LESESNE v. JOHN DOE, et al
MEMORANDUM OPINION re: Defendants' 51 MOTION to Dismiss or in the alternative for Summary Judgment. Signed by Judge Christopher R. Cooper on 8/21/2014. (tcr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN B. LESESNE,
Case No. 10-cv-00602 (CRC)
JOHN DOE, et al.,
Plaintiff John Lesesne alleges that he suffered physical injuries and emotional distress
due to negligent treatment by the District of Columbia Department of Corrections (“DOC”)
while hospitalized for a gunshot wound following his arrest. He has sued the District of
Columbia, the DOC, and several named and unnamed DOC employees. The Defendants move
to dismiss or for summary judgment. Because Lesesne has failed to allege any custom or policy
by the District that caused his injuries, and because he alleges no negligence by Defendant Henry
R. Lesansky, the Court will dismiss these parties. The Court finds that Lesesne’s statutory notice
to the District put the city on notice of the necessary facts underlying his claims, and that
Lesesne has adequately pled negligent infliction of emotional distress. It will therefore deny the
Defendants’ motion as to those claims.
Lesesne was shot in the abdomen by his brother, a D.C. police officer, who, according to
a police report, Lesesne had attacked with a knife. Defs.’ Mem. in Supp. of Mot. to Dismiss, Ex.
1 at 2. He was arrested and taken to a nearby hospital where he underwent surgery. During his
ensuing hospital stay, Lesesne was in the custody of the District of Columbia Department of
Corrections. In his amended complaint, Lesesne alleges that DOC personnel continuously
handcuffed him to his bed and ignored his attending physicians’ requests that he be allowed to
receive physical and occupational therapy, causing long-term injury. Id. ¶¶ 15–18. Later, when
the hospital discharged him, DOC officers allegedly made Lesesne walk to a transport vehicle
while shackled and then dropped him, causing a pulmonary embolism. Id. ¶¶ 20–22. After a
second trip to a hospital and a return to the D.C. Jail, Lesense claims he contracted a staph
infection because DOC denied him adequate medical treatment. Id. ¶¶ 26–28.
Lesesne brought suit in this Court against the DOC, the District of Columbia and three
individuals: an unnamed DOC officer that oversaw his detention; Captain David Holmes, a DOC
employee; and Henry R. Lesansky, a DOC health services administrator. His initial complaint
listed sixteen claims, including for violations of the Fourth, Eighth, and Fourteenth Amendments,
and intentional infliction of emotional distress. Compl. ¶¶ 27–42. Judge Wilkins, who was
previously assigned to this case, granted the District’s motion to dismiss for failure to exhaust
administrative remedies under the Prison Litigation Reform Act, Pub.L. 104–134, 110 Stat.
1321, and for failure to state a claim for intentional infliction of emotional distress. Order, Dkt.
32 (Sept. 30 2011). The D.C. Circuit reversed as to Lesesne’s federal claims. Mandate, Dkt. 35
(June 4, 2014). After remand, Lesesne filed an amended complaint alleging a violation of the
Eight Amendment’s prohibition against cruel and unusual punishment pursuant to 42 U.S.C. §
1983, negligence, and negligent infliction of emotional distress. The Defendants move to
dismiss, or alternatively for summary judgment, as to Lesesne’s constitutional claims against the
District of Columbia and Dr. Lesansky, and his claims for negligence and negligent infliction of
emotional distress against all Defendants. The Court held a hearing on the Defendants’ motion
on June 17, 2014.
Standard of Review
To survive a motion to dismiss for failure to state a claim, a complaint must contain
sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Id. at 556. The complaint must contain more than “a
formulaic recitation of the elements of a cause of action” and “naked assertion[s]” devoid of
“further factual enhancement.” Id. at 555, 557. The Court assumes the plaintiff’s factual
assertions to be true and draws all inferences in the plaintiff’s favor. Id.
Summary judgment should be granted when “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 it could affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute is genuine if the “evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. The “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The non-movant, however, must establish more than “the existence of a scintilla of evidence” in
support of his position, id. at 252, and may not rely solely on allegations or conclusory
statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
The Defendants argue that (1) Lesesne’s constitutional claim against the District of
Columbia should be dismissed because the amended complaint does not allege any policy or
custom by the District that caused his injuries; (2) the amended complaint fails to allege any
actions by Dr. Lesansky that caused Lesesne’s injuries; (3) Lesesne failed to provide notice of
his tort claims under D.C. Code § 12-309; and (4) the Defendants cannot be liable for negligent
infliction of emotional distress because Lesesne’s psychological well-being was not the primary
basis of their relationship with him while he was detained. Defs.’ Mot. to Dismiss at 1–2. The
Court will address each of these arguments in turn.
