’ contention that there is no evidence that Anyatonwu’s failure to document

Griffin’s January 2012 pain assessments worsened Griffin’s knee and foot problems. Id.

Instead, Plaintiff explains that Anyatonwu’s inaction “led to missing information and errors in

Mr. Griffin’s clinical record,” which allowed Griffin’s edema to go unnoticed until the day of his

death. Id. Plaintiff states that if Nurse Anyatonwu had “done her job correctly and recorded

complete and adequate pain assessments,” Griffin’s edema would have been noticed sooner,

potentially saving his life. Id. at 12–13.

Taking the facts in the light most favorable to Plaintiff, no reasonable jury could find that

Anyatonwu failed to exercise professional judgment in treating Griffin. There are several

disputes regarding the importance and mandatory nature of documenting pain assessments in

42 certain ways, and there is evidence that Anyatonwu violated Saint Elizabeths nursing policies.

But Defendants correctly argue that this was negligence at worst. See Defs.’ Lower-Level Reply

at 23 (“At most, Anyatonwu’s failure to adequately document Griffin’s care amounted to

medical malpractice, not a constitutional violation.”). Anyatonwu repeatedly treated Griffin,

consistently interacting with him and cautioning him to refrain from shadowboxing for fear of

worsening his condition. See Jordan,

(“[T]he question whether . . .

additional diagnostic techniques or forms of treatment is indicated is a classic example of a

matter for medical judgment.” (ellipsis in original) (quoting Estelle,

)). Although

Plaintiff has put forth evidence supporting a finding of negligence, the sum of evidence viewed

most favorably toward Plaintiff could not support a finding that Anyatonwu failed to exercise

professional judgment such that it shocked the conscience. Plaintiff cites no expert opinion

regarding Anyatonwu. Additionally, even if Plaintiff had proffered sufficient evidence from

which a reasonable jury could find that Anyatonwu failed to exercise professional judgment,

Plaintiff has not put forth any argument that the rights violated were clearly established.

4. Jackson

Jackson was the nurse manager for Griffin’s unit. Defs.’ Lower-Level Mem. at 7.

Defendants move for summary judgment regarding Jackson only concerning Jackson’s conduct

on January 31, 2012. See id. at 24. However, Plaintiff does not respond to this argument.

Plaintiff instead argues that Jackson was “responsible for her failures as a Nursing Supervisor” to

“confirm[]” that Anyatonwu and Nwonye were not copying and pasting entries in medical

records and failing to conduct pain assessments. 15 Pl.’s Lower-Level Opp’n at 13–14. “A

supervisor who merely fails to detect and prevent a subordinate’s misconduct . . . cannot be

15 Defendants assert that Jackson was only Anyatonwu’s nurse manager, Defs.’ Lower- Level Reply at 11 n.4, but this fact would not change the Court’s decision.

43 liable for that misconduct. The supervisor must know about the conduct and facilitate it, approve

it, condone it, or turn a blind eye for fear of what they might see.” Int’l Action Ctr. v. United

States,

(D.C. Cir. 2004) (cleaned up); see also Pl.’s Lower-Level Opp’n at 13

(“Nurse Jackson may be held liable if she ‘had personal knowledge of and involvement in the

alleged deprivation of [the plaintiff’s] rights.’” (alteration in original) (quoting Wright v. Collins,

(4th Cir. 1985))). Here, all Plaintiff points to is an alleged failure to detect

and prevent misconduct of her subordinates, which cannot create supervisory liability under

section 1983. Additionally, the grant of qualified immunity to Anyatonwu and Nwonye weighs

in favor of qualified immunity for Jackson. See Hegarty v. Somerset Cnty.,

(1st Cir. 1995) (“The determination that a subordinate law enforcement officer is entitled to

qualified immunity . . . increase[s] the weight of the burden plaintiff must bear in demonstrating

not only a deficiency in supervision but also the essential causal connection or ‘affirmative

linkage’ between any such deficiency in supervision and the alleged deprivation of rights.”).

5. Nwonye

Nwonye was a nurse who provided care to Griffin. Defs.’ Lower-Level Mem. at 8.

Nwonye testified that Griffin had refused to go to medical appointments, including an orthopedic

clinic appoint.

Nwonye also explained that it took “a lot of . . . trials and encouragement” to

get Griffin to go to an appointment for his foot.

Nwonye encouraged Griffin to walk with

crutches and use them appropriately to avoid injury, and also to avoid bearing weight on his

injured foot.

She testified that Griffin sometimes ignored her recommendations.

“Plaintiff’s nursing expert[] faults Nwonye for not advocating for Griffin to have an MRI and an

orthopedic consult,” but “[n]o binding case law would have put Nwonye on notice that she

needed to advocate for these outside appointments lest she violate Griffin’s constitutional

44 rights.” Id. at 24. Accordingly, Defendants argue that Nwonye did not fail to exercise

professional judgment.

Plaintiff’s arguments regarding Nwonye are similar to those for Anyatonwu. Pl.’s

Lower-Level Opp’n at 14. Plaintiff argues that Nwonye is not shielded from liability “as the

nurse responsible for administering [Griffin’s] medication” simply because there were instances

where Griffin refused it. Id. Plaintiff does not believe the record supports Nwonye’s statements

that Griffin refused or disliked his medication or treatment options. Id. Instead, Plaintiff posits

that evidence of those events would be found in Nwonye’s pain assessments. Id. Plaintiff

indicates, however, that many of those were “incomplete or never conducted at all, similar to

Nurse Anyatonwu’s work.” Id. Thus, because of Nwonye’s failure to properly conduct pain

assessments and ensure Griffin took all of his medication, Plaintiff emphasized that Nwonye

cannot “be excused from [her] history of failing to properly care for” Griffin. Id. at 15.

Viewing the facts in a light most favorable to Plaintiff, no reasonable jury could conclude

Nwonye failed to exercise professional judgment in treating Griffin. Plaintiff’s nursing expert

faulted Nwonye for not advocating for Griffin to have an MRI and an orthopedic consult. Defs.’

Lower-Level Mem. at 24. And Nwonye did not complete pain assessment forms every time

Plaintiff believes was necessary. Pl.’s Lower-Level Opp’n at 14. But, at worst, this was

negligence or malpractice. Plaintiff does not cite any expert opinions that would indicate that

professional judgment was not exercised by Nwonye regarding failure to fill out pain assessment

forms, as opposed to indicating that it may have been negligent. Plaintiff does not cite any

evidence that Nwonye ignored Griffin’s pain, and undisputed facts show Nwonye following

through on concerns about Griffin’s health, such as by cautioning against bearing weight on his

injured foot, documenting that she wanted Griffin to use his crutches appropriately, and

45 encouraging Griffin to keep his medical appointments. See Jordan,

(“[T]he question whether . . . additional diagnostic techniques or forms of treatment is indicated

is a classic example of a matter for medical judgment.” (ellipsis in original) (quoting Estelle,

)). It is undisputed that Nwonye had numerous interactions with Griffin and observed

his condition; there is no evidence that Nwonye knew of problems that required attention and

failed to exercise judgment about how to address them.

