UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JENIYAH WARE,

Plaintiff,

v. Case No. 1:21-cv-02895 (TNM)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Jeniyah Ware sues the District of Columbia and a company called Golden Diversity, Inc.

(Golden). See Compl., ECF No. 1. She alleges that the District hired Golden to provide

“tutoring services” to juveniles who, like Ware, had cases pending in the District’s juvenile

justice system. Id. ¶ 25. And she says that a Golden employee sexually abused her during her

time in a juvenile facility. See id. ¶ 40. Based on this, she raises several claims against Golden

and the District, including sexual battery of a child, negligence, negligent hiring, and intentional

infliction of emotional distress. She also claims that the District violated her civil rights under

.

Golden did not respond, so the Clerk entered a default against it. See ECF No. 9. Ware

moved for default judgment against Golden. See Pl.’s Mot. for Default J. (Pl.’s Mot.), ECF No.

21; see also ECF No. 17. The District moved to dismiss all claims against it. See Def.’s Mot. to

Dismiss (Def.’s Mot.), ECF No. 11. Because Ware fails to state a claim against both Defendants,

the Court will deny her motion for default judgment and grant in part the District’s motion to

dismiss. The motion to dismiss will be denied insofar as the dismissal is without prejudice.

I. In October 2016, Jeniyah Ware was 13 years old when police arrested her on a

misdemeanor charge of unlawful entry. Compl. ¶¶ 1, 14. She then “was in a pre-adjudicated

juvenile probation status under the management and control of Family Court Social Services

Division” (FCSSD).

. FCSSD is the sole probation agency for pre-adjudicated juveniles

advising and serving the District’s Family Court Operations Division.

. Periodically,

Ware resided in court-ordered Youth Shelter Homes or the District’s Youth Center.

. The

District’s Youth and Rehabilitation Services operated and supervised these placements.

At

other times, Ware lived with her father.

The District later certified Ware’s case to the Juvenile Behavioral Diversion Program for

an eligibility determination.

. As a condition of her pretrial release, the District ordered

Ware to attend a Balance and Restorative Justice Drop-In Center and to participate in the

Leadership of Today in Solidarity program.

At these programs, juveniles on probation

receive various services, including tutoring.

. FCSSD officials and employees manage,

operate, and staff these programs.

.

Golden was a contractor that provided tutoring services to juveniles under a Statement of

Work with FCSSD.

¶ 6–7. According to Ware, the District “mandated training for all youth-

service providers based on commissioned research, issued annual studies, established profiles of

perpetrators, and distributed statistics on potential and actual sexual victimization and trafficking

of D.C. pre- and post-adjudicated juveniles, with a focus on African-American teenage girls.”

.

Golden hired Anthony Brooks and assigned him to be Ware’s tutor.

.

Ware alleges that from March through September 2017, Brooks sexually abused her.

.

On September 20, 2017, the Metropolitan Police Department (MPD) arrested Brooks. See Arrest

2 Report, ECF No. 15-2. The day before his arrest, Ware told MPD that Brooks “was her mentor

while she attended a court ordered program but when she changed programs the mentoring

should have stopped,” and that Brooks had picked her up from her father’s home and drove her

to his home in Maryland, before sexually assaulting her. See

Brooks later pled guilty to

transporting minors for sexual activity. Compl. ¶¶ 11, 35.

Ware alleges that, in October 2016, probation officer Stephanie Lea notified both FCSSD

and Golden that she observed Brooks “exhibit inappropriate and predatory-like behaviors toward

female juvenile participants[.]”

. Ware also alleges that another probation officer,

Denise Tennant-Bryan, “reported on-site inappropriate behaviors” by Brooks in 2016.

.

And she claims that both FCSSD and Golden “failed to fulfill mandatory reporting obligations

and to terminate and remove Brooks” despite knowledge of his “predatory-like behaviors.”

.

In March 2018, about six months after MPD arrested Brooks, Ware’s father sent a letter

to the Mayor and the District’s Office of Risk Management notifying the District of Ware’s

claims. See Notice Letter, ECF No. 15-1. This suit followed.

II.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient

factual allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly,

(2007). A claim is facially plausible when the facts

“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal,

(2009). And courts must accept plaintiffs’ factual

allegations as true and grant in their favor “all inferences that can be derived from the facts

alleged.” L. Xia v. Tillerson,

(D.C. Cir. 2017) (cleaned up).

3 Yet courts need not credit “a legal conclusion couched as a factual allegation.” Iqbal,

(cleaned up). Courts consider “only the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint[,] and matters of which [it] may

take judicial notice.” Hurd v. District of Columbia,

(D.C. Cir. 2017).

III.

Consider first Ware’s sole federal claim. Ware alleges that the District violated her Fifth

and Fourteenth Amendment rights to be free from state-created bodily harm and is thus liable

under

. The District counters that Ware fails to plausibly allege a predicate

constitutional violation or that District policy or custom caused her alleged injuries. Def’s Mot.

