Brown v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2007 Decided February 1, 2008

No. 05-5320

HERBERT BROWN,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv02195)

Richard H. Frankel, appointed by the court, argued the

cause for amicus curiae in support of appellant. With him on

the briefs were Steven H. Goldblatt, Director, and Michael

Hass, Brendon DeMay, Christian D'Avignon-Aubut, and

Damon Elder, Student Counsel.

Herbert Brown, pro se, was on the brief for appellant.

Mary L. Wilson, Senior Assistant Attorney General,

Office of Attorney General for the District of Columbia,

argued the cause for appellees District of Columbia, et al.

With her on the brief were Linda Singer, Attorney General,

2

Todd S. Kim, Solicitor General, and Edward E. Schwab,

Deputy Solicitor General.

Eileen Dennis Gilbride argued the cause for appellee

Corrections Corporation of America. With her on the brief

was Daniel P. Struck.

Adele P. Kimmel was on the brief for amici curiae DC

Prisoners' Project of the Washington Lawyers' Committee for

Civil Rights and Urban Affairs in support of appellant.

Arthur B. Spitzer and Deborah M. Golden entered

appearances.

Before: GARLAND and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Herbert Brown, a prisoner,

claims that his custodians’ failure to provide adequate medical

care amounted to “cruel and unusual punishment” in violation

of the Eighth Amendment. He sued the District of Columbia

(“District”) and the Corrections Corporation of America

(“CCA”), along with former Attorney General John

Ashcroft,1 three high-ranking District officials including the

mayor, and several District and CCA employees in their

individual capacities.

The district court dismissed Brown’s complaint against

the District, CCA, and the District officials for failure to state

1

Because a panel of this court has summarily affirmed the district

court’s dismissal of Brown’s claim against the former Attorney

General, Brown v. District of Columbia, No. 05-5320 (D.C. Cir.

May 23, 2006), we do not discuss Brown’s claims against Ashcroft.

3

a claim. We affirm these dismissals in all respects but two.

We reverse the dismissal of Brown’s claim against the

District for the violation of his rights while in the District’s

prison in Lorton, Virginia. The district court also dismissed

Brown’s complaint against the District employees and the

CCA employees because Brown failed to serve them. We

reverse this dismissal, too. Our reasons follow.

I.

A.

Brown’s complaint alleges a spate of harms, which we

must take as true when reviewing the dismissal of his claims.2

Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). From 1991

through 1997, Brown was incarcerated in the District’s

Occoquan Correctional Facility in Lorton, Virginia.3

Although Brown entered the prison in good health, over the

next five years his health deteriorated. He experienced severe

headaches, constipation, loss of appetite, yellowed eyes, and

pains in his chest, stomach, lower back, and penis. Several

medical personnel at the prison wrongly diagnosed Brown or

ignored his requests for treatment. Because of these failures,

Brown suffered an inflamed liver, jaundice, and a medley of

other maladies.

Finally, a Dr. Rafford diagnosed Brown with gallstones

and ordered his immediate transfer to D.C. General Hospital

for treatment. For the next sixty days prison officials failed to

2

Brown filed pro se in district court. On appeal he submitted a pro

se brief and also joined the brief of appointed amicus curiae. All

quotations from Brown’s filings are reproduced verbatim.

3

The record is devoid of any information regarding the nature of

Brown’s crime or the terms of his sentence, neither of which is

relevant to our disposition of his appeal.

4

make the transfer while Brown continued to complain of

intense pain. Not until Dr. Rafford saw Brown a second time,

made the same diagnosis, and again ordered his immediate

transfer did prison officials finally comply. At the hospital,

Brown underwent surgery that removed eighteen gallstones

blocking his urinary tract. After he returned to the Lorton

prison, Brown continued to complain of similar symptoms.

Over the next several months, the prison’s medical staff again

refused to treat him or wrongly diagnosed his condition. In

one instance, a medical assistant diagnosed food poisoning

and ordered Brown’s transfer to a hospital, but prison officials

again refused.

