Jones v. Horne

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2010 Decided February 11, 2011

No. 09-5128

ANTOINE JONES,

APPELLANT

v.

NORMA HORNE, DETECTIVE - MPD, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01027)

Michael N. Khalil, appointed by the court, argued the cause

as amicus curiae in support of appellant. With him on the briefs

was Anthony F. Shelley, appointed by the court.

Antoine Jones, appearing pro se, filed a brief.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee Rachel C. Lieber. With him on the brief were Ronald

C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

2

U.S. Attorney. Kenneth A. Adebonojo, Assistant U.S. Attorney,

entered an appearance.

Mary L. Wilson, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellees Dennis Harrison and Norma Horne. With

her on the brief were Peter J. Nickles, Attorney General, Todd

S. Kim, Solicitor General, and Donna M. Murasky, Deputy

Solicitor General.

Before: SENTELLE, Chief Judge, HENDERSON and ROGERS,

Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Upon his arrest for federal drug

offenses, Antoine Jones was confined pending trial at the

Central Detention Facility (hereinafter “D.C. Jail”). When the

U.S. Attorney’s Office discovered that Jones might be a threat

to various individuals, it sought to have him placed in protective

custody. When the prosecutor assigned to Jones’ criminal case

learned that Jones was continuing to make telephone calls, she

instructed jail officials to place Jones “in lockdown until further

notice.” Jones remained in “lockdown” from December 2, 2005,

without mail or telephone or visitor privileges until April 26,

2006, when the district court ordered Jones returned to the

general population at the D.C. Jail subject to certain restrictions

on his mail, telephone, and visitor privileges.

Jones, acting pro se, sued the prosecutor, the acting warden

of the D.C. Jail, and the detective from the Metropolitan Police

Department who prepared an affidavit in support of a search

warrant for his cell. He alleged that they had violated his rights

under the First, Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution. The district

3

court dismissed the complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a claim upon

which relief can be granted against the prosecutor and the acting

warden; it dismissed the complaint against the detective as

conceded when Jones did not respond to the detective’s motion

to dismiss. Jones appeals. For the following reasons, we affirm.

I.

The investigation by the Federal Bureau of Investigation

(“FBI”) and the events leading to Jones’ arrest on October 24,

2005 and his indictment for drug conspiracy and related offenses

are described in the case bearing the name of his codefendant,

United States v. Lawrence Maynard, 615 F.3d 544 (D.C. Cir.),

rehearing en banc denied, 625 F.3d 766 (2010). Following his

commitment by a federal magistrate judge to the custody of the

U.S. Attorney General pending trial, Jones was housed in the

general population at the D.C. Jail following a screening by D.C.

Corrections Department officials. On November 23, 2005 a

search warrant for his cell was executed and various papers were

seized, including lists of names and a letter identifying the

location of an unindicted co-conspirator at the D.C. Jail. The

detective’s affidavit supporting the search warrant stated that

Jones was apparently seeking to maintain a role in his drug-

trafficking enterprise, based on the pre-arrest investigation and

Jones’ recorded telephone calls from the D.C. Jail seeking to

contact Lawrence Maynard and get letters to him.

According to the complaint, the prosecutor assigned to

Jones’ criminal case (hereinafter “the prosecutor”) “telephoned

the DC[] Jail and verbally told the Administration to remove me

from general population and place me in segregation under Total

Separation (T.S.) Status . . . [and] not be allowed social visits,

telephone calls and that my mail be withheld from me.” Compl.

at 1. Attached to the complaint were various documents,

4

including a December 22, 2005 memorandum from the

prosecutor to the acting warden.1 It recounted that the

prosecutor, after learning that Jones was continuing to make

telephone calls and was apparently still in the general

population, sent a memorandum to the D.C. Jail on December 2,

2005 stating: “Antoine Jones, DCDC 24912 should [be] placed

immediately in lockdown at the D.C. Jail. Please ensure that

Mr. Jones is [in] lockdown until further notice.” In the

December 2, 2005 memorandum the prosecutor also advised the

acting warden that she was renewing this request “to ensure the

safety of various individuals, and the integrity of the

investigation.” Jones was removed from the general jail

population on or about December 2, 2005 and placed in “Total

Separation” status, with restricted telephone and mail privileges.

In the December 22 memorandum, the prosecutor advised the

acting warden that call logs showed Jones had continued to

make telephone calls after he had in fact been placed in Total

Separation status, which “undermine[d] the purpose of his being

in that placement.” Additionally, the prosecutor wrote: “Please

consider this memorandum a formal request for an immediate

investigation into this situation, to include an examination of

how these clear violations occurred, and more importantly, an

1

The attachments to Jones’ complaint also included: the

detective’s affidavit stating that Jones was potentially attempting

to run a narcotics trafficking operation from the D.C. Jail; the

prosecutor’s December 5, 2005 letter to Jones’ defense counsel

explaining that the U.S. Attorney’s Office had learned that Jones

“was attempting to identify witnesses against him and ‘take care

of them’”; and the U.S. Attorney’s Office’s response to a pretrial

motion indicating that Jones was enlisting help “to try and

locate[] a co-conspirator,” and had listed both the names of

“individuals Jones considered as potential witnesses” and

“suspected cooperators.”