6. Pokuaah

Pokuaah was a nursing team leader assigned to Griffin’s unit. Defs.’ Lower-Level Mem.

at 8. Defendants argue that during Griffin’s time at Saint Elizabeths, Pokuaah was not generally

responsible for administering his medication.

Pokuaah first observed Griffin’s swollen foot

on March 3, 2011, and informed Griffin that he should elevate his feet while sitting or in bed. Id.

at 9. Though “Griffin often refused to care for his foot as instructed”; Pokuaah saw Griffin

shadowboxing despite his injured foot. Id. at 8–9.

Plaintiff responds by focusing on Pokuaah’s “failures to conduct pain assessments” and

assigning responsibility to Pokuaah, as nursing team leader, for other nurses’ failure to fill out

pain assessments. Pl.’s Lower-Level Opp’n at 15–16. Despite administering Motrin to Griffin

three times between March and May 2011, Pokuaah neither completed a pain assessment nor

contacted a physician about inadequate pain medication. Id. at 15.

Even viewing the facts in the light most favorable to Plaintiff, no reasonable jury could

conclude that Pokuaah failed to exercise professional judgment in treating Griffin. Pokuaah gave

Griffin Motrin only three times out of hundreds of Motrin administrations. Regarding her

supervision of other nurses, Plaintiff’s only evidence is Pokuaah’s general responsibilities of

“leading the other R.N.s at St. Elizabeths in proper caring for patients and documentation of

46 patient records” and ensuring that medications are “charted accurately.” Id. at 16. Plaintiff does

not cite any evidence of what Pokuaah personally did or did not do in this capacity. Essentially,

Plaintiff seeks respondeat superior liability for other nurses’ conduct. Furthermore, as explained

above, the other nurses are granted qualified immunity because a reasonable jury could not find

that they failed to exercise professional judgment. No reasonable jury could find that Pokuaah

failed to exercise professional judgment based on the evidence proffered by Plaintiff.

7. Williams

Williams, a nurse, was one of several Saint Elizabeths employees that attended to

Griffin’s knee or foot during his time at the hospital. Defs.’ Lower-Level Mem. at 3.

Defendants argue that Griffin was not one of Williams’s assigned patients, so she had “little

involvement” in caring for Griffin. Id. at 9. On the morning of Griffin’s death, she documented

the edema in his feet and immediately notified the nursing supervisor on duty. Id. at 26.

Defendants cite testimony from their expert that calling 911 at 8:46 a.m. as opposed to 9:07 a.m.

“would not have saved Griffin’s life.” Defs.’ Lower-Level Reply at 16.

Plaintiff responds that Williams violated the professional judgment standard by failing to

call 911 right after she examined Griffin and discovered that he was unable to move his legs.

Pl.’s Lower-Level Opp’n at 16–17. Plaintiff argues that Williams should have called 911 around

6:30 a.m., when she first reported that Griffin could not move his legs. Id. Plaintiff cites

Arons’s testimony describing Griffin’s condition as “emergent, which requires an immediate

emergency response.” Id. at 17. Plaintiff likewise refers to Thura’s statements indicating that a

Code Blue should have been called at 8:46 a.m., when Williams noted a substantial decrease in

Griffin’s pulse. Id. Jackson ultimately called the code blue at 9:07 a.m. Id.; Defs.’ Lower-Level

Mem. at 7.

47 Viewing the facts in the light most favorable to Plaintiff, no reasonable jury could find

that Williams failed to exercise professional judgment. Plaintiff cites her opening summary-

judgment brief for the argument that 911 should have been called at 6:30 a.m., but the cited

pages say nothing about 6:30 a.m. They argue that a Code Blue should have been called at 8:46

a.m. Pl.’s Mem. at 31–32. And it is undisputed that after “Williams documented the edema in

Griffin’s feet on the morning of his death,” she “immediately notified the nursing supervisor,

Daphne Jackson.” Defs.’ Lower-Level SUMF ¶ 23; Pl.’s Lower-Level SUMF Resp. ¶ 23; Defs.’

Lower-Level Mem. at 9. This undisputed fact was, on its face, an exercise of professional

judgment. Plaintiff cites testimony regarding whether the Code Blue or 911 should have been

called at 8:46 a.m. as opposed to when it was ultimately called at 9:07 a.m., but this testimony

does not address whether Williams exercised any professional judgment at all. Plaintiff cites no

evidence that deciding to notify Jackson was such an unreasonable decision that it essentially

constitutes a failure to exercise any professional judgment, and that proposition is otherwise far

from clear. See Jordan,

(“A mere disagreement about the scope of

treatment or the proper diagnosis . . . is insufficient to shock the conscience and rise to the level

of a constitutional due process violation.”). It may or may not have been negligent to delay the

Code Blue call for about twenty minutes and instead notify Jackson, but it was not a failure to

exercise professional judgment. Therefore, Williams is entitled to qualified immunity.

8. Arons

Arons was the hospital’s Medical Affairs director, and never personally interacted with

Griffin. Defs.’ Lower-Level Mem. at 10. Defendants argue that Arons did not have direct

responsibility for payments for outside appointments.

Arons testified that he believed

outside appointments were being scheduled without issues, and that patients were being sent out

48 for appointments “constantly.”

Arons was aware of only one instance in which Griffin was

unable to receive outside medical care due to lack of insurance, and, as a psychiatrist, Arons was

not suited to personally judge the urgency of needed outside appointments for Griffin’s knee or

foot. Defs.’ Lower-Level Reply at 16–17.

Plaintiff argues that Arons cannot receive qualified immunity because of the supervisory

duties inherent in his job as Saint Elizabeths’ Medical Affairs Director. Pl.’s Lower-Level

Opp’n at 17. Plaintiff explains that a supervisory official may be liable “where it is affirmatively

shown that the official charged acted personally in the deprivation of the plaintiff’s rights.”

(quoting Vinnedge v. Gibbs,

(4th Cir. 1977)). Plaintiff also says that Arons

should be held liable if he, in his supervisory role, is aware of and approves, condones, or turns a

blind eye to conduct depriving a victim of their rights.

(citing Matthews v. City of E. St.

Louis,

(7th Cir. 2012)). According to Plaintiff, Arons’s job description

outlined his duty to manage, direct, supervise, and oversee all phases of the facility’s medical

affairs. Id. at 18. Plaintiff argues that Arons was the hospital’s “senior ranking physician,” so it

was his responsibility for ensuring other doctors adhered to medical and psychiatric standards for

patient care and treatment. Id. She further argues that Arons is ineligible for qualified immunity

because his subordinate doctors did not provide Griffin with an acceptable quality of care and

treatment. Id.