In 1997 the District transferred Brown to the Northeast

Ohio Correctional Center, a private prison owned and

operated by CCA in Youngstown, Ohio that houses inmates

for the Federal Bureau of Prisons. There, Brown’s experience

with inadequate medical care continued. In one instance, a

Dr. Mazzi prescribed diabetes medication for Brown without

ever examining him. After months of suffering from the

medication’s ill effects, Brown learned that he did not have

the disease. At both the Virginia and Ohio facilities, Brown

filed numerous grievances informing prison officials and the

District of his plight.

B.

In December 2004 Brown filed suit in the United States

District Court for the District of Columbia under 42 U.S.C.

§ 1983, which creates a cause of action against state and local

officials for violations of federal rights. The statute reads:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

5

subjects, or causes to be subjected, any citizen

of the United States . . . to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured.

42 U.S.C. § 1983. Brown claimed that the District, CCA, and

several individuals denied him adequate medical care in

violation of the Eighth Amendment. The individual

4

defendants he sought to hold personally liable include three

District officials (Odie Washington, Director of the D.C.

Department of Corrections; Elwood York, Director of

External Confinement in the D.C. Department of Corrections;

and Anthony Williams, former mayor of the District of

Columbia); six doctors at the Lorton prison (Taylor, Marzban,

K. R. Sorem, Ferry, Park, and Easted); and nine employees5 at

CCA’s Ohio prison (Mazzi, Willis Gibson, A. Warfield, R.

Adams, M. Perryman, A. Sims, J. Bass, B. Goodrich, and J.

Cerimele). He served the District and defendants Williams,

Washington, and York, but failed to serve the remaining

individuals. Although CCA accepted service, it never

appeared in district court. The District, along with defendants

Williams, Washington, and York, filed a motion to dismiss.

On August 1, 2005 the district court dismissed Brown’s

action in its entirety. Brown v. District of Columbia, No. 04-

2195 (D.D.C. Aug. 2, 2005). The court concluded that

Brown failed to state a claim against either the District or

CCA because his treatment at the hands of various prison

doctors did not violate the Eighth Amendment: “Although

4

We use the defendants’ names as Brown used them in his

complaint.

5

CCA disputes whether these individuals are employees, but we

need not reach this issue.

6

there may have been delays in rendering treatment,

displeasure as to the quality of treatment, or disagreement

about the course of treatment, the plaintiff’s complaint makes

clear that indeed he received treatment. Negligence does not

rise to the level of deliberate indifference to a prisoner’s

serious medical needs.” Id. at *5. The court also reasoned

that even if Brown had stated an Eighth Amendment

violation, he failed to make allegations which, if true, would

hold the District liable. His claim against the District, at best,

was based on a theory of respondeat superior, insufficient

under well-established precedent. Id. at *6-7. In addition, the

court dismissed the claims against defendants Williams,

Washington, and York because Brown failed to allege that

these public officials were personally involved in the

decisions adversely affecting Brown’s rights. Id. at *7.

Finally, the court dismissed sua sponte the claims against the

CCA and District employees because Brown did not serve

them. Id. at *4.

Brown appeals the decision in all respects. The district

court exercised jurisdiction over this case pursuant to 28

U.S.C. § 1331, and we have jurisdiction under 28 U.S.C.

§ 1291. Our review is de novo. Browning v. Clinton, 292

F.3d 235, 242 (D.C. Cir. 2002) (dismissal for failure to state a

claim); Second Amendment Found. v. U.S. Conference of

Mayors, 274 F.3d 521, 523 (D.C. Cir. 2001) (dismissal for

lack of personal jurisdiction). “[W]hen ruling on a

defendant’s motion to dismiss, a judge must accept as true all

of the factual allegations contained in the complaint.”

Erickson, 127 S. Ct. at 2200. Moreover, “[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.” Id.

(internal quotation marks and citations omitted).

7

II.