5

immediate correction of the problem.” Jones was thereafter

denied any social visits, telephone and incoming mail privileges.

On February 26, 2006, defense counsel in Jones’ criminal

case filed a motion for modification of the conditions of Jones’

pretrial detention. Jones’ Housing Board hearing on December

15, 2005, and administrative housing grievances filed on

January 20, 2006 and February 10, 2006, had provided no relief

as he was informed by memorandum from the acting warden

that the restrictions were imposed at the request of the U.S.

Attorney’s Office. In the motion, defense counsel argued that

there had been improper interference with the attorney-client

relationship and that the restrictions were punitive. The list

seized from Jones’ cell, according to defense counsel, had been

prepared at defense counsel’s request for a list of persons who

may have information regarding Jones’ criminal case; since the

seizure defense counsel had told Jones not to write anything

down. Defense counsel also argued that the restrictions were

unnecessary to ensure the internal security at the D.C. Jail or to

effect Jones’ presence at trial, and further that the conditions of

Jones’ confinement did not appear to be reasonably related to a

legitimate governmental objective, but “appear to be solely

punitive in nature and thus violate [Jones’] due process rights.”

Motion for Modification of Detention Conditions at 2–3, United

States v. Jones, No. 05-386 (D.D.C. Feb. 26, 2006), ECF No. 76.

The U.S. Attorney’s Office opposed the motion, pointing,

in part, to a telephone call in which Jones revealed to a girlfriend

that he was attempting to locate a “coconspirator who had been

incarcerated in early October on other charges but not yet

indicted in [Jones’] case,” and to a letter written from the

girlfriend divulging the location of the co-conspirator in the

D.C. Jail and reporting that another individual was “on the

street.” Government’s Response to Defendant Jones’ Motion

for Modification of Conditions of Detention at 2, United States

6

v. Jones, No. 05-386 (D.D.C. Mar. 16, 2006), ECF No. 85. The

U.S. Attorney’s Office also pointed to a list of names recovered

from Jones’ cell that “appears to be a list of individuals Jones

suspects are government witnesses.” Id. at 1–2. In a subsequent

filing, the U.S. Attorney’s Office noted that Jones attempted to

use his wife and a second girlfriend to contact Maynard who

was at large. Additionally, the U.S. Attorney’s Office

mentioned housing Jones outside of the District of Columbia in

Orange or Northern Neck, Virginia. Id. at 3. Defense counsel

objected that moving Jones to such a distance would place an

undue burden on defense counsel as well as Jones’ friends and

family, and would not alleviate the U.S. Attorney’s Office’s

concern stemming from Jones’ communications with persons in

the community.

On April 24, 2006, the district court in the criminal case

granted the motion to modify Jones’ pretrial detention

conditions “insofar as [Jones] should no longer be in total

lockdown.” To address the concern of the U.S. Attorneys’

Office, the district court also ordered that Jones’ telephone calls

be recorded and his mail monitored (except for telephone calls

and mail from his defense counsel and criminal investigator),

and social visits be limited to his wife, defense counsel, and the

criminal investigator. Order, United States v. Jones, No. 05-386

(D.D.C. Apr. 24, 2006), ECF No. 111.

On June 8, 2007, Jones, acting pro se, filed a complaint

pursuant to 28 U.S.C. § 1983, alleging the violation of his

constitutional rights under the First, Fifth, Sixth, Eighth, and

Fourteenth Amendments.2 The complaint alleged: (1) The

2

Although section 1983 provides a right to action against a

person acting under color of state law who subjects any citizen or

causes any citizen to be subjected to deprivation of any right secured

by the Constitution, 42 U.S.C. § 1983, it does not apply to officials

7

denial of his right properly to prepare his defense to the criminal

charges, including being denied by a D.C. Jail case manager the

right to telephone defense counsel and to have access to legal

and writing materials. (2) The denial of his right to the free

exercise of his religion while being held in Total Separation

status. (3) The denial of due process by the prosecutor and the

D.C. Corrections Department officials who “conspired and

stripped” him of his pretrial detainee due process social visits,

and telephone and mail privileges. Jones claimed emotional

suffering as a result of losing ties with his family and business

associates, and that the prosecutor’s interference with his access

to witnesses denied him the right to a fair trial. He also claimed

that the interception, copying, and reading of his mail without a

warrant violated his prison rights. (4) Subjection to a health

hazard, while being housed in the S-1 Unit, as a result of human

urine and feces on the bars and walls, rodent infestation, cold

temperatures, and bright lights 24 hours a day. (5)

Discrimination by the prosecutor and the D.C. Jail and other

staff by being held in his cell 24 hours a day 4 days a week and

23 hours a day 3 days a week; outside his cell he was strip

searched, handcuffed, in shackles and belly chain, and his cell

was searched each time he left it. Jones claimed that the

physical housing segregation and isolation as a result of being

denied privileges, in addition to being “discriminated against,

punished, violated, humiliated and degraded,” and complained

that his segregation status was “used as a pretext for punishment

acting under color of federal law, such as a federal prosecutor acting

within the scope of her duties. An equivalent right has been

recognized by the Supreme Court, however, for money damages

against persons acting under color of federal law. Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971). We construe Jones’ pro se complaint against the

prosecutor as brought pursuant to Bivens.