Even viewing the facts in the light most favorable to Plaintiff, no reasonable jury could

find that Arons failed to exercise professional judgment. Plaintiff argues for only supervisory

liability, and such liability, according to Plaintiff, requires showing that the individual acted

personally in the deprivation of rights, such as by approving of activity or turning a blind eye.

Yet Plaintiff does not cite a single piece of evidence regarding Arons’s personal contribution to

49 allegedly violating Griffin’s rights. See Pl.’s Lower-Level Opp’n at 17–18 (citing only cases and

evidence regarding Arons’s job descriptions). Therefore, no reasonable jury could find that

Arons failed to exercise professional judgment in his supervisory capacity.

9. Quander-Clemons

During Griffin’s time at Saint Elizabeths, Quander-Clemons was responsible for

scheduling outside appointments. Defs.’ Lower-Level Mem. at 10. She used Medicaid to pay

for patients with Medicaid coverage until she “received a letter stating that Medicaid could not

be responsible” for those individuals’ bills. Id. Quander-Clemons would schedule an

appointment after receiving a consult form from a doctor regardless of whether the patient had

insurance. Id. at 11. Upon learning an individual had been turned away from outside care

because of a lack of insurance, Quander-Clemons would alert the referring doctor. Id. at 28. She

informed Arons, Smith, and hospital administration about Griffin’s scheduling issues. Id. at 11–

12.

Plaintiff agrees that Quander-Clemons would receive consults from doctors, schedule

appointments independent of a patient’s insurance status, and use an individual’s Medicaid

number when scheduling. Pl.’s Lower-Level Opp’n at 18. However, Plaintiff argues that

“Quander-Clemons’ continued use of Medicaid even after the denials began happening

demonstrates a failure to exercise professional judgment.” Id. at 19.

The parties appear to dispute whether Quander-Clemons continued using Medicaid

numbers to schedule appointments after she received a letter stating that Medicaid could not be

used for certain patients. See Defs.’ Lower-Level Reply at 17. But this is irrelevant. Viewing

the facts in the light most favorable to Plaintiff, no reasonable jury could find Quander-Clemons

failed to exercise professional judgment in this case. The undisputed facts show that she did

50 exercise professional judgment by alerting the requesting doctors and Saint Elizabeths

administrators when outpatient appointments could not be scheduled. Plaintiff does not proffer

any evidence suggesting that this was not an exercise of professional judgment or that Quander-

Clemons would not otherwise be entitled to qualified immunity even if such evidence were

proffered.

10. Greene

Greene was Quander-Clemons’s assistant during the relevant time period. Defs.’ Lower-

Level Mem. at 12. She is entitled to qualified immunity for the same reason as Quander-

Clemons. Plaintiff does not dispute that Greene would alert the doctor, nurse, and social worker

of the patient’s unit if there was a failure to schedule an appointment, id. at 13, and this

constitutes an exercise of professional judgment. Even if there were evidence that Greene did

not exercise professional judgment, Plaintiff has not shown that Greene is not otherwise entitled

to qualified immunity.

E. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment on liability for the 1983 and negligence

claims. Many parts of Plaintiff’s motion for partial summary judgment are resolved by the

Court’s decisions above relating to Defendants’ motions. Specifically, Plaintiff’s requests for

summary judgment on liability for certain individual Defendants—Canavan, Seymour, Arons,

Quander-Clemons, Anyatonwu, Pokuaah, Nwonye, and Williams—are denied due to grants of

qualified immunity. The remaining portion of Plaintiff’s motion concerns 1983 and negligence

liability for the District and negligence liability for two groups of individual Defendants:

51 officials and administrators, and medical personnel. For the reasons given below, the Court

denies the remainder of Plaintiff’s motion. 16

1. District 1983 Liability

Plaintiff moves for summary judgment on the District’s 1983 liability for violation of

Griffin’s Fifth-Amendment right to adequate medical care. As explained above, municipal

liability under section 1983 requires both a predicate constitutional violation and that the

municipality was the “moving force” of the violation. Moreno,

; see also

Monell,

; Harvey,

. Plaintiff first argues that a predicate

constitutional violation occurred, then argues three theories of causation necessary for municipal

liability under section 1983. For the reasons given below, Plaintiff has not demonstrated that no

genuine disputes of material fact prevent judgment for Plaintiff as a matter of law.

a. Predicate Constitutional Violation

The predicate constitutional violation advocated by Plaintiff is as follows: all relevant

District employees acted under color of state law; Griffin was involuntarily committed to Saint

Elizabeths; because Griffin was involuntarily committed, he had a substantive-due-process right

under the Fifth Amendment to adequate and necessary medical care; Griffin did not receive all

adequate and necessary medical care because outside medical appointments recommended by his

Saint Elizabeths doctors for his knees and foot were not completed; and the failure to carry out

these outside appointments shocks the conscience such that Griffin’s Fifth-Amendment rights

were violated. See Pl.’s Mem. at 4–14. Defendants do not respond directly to these arguments

on the predicate constitutional violation in their brief. Instead, they oppose only the municipal-

16 Because the Court denies Plaintiff’s motion, it is unnecessary to address Defendants’ arguments regarding Plaintiff’s Statement of Undisputed Material Facts. See Defs.’ Opp’n at 51–52.

52 causation element, discussed below. But even without opposing arguments on point, it is the

Court’s duty to grant summary judgment only when convinced that there are no genuine disputes

of material in fact such that the movant is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(a); Winston & Strawn, LLP,

.

The first three links in Plaintiff’s argument are uncontroversial. Defendants have never

indicated in any of their papers that the relevant personnel were not acting under color of District

of Columbia law. Defendants do not dispute that Saint Elizabeths “is the public psychiatric

hospital for the District of Columbia,” Defs.’ SUMF Resp. ¶ 1, and never contest the

foundational fact of this case that Griffin was involuntarily committed, cf. Pl.’s Mem. at 1

(“Reuel Griffin was an adult with mental illness who was involuntarily committed to Saint

Elizabeths Hospital after being found Not Guilty By Reason of Insanity in 1983.”). The scope of

constitutional rights afforded to Griffin due to his involuntary commitment is a legal conclusion.

As explained above, the Court holds that NGBRI individuals involuntarily committed to

psychiatric institutions are entitled to necessary and adequate medical care under the

professional-judgment standard. See Harvey,

(explaining that, under

Youngberg, the State has an “affirmative duty . . . to provide necessary medical care”);

(referring to “the District’s duty under Youngberg to ensure [that the involuntarily

committed plaintiff] received adequate medical care”); see also Youngberg,

(stating that “the essentials of the care that the State must provide” include “adequate . . . medical

care”).

Next is Plaintiff’s contention that Griffin did not receive all adequate and necessary

medical care “when he was not provided with recommended treatment for his knee and foot.”