9–18. The Court agrees with the District on both scores.

Section 1983 allows Ware to sue the District for some constitutional violations. But

“Congress did not intend municipalities to be held liable unless action pursuant to official

municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs. of

City of N.Y.,

(1978). The Court thus conducts a two-step inquiry. See Baker

v. District of Columbia,

(D.C. Cir. 2003). First, there must be a predicate

constitutional violation.

Second, a District custom or policy must have been the “affirmative

link” to that constitutional violation, “such that [it] was the moving force behind the

constitutional violation.”

(cleaned up). Ware stumbles at both steps.

A.

The Court first considers whether Ware has shown a predicate constitutional violation.

She alleges that the District failed to adequately protect her from Brooks’s predatory behavior in

4 violation of the Fifth Amendment. 1 The Fifth Amendment protects citizens from being

“deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. 2 The

Court finds that Ware has not plausibly alleged a violation of her due process rights.

Ware claims that she had a “constitutional right . . . to be free from state-created bodily

harm.” Compl. ¶ 115. In other words, she invokes her substantive due process right to bodily

integrity. See Roe v. Wilson,

(D.D.C. 2019) (recognizing sexual assault

by a schoolteacher can violate a student’s substantive due process right to bodily integrity).

Substantive due process challenges present a threshold question: “whether the behavior of the

government officer is so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.” Cnty. of Sacramento v. Lewis,

, 847 n.8 (1998). As the

Supreme Court has emphasized, the due process clause “does not transform every tort committed

by a state actor into a constitutional violation.” DeShaney v. Winnebago Cnty. Dep’t of Social

Servs.,

(1989). Ordinarily, a plaintiff shows conscience-shocking behavior by

showing either (1) “a substantial infringement of state law prompted by personal or group

animus” or (2) “a deliberate flouting of the law that trammels significant personal or property

rights.” Tri Cnty. Indus., Inc. v. District of Columbia,

(D.C. Cir. 1997).

But Ware argues that a lower standard should apply here: she asserts that the District is

liable for its alleged deliberate indifference to her safety. Opp’n 5–7. To do so, Ware invokes a

state-endangerment theory, under which “an individual can assert a substantive due process right

1 Ware also alleges that the District violated her due process rights under the Fourteenth Amendment, but she does not contest the District’s claim that the Fourteenth Amendment is inapplicable to it. Opp’n 12. Thus, the Court will dismiss Ware’s Fourteenth Amendment claim as conceded. 2 The Fifth Amendment applies to the District of Columbia. See Bolling v. Sharpe,

(1954).

5 to protection by the District of Columbia from third-party violence when District of Columbia

officials affirmatively act to increase or create the danger that ultimately results in the

individual’s harm.” Butera v. District of Columbia,

(D.C. Cir. 2001). She

claims that the District is liable under the deliberate indifference standard because it

“affirmatively assigned, supported, and allowed Brooks to serve as [Ware’s] one-on-one tutor.”

Compl. ¶ 121.

Alternatively, Ware alleges that the deliberate indifference standard applies here because

the District had a heightened obligation to her, stemming from her court-ordered participation in

the diversion program. If so, a “lower threshold for meeting the shock the conscience test by

showing deliberately indifferent as opposed to intentional conduct applies.” Est. of Phillips v.

District of Columbia,

(D.C. Cir. 2006). The District counters that it had no

such obligation because Ware was pre-adjudicated and on probation, and thus the District never

committed her to its custody. Def.’s Mot. 11–12.

This Court need not decide whether the District had a special obligation to protect Ware.

Assuming without deciding that the District had a “heightened responsibility toward [Ware]” so

that the lower deliberate indifference standard applies to its conduct, Butera,

,

Ware still fails to state a plausible substantive due process claim. “Deliberate indifference must

still be conscience-shocking.” Est. of Philips,

. This high standard is “something

more than negligence but less than intentional conduct, such as recklessness or gross

negligence.” Butera,

.

Ware alleges that “[t]he District failed to employ an adequate screening, vetting, and

training process when it approved and contracted with Golden as its service delivery contractors

to hire and provide on-site tutors[.]” Compl. ¶ 67. Yet her own allegations belie this contention:

6 she alleges that the District has “mandated training for all youth-service providers based in

commissioned research, issued annual studies, established profiles of perpetrators, and

distributed statistics on potential and actual sexual victimization and trafficking of D.C. pre-and-

post-adjudicated juveniles, with a focus on African-American teenage girls.” Compl. ¶ 44

(emphasis added). The District requires the companies it hires, like Golden, to conduct criminal

background checks.

et seq. And there is no allegation that FCSSD or

Golden violated these background check requirements. More, the District has also promulgated

regulations governing private entities’ responsibilities to investigate potential employees. See

D.C. Mun. Regs. Tit. 27, §§ 500 et seq. So the District’s screening and vetting was not

constitutionally inadequate. Cf. Smith v. District of Columbia,

, 98–99 (D.C. Cir.