Brown argues that the district court erred in dismissing

his claims against the District for alleged failures of medical

care. We agree.

A.

A municipality is a “person” subject to suit under 42

U.S.C. § 1983, although its liability is limited. Monell v.

Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). To

determine whether a plaintiff can hold a municipality liable

under § 1983, we must answer two questions. “First, the

court must determine whether the complaint states a claim for

a predicate constitutional violation. Second, if so, then the

court must determine whether the complaint states a claim

that a custom or policy of the municipality caused the

violation.” Baker v. District of Columbia, 326 F.3d 1302,

1306 (D.C. Cir. 2003) (citing Collins v. City of Harker

Heights, 503 U.S. 115, 120 (1992)).

Brown’s complaint alleges a violation of the Eighth

Amendment’s prohibition against “cruel and unusual

punishments.” U.S. CONST. amend. VIII. The Supreme

Court has placed within the ambit of this prohibition

“punishments . . . which involve the unnecessary and wanton

infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03

(1976). When a prisoner claims that his custodian has

violated the Eighth Amendment by failing to provide

adequate medical care, he “must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Id. at 106. One example of such

“deliberate indifference” is a prison doctor or official who

“intentionally den[ies] or delay[s] access to medical care or

intentionally interfere[s] with the treatment once prescribed.”

8

Id. at 105. A claim of negligence is insufficient. Id. at 105-

06.

The court must next determine whether the plaintiff has

alleged facts sufficient to hold the municipality liable. Under

Monell, “a local government may not be sued under § 1983

for an injury inflicted by its employees or agents. Instead, it

is when execution of a government’s policy or custom . . .

inflicts the injury that the government as an entity is

responsible under § 1983.” 436 U.S. at 694. We have found

a number of ways a municipality can adopt a policy or custom

that might create liability, see Baker, 326 F.3d at 1306;

Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir.

2004), only one of which is relevant to Brown’s allegations:

“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.” Baker, 326 F.3d at 1306 (quoting City of Canton

v. Harris, 489 U.S. 378, 390 (1989)). As Baker explains,

“deliberate indifference is determined by analyzing whether

the municipality knew or should have known of the risk of

constitutional violations.” Id. at 1307.

B.

Applying the Monell analysis, we conclude that Brown’s

allegations state a claim that the District violated his Eighth

Amendment rights at the Lorton prison. Although the task of

discerning what constitutes a “serious medical need” under

Estelle may prove vexing at the margins, Brown’s claim gives

us no pause. His jeremiad reaches a climax in recounting his

experience with gallstones. The intense and often relentless

pain that accompanies this condition, and the complications

that can follow, easily push Brown’s claim into the category

of serious medical needs. See, e.g., Toombs v. Bell, 798 F.2d

9

297, 298 (8th Cir. 1986) (holding that alleged gallstones

constituted a serious medical need). In fact, the government

concedes this point. Brief for the District of Columbia at 13

(“Brown’s allegation . . . is adequate to state a serious medical

need”).

Furthermore, Brown claims that prison officials

demonstrated “deliberate indifference” to his condition.

Although Dr. Rafford diagnosed Brown with gallstones and

“ordered [him] to be immediately transfered to the D.C.

General Hospital for treatment,” Compl. ¶ 17, he “was never

transfered . . . and continued to report to the infirmary with

complaints of Pain and stomach sickness for an additional

(60) sixty days,” id. ¶ 21. Brown also alleges that “the

defendants subjected [him] to an Unnecessary and wanton

infliction of pain out of delibrate indifference . . . to his

serious medical needs.” Id. ¶ 38. The government’s attempt

to style Brown’s claim as mere griping about the quality or

course of treatment misstates the gravamen of the allegation.

After Dr. Rafford notified prison officials of Brown’s need for

immediate hospitalization, they failed to transfer him for sixty

days while he continued to suffer from gallstones. Presented

with these claims, we do not hesitate to conclude that Brown

alleges an Eighth Amendment violation.