Pl.’s Mem. at 8 (cleaned up). Plaintiff’s entire argument on this point comes from two

53 paragraphs in her brief. The first paragraph addresses only the professional-judgment standard,

which is not relevant to determining the factual question of whether all adequate and necessary

medical care was provided. The second paragraph argues that the District has conceded that

there were delays in scheduling or completing treatment for Griffin from outside medical

providers, and that the District does not dispute “that none of Griffin’s referrals to outside care

for his foot fracture and knees were fulfilled.”

Plaintiff also asserts that it is “undisputed

that . . . as of January 11, 2012, [Griffin] needed total knee replacement surgery.”

Plaintiff

points to testimony of Canavan and another Saint Elizabeths doctor to show that “there were

delays in Mr. Griffin’s medical care.”

Last, Plaintiff argues that it is Saint Elizabeths’ “goal”

to accomplish “recommended medical procedures . . . in a timely manner ‘as determined by the

physicians managing the care.’” Id. at 9. Plaintiff cites paragraphs eight and fifty-one through

sixty-nine of its Statement of Undisputed Material Facts in support.

This short argument does not remove doubt that there are genuine disputes of material

fact. Whether Griffin received all adequate and necessary medical care is a fact-intensive

question, and although expert testimony may not be required to support a finding in Plaintiff’s

favor, it would be difficult for the Court to conclude that there are no genuine disputes of

material fact on this question without hearing from an expert. The Court has reviewed the cited

paragraphs of Plaintiff’s Statement of Undisputed Material facts and Defendants’ responses to

the same. They do not make it clear that it is undisputed that Griffin was not provided all

adequate and necessary medical care. Plaintiff’s proposed undisputed facts regarding generally

providing recommended external medical care to patients do not directly address whether

keeping such appointments is medically necessary; they address whether “recommended medical

procedures should take place in a timely manner as determined by the physicians managing the

54 care,” and that “it is the Hospital’s goal to make it happen as soon as possible.” Pl.’s SUMF ¶ 8

(emphases added; cleaned up). This is some evidence implying that following through on

recommended outside care may be necessary, but it is not conclusive so as to be undisputed. It is

also not tailored to Griffin’s case. There are likely recommendations occasionally made for

external care that are not critical, and therefore not part of necessary care.

Paragraphs fifty-one through sixty-nine describe Saint Elizabeths doctors examining

Griffin and making certain referrals or requests for actions that did not occur, such as referral for

an orthopedics appointment and requesting MRIs. See Pl.’s SUMF ¶¶ 54–55. But there are not

undisputed facts regarding the importance of each of these recommendations. The closest

Plaintiff comes is with the following proffered facts in paragraph 67: “[t]he District concedes

that there was a delay in scheduling and/or completing outside medical treatment”; Canavan

testified that waiting months for an MRI is too long and Griffin’s referrals were not timely

carried out; and Garcia testified that, because Griffin did not get orthopedic referrals and MRIs,

he “did not get the medical care he needed.” Pl.’s SUMF ¶ 67. However, these are not

conclusive. The first is undisputed but not useful because it does not address any magnitude of

delay. Defendants dispute the second. In response to being asked if he agreed that Griffin “did

not get timely medical care,” counsel raised a foundation objection and Canavan testified that he

did not “know the nature of what they were trying to go after in terms of the evaluation so I don’t

know whether that . . . care was critical to him,” but that “it’s long to wait two months for an

MRI.” Pl.’s Mem. Ex. 1, Canavan Dep. 194:12–21, ECF No. 289-3. Canavan did not testify that

it was “too” long. Also, as Defendants point out, Canavan was not testifying as an expert

witness. As the CEO of Saint Elizabeths, he surely has some relevant expertise, but it is far from

clear that his opinion on how long is too long to wait for an MRI would be given much weight.

55 On the third, the Garcia testimony more clearly supports Plaintiff’s position that Griffin

did not get the medical care he needed. Garcia testified that, as of December 27, 2011, Griffin

“was in need of an MRI and an orthopedic referral,” Pl.’s Mem. Ex. 5, Garcia Dep. 143:7–144:9,

ECF No. 289-3, and it appears undisputed that Griffin did not receive them. Defendants respond

that “the question of whether the medical care Plaintiff references was ‘needed’ requires an

expert opinion.” Defs.’ SUMF Resp. ¶ 67. Although Garcia’s testimony is essentially on point,

Defendants do dispute the sufficiency of Garcia’s testimony because Garcia was not testifying as

an expert. Whether certain medical care was necessary is indeed more suited to expert

testimony. See Fed. R. Evid. 701 (opinion testimony by lay witness may not be “based on

scientific, technical, or other specialized knowledge within the scope of Rule 702”).

Accordingly, although Garcia’s testimony supports Plaintiff’s position, it is disputed.

One sequence of events is instructive to understand why, although there is evidence that

Griffin was not timely provided with all recommended care, there are not undisputed facts

showing a failure to provide all adequate and necessary care. It is undisputed that Smith saw

Griffin on May 25, 2011, requested an MRI for his knees, and this MRI did not take place. Pl.’s

SUMF ¶ 55. However, about one month later, on July 30, 2011, Smith sent Griffin to the

emergency room for an x-ray after finding increased swelling and pain in Griffin’s foot, and the

x-ray was performed. Id. ¶ 56. There are several undisputed instances of Griffin’s doctors

recommending referrals and imaging that did not take place, but the fact that it is also undisputed

that Griffin’s doctors had the ability to—and did—send him to the emergency room for at least

an x-ray, and no evidence is presented about why that option was not used for the other

recommended treatment, creates disputes about which recommendations were required to

provide adequate and necessary care. It may ultimately be found that this care was not sufficient,

56 but the undisputed facts themselves create this dispute about whether adequate and necessary

medical care was not provided.

Plaintiff’s subsequent brief section, concerning the separate question of whether

Defendants’ conduct shocked the conscience, addresses similar issues, and so the Court reviews

these two issues together to ensure that Plaintiff has not removed doubt about disputed material

facts. Plaintiff argues that when “the medical professional treating the involuntarily committed

patient determines the proper treatment the patient should receive but this treatment is denied or

unduly delayed by the Hospital’s administration for reasons unrelated to the treatment of his

condition, then” there is a substantive-due-process violation. Pl.’s Mem. at 9. But this cannot be

correct unless “the proper treatment” refers to a scenario where there is only one possible

treatment that a professional could exercise their judgment to recommend. Otherwise, such a

rule does not account for differences of opinion among doctors, even if the treating doctor’s

suggested “proper treatment” was one among many acceptable treatments or even far outside

acceptable practice. This framing of the rule also does not appreciate that the professional-

judgment rule is more permissive than mere negligence; professional judgments that would

constitute negligence may not fail the professional-judgment rule. Plaintiff’s proposed rule

would not even guarantee that there was negligence.