A. Plaintiff’s Constitutional Claim Against the District
Lesesne brings this action under 42 U.S.C. § 1983, which permits suit against any person
acting under state law for the deprivation of a plaintiff’s constitutional and legal rights. The
District of Columbia is considered a “person” for purposes of § 1983. See, e.g., Best v. Dist. of
Columbia, 743 F. Supp. 44, 46 (D.D.C. 1990). “[I]n considering whether a plaintiff has stated a
claim for municipal liability, the district court must conduct a two-step inquiry.” Baker v. Dist.
of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). The court “[f]irst . . . must determine
whether the complaint states a claim for a predicate constitutional violation.” Baker, 326 F.3d at
1306. If so, then “the court must determine whether the complaint states a claim that a custom or
policy of the municipality caused the violation.” Id. 1
Where, as here, the defendant is a municipality, “[d]eliberate indifference is determined
by analyzing whether the municipality knew or should have known of the risk of constitutional
violations, an objective standard.” Baker, 326 F.3d at 1307 (citing Farmer v. Brennan, 511 U.S.
Because “the Department of Corrections is not an entity capable of being sued separate from
the District of Columbia,” Carter-El v. Dist. of Columbia Dep’t of Corr., 893 F. Supp. 2d 243,
247 (D.D.C. 2012), aff’d per curiam, No. 12-5357, 2013 WL 3367416 (D.C. Cir. July 5, 2013), it
will be dismissed as a party to this action. See, e.g., Oladokun v. Corr. Treatment Facility, __ F.
Supp. 2d __, 2013 WL 6147940, at *4 (D.D.C. Nov. 22, 2013). And because “it is duplicative to
name both a government entity and the entity’s employees in their official capacity” as
defendants to an action, Robinson v. Dist. of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005),
Lesesne’s claims against all individual defendants in their official capacities, see Am. Compl. ¶¶
5–6, will be dismissed “as redundant and an inefficient use of judicial resources,” Robinson, 403
F. Supp. 2d at 49 (internal quotation marks and citations omitted). The Court will allow claims
against Defendant Holmes in his individual capacity to proceed pending discovery.
825, 841(1994)). “[I]t is when execution of a government’s policy or custom . . . inflicts the
injury that the government as an entity is responsible under § 1983.” Brown v. Dist. of
Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008) (citing Monell, 436 U.S. at 694). Plaintiff,
then, must “allege an affirmative link . . . such that a municipal policy was the moving force
behind the constitutional violation.” Baker, 326 F.3d at 1206 (internal quotation marks and
Assuming for the sake of argument that Lesesne has stated a claim for a predicate
constitutional violation,2 his claim against the District still must be dismissed because the
amended complaint fails to allege a custom, policy or practice of the District or the DOC that
caused Lesesne’s injuries. See, e.g., Yancey v. Dist. of Columbia, __ F. Supp. 2d __, 2013
WL 5931543, at *5–6 (D.D.C. Nov. 6, 2013) (dismissing § 1983 claim where plaintiff “has not
provided any indication that her situation was the result of any custom, practice or policy of the
District”); Poindexter v. D.C. Dep’t of Corr., 891 F. Supp. 2d 117, 125 (D.D.C. 2012) (same).
Indeed, Lesesne’s counsel acknowledged at the hearing on this motion that the amended
complaint does not identify any District policy or practice that led to Mr. Lesesne’s injuries.
B. Claims Against Dr. Lesansky
Dr. Lesansky, a health services administrator with the DOC, moves to dismiss the
complaint as against him. Because the amended complaint lacks any factual allegation
concerning Dr. Lesansky’s personal involvement in the treatment Lesesne received, or did not
While Lesesne brings his claim under the Eighth Amendment, that provision only applies to
post-conviction detentions. E.g., Brogsdale v. Barry, 926 F.2d 1184, 1187 (D.C. Cir. 1991). As
a pretrial detainee, Lesesne’s claim is properly brought under the Fifth Amendment Due Process
Clause’s independent prohibition against the deliberate indifference of government officials to
the substantial medical needs of detaineees. E.g., Powers-Bunce v. Dist. of Columbia, 479 F.