8

[and] torture.” Compl. at 1,6. He further claimed that “the

Prosecutor(s) acted outside their realm of jurisdiction in

instructing the DC[] Jail Administration to place [him] in the

T[otal] S[egregation] status and the DC[] Jail Administration

acted outside their realm of jurisdiction by carrying out such an

order without a properly signed court order from the judge.”

Compl. at 7. Jones sought monetary damages of $1,000,000, the

disbarment of the prosecutor, and the demotion or suspension of

the responsible D.C. Jail officials.

The district court dismissed the complaint against the

prosecutor pursuant to Rule 12(b)(6) for failure to state a claim

upon which relief can be granted. Jones v. Lieber, 606 F. Supp.

2d 53 (D.D.C. 2009). The district court also ruled that Jones’

complaint failed to state a claim against the acting warden in

either his official or individual capacity. Jones v. Lieber, 579 F.

Supp. 2d 175 (D.D.C. 2008). The district court granted the

detective’s motion to dismiss as conceded when Jones did not

respond. See Order (Jan. 3, 2008).

II.

On appeal, Jones, aided by amicus,3 contends that his pro se

complaint stated plausible claims of unconstitutional

punishment by the prosecutor and the acting warden in view of

his lengthy solitary segregation and “other extreme measures”

he suffered at the D.C. Jail. He maintains that the affirmative

disabilities or restraints imposed upon him have historically or

practically been regarded as punishment for prisoners in

correctional facilities, citing Sandin v. Conner, 515 U.S. 472,

3

Jones filed a pro se brief on appeal and also adopted the

arguments presented by amicus. See Appellant’s Br. 1. In this

opinion we do not distinguish between their arguments.

9

485–86 (1995), and Crosby-Bey v. District of Columbia, 786

F.2d 1182, 1185 (D.C. Cir. 1986), and were imposed without

consideration of whether less excessive means were available.

In support of reversal, Jones emphasizes that he alleged both

physical and emotional harms and that the district court failed to

refer to the factors outlined in Bell v. Wolfish, 411 U.S. 520,

538–39 (1979), and Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168–69 (1963), for determining whether a governmental act

against a pretrial detainee is punitive.

This court reviews de novo the dismissal of a complaint

pursuant to Rule 12(b)(6) for failure to state a claim upon which

relief can be granted. Atherton v. D.C. Office of the Mayor, 567

F.3d 672, 681 (D.C. Cir. 2009). To survive a motion to dismiss,

the pleadings must “suggest a ‘plausible’ scenario” that

“sho[ws] that the pleader is entitled to relief.” Atherton, 567

F.3d at 681(quoting Tooley v. Napolitano, 556 F.3d 836, 839

(D.C. Cir. 2009)). In the Supreme Court’s most recent

reformulation, Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937

(2009):

To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face. A

claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged. The plausibility standard is not

akin to a probability requirement, but it asks for more

than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of

entitlement to relief.

10

Id. at 1949 (internal quotation marks and citations omitted).4 A

pro se complaint “must be held to less stringent standards than

formal pleadings drafted by lawyers,” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (internal quotation marks and citation

omitted), but even it “must plead ‘factual matter’ that permits

the court to infer ‘more than the mere possibility of

misconduct.’” Atherton, 567 F.3d at 681–82 (quoting Iqbal, 129

S. Ct. at 1950).

A.

The premise of Jones’ complaint is that a government

interest in preventing witness tampering falls outside the interest

identified in Bell v. Wolfish as sufficient to deprive a pretrial

detainee of due process protections, namely ensuring conditions

necessary for internal security at the D.C. Jail and to effect his

presence at trial, see id. at 536–37; see also Brogsdale v. Barry,

926 F.2d 1184, 1190 (D.C. Cir. 1991). Restraints aimed at more

general government interests, he maintains, such as the

prosecution’s case against the detainee, can be accomplished

only through a pre-deprivation judicial hearing in which the

government demonstrates that its interest should override the

individual liberty at stake. Even assuming there were valid

reasons to worry about his ability to influence events outside of

the D.C. Jail, Jones notes that there were “clearly less restrictive

means to go about it,” Amicus Br. at 19, pointing to record

evidence that the U.S. Attorney’s Office never investigated what

4

Jones’ reliance on Conley v. Gibson, 355 U.S. 41, 46

(1957), and its somewhat more lenient standard governing motions

under Rule 12(b)(6), is misplaced. The Supreme Court abrogated the

Conley formulation in Bell Atlantic Corp. v. Twombly, 555 U.S. 544,

562–63 (2007). See Francis v. Giacomelli, 588 F.3d 186, 192 (4th

Cir. 2009); see also generally Arthur R. Miller, From Conley to

Twombly to Iqbal: A Double Play on the Federal Rules of Civil

Procedure, 60 DUKE L. REV. 1 (2010).

