UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH SMITH,

Plaintiff,

v. No. 21-cv-878 (DLF)

MURIEL BOWSER et al.,

Defendants.

MEMORANDUM OPINION

Joseph Smith brings this action pro se under

and the Americans with

Disabilities Act (ADA),

, alleging that he is the victim of deliberate indifference

to medical need by the District of Columbia Department of Corrections and that two of its guards

have taken retaliatory actions against him. See Compl. at 3, Dkt. 1. Before the Court are (1) the

government’s motion to substitute itself as a defendant, Dkt. 30; (2) three motions to dismiss for

failure to state a claim and for lack of subject matter jurisdiction, Dkts. 23, 30, 36; and (3) the

plaintiff’s motions for various forms of injunctive relief, Dkts. 16, 17, 18, 23. For the reasons that

follow, the Court will grant the government’s motion to substitute itself as a defendant, grant all

motions to dismiss, and deny as moot the plaintiff’s motions for injunctive relief.

I. BACKGROUND

Smith alleges that while incarcerated by the District of Columbia, he was denied a surgery

that a previous doctor had ordered on his right shoulder rotator cuff; denied necessary medical

accessories such as orthopedic shoes and insoles, glasses, and a knee brace; and given the wrong medication for pain, which caused “severe chronic pain and dizziness.” 1 Compl. at 4–5. Smith

says he now suffers “more severe” and continuous “pain and discomfort” because of these alleged

actions from May 2019 to the present.

Smith additionally alleges he has been harassed by two officers, Lt. Saunders and Sgt.

Franklin, who Smith says have retaliated against him for filing complaints about his medical care.

Mot. to Amend Ex. 18 at 2, Dkt. 15-1. According to Smith, Franklin made a comment about Smith

being afraid of other inmates, intending for him to overhear it in a show of intimidation.

.

Smith alleges that Franklin and Saunders control the conduct of other inmates and officers and are

a danger to everyone in the facility.

. Smith also says that he was wrongly barred from

a specific room during his recreation time as a retaliatory measure, and that an officer violated the

facility’s face mask policy and risked the spread of COVID-19. See Informal Grievance Form at

1, 3, Dkt. 23-1.

Smith brings claims against District of Columbia Mayor Muriel Bowser in her official

capacity, the Mayor’s Executive Office of Risk Management, and warden Lennard Johnson. He

also names as defendants two employees of inmate medical provider Unity Medical, Dr. Eleni

O’Donovan and grievance coordinator Traci Outlaw. He brings suit for damages, Compl. at 5,

and also for various forms of injunctive relief, asking (1) to be sent to Walter Reed hospital for his

shoulder surgery, Mot. for Order for Surgery, Dkt. 17; Letter, Dkt. 18; (2) for chronic pain

medication, Mot. to Order Chronic Pain Medications, Dkt. 16; and (3) for orthopedic tennis shoes

and quarter-inch insoles, Mot. for Orthopedic Tennis Shoes, Dkt. 23. In addition to those motions,

1 On a Rule 12(b)(6) motion, the Court assumes the truth of material factual allegations in the complaint. See Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011). The Court construes the plaintiff’s additional submissions containing factual allegations, Mot. to Amend, Dkt. 15, and Mot. for Order, Dkt. 23, as supplemental allegations to be considered alongside the original complaint.

2 before the Court are the United States’s motion to replace O’Donovan as a defendant and to

dismiss, United States’s Mot. to Sub. and to Dismiss, Dkt. 30, Bowser’s Motion to Dismiss, Dkt.

21, and Outlaw’s Motion to Dismiss, Dkt. 36. In the time since the complaint was filed, Smith has

been moved from the District of Columbia Department of Corrections to a Nevada facility and is

currently in a facility in Tucson, Arizona. See Letter from Joseph Smith, Dkt. 28; Not. of Change

of Address, Dkt. 40.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). A facially plausible claim is one that “allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). This standard does not amount to a specific probability requirement, but it does require

“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly,

(“Factual allegations must be enough to raise a right to relief above the speculative

level.”). A complaint alleging facts that are “merely consistent with a defendant’s liability . . .

stops short of the line between possibility and plausibility.” Iqbal,

(internal

quotation marks omitted). Well-pleaded factual allegations are “entitled to [an] assumption of

truth,”

, and the court construes the complaint “in favor of the plaintiff, who must be

granted the benefit of all inferences that can be derived from the facts alleged,” Hettinga v. United

States,

(D.C. Cir. 2012) (internal quotation marks omitted).