2005) (jury could find that District was deliberately indifferent where District “had no criteria for

selecting or monitoring [service] providers” as required by District law).

Ware also argues the District was deliberately indifferent by ignoring its mandatory

reporting obligations despite notice of Brooks’s predatory behavior. 3 See Compl. ¶¶ 29–31, 116.

She alleges a probation officer in 2016 notified FCSSD and Golden in a letter that she observed

Brooks “exhibit inappropriate and predatory-like behaviors towards female juvenile

participants.” Id. ¶ 29. This is not accurate. The 2016 letter does not mention Brooks by name

and does not document any instance of prior sexual misconduct. 4 See ECF No. 11-1.

3 Even if this were true, this allegation fails to support Ware’s state-endangerment theory because it concerns the District’s alleged failure to act, not an affirmative act of the District. See Butera,

(“No constitutional liability exists where the State actors had no hand in creating a danger but simply stood by and did nothing when suspicious circumstances dictated a more active role for them.” (cleaned up)). 4 The Court may consider the letter attached to the District’s motion because Ware’s Complaint incorporates it by reference. See Compl. ¶ 29; Ward v. D.C. Dep’t of Youth Rehab. Servs.,

(D.D.C. 2011) (cleaned up) (noting court may consider “documents upon

7 Ware also claims that the District was deliberately indifferent because, in 2016, another

probation officer “reported on-site inappropriate behaviors by Another Brooks” to unspecified

individuals. Compl. ¶ 30. Without more, this vague allegation fails to state a claim of

conscience-shocking deliberate indifference. Ware does not identify the purportedly

inappropriate behaviors that the officer reported nor to whom the reports were made. Thus, it’s

unclear whether those who received the report had any role in “crafting [Ware’s] conditions of

probation and diversion requirements.” Id. ¶ 117. Because Ware fails to allege conscious-

shocking deliberate indifference, she fails to state a plausible predicate constitutional violation

against the District. See Est. of Philips,

.

B.

Even if Ware had shown a predicate constitutional violation, her claim still fails under

Monell: she identifies no District custom, policy, or practice that acted as the “affirmative link”

to any harm Brooks inflicted. Baker,

.

Ware could meet this standard by alleging facts that tick any one of four boxes:

(1) “the explicit setting of a policy by the government that violates the Constitution”;

(2) “the action of a policy maker within the government”;

(3) “the adoption through a knowing failure to act by a policy maker of actions by his

subordinates that are so consistent that they have become ‘custom’”;

(4) “or the failure of the government to respond to a need . . . in such a manner as to show

‘deliberate indifference’ to the risk that not addressing the need will result in

constitutional violations.”

which the plaintiff’s complaint necessarily relies even if the document is produced not by plaintiff in the complaint but by the defendant in a motion to dismiss”).

8

But Ware does not. Thus, the Court holds that Ware has not plausibly alleged that her harm

resulted from a municipal policy or custom.

First, Ware points to no “explicit setting of a policy by the government that violates the

Constitution.”

Second, she does not assert that any final District policymaker acted to cause

her injuries (nor does she fault any particular District official).

Third, Ware does not

plausibly allege any actions “so consistent that they have become ‘custom.’”

Indeed, she has

not pointed to anyone else who suffered similar harm, nor has she showed that the alleged

unconstitutional actions were widespread or pervasive. See DuBerry v. District of Columbia,

(D.D.C. 2008) (finding insufficient evidence of widespread custom,

practice, or policy where plaintiff failed to “produce[] any evidence that the Department’s

alleged discriminatory employment practices impacted a single employee or prospective

employee other than himself”).

Ware’s primary argument is that the District is liable under a theory of deliberate

indifference. Ware alleges the District failed “to respond to a need . . . in such a manner as to

show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional

violations.” Baker,

; Opp’n 5–7. The deliberate indifference standard for

establishing municipal liability is “distinct” from the standard used to show a predicate

constitutional violation. Harvey v. District of Columbia,

(D.C. Cir. 2015).

This standard is objective, “determined by analyzing whether the municipality knew or

should have known of the risk of constitutional violations, but did not act.” Jones v. Horne,

(D.C. Cir. 2011) (cleaned up). And it is stringent: “Only if a municipal policy was

‘so likely to result in the violation of constitutional rights,’ and the need to change the policy ‘so

obvious,’ could ‘policymakers of the city . . . have been deliberately indifferent to the need.’”

9 Harvey,

(quoting City of Canton v. Harris,

(1989)). A

“lesser standard of fault would result in de facto respondeat superior liability on municipalities—

a result [the Supreme Court] rejected in Monell.” City of Canton,

.