11

options were available and the district court’s modification of

the conditions of his confinement. Therefore, Jones contends

that where the prosecutor seeks to deprive a pretrial detainee of

liberty interests the deprivation is better examined under the

analysis in Sell v. United States, 539 U.S. 166 (2003), which

involved a government proposal forcibly to medicate a

defendant in order to render him competent to stand trial. The

Supreme Court held that the government was required to

demonstrate to a court that its interests are important, the liberty

deprivation will significantly further those interests, the

deprivation is necessary to further those interests and an

alternative less intrusive action is unlikely to achieve

substantially the same result, and the administration of drugs is

in the patient’s best medical interest in light of his medical

condition. Id. at 180–81. Under this analysis, Jones maintains,

the deprivations imposed by the prosecutor and the acting

warden violated due process and the district court erred in

dismissing his claims against them.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’”

Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The

protection extends “regardless of whether the government

official’s error is a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Id. (internal

citation and quotation marks omitted). It is immunity from suit

rather than a mere defense to liability. Id. It is applicable

“unless the official’s conduct violated a clearly established

constitutional right.” Id. at 816.

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

mandated a two-step sequence for resolving government

12

officials’ qualified immunity claims. A court must first decide

whether the facts alleged by a plaintiff make out a violation of

a constitutional right. Id. at 201. If so, the court must then

decide whether the right at issue was “clearly established” at the

time of the defendant’s alleged misconduct. Id. In Pearson, the

Supreme Court overruled Saucier and held that lower courts

may “exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case

at hand.” 129 S. Ct. at 818. We turn first to the question

whether the right that Jones alleges was one that was “clearly

established” at the time of the prosecutor’s conduct.

Jones’ complaint alleges that the prosecutor requested only

certain deprivations. Specifically, it alleges that she requested

he be “remove[d] from [the] general population and place[d] in

segregation,” and that he “not be allowed social visits, telephone

calls and that . . . mail be withheld.” Compl. at 1. At no point

does the complaint plausibly allege that the prosecutor requested

or even knew of the other alleged conditions, such as the

sanitation and shackles and chains or the restrictions on religious

exercise. Jones thus predicates his appeal on his segregation

from the general population and his loss of visitation, telephone,

and mail privileges. Aside from a conclusory allegation that he

was “being . . . punished,” Compl. at 1, the attachments to

Jones’ complaint indicate that the prosecutor’s requests for the

restrictions were motivated by an intent to protect the safety of

certain individuals in and outside of the D.C. Jail and to prevent

the continued operation of a narcotics trafficking operation from

within the D.C. Jail. See supra note 1. Jones’ complaint alleges

no facts that would give rise to an inference that this stated

purpose was pretextual or that the prosecutor had any other

illegitimate purpose for seeking to have him held in a more

restrictive environment. Rather, Jones contends on appeal that

as a pretrial detainee he had a substantive due process right

13

under Bell v. Wolfish to be free from restrictive conditions of

confinement that were not linked to an institutional purpose and

a right under Sell to be free from such deprivations by a

prosecutor without a prior court order and a heightened showing

of necessity.

In Bell v. Wolfish, the Supreme Court held that the Due

Process Clause protects pretrial detainees “from certain

conditions and restrictions.” 441 U.S. at 534. The Court

instructed that “[i]n evaluating the constitutionality of conditions

or restrictions of pretrial detention that implicate only the

protection against deprivation of liberty without due process of

law, . . . the proper inquiry is whether those conditions amount

to punishment of the detainee.” Id. at 535; see also id. at 537.

Observing that such a detainee “has had only a judicial

determination of probable cause as a prerequisite to extended

restraint of liberty following arrest,” id. at 536 (internal

quotation marks and citation omitted), and a bail hearing when

detained for a suspected violation of a federal law, id.; see 18

U.S.C. §§ 3164, 3148, the Court stated that “[a]bsent a showing

of an expressed intent to punish on the part of detention facility

officials, that determination generally will turn on ‘whether an

alternative purpose to which [the restriction] may rationally be

connected is assignable for it, and whether it appears excessive

in relation to the alternative purpose assigned [to it],’” id. at 538

(quoting Mendoza-Martinez, 372 U.S. at 567–68). “Thus, if a

particular condition or restriction of pretrial detention is

reasonably related to a legitimate governmental objective, it

does not, without more, amount to ‘punishment.’” Id. at 539.5

5

The Court noted that “[r]etribution and deterrence are not

legitimate nonpunitive governmental objectives.” Id. at 539 n.20.