In the out-of-circuit case cited by Plaintiff for support, there was “no dispute concerning

the proper treatment” because there was “unanimous professional opinion” about the proper

treatment, which had “been denied to plaintiff over the years for reasons unrelated to the

treatment of her condition.” Clark v. Cohen,

, 704–05 (E.D. Pa. 1985), aff’d,

(3d Cir. 1986). But here, Plaintiff has not put forth evidence of unanimous

professional opinion that certain treatment needed to occur within certain time periods. Plaintiff

57 cites another out-of-circuit case for a similar proposition: “When professionally acceptable

judgments are not effectuated because of administrative ineptitude or insufficient funds, the

inadequacy of care is not removed from judicial purview simply because the initial judgments

made by professionals were proper.” Lelsz v. Kavanagh,

(N.D. Tex.

1987); see Pl.’s Mem. at 9. But this means that there is liability when no professional judgment

is exercised. It does not mean that failure to carry out one particular course of action that was

based on an acceptable professional judgment imposes liability. That would directly undermine

the professional-judgment test that requires only “assessing whether professional judgment in

fact has been exercised.” Lelsz,

.

Plaintiff also analogizes to cases under the deliberate-indifference standard regarding

whether a medical condition is sufficiently serious. According to Plaintiff, a medical condition is

sufficiently serious if it was “diagnosed by a physician as mandating treatment,” “so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention,” or “threatens a

plaintiff’s ability to walk.” Pl.’s Mem. at 12 (quoting Iko v. Shreve,

(4th Cir.

2008); and Skaggs v. Clark, No. CV 3:13-3293,

, at *7 (S.D.W. Va. 2016)).

Even assuming that this standard applies to whether certain care is adequate or necessary, there

are not undisputed material facts in support. Plaintiff does not point to clear evidence that

Griffin’s doctors mandated certain treatment, rather than requested it; Griffin did receive “a

doctor’s attention” on numerous occasions, albeit often not receiving subsequently recommended

care; and evidence that Griffin shadowboxed and danced disputes the extent to which his ability

to walk was threatened, see Defs.’ Lower-Level Mem. Ex. 9, Anyatonwu Dep. 51:20–52:15,

ECF No. 282-4;

Ex. 6 at DC-007653, even in light of other evidence that Griffin had

difficulty walking.

58 Last, Plaintiff cites numerous cases for the proposition that “failure to follow doctors’

orders and delays in scheduling medical treatment is sufficient to establish deliberate

indifference.” Pl.’s Mem. at 12–13. For the reasons discussed above, “failure to follow doctors’

orders and delays in scheduling medical treatment” is insufficient, without more, to show a

failure of adequate and necessary medical care or a failure of professional judgment. The cited

cases do not indicate otherwise. Plaintiff first cites Harvey, arguing that the court found “that

failure to schedule a recommended medical appointment for a seventeen-month period [was]

deliberately indifferent.”

; see

. But the circumstances in Harvey were

much more severe. In Harvey, the patient’s case manager knew in March 1996 that the patient, a

“severely disabled” individual, “was experiencing a rapid decline in motor function, that he was

no longer able to feed himself, and that his physical therapist recommended he receive a

neurology consultation to determine the cause of the deterioration,” yet the case manager did not

take the necessary steps to get a neurology appointment.

. After the case

manager’s employer was issued a deficiency notice for “failing to promptly schedule the

recommended appointment,” a neurologist appointment was held in March 1997, at least one

year after the initial recommendation.

The neurologist recommended an MRI “ASAP,”

which was held forty-three days later.

The neurologist requested a follow-up visit, which

occurred 58 days after the request.

At the follow-up visit, the neurologist recommended

seeing a neurosurgeon, which occurred 138 days after the request.

The neurosurgeon

recommended a laminectomy “in the next few weeks” and the neurologist said that surgery

needed to be scheduled “ASAP.”

The patient’s caregivers, including his case manager,

“waited four months and then decided to get a second opinion,” which did not occur until 408

days after the decision to seek a second opinion and 538 days “after the first neurosurgeon

59 recommended that surgery be performed in a few weeks.”

The second neurologist then also

recommended a laminectomy.

While the overall length of time is similar, the conditions

suffered and level of indifference are not. From the beginning, the patient in Harvey “was

experiencing a rapid decline in motor function” such that he could not feed himself.

(emphasis added). In contrast, while Griffin was experiencing pain for months, it was far less

serious than the conditions in Harvey for almost the entire length of relevant time, and there was

no sign of rapid deterioration until arguably the day of Griffin’s death, or at most the

approximately ten days preceding it. There is also undisputed evidence of doctors seeing Griffin

and providing some treatment throughout the relevant time period. These cases are therefore

distinguishable.

The other cases in the string cite do not appear to be on point. The second case cited by

Plaintiff is a Magistrate Judge Report and Recommendation that recommended denying a motion

to dismiss where the plaintiff alleged that his doctor’s request for knee surgery was denied for

seventeen months. DeLong v. Nelson, No. 17-cv-11783,

, *9 (D. Mass. Sept.

3, 2019). Even if these facts were analogous, the posture is not; defeating a motion to dismiss is

easier for a plaintiff than winning summary judgment. In the third case cited by Plaintiff, the

Tenth Circuit reversed dismissal of the plaintiff’s deliberate-indifference claim where he alleged

a “sufficiently serious and painful” knee injury and an MRI ordered by his doctor was delayed

for about seven months. Gray v. Geo Grp., Inc.,

, 945–46 (10th Cir. 2018).

The doctor also allegedly told him to “toughen up” in response to a request for additional pain

relief.

. Again, this case is not persuasive because it concerns a motion to dismiss. As

recognized by the Tenth Circuit, “if the evidence shows that [the doctor’s] failure to treat [the

plaintiff’s] knee pain reflected his professional judgement or even was negligent, rather than

60 deliberately indifferent, then the subjective component of this claim would not be met.”

at

946 n.5. In other words, although some of the facts here may be similar to the facts alleged in

some of the cited cases, there are also facts here weighing against Plaintiff’s claim, as explained

above, which preclude summary judgment in Plaintiff’s favor. None of the cases except Harvey

appear to grant or affirm summary judgment in favor of the plaintiff, and Harvey is

distinguishable as explained above. See, e.g., Dixon v. Cnty. of Cook,

(7th Cir.

2016) (reversing grant of summary judgment and motion to dismiss to defendant and

remanding); Dotson v. Fischer,

(2d Cir. 2015) (vacating dismissal and

remanding); Robinson v. Phelps,

(D. Del. 2013) (allowing plaintiff to

proceed with medical-care claim).

The evidence discussed in this section of Plaintiff’s brief does not obviate the disputed

facts discussed above. There is undisputed evidence of particular recommendations not being

timely followed, but that does not make it undisputed that those recommendations needed to be

followed—and within some period of time—to constitute adequate and necessary medical care.

For the same reasons, disputed issues of fact prevent summary judgment on whether the

District’s conduct shocks the conscience due to a failure to exercise professional judgment.