Ware argues that “high level . . . managers were apprised of Brooks’ behavior by

probation officers, which establishes their deliberate ignoring of the risk that effectively caused

foreseeable harm to [Ware].” Opp’n 5–6. But recall that the probation officers’ allegations—

made to unspecified individuals—do not document any instance of prior sexual misconduct, see

Compl. ¶ 30, and the memorandum does not mention Brooks by name, see ECF No. 11-1. And

even if it did, Ware has not plausibly alleged that the District, the Mayor, the Council, or anyone

with final policymaking authority knew or should have known that her constitutional rights were

being violated. See Byrd v. District of Columbia,

(D.D.C. 2011) (“Absent

identification of a member of [the Department’s] management staff who is deemed to be a final

policymaker under D.C. law, the Court cannot find that [the Department’s] actions demonstrated

deliberate indifference to plaintiffs’ rights[.]”).

Ware’s inability to point to any unconstitutional acts other than those allegedly

committed by Brooks also explains why Ware has not plausibly alleged municipal liability.

Generally, “proof of a single incident of unconstitutional activity is not sufficient to impose”

municipal liability, and “simply citing to plaintiff’s own experiences does not demonstrate that a

plaintiff was the victim of a policy or custom that caused them to suffer.” Sledge v. District of

Columbia,

(D.D.C. 2014) (cleaned up). In fact, “in nearly all situations

plaintiffs must demonstrate a pattern of injuries in order to establish municipal culpability”

because there can be “‘no notice to the municipal decisionmaker, based on previous violations of

federally protected rights, that his approach is inadequate.’” Hamilton v. District of Columbia,

10

(D.D.C. 2012) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

(1997)).

At bottom, Ware has failed plausibly to allege a predicate constitutional violation, or that

the District has “adopt[ed] a policy of inaction” while on notice of a pattern of constitutional

violations of the kind she alleges. Warren v. District of Columbia,

(D.C. Cir.

2004). Ware has thus failed to state a claim against the District under § 1983.

IV.

Ware also brings five common law claims against the District. The District argues that

Ware violated the District’s statutory notice requirement and, in the alternative, fails to state a

claim as to each of the common law actions. The District is correct.

A.

To bring a tort action against the District for unliquidated damages, Ware must satisfy the

mandatory notice requirement of

. See Blocker-Burnette v. District of

Columbia,

(D.D.C. 2010). Section 12-309 provides:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

Courts must construe § 12-309 “narrowly” “because it is in derogation of the

common law principle of sovereign immunity.” Gross v. District of Columbia,

(D.C. 1999) (cleaned up). And “[u]nless [Ware] demonstrates compliance

with the requirements of § 12-309,” her suit against the District must be dismissed.

District of Columbia v. Arnold & Porter,

(D.C. 2000) (cleaned up).

11 Ware says she complied with the requirement in two ways. First, her father,

acting on her behalf, sent a Notice Letter under § 12-309. See ECF No. 15-1. And

second, that the Arrest Report filed after Brooks’s arrest sufficiently notified the District.

See ECF No. 15-2. The Court finds that neither the letter nor Arrest Report satisfies the

requirements of § 12-309.

1.

Starting with the Notice Letter, Ware’s father wrote to the Mayor’s Office

describing the cause of Ware’s injuries and the circumstances under which Brooks

allegedly assaulted her. See ECF No. 15-1. The District responds that this letter did not

comply with the time limit set out in § 12-309. Reply 7-8. The District has it right.

Section 12-309 limits the District’s waiver of immunity to cases in which the

plaintiff provides notice to the Mayor “‘within six months after the injury or damage was

sustained.’” District of Columbia v. Dunmore,

(D.C. 1995)

(quoting

). And “the six-month clock begins to run ‘from the

moment the plaintiff sustains the injury, not from the moment the cause of action

accrues.’”

(citations omitted). Ware sent the Notice Letter on March 19, 2018. See

ECF No. 15-1. The question then is whether Ware’s injuries occurred before September

18, 2017.

Based on Ware’s allegations, the Court finds that Ware’s injuries began well

before September 18, 2017. Ware alleges that “from March 15, 2017 through September

20, 2017, [Brooks] caused certain personal, sexual and other harmful contact and abuse

upon [Ware].” Compl. ¶ 35. In other words, Ware alleges that her injuries were

12 sustained beginning in March 2017—more than a year before she notified the District of

her claims.

More, Ware relies on Brooks’s Arrest Report, which, in her words, is “extensive

in nature regarding time, date, circumstances, and harms caused to [Ware].” Opp’n 7.

And the Arrest Report reveals that Ware’s injuries “occurred between mid-July and the

end of August 2017.” See ECF No. 15-2. So Ware’s own evidence confirms that even

her most recent injury was sustained more than six months before she notified the

District.

The D.C. Court of Appeals has cautioned that “strict observance of the statute’s

six-month time limit is essential.” Dunmore,

; see also Brown v.