Conversely, loading a detainee with chains and shackles and

throwing him in a dungeon may ensure his presence at trial

14

The Court reaffirmed these principles in Block v. Rutherford,

468 U.S. 576, 583 (1984), rejecting a constitutional challenge to

a blanket prohibition on contact visits and cell searches

unobserved by the detainee as reasonably related to the security

of that facility and not implicating any “fundamental liberty

interests.” Id. at 597.

Jones’ reliance on Bell v. Wolfish to demonstrate a “clearly

established constitutional right,” Pearson, 129 S. Ct. at 815, that

would prevent the prosecutor from causing a pretrial detainee to

be removed from the general population and placed in

segregation and denied certain privileges in order to protect

individuals in and outside of the detention facility, is misplaced.

The substantive due process protections afforded by Bell v.

Wolfish and its progeny against punishment contemplate that a

legitimate government interest may require additional

restrictions on pretrial detainees. 441 U.S. at 538–39. Jones’

contention that Bell v. Wolfish created a right to be subject to

restrictive confinement only for a legitimate institutional, as

opposed to any non-punitive, interest has no basis in either the

text of the opinion or the decisions of those circuit courts of

appeal that have considered the question and concluded that

imposing restrictions in order to prevent violence outside the

prison walls is a legitimate non-punitive interest for purposes of

satisfying Bell v. Wolfish. Valdez, 302 F.3d at 1046–47; see

Love v. Kirk, 360 F. App’x 651, 654 (7th Cir. 2010). Taking the

and preserve the security of the institution. But it would be

difficult to conceive of a situation where conditions so harsh,

employed to achieve objectives that could be accomplished in

so many alternative and less harsh methods, would not

support a conclusion that the purpose for which they were

imposed was to punish.

Id.

15

allegations in Jones’ complaint as true, see Kalina v. Fletcher,

522 U.S. 118, 122 (1997), provides no basis for a determination

that the prosecutor was motivated by the desire to punish Jones.

See Valdez v. Rosenbaum, 302 F.3d 1039, 1046 (9th Cir. 2002).

Looking to public filings and the disclosures by the prosecutor

in her letter to Jones’ defense counsel, the district court found

that the prosecutor had concluded Jones was attempting to

continue his illegal drug operation from the D.C. Jail and may

have been attempting to identify, locate, and possibly harm

persons cooperating with the United States in his prosecution,

one of whom was housed at the D.C. Jail. Although Jones was

held in a restrictive environment for almost five months, Jones

does not allege that the prosecutor’s purpose ever changed. No

party explains the gap in time between December 5, 2005, when

Jones’ defense counsel received the prosecutor’s letter stating

the reasons for the restrictions, and February 26, 2006, when

defense counsel filed a motion to modify the conditions, and this

delay in seeking post-deprivation relief from the district court

accounts for three-fifths of the time Jones was in administrative

segregation.

In the absence of factual allegations giving rise to a

plausible inference of pretext, the allegations against the

prosecutor in Jones’ complaint and the attachments supplying

the inference that the prosecutor acted to prevent crime and

physical harm, must be subject to a Rule 12(b)(6) dismissal to

the extent Jones relies on Bell v. Wolfish. The right that Jones

suggests — a right while in pretrial detention to be free from

restrictions that exceed those imposed on the general population,

unless the restriction has an institutional as distinct from a

prosecutorial purpose or is required by a court order — was not

at the time of the prosecutor’s actions “clearly established.”

Likewise, Jones’ contention that Sell, 539 U.S. at 181,

provides a right to a pre-deprivation hearing at which the

16

prosecutor bears a heightened burden to demonstrate the need

for restrictive conditions fails. Jones’ suggestion that the court

apply the Sell standard is flawed. First, Jones relies on the

description of one of the four factors applied in Sell, 539 U.S. at

181, and not on the Court’s statement regarding the scope of the

applicability of the factors. Second, Jones’ suggestion of an

analogy between the United States’ interests in each situation is

weak at best. The interest in bringing a psychotic defendant to

trial, where the alternative is “lengthy confinement in an

institution for the mentally ill . . . that would diminish the risks

that ordinarily attach to freeing without punishment one who has

committed a serious crime,” id. at 180, is not comparable to

decisions regarding conditions of confinement of which dozens

if not hundreds may be made in a single facility in a single day

and may be exigent when the health and safety is involved.

Third, to the extent Sell can be interpreted to apply to conditions

of pretrial detention beyond medicating incompetent criminal

defendants with antipsychotic drugs in order to render them

competent to stand trial, such a right was not “clearly

established,” Pearson, 129 S. Ct. at 815, at the time of the

prosecutor’s actions.

Because Jones fails to show that either a right under Bell v.

Wolfish to be free from restrictive pretrial confinement except

for a strictly institutional, as opposed to a non-punitive

governmental purpose, or a right under Sell to be free from

restrictive pretrial confinement sought by a prosecutor absent a

pre-deprivation showing to the district court, was “clearly

established,” Pearson, 129 S. Ct. at 815, at the time of the

prosecutor’s challenged conduct, and because it is “far from

obvious whether in fact there is such a right,” id. at 818, the

court need not decide whether either asserted right exists.