Plaintiff argues that no reasonable jury could find that the District’s failure to carry out

recommendations by its own doctors “for medical appointments, diagnostic testing, and

orthopedic consultation” was not conscience shocking, Pl.’s Mem. at 11, but the undisputed facts

do not clearly show failure to exercise any professional judgment. In fact, the undisputed facts

show Griffin being seen by doctors many times during the relevant period. Although the

doctors’ recommendations for referrals were often not effectuated, the fact that Griffin was

61 frequently examined and, at least once, sent out for x-rays, creates factual disputes about whether

professional judgment was exercised. And, as mentioned above, there is no expert opinion cited.

To be clear, the Court expresses no opinion on whether Plaintiff could ultimately prove

that Griffin was not provided all adequate and necessary medical care or that there was a failure

of professional judgment—questions not presented in this motion. There is certainly evidence

that Griffin was not timely provided care recommended by his doctors on several occasions.

Accordingly, the Court holds only that Plaintiff has not demonstrated through this briefing that

there are no genuine disputes of material fact about whether Griffin ultimately received all

adequate and necessary medical care or whether there was a failure of professional judgment.

b. Causation from Custom or Practice of Using Medicaid

Because Plaintiff has not demonstrated entitlement to summary judgment on the

predicate constitutional violation, the Court cannot grant summary judgment on the District’s

1983 liability regardless of the municipal-causation issue. But for the sake of providing

guidance for the presentation of evidence at trial, the Court will determine whether Plaintiff is

entitled to summary judgment that the District had a custom or practice of using Medicaid for

patients like Griffin that caused the predicate constitutional violation asserted by Plaintiff.

Plaintiff’s first theory for municipal causation is that the District’s “custom or practice of

using Medicaid to pay . . . external medical appointments and procedures” was the moving force

behind the predicate constitutional violation. Pl.’s Mem. at 15 (cleaned up). As explained

above, one way to show municipal causation is through a custom or practice that caused the

constitutional violation. Singh,

. The inquiry here contains two questions:

Was there a custom or practice of using (or attempting to use) Medicaid to pay for external

medical care, and, if so, did it cause the asserted constitutional violation? Defendants do not

62 appear to dispute the first question. See Defs.’ SUMF Resp. ¶ 27 (“[T]he hospital routinely

provided a Not Guilty By Reason Of Insanity patient’s Medicaid or Medicare [sic], if the patient

had a Medicaid or Medicare number.”); id. ¶ 28 (not specifically disputing that “the District’s

practice when scheduling external medical appointments for all patients was to provide their

Medicaid or Medicare number,” except to the extent that Quander-Clemons stopped this practice

after “she received a letter stating Medicaid could not be used for IMD patients”). The only

question, then, is whether the District’s custom of scheduling external appointments with NGBRI

patients’ Medicaid numbers caused the asserted constitutional violation, which in this motion is

an allegedly conscience-shocking amount of delayed and missed outpatient appointments for

Griffin’s knee and foot care.

Plaintiff argues that the District’s practice was “in violation of clearly established federal

law” due to the IMD exclusion and that no other payment protocol was in place when “‘the issue

of Medicaid federal fund participation availability (FFP)’ arose in Spring of 2011.” Pl.’s Mem.

at 15. Accordingly, Griffin’s missed appointments were allegedly caused by this custom.

Plaintiff cites testimony and documents suggesting that Griffin’s and other patients’ external

appointments were delayed or denied due to the same payment issue. Id. at 15–16; accord Pl.’s

Reply at 15 (“[Griffin was] denied medical care due to lack of a payment mechanism.”); see also

id. at 15–17 (timeline of requests for outside care); id. at 19–22 (discussion of other patients’

delays allegedly due to the Medicaid payment issue). In response to Defendants’ argument that

billing Medicaid for NGBRI outpatient care was acceptable because the IMD exclusion only

prohibits use of federal funds, Plaintiff argues that Defendants never raised this possibility of

billing only “state” Medicaid in Defendants’ interrogatory responses, and they are therefore

prohibited from raising it now. Pl.’s Reply at 5. Plaintiff also cites evidence disputing whether

63 this state-only Medicaid billing was possible. Id. at 6. According to Plaintiff, the evidence

proffered by Defendants supposedly showing Medicaid paying for care for patients covered by

the IMD exclusion was essentially due to mistakes by the District; “Medicaid paid only because

DHCF did not know the patients’ IMD status.” Pl.’s Reply at 8–9.

Regarding alternate payment methods, Plaintiff argues that the supposed alternate

payment methods put forth by Defendants were not feasible for Griffin. The policy for directly

paying external providers was not implemented until 2013, after Griffin’s death. Pl.’s Reply at

11–12. The P-Card was used no earlier than September 2011 for external care, was never used

for Griffin, and was only used a small number of times for outpatient care for patients like

Griffin, including being used only once for this purpose in 2011. Id. at 12–13.

Defendants advance three arguments that Plaintiff has failed to prove causation via a

custom or practice of using Medicaid to pay for external care. First, “state” Medicaid could pay.

Defendants argue that the IMD exclusion only applies to the federal contribution to Medicaid

funds, and, therefore, the IMD exclusion did not bar the District from paying Medicaid claims

for patients otherwise covered by the IMD exclusion. See Defs.’ Opp’n at 3–5. Second,

alternative payment methods were available. Defendants point to the P-Card, which was used to

pay for an individual’s outside care in September 2011. Id. at 5. Also, Canavan testified that

rejected instances of outpatient care should have been reported to Seymour for resolution. Id.

Defendants also assert generally that the outpatient providers could bill Saint Elizabeths or the

providers could pay for the care themselves. Id. at 6. Third, factual disputes about the cause of

Griffin’s missed appointments—including about proximate causation—prevent summary

judgment. The external medical facilities could have billed to “state” Medicaid or billed Saint

Elizabeths for Griffin’s care, but instead they refused to see him. Id. at 7. Defendants also

64 suggest that factual questions remain about why Griffin’s appointments were not scheduled and

that there may have been reasons other than lack of insurance. 17 Id. at 8. Regarding factual

causation, Defendants argue that “[t]he record shows that Griffin was denied an outside medical

appointment due to ‘lack of insurance’ only once, a knee MRI at UMC scheduled on August 4,

2011.” Id. at 9.

Both sides overcomplicate this issue. The municipal-causation test is not a second

question of illegality or unconstitutionality. It is merely an additional hurdle for municipal-

liability causation to ensure that the municipality is being held liable for its own actions, as

opposed to the actions of its employees. See Monell,

(“We conclude, therefore,

that a local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an entity is responsible under § 1983.”). Given

that, as explained above, it is undisputed that Saint Elizabeths had a regular practice of using a

patient’s Medicaid number to book outside appointments, the only question is whether this

practice caused the asserted constitutional violation in fact and proximately.