District of Columbia,

(D.C. 2004) (dismissing claim against District

when plaintiff provided notice one day late). And the District “does not recognize or

permit an equitable tolling exception to the six-month notification limit” despite the

“hardships to prospective litigants who have not reached the age of majority before the

time within which notice of their respective claims must be given.” Doe v. District of

Columbia,

(D.C. 1997) (cleaned up). Thus, the Notice Letter is

untimely and fails to satisfy the requirements of § 12-309.

2.

Next, consider the Arrest Report, which Ware also contends sufficiently notified

the District of her claims. Opp’n 7–8. Not so. Under § 12-309, “[a] report in writing by

the Metropolitan Police Department, in regular course of duty, is a sufficient notice under

this section.”

(a). But the mere “existence of a police report does not

necessarily mean that the District has received the type of actual notice which § 12-309

13 contemplates.” Allen v. District of Columbia,

(D.C. 1987). Instead,

a police report provides “sufficient notice” only where it “contain[s] information as to

time, place, cause and circumstances of injury or damage with at least the same degree of

specificity required of a written notice.” Washington v. District of Columbia,

(D.C. 1981) (en banc); accord Harris v. Bowser,

, 199

(D.D.C. 2019), aff’d,

(D.C. Cir. 2021). That means it must “disclose

both the factual cause of the injury and a reasonable basis for anticipating legal action as

a consequence.” Washington,

.

Even accepting that the Arrest Report adequately recites the time, place, cause,

and circumstances of Ware’s injuries, “it fail[s] to disclose or suggest any basis for

liability on the part of the District[.]” Doe,

& n.6. Importantly, “[t]he

relevant inquiry for purposes of this case is not the physical harm that [Ware] suffered

. . .; rather, it is the District’s alleged failure to intervene” before Brooks harmed her.

. So the “inquiry in this case must focus on whether the police reports adequately

described the District’s role in” Ware’s injuries.

The Arrest Report does not sufficiently describe the District’s relationship to

Ware’s injuries. The Report merely reveals that Brooks was Ware’s “court ordered

mentor/tutor.” See ECF No. 15-2. It does not suggest that the District had any prior

knowledge of his misconduct nor that it had any prior knowledge of his propensity to

engage in such misconduct. See

The Report also does not imply that the District

failed to intervene.

To the contrary, the Report undercuts Ware’s claims that the District knew or

should have known about her abuse: It suggests that Brooks was no longer her tutor at

14 the time of the alleged assaults. Indeed, it explains that Brooks picked her up from her

father’s house and then assaulted her outside of the District. See id.; Patrick v. District of

Columbia,

(D.D.C. 2015) (“Police reports found in other cases

to constitute sufficient notice under section 12-309 contained specific details about the

District’s actions or inaction that gave rise to an inference that a plaintiff might allege

that the District violated some law or legal duty.”). Because the Arrest Report “do[es]

not establish any prior knowledge by the District that [Ware] had been . . . abused,” it

cannot clear § 12-309’s bar. Doe,

. Nor would the Arrest Report lead one

to believe that the D.C. government was responsible for Brooks’s misconduct.

Because neither Ware’s letter nor the Arrest Report provides the notice required

by § 12-309, the Court must dismiss her common law claims against the District.

B.

Leaving aside the statutory notice requirement, Ware’s common law claims fail

against the District on the merits. Because this Court exercises supplemental jurisdiction

over these state law claims, the Court applies D.C. law. See Dimond v. District of

Columbia,

, 188 n.6 (D.C. Cir. 1986).

1.

Count One of the Complaint alleges sexual battery and abuse “by defendant’s employee

and agent Brooks.” Compl. at 10. Ware, however, did not name Brooks as a defendant in this

case. See generally

And she does not say whether she brings this claim against the District,

Golden, or both. See id. at 10. In her Opposition, Ware does not contest the District’s claim that

it cannot be held directly liable for Brooks’s misbehavior. Opp’n 8–10. Thus, the Court will

dismiss Count One against the District as conceded.

15 16 2.

Ware also argues that the District is vicariously liable for Brooks’s sexual battery.

Compl. ¶ 62. The District counters that Brooks was not acting within the scope of his

employment when he assaulted Ware. Def.’s Mot. 20–24. The Court agrees with the District.

“Under the doctrine of respondeat superior, an employer may be held liable for the acts

of his employees within the scope of their employment.” Boykin v. District of Columbia,

(D.C. 1979). In defining scope of employment, the District follows the

Restatement (Second) of Agency (1958) (Restatement). See Council of Am. Islamic Relations v.

Ballenger,

(D.C. Cir. 2006). Under the Restatement, an employee’s conduct

falls outside the scope of employment “if it is different in kind from that authorized, far beyond

the authorized time or space limits, or too little actuated by a purpose to serve the master.”

Restatement § 228(2). Ware fails to allege plausibly that Brooks was acting within the scope of

his employment as a tutor when he sexually assaulted Ware.