3 “A document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus,

(2007) (internal citation and quotation marks

omitted). However, “the Supreme Court has made clear that . . . there is no requirement ‘that

procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those

who proceed without counsel.’” Jean-Pierre v. BOP,

(D.D.C. 2012)

(citing McNeil v. United States,

(1993)). Although a pro se complaint is

generally entitled to liberal construction, see Washington v. Geren,

(D.D.C.

2009), the assumption of truth does not apply to a “legal conclusion couched as a factual

allegation,” Iqbal,

(quotation marks omitted). An “unadorned, the defendant-

unlawfully-harmed-me accusation” is not credited; likewise, “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.”

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action or

claim when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for

dismissal under Rule 12(b)(1) “presents a threshold challenge to the court's jurisdiction.” Haase

v. Sessions,

(D.C. Cir. 1987). Federal district courts are courts of limited

jurisdiction, and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v.

Guardian Life Ins. Co.,

(1994). Thus, “the plaintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (citing Lujan v. Defs. of Wildlife,

(1992)).

“When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff's factual

allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the

facts alleged.” Jeong Seon Han v. Lynch,

(D.D.C. 2016) (internal

4 quotation marks omitted). Those factual allegations, however, receive “closer scrutiny” than they

would in the Rule 12(b)(6) context.

Also, unlike when evaluating a Rule 12(b)(6) motion, a

court may consider documents outside the pleadings to evaluate whether it has

jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005). If

the court determines that it lacks jurisdiction, the court must dismiss the claim or action. Fed. R.

Civ. P. 12(b)(1), 12(h)(3).

III. ANALYSIS

A. The United States’s Motion to Substitute and Motion to Dismiss

The United States moves to substitute itself as a defendant in place of O’Donovan, who

allegedly denied Smith the surgery he requested, and in turn to dismiss the complaint for lack of

subject matter jurisdiction. The Court will grant each motion.

First, the United States may substitute itself as a defendant under the Public Health

Service Act (PHSA),

. The PHSA allows the Secretary of Health and Human

Services to deem employees of a “public or non-profit private entity receiving Federal funds”

under 42 U.S.C. § 254b to be “employee[s] of the Public Health Service.” Id. § 233(g)(1)(A),

(g)(4); see Afolabi-Brown v. Coombs,

, at *3 (D.D.C. Mar. 25, 2019). For all

claims against such employees arising from the “performance of medical . . . functions . . . while

acting within the scope of [their] office or employment,” the “exclusive” remedy is against the

United States.

(a), (g)(1)(A). Here, the Secretary has deemed Unity and its

employees to be Public Health Service employees during the relevant time period, see Torres Decl.

¶ 5 & Ex. 1, Dkt. 30-2, and O’Donovan was an employee of Unity during the events at issue, see

. The Court also concludes, based on the allegations in the complaint that O’Donovan

performed medical services in her capacity as a Unity employee, see Compl. Attach. at 1, Dkt. 1-

5 1, and based on the government’s certification, Dkt. 30-3; see also Council on Am.-Islamic

Relations v. Ballenger,

(D.C. Cir. 2006) (certification is “prima facie evidence

that the employee was acting within the scope of his employment”), that O’Donovan is covered

by the PHSA. The Court will thus grant the motion to substitute.

Second, the claims, once construed to be brought against the United States, must be

dismissed for lack of subject matter jurisdiction. Sovereign immunity bars civil actions against

the United States unless its immunity is waived. See United States v. Mitchell,

(1983). Section 1983, under which Smith raises his constitutional claims, does not waive that

immunity. See Bourdon v. Mabus,

, 209–10 (D.D.C. 2011). And to the extent

Smith seeks to bring a tort claim for medical malpractice, the Federal Tort Claims Act bars the

claim because it has not been administratively exhausted.

(a); see Simpkins v.

District of Columbia,

(D.C. Cir. 1997) (exhaustion requirement is

jurisdictional). The government has provided a sworn declaration that no administrative claim has

been filed, see Torres Decl. ¶ 4, and Smith has provided no evidence to the contrary.2 The Court

will accordingly dismiss all claims against the United States for lack of subject matter jurisdiction.

B. Bowser’s Motion to Dismiss

Bowser also moves to dismiss the claims made against her in her official capacity.

