UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DELORES WALDO,

Plaintiff,

v. Civil Action No. 19-cv-136 (TSC)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Delores Waldo sued the District of Columbia and several Metropolitan Police

Department (“MPD”) officers pursuant to

and District of Columbia law after

her brother committed suicide while in MPD custody. The District moved for summary

judgment and judgment on the pleadings, ECF No. 38. Having considered the record and the

briefs, the court will GRANT the District’s Motion.

I. BACKGROUND

On January 17, 2017, MPD officers responded to a call concerning an unlawful entry in

Northwest D.C. D.C.’s Answers to Pl.’s Interr., ECF No. 38-4 at 2–3 (“Def.’s Answers”).

James Anthony was arrested on the scene and brought to the MPD’s Second District. Id.; Pl.’s

Answers to Def.’s Interr., ECF No. 38-5 at 9 (“Pl.’s Answers”). Anthony “presented with erratic

behavior during his arrest and while at the Second District Station,” yet no medical providers

were contacted nor was he closely monitored. Pl.’s Answers at 12. Instead, he was placed in a

holding cell next to the intake area at 11:34 a.m. and hanged himself approximately ten minutes

later. Statement of Undisputed Material Facts, ECF No. 38-3 ¶¶ 4–5. An officer eventually

found Anthony hanging in his cell and began performing CPR, to no avail. Def.’s Answers at 4.

Page 1 of 12 Plaintiff—Anthony’s sister—filed this action in January 2019 against the District and

John Doe MPD officers. Compl., ECF No. 1 ¶¶ 4–6. Defendants moved to dismiss, ECF No. 3,

and Plaintiff moved to amend the Complaint, ECF No. 9. The court denied the motion to dismiss

and granted in part Plaintiff’s motion for leave to file an Amended Complaint. Order, ECF

No. 14; see Am. Compl., ECF No. 9-2. Following the close of discovery, the District moved for

judgment on the pleadings and summary judgment.

II. LEGAL STANDARD

A. Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Very few of” the D.C. Circuit’s

“precedents discuss Rule 12(c), in part because judgment on the pleadings is rare.” Dist. No. 1,

Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n v. Liberty Mar. Corp.,

(D.C.

Cir. 2019). The Court has made clear that “the party seeking judgment on the pleadings

shoulders a heavy burden.”

On a motion for judgment on the pleadings, the court “accept[s] as true the allegations in

the opponent’s pleadings, and as false all controverted assertions of the movant,” and affords “all

reasonable inferences to the opponent’s pleadings.”

(citations omitted). And

“judgment on the pleadings is not appropriate if there are issues of fact which if proved would

defeat recovery.”

(internal quotation marks and citation omitted).

B. Summary Judgment

Under Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if 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 fact is material if “a dispute over it

might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or Page 2 of 12 unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell,

(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.”

(quoting Anderson,

). The party seeking summary

judgment bears the burden to provide evidence showing “the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986).

III. MOTION FOR JUDGMENT ON THE PLEADINGS

The District seeks judgment on the pleadings on Plaintiff’s individual capacity claims.

Mem. in Supp. of Def. D.C.’s Mot. for J. on the Pleadings & for Summ. J., ECF No. 38-1 at 9

(“Motion”). In the operative Complaint, Plaintiff alleges that she “brings a claim against the

Defendants individually and as the personal representative of the Estate of James Anthony.”

Am. Compl. ¶ 4 (emphasis added); accord id. ¶ 1. In her opposition, however, Plaintiff

expressly agrees that she is not “entitled to judgment against the Defendant District of Columbia

in her individual capacity.” Mem. in Supp. of Pl.’s Mot. in Opp’n to Def. D.C.’s Mot. for J. on

the Pleadings & for Summ. J., ECF No. 44-1 at 3 (“Opp’n”). Moreover, when asked which

claims she asserts in her individual capacity against the District, she responded that “Plaintiff is

making claims on behalf of the estate of Mr. James Anthony.” Pl.’s Answers at 10–11.

“Generally, a court is justified in taking a litigant at [their] word when [they] explicitly

concede[] one or more issues.” Fleming v. Medicare Freedom of Info. Grp., No. 15-cv-1135,

, at *2 (D.D.C. Oct. 24, 2019) (citing cases). Consequently, the court will

grant the District’s motion for judgment on the pleadings on any claims brought by Plaintiff in

her individual capacity.

Page 3 of 12 IV. MOTION FOR SUMMARY JUDGMENT

A. Section 1983 Claims (Counts III and IV)

In Counts III and IV—the

claims—Plaintiff alleges that Defendants

denied Anthony medical care and protection in violation of the Fifth Amendment. Am. Compl.