The Court holds that disputed questions of material fact prevent summary judgment on

this theory. Regarding factual causation, there is certainly at least one undisputed instance of an

attempt to get Griffin outpatient care where he was “rejected because he did not have insurance.”

Defs.’ SUMF Resp. ¶ 58 (not disputing this issue specifically). But some of the other instances

put forth by Plaintiff are disputed. For example, Plaintiff proposed the undisputed material fact

17 Defendants assert that Griffin did have Medicare insurance, Defs.’ Opp’n at 9, but Plaintiff points to admissions made by Defendants that appear to conclusively reject that contention, Pl.’s Reply at 17–18.

65 that on May 25, 2011, Smith requested an MRI on Griffin’s knees, but the appointment was not

made because Griffin did not have insurance. Pl.’s SUMF ¶ 55. But Defendants accurately

respond that Plaintiff cites no evidence for the proposition that the appointment was not made

because of a lack of insurance. Defs.’ SUMF Resp. ¶ 55. It is not clear that Plaintiff has cited

enough undisputed instances of care denied due to lack of insurance such that the District’s

custom was definitively a cause-in-fact of the asserted constitutional violation.

Additionally, and perhaps more importantly, Plaintiff has not put forth sufficient

undisputed facts to justify a finding of foreseeability required for proximate causation as a matter

of law. Proximate cause is typically a fact-dependent question that is often left to the jury. See

Atlanta Channel, Inc. v. Solomon, No. 15-cv-1823,

, at *8 (D.D.C. July 23,

2020) (“Questions of proximate cause are nearly always left to the jury to decide . . . .”); District

of Columbia v. Harris,

(D.C. 2001) (“[C]ases are rare where issues of

negligence and proximate cause can be taken from the jury and decided by the court as a matter

of law.”). Finding for Plaintiff would require sufficient undisputed facts to show that, as a matter

of law, the constitutional violation was a foreseeable consequence of the District’s custom. But

there is evidence of significant confusion surrounding the payment problems in question during

the relevant time period. Plaintiff cites the District’s interrogatory response that states, “the issue

regarding Medicaid federal fund participation availability (FFP) . . . arose in late Spring 2011

when the Hospital had difficulty scheduling external appointments.” Pl.’s SUMF ¶ 34. Plaintiff

also proposes the undisputed material fact that, on April 22, 2011, Saint Elizabeths’ “Chief

Nurse Executive” sent an email about “the recent problem of NGBRI individuals in care being

denied Medicaid benefits” for outside care, and stated that “[i]t seems” Medicaid can no longer

be used for that care. Pl.’s SUMF ¶ 41 (emphasis added). This is approximately when Griffin’s

66 issues began. The foreseeability of constitutional violations for Griffin is therefore undercut by

evidence that this issue “arose” close in time to the beginning of Griffin’s problems getting

outside care, which suggests the possibility of other causes. See Smith v. Hope Vill., Inc.,

(D.D.C. 2007) (“Where two tortfeasors are involved, the unforeseeable action of

the subsequent tortfeasor may be a superseding cause which breaks the chain of causation.”

(quoting Grant v. District of Columbia,

(D.C. 1991))). In other words, there

is at least some evidence weighing against foreseeability because there is evidence that Saint

Elizabeths used patients’ Medicaid numbers before Spring 2011 without significant issues. See

Pl.’s Mem. at 14 (“The prohibition on using Medicaid for IMD patients was enacted by Congress

in 1965, 45 years before the District’s ill-conceived practice fell apart in 2011.”). Defendants

also point to testimony by Arons, the Medical Director, in which he stated his belief that if an

external MRI was performed for Griffin and the provider billed directly for the services, it would

have been paid from District funds. Defs.’ Opp’n Ex. 8, Arons Dep. 117:20–118:8, ECF No.

293-3. This is additional evidence undercutting the foreseeability of constitutional violations due

to the practice of scheduling appointments with patients’ Medicaid numbers. Plaintiff may

ultimately be able to prove proximate causation, and has presented supporting evidence, but

summary judgment is not mandated by the undisputed material facts.

c. Causation from Deliberate Indifference of Failure to Have Payment Protocol

Plaintiff’s second theory for municipal causation is that “the District’s practice of using

Medicaid for indigent patients from at least 2008 until June 2013 was deliberately indifferent to

the risk that Saint Elizabeths Hospital patients, including Griffin, would not be able to timely

receive medical care and treatment as recommended by their physicians,” and that this deliberate

indifference was the moving force behind the predicate constitutional violation. Pl.’s Mem. at

67 18. As explained above, another way to prove municipal causation is through deliberate

indifference to the risk of violating constitutional rights. Singh, 55 F. Supp. 3d at 75–76.

Summary judgment on this issue is denied for the same reasons as above for the custom-

or-practice causation theory. The mechanism of alleged causation is the same for both: failure to

provide care due to using patients’ Medicaid numbers to schedule external appointments rather

than a different payment method. The only difference appears to be whether that causation is

attributed to the District by proving a custom or practice of using Medicaid as opposed to

deliberate indifference to the risks posed by using Medicaid. Plaintiff’s description of the

causation theory even describes it as relying on “the District’s practice of using Medicaid for

indigent patients.” Pl.’s Mem. at 18 (emphasis added). Plaintiff’s motion is therefore denied on

the same grounds.

d. Causation from Deliberate Indifference from Failure to Train Nurses

Summary judgment cannot be granted based on Plaintiff’s third theory for municipal

causation—deliberate indifference from failure to train nurses—because the predicate

constitutional violation put forth by Plaintiff on summary judgment is only “[t]he District’s

failure to provide Griffin with MRI’s [sic] and orthopedic consultations.” Pl.’s Mem. at 10;

accord id. at 11 (“[I]t is clear that the District’s repeated failure to comply with the

recommendations of Griffin’s treating physicians and denying needed medical treatment was not

a result of an exercise of professional judgment.”); see also id. at 9–14 (failing to mention care

provided by nurses to Griffin). Although Plaintiff may or may not be able to prove a

constitutional violation caused by an alleged failure to train nurses, that is not the constitutional

violation put forth in this motion, and therefore summary judgment on this basis of causation is

not justified based on this motion. Because there is no corresponding discussion in Plaintiff’s

68 brief regarding the contours of the alleged predicate constitutional violation based on failure to

train nurses, the Court would be speculating in determining whether municipal causation existed

for an undefined predicate violation. In other words, the Court cannot confidently determine

whether alleged failure to train nurses caused a constitutional violation if the contours of the

constitutional violation are not defined. For that reason, the Court will not analyze the issue at

this time.