Brown also avers facts sufficient to hold the District

liable under Monell because he alleges that the District failed

to act even though it “knew or should have known of the risk

of constitutional violations.” Baker, 326 F.3d at 1307.

Brown claims that he filed numerous grievances, Compl.

¶¶ 36, 42, and that “the District of Columbia sat idly by while

the plaintiffs serious medical needs were ignored after

10

plaintiff had informed them of his medical needs,” id. ¶ 38.6

As this court interpreted Monell in Baker, 326 F.3d at 1306,

these allegations are sufficient to state a claim that a custom

or policy of the municipality caused the underlying

constitutional violation.

Brown should have the chance to prove the case he has

sufficiently pled. We therefore reverse the district court’s

dismissal of Brown’s claim against the District for the alleged

Eighth Amendment violations that occurred while he was

incarcerated at the Lorton facility.7 We also affirm the district

court’s dismissal of Brown’s claim that the District is liable

for the alleged harms committed by CCA because, as we

explain in Section IV, his claim against CCA is barred by res

judicata.

6

Aside from his general claim that “all grievances [have] been

exhausted,” Compl. ¶ 42, Brown does not expressly state that he

informed District officials of his condition during the sixty days

after Dr. Rafford first ordered his transfer to the hospital and before

prison officials complied with the order. However, construing the

plaintiff’s complaint liberally as we are required to do on a motion

to dismiss and mindful of the Court’s instruction to hold a pro se

complaint to “less stringent standards,” Erickson, 127 S. Ct. at

2200, we conclude that Brown pleads sufficient knowledge by the

District as required by Baker. 326 F.3d at 1307.

7

The complaint alleges several instances in which the District

failed to provide Brown medical care at the Lorton facility, which

Brown may or may not have intended as separate claims. The

district court did not identify distinct claims and neither do we. On

remand the court may consider whether Brown raises one or more

claims separate from the gallstones claim and then determine in

each instance whether Brown states a claim for relief.

11

III.

Brown also claims that Washington, York, and former

Mayor Williams are personally liable for the Eighth

Amendment violations that occurred from 1995-1997 while

he was at the Lorton facility and before he was transfered

sometime in 1997 to the CCA facility in Youngstown, Ohio.

We affirm the district court’s dismissal of these claims.

We take judicial notice of the fact that Williams did not

begin his first term of office as mayor until 1999 and

Washington received his appointment as Director of the D.C.

Department of Corrections that same year, see Res. 13-138,

Dir. of the Dep’t of Corr. Odie Washington Confirmation

Resolution of 1999, 46 D.C. Reg. 5517 (June 8, 1999), and

accordingly affirm dismissal of the claims against them. See

FED. R. EVID. 201. Brown also fails to state a claim against

York. Under the theory of supervisory liability that Brown

asserts, the plaintiff must allege that the official “was

responsible for supervising the wrongdoer.” Haynesworth v.

Miller, 820 F.2d 1245, 1262 (D.C. Cir. 1987). Brown only

avers, however, that York supervised the care of prisoners

“housed in contract facilities.” Compl. ¶ 4. The prison in

Lorton, Virginia was not a contract facility and therefore we

affirm dismissal of the claim against York.

IV.

Brown also argues on appeal that the district court erred

when it dismissed his claim against CCA for alleged

violations that occurred while he was a prisoner at the

Northeast Ohio Correctional Facility. These allegations

resemble those he makes against the District for failure to

provide medical care. We affirm the district court’s dismissal

12

of this claim, although we do so on the ground of res judicata,

an argument CCA makes for the first time on appeal.

CCA argues that Brown is attempting to re-litigate an

issue on appeal already decided by a federal court in Brown v.

CCA, No. 03-822 (N.D. Ohio 2003). Before we address

CCA’s argument, we must first decide whether CCA, which

did not appear before the district court in this matter even

though it was properly served, can raise the affirmative

defense of res judicata for the first time on appeal. Typically

a defendant must plead the defense in the answer to the

complaint. Poulin v. Bowen, 817 F.2d 865, 869 (D.C. Cir.