Construing the complaint liberally, the Court will treat Smith as raising claims against the District

2 In an unsworn affidavit, Smith responds that he had instructed a friend to mail a letter stating his “intent to sue” to the Department of Health and Human Services at the address of: “Switzerland Building, Washington, D.C.” Dkt. 46 at 1. This does not appear to be a valid address for the Department, and while Smith’s affidavit notes that his friend followed up with confirmation that Smith’s letter “to the [D.C.] Mayor’s Office had been delivered,” Smith mentions no such confirmation with respect to his alleged letter to the Department. Id. at 2. In any event, even if such a mailing occurred, nothing in the record suggests that an administrative claim was properly presented, let alone fully exhausted, in administrative proceedings.

6 of Columbia. See Kentucky v. Graham,

, 167 n.14 (1985) (“There is no . . . need to

bring official-capacity actions against local government officials, for . . . local government units

can be sued directly for damages and injunctive or declaratory relief.”); Atchinson v. District of

Columbia,

(D.C. Cir. 1996) (“A section 1983 suit for damages against municipal

officials in their official capacities is . . . equivalent to a suit against the municipality itself.”).3

The Court is able to discern three possible claims against the District of Columbia from the

complaint. First, Smith expressly alleges a violation of the Americans with Disabilities Act

(ADA), though he does not specify how the ADA was violated and instead suggests that it was

through “deliberate [i]ndifference to medical needs.” Compl. at 3. Second, the Court will liberally

construe the complaint to raise an Eighth Amendment deliberate indifference claim under § 1983.

See Estelle v. Gamble,

(1976). And third, the Court will, again construing the

complaint liberally, infer a First Amendment retaliation claim under § 1983. See Toolasprashad

v. BOP,

, 584–85 (D.C. Cir. 2002).

Smith provides no factual support for an ADA claim in his complaint. The ADA provides

that “no qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.”

. But Smith never alleges

that he was deprived of access to a benefit or otherwise discriminated against because of an alleged

disability. Instead, he bases his claims solely on an alleged failure to treat his medical conditions,

without any reference to participation in prison programs or services. Standing alone, that is not

a sufficient basis for an ADA claim. See Bryant v. Madigan,

(7th Cir. 1996)

3 Other than an allegation that Smith wrote a letter to the Mayor, see Compl. Attachment at 1, Dkt. 1-1, Smith alleges no personal involvement of Mayor Bowser other than in her capacity as a policymaker overseeing the District of Columbia Department of Corrections.

7 (“[T]he [ADA] would not be violated by a prison’s simply failing to attend to the medical needs

of its disabled prisoners.”); Nasious v. Colorado,

(10th Cir. 2012) (same).

The ADA claim will thus be dismissed.

The Court will also dismiss the Eighth Amendment claim because, even assuming that

there was deliberate indifference to his medical needs, Smith has not alleged a “policy or custom”

that resulted in the alleged constitutional injury. Monell v. Dep’t of Soc. Servs.,

(1987); City of Canton v. Harris,

, 388–89 (1989) (noting that “a municipality can be

liable under § 1983 only where its policies are the moving force behind the constitutional

violation” (internal quotation marks and alteration omitted)). To survive a motion to dismiss, a

complaint “must include some factual basis for the allegation of a municipal policy or

custom.” Atchinson,

. Here, the closest Smith comes to alleging a policy or custom

for which the District could be liable under Monell is that the District provided insufficient funding

for medical services to prisoners in its custody. See Compl. at 4. But even taking that assertion

as nonconclusory, see Iqbal,

, Smith alleges neither a “custom” of constitutional

violations that policymakers “knowing[ly] fail[ed] to act” on, nor facts showing that the

government was on notice of medical mistreatment—i.e., that it “knew or should have known of

the risk of constitutional violations.” Baker v. District of Columbia,

(D.C.

Cir. 2003).