To begin, Brooks’s conduct plainly “is different in kind from that authorized” by his

employers. Id. According to Ware, Brooks was “employed by Golden to provide tutorial serves

as contracted between Golden and the District of Columbia.” Compl. ¶ 9. And Ware alleges that

“Brooks battered [her] and engaged in willful and harmful sexual contact with her . . . without

legal consent.” Id. ¶ 48–49. Even drawing all reasonable inferences in Ware’s favor, no one

supposes that sexual abuse is conduct that the District or Golden hired him to perform.

Similarly, there is no allegation that Brooks’s conduct was “actuated by a purpose to serve” the

District or Golden. Restatement § 228(2). Because “[t]here is no suggestion here . . . that

[Brooks’s] conduct was the outgrowth of any action undertaken in the employer’s behalf,”

17 Brooks, “as a matter of law, . . . was acting outside the scope of his employment when he

assaulted” Ware. Boykin,

.

Ware’s arguments to the contrary are not persuasive. 5 She first argues that Brooks was

acting within the scope of his employment under the five-prong test set out in Moorehead v.

District of Columbia,

(D.C. 2000). Opp’n 8–9. Moorehead is irrelevant.

Courts use that test “when determining whether there is a [employer-employee] relationship” to

begin with.

. It is not used to analyze scope of employment. See, e.g., Wadley

v. Aspillaga,

(D.D.C. 2001) (using Moorehead test to determine existence of

employment relationship and Restatement to analyze scope of employment).

Ware’s citation to Hechinger Co. v. Johnson,

(D.C. 2000), is also

unpersuasive. She relies on Hechinger for the proposition that when “‘there is evidence that the

assault grew out of a job-related controversy,’ an assault may very well fall within the scope of

the perpetrator’s employment.” Opp’n 10 (citing id.). But the assault in Hechinger was

“motivated by a desire to require [plaintiff] to pay for [goods] which [the employee] presumed to

be the property of his employer,” and a jury could conclude that “the employee acted on behalf

of his employer to resolve a job-related dispute.”

. There are no similar

allegations here.

Because Ware fails to plausibly allege that Brooks acted within the scope of his

employment at the time of her assault, the Court will dismiss Count II against the District.

5 Without citation, Ware vaguely suggests that the District is liable because “Brook[s]’s was clothed with the authority of the D.C. Government in his interactions with [Ware.]” Opp’n 8. If she argues that Brooks had apparent authority to assault her, this theory fails because Ware pleads no facts to suggest that she “believed . . . that [Brooks] was acting within the color of his authority” when he assaulted her. Gary, 59 F.3d at 1397–98.

18 3.

Next, Ware alleges that the District was negligent by assigning Brooks to be her tutor,

despite knowing that Ware was vulnerable to sexual exploitation. The District argues that Ware

fails to sufficiently allege a breach of duty to state a claim for negligence. Def.’s Mot. 25–27.

Here too, the Court agrees with the District.

To make out her negligence claim, Ware must show (1) that the District owed her a duty

of care, (2) that it breached that duty, (3) that she was injured by that breach, and (4) that the

breach proximately caused her injury. Simms v. District of Columbia,

(D.D.C. 2010). A claim of negligence “may not rest on mere conclusory assertions as to the

existence of any element of the claim, including duty.”

(cleaned up). Thus, Ware “must

allege facts which show that the [District] breached some legally imposed duty owed to” her.

(cleaned up). But she fails to show that the District breached any such duty. Ware’s vague and

conclusory assertions are not enough.

The gist of Ware’s claim is that the District was negligent by assigning Brooks as Ware’s

tutor despite her risk of sexual exploitation. In support, Ware alleges that “CSSD employees”

observed Brooks “display inappropriate predatory-like behaviors,” and that those employees

“reported their observations and concerns orally and in writing to [District] officials, supervisors

and administrators.” Compl. ¶ 88. But these vague allegations based on unfounded speculation

are not enough to plausibly allege a breach of duty by the District. See Raihan v. Geo. Wash.

Univ.,

(D.D.C. 2018) (“The unadorned claim that ‘upon information

and belief, Mr. Slifka had previously caused harm to other sexual harassment victims’ who told

the University . . . will not suffice” “to warrant the inference that the University had actual or

constructive knowledge of any prior misbehavior.” (cleaned up)).

19 Similarly, Ware’s bald assertion that the District “failed to take even a scintilla of

reasonable security precautions,” Compl. ¶ 91, lacks factual matter to support it and is not well-

pleaded. See Iqbal,

. And Ware’s negligence claim is also undercut by her own

allegation that the District has “mandated training for all youth-service providers based in

commissioned research, issued annual studies, established profiles of perpetrators, and

distributed statistics on potential and actual sexual victimization and trafficking of D.C. pre-and-

post-adjudicated juveniles, with a focus on African-American teenage girls.” Compl. ¶ 44.

Without more, Ware fails to state a claim of negligence against the District. And because she

has not plausibly alleged negligence, she has not met the higher burden of pleading gross

negligence.

4.