¶¶ 35–44.

“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 . . .

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.”

. “A municipality or local government, such as the District, is a ‘person’ for

section 1983 purposes.” Frederick Douglass Found., Inc. v. District of Columbia,

(D.C. Cir. 2023) (citing Monell v. Dep’t of Soc. Servs. of City of New York,

(1978)). The District, however, is “not liable for injuries inflicted solely by their employees

or agents; the government must be the ‘moving force’ behind the violation.”

(citing Monell,

). To establish the District as a “moving force” behind a constitutional violation,

a plaintiff must show “that the District violated the Constitution and that the violation was the

result of an official custom or policy.”

(citing Monell,

).

An “official custom or policy” may exist when: (1) the District adopted a policy that

“itself violates the Constitution”; or (2) a “policy maker” took an unconstitutional action; or

(3) employees’ unconstitutional actions “are so consistent that they have become a custom of the

municipality of which the supervising policymaker must have been aware”; or (4) the District

“knew or should have known of a risk of constitutional violations, but showed ‘deliberate

indifference’ to that risk by failing to act.” Hurd v. District of Columbia,

, 337

(D.C. Cir. 2001) (citation omitted; formatting modified). Plaintiff claims the District is liable Page 4 of 12 under § 1983 based on a custom of unconstitutional actions and deliberate indifference theories.

Am Compl. ¶¶ 36–37, 41–43.

To establish a pattern of similar constitutional violations, “a plaintiff must show that the

municipality ‘knowingly ignored a practice that was’” “persistent and widespread” such that it

“amounted to ‘standard operating procedure.’” Hurd, 997 F.3d at 338 (citations omitted).

Deliberate indifference requires a showing that the municipality has “actual or constructive

knowledge” that its employees “will probably violate constitutional rights” and fails to act. Id. at

339 (citation omitted). To show constructive knowledge, a plaintiff may point to a pattern of

previous constitutional violations involving “materially similar legal implications so as to put the

municipality on notice of the probability of future constitutional violations.” Id. at 340. For

example, the D.C. Circuit affirmed summary judgment to the plaintiff in Harvey v. District of

Columbia,

, 1053–54 (D.C. Cir. 2015), because the District had acknowledged in

previous litigation that it had “fundamentally failed its obligation to disabled persons” and been

found separately liable several times for violating the rights of intellectually disabled people in

its custody, which put it on notice that its practices were violating those patients’ rights, yet the

District failed to “cure the problem.” By contrast, in Hurd, 997 F.3d at 340, the D.C. Circuit

held that plaintiff did not provide sufficient evidence to show the District had constructive

knowledge because the past incidents he pointed to involved delayed inmate release practices,

whereas his case involved incarceration policies where erroneously unserved sentences are

discovered.

The District is entitled to summary judgment on both Count III and Count IV because

Plaintiff has failed to identify any past incidents of denial of protection or denial of medical care

that create a genuine dispute of material fact regarding a District custom or that put the District

Page 5 of 12 on constructive notice that its employees would likely violate Anthony’s constitutional rights.

When Plaintiff’s expert witness was asked at his deposition what he knew about MPD’s policies,

pattern and practice, training of staff, and whether he knew of any prior suicides at an MPD

police precinct, he responded that he knew “[n]othing” about any of these topics. Dep. of

Cameron K. Lindsay (“Lindsay Dep.”), ECF No. 38-9 at 96:12–18, 142:20–143:10. Having

alleged no past incidents, Plaintiff has not created a genuine issue of material fact regarding a

“persistent and widespread” custom. Hurd, 997 F.3d at 338. Similarly, without any evidence of

“actual or constructive knowledge,” Plaintiff has demonstrated no genuine issue of material fact

regarding deliberate indifference. Id. at 339.

Indeed, the closest indications of constructive knowledge in the record are statements

about the D.C. Jail and other correctional facilities in Plaintiff’s expert report. See Expert Report

of Cameron K. Lindsay, ECF No. 44-4. First, Lindsay identified a 2013 report discussing

“unacceptable practices the D.C. Jail engaged in that negatively affected the manner in which the

Department handled suicides and the prevention thereof.” Id. ¶ 70. Second, the report discussed

the frequency of suicides in detention facilities, id. ¶¶ 67–68, and that “most jail suicides are

accomplished by hanging,” id. ¶ 75. But statistics about suicides in the D.C. Jail or other

detention facilities do not alone create a genuine dispute of material fact regarding constructive

knowledge that MPD officers would violate Anthony’s constitutional rights at a police precinct

by failing to protect him and provide him with medical care.