2. District Medical Negligence Liability

Plaintiff puts forth little argument in support of summary judgment on the District’s

medical-negligence liability. Most of this section of the brief consists of illustrations,

presumably created for this litigation, documenting changes to Griffin’s body in his last days of

life. See Pl.’s Mem. at 37–38. Plaintiff references paragraphs 115 through 122 of the Statement

of Undisputed Material Facts to “establish a complete dereliction of duty of the entire staff at

Saint Elizabeths” during Griffin’s final days, including fluid collecting in Griffin’s legs without

notice. Id. at 36. Regarding the months leading up to those days, Plaintiff argues that “[t]he

failure to conduct pain assessments and visualize his legs is negligence as a matter of law.” Id.

Plaintiff also argues that the Code Blue called on Griffin’s final day “was a shambles.” Id. at 39.

Defendants do not respond directly to Plaintiff’s arguments for District medical

negligence liability—as opposed to administrator or medical personnel liability—but

nevertheless, the Court will not grant Plaintiff’s motion on this ground. Although there appears

to be evidence from which a reasonable jury could find the District negligent, Plaintiff has not

put forth sufficiently detailed argument to allow the Court to determine that, viewing the facts in

the light most favorable to the District, no reasonable jury could find that there was no

negligence. Plaintiff does not elaborate on the precise contours of the District’s duty, which

69 undisputed evidence proves breach of that duty, which undisputed evidence proves that the

breach was the cause-in-fact of specific damages, or which undisputed evidence proves that the

breach was the proximate cause of specific damages. There appear to be several categories of

alleged negligence—at least failure to conduct pain assessments, failure to have a payment

protocol for outside care, and failure to call a Code Blue or 911 at the appropriate time—that

each would require individualized analysis. Earlier sections of the brief and Statement of

Undisputed Facts contain information that would be applicable to these questions, but Plaintiff

makes no effort to tie them together. As the movant, it is Plaintiff’s burden to “show[] 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). Plaintiff has not shown that here.

3. District Officials and Administrators Negligence Liability

Plaintiff moves for summary judgment of negligence liability for the District regarding

District officials and administrators. See Pl.’s Mem. at 32–36. Regarding officials for which

Plaintiff moved individually on the 1983 claim, Plaintiff argues that “[t]he District was negligent

for the same reasons encompassed in the 1983 claims against the District and the administrative

individuals.” Id. at 33. Plaintiff then argues that numerous additional District employees from

both Saint Elizabeths and District agencies breached their duties. See id. at 33–36. These

include, for example, “James Jackson[,] . . . the Budget Administrator or Administrative Program

Officer in the Office of Fiscal and Administrative Services at DMH [Department of Mental

Health, which is now DBH],” who Plaintiff argues breached his duty by “fail[ing] to advise the

District to allocate external medical into its budget.” Id. at 33–34. Another example is “Michael

Neff[,] . . . the Chief Administrative Operations for DMH,” who Plaintiff argues breached his

duty when he “failed to (1) advise the District to allocate external medical into its budget for

70 such services prior to Spring 2011, and (2) develop and implement a protocol for payment for

Saint Elizabeths Hospital patients’ external medical payments until June 2013.” Id. The other

singled-out individuals are similar.

Defendants respond that summary judgment is inappropriate due to factual disputes,

including on causation. Defs.’ Opp’n at 45. Like Plaintiff, Defendants cross-reference the 1983

portion of their brief to show lack of breach and causation. See id. at 46 (“As shown above, none

breached a duty owed to Griffin, and their actions did not proximately cause any injury to

Griffin.”). Defendants point out that some of Plaintiff’s supporting evidence is not on point, e.g.,

referring to Saint Elizabeths’ billing practices to imply how external providers will act. Id.

Similarly, Defendants reprise their argument that Plaintiff misunderstands the effect of the IMD

exclusion and whether it in fact precludes billing to Medicaid for patients like Griffin. Id. at 46–

47. Defendants dispute Plaintiff’s characterization of 30(b)(6) testimony regarding evidence of

the number of patients that suffered delays or denials due to payment issues. Id. at 47–48.

Plaintiff’s motion for summary judgment on liability for the officials’ and administrators’

negligence is denied. Like the argument for District medical-negligence liability, Plaintiff’s

short negligence discussion for these officials does not at all make it clear that Plaintiff is entitled

to judgment as a matter of law. Plaintiff once again relies on vague cross-references to earlier

sections of the brief to make the negligence argument. See, e.g., Pl.’s Mem. at 33 (“Since

negligence is a less demanding standard than professional judgment and deliberate indifference,

the alleged failures above [for the 1983 claim], certainly meet this standard as well.”). Some

cross-referencing might be understandable if the same argument would be repeated for a discrete

issue, such as discussion of a specific fact, but it is otherwise inappropriate. Cross-referencing is

especially inappropriate for the duty and breach elements of negligence here, which are different

71 than those required to show a Fifth-Amendment violation. Yet there is no significant discussion

of the individual employees’ duties or how those were breached. For example, Plaintiff argues

that “James Jackson failed to exercise reasonable standard of care when he failed to advise the

District to allocate external medical into its budget for such services prior to Spring 2011.” Pl.’s

Mem. at 34. As mentioned above, Jackson “was the Budget Administrator or Administrative

Program Officer in the Office of Fiscal and Administrative Services at DMH,” and was one of

the individuals responsible for arranging payment for external care appointments. Id. at 33–34.

But this is essentially all that Plaintiff puts forth. This is certainly insufficient to hold as a matter

of law that Jackson breached his duty—or that the employees’ actions collectively caused the

District to breach its duty. There is also no discussion regarding how Jackson’s actions

proximately caused injury to Griffin, even though these allegations are, on their face, only

remotely linked to Griffin; there is no discussion of how Jackson providing certain budget advice

would have foreseeably resulted in a different outcome for Griffin. Plaintiff’s discussion of

other individuals is no more convincing, and Plaintiff cites no cases to support negligence

liability for any of these employees. These individuals and the District may or may not have

been negligent, but Plaintiff has not demonstrated negligence liability for any of them as a matter

of law.

4. Medical Personnel Negligence Liability

The section of Plaintiff’s motion concerning liability for the individual Defendants that

are medical personnel consists of two sentences: one stating the rule for medical negligence, and

the other concluding that “[t]he District and Nurses Anyatonwu, Pokuaah, Nwonye and Williams

are liable for the failures described in the SUMF.” Pl.’s Mem. at 39. This is tantamount to

putting forth no argument, and the motion is therefore denied on this ground. See Schneider v.

72 Kissinger,

, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to do counsel’s work . . . .”

(quoting United States v. Zannino,

(1st Cir. 1990))).

V. CONCLUSION

For the foregoing reasons, the District’s motion for partial summary judgment (ECF No.

284) is DENIED, Defendants’ motion for summary judgment for the higher-level employees

(ECF No. 285) is GRANTED IN PART AND DENIED IN PART, Defendants’ motion for

summary judgment for the lower-level employees (ECF No. 282) is GRANTED, and Plaintiff’s

motion for partial summary judgment (ECF No. 286) is DENIED. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: January 11, 2022 RUDOLPH CONTRERAS United States District Judge

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