The Supreme Court has instructed that not everything a

prosecutor does as part of her duties is protected by absolute

17

immunity for activities “intimately associated with the judicial

phrase of the criminal process,“ Imbler v. Pachtman, 424 U.S.

409, 430 (1976), such that investigative activities normally

performed by a detective or police officer are entitled to only

qualified immunity, Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993). See Kalina v. Fletcher, 522 U.S. 118, 126 (1997);

Atherton, 567 F.3d at 686. Even assuming a prosecutor’s

instruction that a pretrial detainee be placed in protective

custody to protect witnesses at his criminal trial was entitled to

absolute immunity,6 the prosecutor’s instruction that Jones be

6

To the extent that the prosecutor’s “requests” to D.C. Jail

officials were made for the purpose of protecting witnesses at Jones’

trial, the protection of trial witnesses may be a function “intimately

associated with the judicial phase of the criminal process,” see Kalina,

522 U.S. at 125, but a decision that the prosecutor was acting in that

capacity would require the resolution of factual inferences in the

prosecutor’s favor, rather than in Jones’ favor as our standard of

review requires. That is, the prosecutor informed D.C. Jail officials

only that she sought “to ensure the safety of various individuals, and

the integrity of the investigation.” The detective’s affidavit reveals

that the lockdown request may have been aimed at preventing Jones

from participating in an ongoing narcotics trafficking operation. The

prosecutor’s letter to Jones’ defense counsel indicates that weeks

before requesting Jones be placed in lockdown the U.S. Attorney’s

Office “received information through various channels, including from

agents wholly unrelated to this investigation, that [Jones] . . . was

attempting to identify witnesses against him and ‘take care of them.’”

Yet in instructing D.C. Jail officials to place Jones in “lockdown until

further notice,” the prosecutor stated her purpose was to “ensure the

safety of various individuals, several of whom remain unknown to the

government.” It thus is unclear from the record before this court that

trial witnesses and individuals were one and the same, and to the

extent Jones was alleged to have threatened individuals other than trial

witnesses, protection of them would appear to be an “investigative

function[] normally performed by a detective or police officer,”

Buckley, 509 U.S. at 273, and beyond the scope of absolute immunity.

18

placed in “lockdown until further notice” and his social,

telephone, and mail privilege be withdrawn would appear to be

in the nature of an administrative function normally performed

by correctional officials at the D.C. Jail and as such would be

entitled to only qualified immunity. See Kalina, 522 U.S. at

126; Buckley, 509 U.S. at 273–74. Similarly the prosecutor’s

formal request for an immediate investigation by the acting

warden of why Jones had not been placed in restrictive

confinement at the D.C. Jail earlier pursuant to the U.S.

Attorney’s Office’s directions likewise appears to be in the

nature of an administrative function entitled to only qualified

immunity. Because the prosecutor was, in any event, entitled at

least to qualified immunity, however, Jones’ claims against the

prosecutor were properly dismissed pursuant to Rule 12(b)(6)

for failure to state a claim upon which relief can be granted.

B.

To state a claim under section 1983, Jones had to allege

facts sufficient to show that the acting warden, acting under

color of District of Columbia law, subjected Jones to the

deprivation of a constitutional right. See City of Oklahoma City

v. Tuttle, 471 U.S. 808, 829 (1985). Although the District of

Columbia, as a municipal corporation, is a “person” for purposes

of section 1983 liability, because the person sued must have

“caused” the deprivation of rights, section 1983 liability cannot

rest on a respondeat superior theory, whether the person is sued

in his official capacity, see Monell v. Dep’t of Social Services,

436 U.S. 658, 691 (1978), or in his individual capacity,

Kentucky v. Graham, 473 U.S. 159, 168 (1985).

Jones failed to allege in his complaint any punitive change

to his conditions of confinement by the acting warden or that a

District of Columbia government policy or custom caused the

19

alleged violation of his constitutional rights. See Monell, 436

U.S. at 694; Warren v. District of Columbia, 353 F.3d 36, 38

(D.C. Cir. 2004). He has not alleged that named D.C. Jail

officials, much less the acting warden, made or had the

responsibility for making the decisions about where he was to be

housed in response to the U.S. Attorney’s Office’s concerns, and

so the court need not address whether the complaint stated a

plausible claim that the restrictions were excessive in relation to

their purpose, given the allegations in the complaint regarding

the breadth and duration of the restrictions and the district

court’s evaluation in April 2006 of what was adequate to address

the concerns of the U.S. Attorney’s Office. Although detention

administrators “are not required to employ the least restrictive

means available,” Block, 468 U.S. at 590 n.10; see also id. at

591 n.11, in Bell v Wolfish the Supreme Court identified certain

limits past which it would be difficult for a court not to conclude

a pretrial detainee was being punished when less extreme

alternatives were available, 441 U.S. at 539 n.20, see supra note

5. Other circuit courts of appeal have suggested that the

duration of deprivations, in light of prison policy, may show

their punitive nature. See Collazo-Leon v. U.S. Bureau of

Prisons, 51 F.3d 315, 318 (1st Cir. 1995); Union County Jail

Inmates v. Di Buono, 713 F.2d 984, 991 (3d Cir. 1983). The

liability of other D.C. Jail officials not named in Jones’

complaint, however, are not before the court in this appeal; nor

is the liability of the acting warden under a hypothetical scenario

in which he was alleged to be a policymaker or directly involved

in the decision to segregate Jones.