As for Smith’s First Amendment retaliation claim, the complaint is devoid of any

allegations of a policy or custom, instead alleging misconduct by “two [r]ogue, duplicitous,

[r]enegade” officers. Mot. to Amend at 4. Although the Court construes the pro se complaint

liberally, a pro se complaint must still “plead ‘factual matter’ that permits the [C]ourt to infer ‘more

than the mere possibility of misconduct.’” Atherton, 567 F.3d at 681–82 (quoting Iqbal,

8 at 678–79). The Court will accordingly dismiss the First Amendment claim as well, and so all

claims against Bowser.4

C. Outlaw’s Motion to Dismiss

Outlaw next moves to dismiss all claims against her. The Court will grant the motion

because it is unable to identify any claims against Outlaw fairly raised by the complaint, even

when construed liberally. Other than naming Outlaw as a defendant, the complaint does not make

any factual allegations regarding Outlaw’s behavior, describe her role in the alleged misconduct,

or even mention her name. See generally Dkts 1, 15, 23. The only additional reference to Outlaw

in Smith’s filings, beyond her enumeration as a defendant, is that her signature appears on two

grievance forms Smith filed, in which Outlaw notes certain information given by Smith’s medical

providers. Compl. Exs. 15–16. But Smith has failed to plead any facts specific to Outlaw’s

conduct that could give rise to liability, so the Court will dismiss the complaint as against her.5

4 The docket reflects that the Executive Office of Risk Management (EORM) is a defendant in this case. It is not entirely clear from the complaint whether this office was meant to be sued as an independent party, since it is not listed separately in the complaint but rather in the address field for Mayor Bowser. See Compl. at 2. Although the EORM has not made a separate appearance in this case, the Court will construe Bowser’s motion to dismiss as covering all claims against the EORM as well. For the foregoing reasons, Smith cannot state a claim against the District of Columbia, so the Court will dismiss all claims against the EORM. Bowser also argues that Smith has failed to plausibly allege deliberate indifference, pointing to medical records—showing that Smith received the surgeries he requested—of which Bowser asks the Court to take judicial notice. See Bowser Mot. to Dismiss at 7–8. Similarly, Bowser argues that Smith fails to plead facts sufficient to show First Amendment retaliation. See

at 9–10. The Court need not reach these issues. 5 In his opposition to the motions to dismiss, Smith appears to raise for the first time a host of allegations against Outlaw. The Court has liberally construed several additional docket filings as amendments to the complaint, see supra note 1, but this “leeway . . . has limits and does not relieve even pro se litigants of the obligation to allege facts sufficient to put the opposing party on notice of what claim the pro se litigant intends to pursue. . . . [A] party may not amend his complaint through an opposition brief.” Dufur v. U.S. Parole Comm’n,

(D.D.C. 2018) (citations and internal quotation marks omitted). If Smith wishes to bring new allegations against Outlaw, the Court notes that its dismissal is without prejudice and that Smith can file an amended

9 D. Smith’s Motions

Finally, Smith moves for injunctive relief to receive certain surgeries, medications, and

orthopedic shoes. See Dkts. 16, 17, 18, 23. Specifically, Smith “request[s] that the court order the

District of Columbia Department of Correction to provide the same or equal medical care that [he]

would receive in the community, while [he is] under the care, custody, and control of the D.C.

Department of Correction.” Compl. at 5. These motions are moot because Smith has been

transferred and is no longer in the custody of the D.C. Department of Correction. See Letter, Dkt.

28 (transfer to Nevada Southern Detention Center); Notice of Change of Address, Dkt. 40 (transfer

to United States Penitentiary in Tucson, Arizona); see also Scott v. District of Columbia,

(D.C. Cir. 1998). The Court will thus deny these motions as moot.

CONCLUSION

For the foregoing reasons, the Court (1) grants the United States’s motion to substitute

itself as a defendant and motion to dismiss and dismisses all claims against it, (2) grants Bowser’s

motion to dismiss and dismisses all claims against Bowser and the Executive Office of Risk

Management, (3) grants Outlaw’s motion to dismiss and dismisses all claims against her, and (4)

complaint—in a single submission, containing all factual allegations Smith wishes the Court to consider—as instructed in the attached order. Further, Outlaw also moves to dismiss for lack of jurisdiction to the extent the Court construes the complaint as raising a claim for medical malpractice against her. Outlaw Mot. to Dismiss at 6–7. The Court is unable to discern such a claim against Outlaw—because Outlaw’s conduct is not mentioned in the complaint—and thus will not reach this issue.

10 denies all of the plaintiff’s motions as moot.6 A separate order consistent with this decision

accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge September 30, 2022

6 One defendant, Lennard Johnson, remains in this case and has not been served. See Summons Returned Unexecuted, Dkt. 35. A separate minute order will direct the plaintiff to provide a current address for this defendant.

11