Ware also alleges negligent hiring, training, supervision, and retention. To state a

negligent hiring or retention claim in the District of Columbia, Ware must show “that the

employer breached a duty to plaintiff to use reasonable care in the supervision or retention of an

employee which proximately caused harm to plaintiff.” Phelan v. City of Mount Rainier,

(D.C. 2002). And to show breach, she must plead “that an employer knew or

should have known its employee behaved in a dangerous or otherwise incompetent manner, and

that the employer, armed with that actual or constructive knowledge, failed to adequately

supervise the employee.” Brown v. Argenbright Sec., Inc.,

(D.C. 2001).

This claim fails for two reasons. First, as explained above, Ware has offered no well-

pleaded facts to reasonably conclude that the District had “actual or constructive knowledge” of

any prior misconduct from Brooks.

Nor does Ware plausibly allege that the District “failed

to adequately supervise” Brooks.

The District required Golden to perform criminal

20 background checks of its prospective employees working with children, see

-

1501.01 et seq., and has also promulgated regulations governing the responsibilities and

authority of entities such as Golden to take action against parties that violate these requirements,

see D.C. Mun. Regs. Tit. 27, § 500 et seq. And the Court need not accept Ware’s conclusory,

threadbare assertion, that the “District failed to employ an adequate . . . training process when it

approved and contracted with Golden as its service delivery contractors.” Compl. ¶ 67; Iqbal,

. Thus, the Court will dismiss Ware’s claim against the District for negligent

hiring, training, and supervision.

5.

Last up is Ware’s claim for intentional infliction of emotional distress. In the District of

Columbia, the tort of intentional infliction of emotional distress requires (1) extreme and

outrageous conduct by the defendant that (2) intentionally or recklessly (3) causes the plaintiff

severe emotional distress. Robinson v. Howard Univ.,

(D.D.C. 2018),

aff’d sub. nom., Robinson v. Wutoh, 788 F. App’x. 738 (D.C. Cir. 2019). This standard requires

the defendant’s conduct to be “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.”

(quoting Sere v. Group Hospitalization, Inc.,

(D.C.

1982)).

Ware alleges that Brooks’s assault was extreme and outrageous, and that the District is

vicariously liable under the doctrine of respondeat superior. Opp’n 12. As this Court has

already concluded, see Section IV.B.2., the District is not liable vicariously liable for Brooks’s

conduct because he was acting outside the scope of his employment when he sexually assaulted

Ware. See Restatement § 228(2). The Court will thus dismiss Count VI against the District.

21 V.

In a last-ditch effort, Ware asks the Court “to note” an amended complaint attached to her

Opposition. Opp’n 12; see ECF No. 15-3. To begin, Ware was required to seek leave of Court

to amend her Complaint, see Fed. R. Civ. P. 15(a)(1), and “a bare request in an opposition to a

motion to dismiss—without any indication of the particular grounds on which amendment is

sought” does not comply with the Rule governing amendment. Confederate Mem’l Ass’n, Inc. v.

Hines,

(D.C. Cir. 1993). More, Ware’s proposed amended complaint violates

this Court’s Standing Order, which requires that any amended pleading come with a redline

comparison of the original and amended pleading. See Nov. 4, 2021, Order, ECF No. 3.

Leaving aside these procedural defects, the Court would still deny Ware leave to amend.

Rule 15 provides that “[t]he court should freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a)(2). With that said, “the Court may deny a motion to amend if such amendment

would be futile.” De Sousa v. Dep’t of State,

(D.D.C. 2012). “An

amendment would be futile if it . . . fails to state a legal theory, or could not withstand a motion

to dismiss.”

As with her operative Complaint, Ware’s proposed amended pleading would

not survive a motion to dismiss.

According to Ware, her amended complaint “dismisses its 14th [A]mendment claim and

more artfully states its federal and state common law claims.” Opp’n 12. But Ware identifies no

new factual allegations that would cure the deficiencies in her complaint. After independently

reviewing the proposed amendments in the light most favorable Ware, the Court holds that it

fails to state any claim. Thus, amendment would be futile.

22 VI.

Ware has also moved the Court for entry of default judgment against Golden “in an

amount in excess of $250,000.00.” Pl.’s Mot. 1. Because Ware fails to state a claim against

Golden, the Court will deny the motion for default judgment.

A.

Federal Rule of Civil Procedure 55 establishes a two-step process for default judgments.

First, the Clerk of Court enters a default on the docket if the “party against whom a judgment for

affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Then

the plaintiff moves for a default judgment under Rule 55(b).

But entry of a default judgment “is not automatic.” Mwani v. Bin Laden,

(D.C. Cir. 2005). “Default establishes [only] the defaulting party’s liability for the well-pleaded

allegations of the complaint.” Boland v. Elite Terrazzo Flooring, Inc.,

(D.D.C. 2011). So the Court may “deny an application for default judgment where the

allegations of the complaint, even if true, are legally insufficient to make out a claim.” Gutierrez

v. Berg Contracting Inc., No. 99-2044 (TAF),

, at *2 (D.D.C. March 20, 2000).