Jones contends that certain allegations, including those

regarding the squalid and unsanitary conditions and the routine

extreme physical restraint necessarily allege a custom or policy.

But to survive a motion to dismiss pursuant to Rule 12(b)(6)

Jones had to allege “that a District custom or policy caused the

claimed violations of his constitutional rights.” Warren, 353

20

F.3d at 39; see City of Oklahoma City, 471 U.S. at 829.

Causation can be shown in several ways, but Jones alleges none.

Causation exists if “the municipality or one of its policymakers

explicitly adopted the policy that was ‘the moving force of the

constitutional violation.’” Warren, 353 F.3d at 39 (quoting

Monell, 436 U.S. at 694). Jones’ complaint does not allege that

either the District government or a policymaker in its employ

explicitly adopted a policy governing conditions in the S-1 Unit

where he was placed in segregation and denied privileges.

Causation would also exist if a policymaker “knowingly

ignore[d] a practice that was consistent enough to constitute

custom.” Id. (citing City of St. Louis v. Praprotnik, 485 U.S.

112, 130 (1988)). But neither Jones’ complaint nor his

contentions on appeal identify a policymaker who knew of the

conditions in the S-1 Unit and ignored them. Finally, causation

may exist if the District government 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 v. District of Columbia, 326 F.3d 1302, 1306

(D.C. Cir. 2003). Deliberate indifference “is determined by

analyzing whether the municipality knew or should have known

of the risk of constitutional violations,” but did not act. Id.

Although [causation] is an objective standard, it

involves more than mere negligence. It does not

require the District [government] to take reasonable

care to discover and prevent constitutional violations.

It does mean that, faced with actual or constructive

knowledge that its agents will probably violate

constitutional rights, the [District government] may not

adopt a policy of inaction.

Warren, 353 F.3d at 39.

21

In Warren, the court reversed the dismissal of a complaint

because the plaintiff had alleged that “that the District

[government] ‘knew or should have known’ about the ongoing

constitutional violations, but did nothing.” Id. Although Jones’

complaint may be read to allege ongoing conditions that were

enforced against him and all residents of the S-1 Unit, it does

not allege any actual or constructive knowledge by a

policymaker. The complaint contains not even a conclusory

allegation that anyone other than the corrections officers

working in the S-1 Unit were aware of the conditions in the S-1

Unit. The complaint is thus as susceptible to the conclusion that

D.C. Jail staff acted without direction in failing to address the

conditions in the S-1 Unit as it is to an interpretation that a

policymaker was aware of the conditions and chose not to act.

“Where a complaint pleads facts that are merely consistent with

a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Iqbal, 129

S. Ct. at 1949 (internal citation and quotation marks omitted).

Because Jones’ complaint alleges no theory of causation

whereby the District government or one of its policymakers

caused Jones’ alleged constitutional violations, the claims

against the acting warden to the extent they were alleged in his

official capacity were properly dismissed pursuant to Rule

12(b)(6) for failure to state a claim. Additionally, to the extent

Jones has sued the acting warden in his personal capacity, the

complaint does not allege any conduct by the acting warden

other than his March 1, 2006 memorandum responding to Jones’

housing grievance. Although the complaint names others to

whom Jones complained about his housing conditions and

privilege restrictions, the acting warden is not among them. The

acting warden also is not mentioned in connection with the

squalid conditions of confinement in the S-1 Unit. Nor did

Jones allege any policy or practice whereby the acting warden

was the person who made the decisions regarding the conditions

22

of his confinement. Because the acting warden cannot be held

liable pursuant to section 1983 for the conduct of others on a

theory of respondeat superior, see Monell, 436 U.S. at 691;

Graham, 473 U.S. at 166, and Jones’ complaint (and

attachments) does not allege or give rise to a plausible inference

that the acting warden had any personal involvement in the

decision to transfer him to the S-1 Unit from the general

population, Jones’ complaint fails to state a claim against the

acting warden in his personal capacity.

C.

Finally, Jones’ contention that the district court erred in

dismissing his other claims against the detective as conceded is

unpersuasive.