Jails and prisons to not appear to be proper comparators to the Second District holding

facility. By nature, holding cells at MPD precincts are temporary, with individuals remaining in

cells “usually less than 48 hours, pending their release, arraignment, adjudication, or transfer to

another facility.” Metropolitan Police Department, Standard Operating Procedures: Holding

Page 6 of 12 Facilities at 1, SOP HOLDING FACILITIES.PDF (mpdconline.com). Consequently, police

precincts have specific policies for their holding facilities, separate from the D.C. Jail, other

states, or the Bureau of Prisons, including separate policies for assessing suicide risk. See id.

at 8. And Lindsay admitted that he was not aware of any suicides at any MPD police precinct.

Lindsay Dep. at 96:12–18. To be sure, the court does not hold that, as a matter of law, prior

incidents at jails can never serve to put a municipality on notice of potential incidents at police

precincts. But Plaintiff has not articulated any reasons that incidents at jails and prisons could

have put the District on constructive notice in this case. Moreover, neither Plaintiff nor her

expert proffered the circumstances of any of the past suicides at the D.C. Jail. Without that

information, a jury would be unable to determine whether those circumstances were “materially

similar,” Harvey,

, in order to return a verdict for Plaintiff, Holcomb,

(quoting Anderson,

).

Plaintiff argues that the District “should have known that any deliberate failure to closely

monitor” Anthony after he presented with erratic behavior “was unlawful and violated his

rights.” Opp’n at 6 (citing Farmer v. Brennan,

(1994)). Farmer, however, is

an Eighth Amendment case that did not involve municipal liability. As the D.C. Circuit has

explained, “the ‘deliberate indifference’ standard for establishing a municipal policy is distinct

from that required to show an underlying constitutional violation” under the Eighth Amendment:

the latter is subjective; the former objective. Harvey,

. To show objective

constructive knowledge, Plaintiff must establish that the District engaged in previous

constitutional violations with materially similar legal implications and similarly failed to act in

this case. See id.; Hurd, 997 F.3d at 340. Plaintiff has not done so.

Page 7 of 12 B. District Law Claims (Counts I, II, V)

Plaintiff asserts District law claims for survival, wrongful death, and negligence in

Counts I, II, and V, respectively. Am. Compl. ¶¶ 24–34, 45–48. By statute, District law

provides a cause of action for rights of action that accrued prior to a decedent’s death, known as

survival.

. Here, Plaintiff’s survival action is for negligence. Am. Compl.

¶ 28. The D.C. Code also provides a cause of action for “death of a person . . . caused by the

wrongful act, neglect, or default of a person or corporation,” known as wrongful death.

. Plaintiff’s final District law claim is a common-law negligence claim. Am.

Compl. ¶¶ 45–48. Because each District law claim requires showing negligence, the court will

first determine whether there is a genuine issue of material fact regarding the District’s

negligence.

i. Legal framework

“The plaintiff in a negligence action bears the burden of proof on three issues: an

applicable standard of care, a deviation from that standard by the defendant, and a causal

relationship between that deviation and the plaintiff’s injury.” Clark v. District of Columbia,

(D.C. 1997) (citations omitted). The D.C. Court of Appeals has “repeatedly held

that the standard of care owed by the District . . . to persons in its custody is a matter” that

“requires expert testimony” demonstrating “proof of a national standard of care.”

at 634–35.

To demonstrate a national standard of care, the plaintiff must identify an expert who can

testify to a consensus of practice in the area at issue. For example, in Messina v. District of

Columbia,

, 537–39 (D.C. 1995), the D.C. Court of Appeals held that plaintiff’s

expert evidence failed to establish a national standard of care regarding the quantity or quality of

cushioning material the District needed to maintain under the monkey bars on a playground. The

Page 8 of 12 expert pointed to playground equipment catalogues, which recommended a certain depth of

cushioning material, a handbook, which recommended a specific cushioning guideline (the 200

G guideline) to prevent skull fractures, and tests he conducted indicating that ten to twelve inches

of mulch would meet the 200 G guideline.

at 538–39. The court, however, reasoned that

“there was no evidence that” the expert’s conclusions “constituted any kind of national standard,

that it had been promulgated, or was generally known” before the injury at issue in the suit, “or

that the District should have been aware of its existence.”