1987). But in Stanton v. District of Columbia Court of

Appeals, 127 F.3d 72 (D.C. Cir. 1997), this court said that

because res judicata protects not only the interests of a

particular party but the interests of the court, we may consider

it for the first time on appeal where the defendant has not

forfeited the defense, the relevant facts are uncontroverted,

and a failure to consider it would only cause delay. Id. at 77.

These factors are all present here. In Stanton, the

defendant retained the right to argue res judicata because the

district court ruled on a dispositive motion before the

defendant had answered the complaint, leaving him free to

assert the defense on remand. Id. Likewise, CCA has not

forfeited the right to raise the defense here. Although CCA

risked entry of a default judgment on account of its absence, it

did not thereby forfeit the right to answer Brown’s complaint

and raise the defense if the district court’s dismissal in its

favor was later reversed. Moreover, the relevant facts are

uncontroverted. Neither Brown nor the appointed amicus

curiae identifies any factual disputes that arise in connection

with Brown’s earlier lawsuit. Finally, not to consider the

defense now would only engender delay because CCA would

be free to raise it on remand.

13

Therefore, we properly consider the res judicata defense

for the first time on appeal and hold that it bars Brown’s

claims against CCA. In the previous case, Brown brought the

identical claim against CCA that he brings now: Dr. Mazzi

prescribed diabetic medication for Brown when in fact Brown

did not have diabetes. Brown v. CCA, No. 03-822, at *1

(N.D. Ohio 2003). The court dismissed that case because the

governing statute of limitations barred the action. Id. at *2.

Brown does not dispute that res judicata would bar his claim

against CCA for the actions of Dr. Mazzi. But Brown argues

that he has raised a separate claim against CCA that its

medical staff acted with deliberate indifference in failing to

diagnose his hepatitis while he was incarcerated at the CCA

facility. We find no such claim. Nowhere in his complaint or

other pleadings does Brown allege that medical personnel

working at CCA, other than Dr. Mazzi, refused to diagnose

him or otherwise showed deliberate indifference to his serious

medical need. Brown’s claim against CCA for the conduct of

Dr. Mazzi is barred by res judicata and Brown otherwise fails

to state a claim for relief against CCA.

V.

Finally, Brown contends that the district court erred in

dismissing for lack of proper service his claims against the six

District and nine CCA employees, all of whom Brown sued in

their individual capacities. We agree.

Rule 4(m) of the Federal Rules of Civil Procedure

requires the court to give the plaintiff notice prior to dismissal

for lack of service:

If service of the summons and complaint is not

made upon a defendant within 120 days after

14

the filing of the complaint, the court, upon

motion or on its own initiative after notice to

the plaintiff, shall dismiss the action without

prejudice as to that defendant or direct that

service be effected within a specific time;

provided that if the plaintiff shows good cause

for the failure, the court shall extend the time

for service for an appropriate period.

FED. R. CIV. P. 4(m) (emphasis added). Interpreting a

predecessor of Rule 4(m), this court held that a district court

errs when it dismisses a suit for failure to effect service and

the plaintiff is “neither actually nor constructively on notice

as to the impending sua sponte dismissal.” Smith-Bey v.

Cripe, 852 F.2d 592, 593 (D.C. Cir. 1988). This rule is

especially important to a plaintiff who is pro se and

incarcerated because of his limited ability to ensure proper

service. Id. at 594. The record, however, gives no indication

that Brown received the requisite notice.

VI.

We affirm the dismissal of the claims against CCA, the

District for alleged violations committed by CCA, and the

high-ranking District officials. We reverse the dismissal of

the claims against the District for alleged violations at the

Lorton facility and the dismissal of the claims against the nine

CCA and six District employees for failure to serve, and

remand to the district court for further proceedings consistent

with this opinion.

So ordered.