On August 27, 2007, the detective who prepared the

affidavit in support of the search warrant of Jones’ cell at the

D.C. Jail on November 23, 2005, filed a motion to dismiss. The

District government served the motion on Jones by first-class

mail addressed to Jones at the D.C. Jail. On August 30, 2007,

the district court issued an order informing Jones of his

obligation to file an opposition or other response to the motion

to dismiss and warning Jones that if he failed to file an

opposition within 30 days the district court may assume the

motion is conceded. Jones never filed an opposition, and on

January 4, 2008, the district court granted the motion to dismiss

as conceded. See Order, Jones v. Lieber, No. 07-1027 (D.D.C.

Jan. 4, 2008), ECF No. 28.

Jones contends for the first time on appeal that he never

received the motion to dismiss or the August 30, 2007 order.

Issues and legal theories presented for the first time on appeal

ordinarily will not be heard on appeal. See Hormel v. Helvering,

312 U.S. 552, 556 (1941); Prime Time Int’l Co. v. Vilsack, 599

F.3d 678, 686 (D.C. Cir. 2010) (citations omitted). This is

23

especially so where the issue requires the development of new

facts on appeal. Jones presents no compelling reason why he

could not have raised this issue in the district court in either a

motion for reconsideration of the January 4, 2008 order or a

motion to vacate and set aside the final judgment of dismissal of

March 30, 2009, pursuant to Rule 59(e) of the Federal Rules of

Civil Procedure. Instead Jones maintains that he has presented

a plausible case of non-receipt by referencing instances in his

other cases where he did not receive court documents. But,

unlike those instances, the detective’s motion was never

returned as undeliverable and Jones had not been transferred

from the D.C. Jail where the motion was sent. Jones does not

maintain that he did not receive the order dismissing his

complaint as to the detective, which also was mailed to him at

the D.C. Jail. In any event, Jones might be precluded from

claiming now that the detective fabricated parts of the affidavit

supporting the search warrant for his jail cell because in his

criminal case he filed a motion to suppress the seized materials

attacking the sufficiency of the affidavit; the motion was denied

and Jones did not appeal the denial. See Allen v. McCurry, 449

U.S. 90, 94 (1980); Maynard, 615 F.3d 544 (Order Dec. 17,

2010 granting stay of mandate).

Jones’ other contention that the dismissal was infirm

because the Order failed to specify that the dismissal was

without prejudice, is without merit. Rule 41(b) of the Federal

Rules of Civil Procedure provides that when a plaintiff fails to

prosecute a claim or fails to comply with a court order that a

subsequent dismissal for that reason “operates as an adjudication

on the merits.” The Supreme Court has interpreted this phrase

as synonymous with dismissal “with prejudice.” Semtek Int’l

Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001).

Although Rule 41(b) refers to dismissal for these reasons on

motion by defendant, “the district court may dismiss [a

complaint] on its own motion for want of prosecution or for

24

failure to comply with a court order.” 9 CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &

PROCEDURE § 2372 (3d ed. 2010); see also Link v. Wabash R.R.

Co., 370 U.S. 626, 629–30 (1962). Far from causing an

infirmity, the district court’s failure to act sua sponte resulted in

the applicability of Rule 41(b)’s “default rule for determining a

dismissal’s import,” Semtek, 531 U.S. at 498, whereby an

involuntary dismissal pursuant to Rule 41(b) is with prejudice

unless otherwise indicated in the dismissal order.

Jones notes that Local Rule 83.23 of the District Court for

the District of Columbia requires that an order dismissing a

claim for failure to prosecute specify that the dismissal is

without prejudice. The district court’s order, however, is not for

failure to prosecute but for failure to comply with the district

court’s scheduling order. As a consequence, the local rule is

inapplicable.7

7

To the extent Jones notes that most jurisdictions allow

amendment of a complaint to overcome deficiencies, in this circuit “a

request for leave [to amend] must be submitted in the form of a written

motion” and the motion must “state with particularity the grounds for

seeking the order [and] state the relief sought.” Benoit v. U.S. Dep’t

of Agric., 608 F.3d 17, 21 (D.C. Cir. 2010). Jones did not file a

motion for leave to amend, but instead filed this appeal. As a

consequence, the district court did not abuse its discretion in failing

sua sponte to grant leave to amend. Additional contentions raised by

Jones in his reply brief are not properly before the court. He contends

that: (1) the prosecutor engaged in “outrageous misconduct” in the

interrogation of a witness; (2) FBI agents unnamed in the complaint

are liable for the search of his jail cell; and (3) the detective listened

to Jones’ telephone conversations without a warrant. None of these

arguments were presented to the district court and they may not be

raised for the first time on appeal. Further, because these contentions

appear only in Jones’ reply brief, and the government has thus been

denied an opportunity to respond, the court will not consider them.

25

Accordingly, we affirm the orders dismissing the claims

against the prosecutor and the acting warden for failure to state

a claim upon which relief can be granted and the claims against

the detective as conceded.

See Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 376

(D.C. Cir. 2010). As these allegations are not included in Jones’

complaint, it also is unclear what relevance they have in review of the

orders he challenges on appeal.