. By contrast, in District of

Columbia v. Peters,

(D.C. 1987), the D.C. Court of Appeals held that

plaintiff’s expert’s testimony established a national standard of care for police training on

interacting with people who may be in mental distress or under the influence of drugs because

the expert testified that “police departments throughout the country commonly instruct officers”

on how to handle such situations. The expert testified that “he knew of no metropolitan police

department, other than the District’s, which provided no training whatsoever” in this area, and

named many cities across the country that do so, from Miami to Seattle.

ii. There is no genuine dispute of material fact regarding negligence

Plaintiff has not established a genuine dispute of material fact regarding negligence

because her expert has not identified a national standard of care. Lindsay’s testimony showed

that he is not well-informed regarding standards of care for police precincts. For example, when

asked which jurisdictions screen for mental illness, suicidal ideation, intoxication, or withdrawal

on intake, Lindsay said “I don’t know of any, but there would be no reason for me to know

because I’ve never worked on a case like this before” where “someone killed themselves in a

police precinct.” Lindsay Dep. at 99:18–100:6; accord

at 100:13–15 (Lindsay responding

with “I don’t know” when asked the source of intake standards for police precincts). And when

Page 9 of 12 asked if he was “aware of any standards that speak to whether police departments are required to

have mental health professionals on staff at their holding facilities,” Lindsay answered “I am

not.” Dep. of Cameron Lindsay, ECF No. 47-2 at 118:20–119:2. Lindsay repeatedly pivoted to

his experience with prisons and jails when asked about practices in police precincts, e.g., Lindsay

Dep. at 100:6–12, but Plaintiff has not established that police precincts are interchangeable with

jails and prisons for the purpose of establishing the standard of care.

Plaintiff argues that Lindsay established a nationwide standard of care by pointing to the

American Correctional Association (“ACA”) and National Commission on Correctional Health

Care (“NCCHC”) standards. Opp’n at 6–9. Both sets of standards, however, are considered

“voluntary”—not “mandatory.” Lindsay Dep. at 82:3–4, 116:14–17. Generally, “professional

guidelines or standards” are “appropriate methodology for experts to use when opining on an

applicable standard of care.” Girdler v. United States,

(D.D.C. 2013).

But, when using voluntary guidelines as a reference for standard of care, the court must exercise

“caution” to “ensure that they are clearly relevant and applicable to the circumstances

presented.”

That practice makes good sense, since “voluntary guidelines do not amount to

legal requirements.”

Exercising that caution, the court finds neither the ACA nor NCCHC guidelines

applicable here. For one thing, both are aimed at jails and prisons—not police precincts. See

supra Section IV.A. For another, Lindsay was not able to identify any jurisdiction that has

adopted the ACA standards, other than the Bureau of Prisons, Lindsay Dep. at 82:6–83:6, and he

did not know of any jurisdiction that adheres to the NCCHC standards, other than the Delaware

County Prison, where he was once the warden, id. at 116:18–117:8. Lindsay also noted that the

“vast majority” of jurisdictions are not accredited by NCCHC and do not require ACA

Page 10 of 12 accreditation. Id. at 82:15–17, 117:3–5. Indeed, Lindsay admitted that he did not know if the

NCCHC standards applied to police precincts at all. Id. at 117:13–17. Referencing the ACA and

NCCHC standards is therefore insufficient to establish a national standard of care at police

precincts.

iii. Plaintiff may not amend her expert report

In her opposition, Plaintiff seeks leave to amend Lindsay’s report if the court deems it

deficient. Opp’n at 9–10. The court will deny that request. Plaintiff has not shown that

amending her expert report would not be futile. She gives no examples or detail regarding the

kinds of amendments to Lindsay’s expert report that could cure the deficiencies in his testimony.

Nor are such amendments easily identifiable. As the court has already explained, Lindsay’s

expertise and experience are with jails and prisons—not police precincts—and he was unable to

articulate to what extent jails and prisons might be appropriate comparators for police precincts.

To cure the deficiencies in Lindsay’s expert report, Plaintiff would likely need to designate an

entirely new expert, which she has not sought leave to do.

Moreover, Federal Rule of Evidence 26(e), which provides for supplementing expert

disclosures, “does not permit parties to file supplemental reports whenever they believe such

reports would be ‘desirable’ or ‘necessary’ to their case.” Wannall v. Honeywell Int’l, Inc.,

(D.D.C. 2013). Rather, supplementing expert disclosures is typically reserved for

situations in which new information affecting the expert report comes to light after the report is

filed. See

at 34–35; Fed. R. Evid. 26(e). Plaintiff has not indicated that she wishes to

supplement Lindsay’s expert report with new information; only that she wishes to cure legal

deficiencies in the report.

Page 11 of 12 V. CONCLUSION

For the foregoing reasons, the court will GRANT Defendants’ Motion for Summary

Judgment and Judgment on the Pleadings, ECF No. 38. An Order will accompany this

Memorandum Opinion.

Date: July 1, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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