If liability is established, “the Court must make an independent evaluation of the damages

to be awarded.” U.S. ex rel. Guo v. Nat’l Endowment for Democracy, No. 18-cv-02986 (TNM),

, at *2 (D.D.C. Feb. 18, 2022) (cleaned up). Plaintiffs must prove the amount

of damages sought “to a reasonable certainty.”

(cleaned up). To determine the appropriate

sum, courts “may rely on detailed affidavits or documentary evidence.”

(cleaned up).

B.

Ware has no right to default judgment. Because Golden has not responded to the

Complaint or the Motion for Default Judgment, it has failed to contest liability. But the Court

23 must still independently “determine whether the allegations in the Complaint are well-pleaded.”

Bozzuto Contractors, Inc. v. Evans, 19-cv-03292 (TNM),

, at *3 (D.D.C. April

21, 2021). Ware levies the same key allegations against both Golden and the District. See

generally Compl.; see also Compl. ¶ 26 (“Golden simultaneously shared responsibility for

training, managing, and supervising its tutors with the District’s . . . officials and employees.”).

And, for the same reasons given about the District, Ware’s common law actions fail to state a

claim. See Section IV.B. Ware’s allegations are not well-pleaded, and thus entry of default

judgment against Golden is not warranted. See Bozzuto,

at *3.

Even if Ware had established Golden’s liability, the Court would still deny her motion.

Ware has failed to prove her damages “to a reasonable certainty.” Elite Terrazzo Flooring,

. She requests entry of default judgment “in an amount in excess of

$250,000.00” “to be determined by this Court.” Pl.’s Mot. 1. In support, Ware submitted three

court-ordered psychiatric evaluations. ECF No. 15. The first report offers little help because it

was filed in December 2016, well before Brooks assaulted Ware. See id. at 27. The other

reports are more useful. The second report notes that “mentoring services previously provided to

[Ware] were discontinued due to reports that the assigned male mentor was engaging in a sexual

relationship with the youth.” Id. at 16. That report recommends continued trauma-focused

therapy among other kinds of counseling. Id. at 24.

The last and most recent evaluation is most relevant. The report notes that “it was

alleged that since the age of 14 [Ware] was a victim of sexual abuse by a mentor from the Court”

and that Ware “was provided with a provisional diagnosis of [Post Traumatic Stress Disorder]”

as a result. Id. at 7-8. The evaluation recommends many treatments, including prescription

medication and different kinds of therapy. In particular, Ware “needs intensive therapeutic and

24 behavioral intervention in a fully secure 24 hour Psychiatric Residential Treatment Facility . . .

for a minimum of 6-8 months.” Id. at 8.

The Court acknowledges the effect that Brooks’s assault had on Ware’s mental health

and well-being. Even so, that does not relieve the Court of its independent duty to ensure Ware

proves these damages “to a reasonable certainty.” Elite Terrazzo Flooring,

. Ware explains that she has been unable to afford more counseling and treatment, but she has

offered no calculations or estimates as to how much her expected treatment would cost. See

generally Pl.’s Mot. Indeed, Ware “urge[s] the [C]ourt to allow her sufficient additional time . . .

to supplement medical assessments regarding her emotional and mental well-being and care as

the [C]ourt assesses her damage claim.” Id. at 6. But she has offered no additional information

in the nearly three months since then. At this point, the Court cannot conclude that Ware has

proven her requested damages “to a reasonable certainty.” Elite Terrazzo Flooring,

.

In sum, although Golden has not filed an answer, the Court has determined that Ware has

failed to state a claim against it. More, she has failed sufficiently to show the amount of her

requested damages. There is no basis for the entry of a default judgment. And “where, as here,

the basis for dismissal is applicable as to another defendant, it is proper to make the holding

applicable to the non-moving party as well.” Harris, 404 F. Supp. 3d at 196 n.2 (cleaned up).

Thus, as with the District, the Court will dismiss the common law actions against Golden for

failure to state a claim.

25 VII.

For these reasons, the Court will grant in part the District’s motion to dismiss, but it will

deny the motion insofar as it requests dismissal with prejudice. Dismissals with prejudice under

Rule 12(b)(6) are disfavored in this Circuit, and the “standard for dismissing a complaint with

prejudice is high.” Coon v. Wood,

(D.D.C. 2014); see also, e.g., Rudder v.

Williams,

, 794–95 (D.C. Cir. 2012) (explaining that dismissal with prejudice is

“the exception, not the rule” and that it is “warranted only when the allegation of other facts

consistent with the challenged pleading could not possibly cure the deficiency”). That high

standard is not met here.

The Court will also deny Ware’s motion for default judgment and dismiss the claims

against Golden without prejudice. A separate Order will issue.

2022.11.01 17:33:37 -04'00' Dated: November 1, 2022 TREVOR N. McFADDEN, U.S.D.J.

26