Supp. 2d 146, 153 (D.D.C. 2007). Thus, the Court will proceed as if Lesesne’s claims had been
brought under the Fifth Amendment. See Oladokun v. Corr. Treatment Facility, __ F. Supp. 2d
__, 2013 WL 6147940, at *5 n.8 (D.D.C. Nov. 22, 2013).
receive, while in DOC custody, the Court will dismiss all claims against him in his individual
capacity. See Jones v. Horne, 634 F.3d 588, 602 (D.C. Cir. 2011) (dismissing prisoner’s § 1983
claims against individual where complaint did not allege personal conduct causing alleged
constitutional violations); Jeffries v. Dist. of Columbia, 917 F. Supp. 2d 10, 25–26 (D.D.C.
2013) (same); Way v. Johnson, 893 F. Supp. 2d 15, 22 (D.D.C. 2012) (same).
C. Notice under D.C. Code § 12-309
Section 12-309 of the D.C. Code requires that a plaintiff seeking damages against the
District of Columbia first give notice “of the approximate time, place, cause, and circumstances
of the injury or damage.” Compliance with Section 12-309 is a mandatory prerequisite to filing
tort claims against the District of Columbia. E.g., Dist. of Columbia v. Dunmore, 662 A.2d
1356, 1359 (D.C. 1995); Gwinn v. Dist. of Columbia, 434 A.2d 1376, 1378 (D.C. 1981).
While Section 12-309 “is to be strictly construed,” Gwinn, 434 A.2d at 1378, written
notice for purposes of Section 12-309 is sufficient if it includes the approximate time, place,
cause, and circumstances of the injury or damage. Washington v. Dist. of Columbia, 429 A.2d
1362, 1366–67 (D.C. 1981) (en banc). “[T]he adequacy of the circumstances described must be
determined with reference to the purpose of the statutory notice requirement which is . . . to give
the District timely information concerning a claim against it, so it may adequately prepare its
defense.” Washington, 492 A.2d at 1366 (citing Pitts v. Dist. of Columbia, 391 A.2d 803, 809
(D.C. 1987)) (internal quotation marks omitted). Section 12-309 “impose[s] only reasonable
requirements upon claimants.” Hurd v. Dist. of Columbia, 106 A.2d 702, 704 (D.C. 1954). As
long as “the District is given facts that would allow it to comprehend through a reasonable
investigation the circumstances underlying the claim, the notice is sufficient.” Enders v. Dist. of
Columbia, 4 A.3d 457, 468 (D.C. 2010) (citations omitted); see Washington, 429 A.2d at 1366
(“[T]he circumstances must be detailed enough for the District to conduct a prompt, properly
focused investigation of the claim.”).
Lesesne provided his Section 12-309 notice in in a letter to the District’s Office of Risk
Management. The letter indicated that Lesesne’s injury “occurred 30 March 08 through 30 April
08, while hospitalized for gunshot wound;” that his “‘physician prescribed physical therapy’”
was denied; that DOC handcuffed him “for the entirety of a 24 hour day;” that he suffered from
“paralysis in leg due to nerve damage from gunshot wound;” and that he would provide medical
records from two hospitals, P.G. Community and Greater Southeast. Defs.’ Mem., Ex. 2 (Letter
to Office of Risk Management from Plaintiff dated September 23, 2008).
The District maintains that Lesesne’s notice was insufficient because it did not identify
the specific location or time of his injury. The Court disagrees. The notice identifies the time
period that Lesesne was in DOC’s custody, including when he was allegedly cuffed to a hospital
bed, mishandled while in transport, and denied physical therapy, all of which Lesesne claims
resulted in his injuries. The notice also explains that Lesesne received treatment at two particular
hospitals, including the hospital, Prince George’s Hospital, where he was allegedly injured at the
hands of the DOC. Although the District complains that the notice does not say specifically that
Lesesne’s injuries occurred at Prince George’s, the District easily could have figured that out
from the information provided. After all, the District itself brought Lesesne to Prince George’s
after his arrest and held him in custody there while he sustained his injuries. See, e.g., Hurd, 106
A.2d at 704–705 (letter provided sufficient notice despite listing incorrect address because the
improper address, coupled with contextual information in the letter including a description of the
building, allowed the District to reasonably determine the correct address); see also Allen v. Dist.
of Columbia, 533 A.2d 1259, 1264 (D.C. 1987) (notice sufficient where it enabled the District to
initiate an investigation of its own police records that would reveal more specific information
regarding the allegations). Moreover, the period of time listed in the notice accords with the
period during which Lesesne was detained and sustained his injuries. That he alleges a denial of
proper medical treatment over an extended period does not make his notice insufficiently precise
as to the time of his injuries.
D. Negligent Infliction of Emotional Distress
Under District of Columbia law, a plaintiff may recover for negligent infliction of
emotional distress (NIED) under two tests. Under the well-established “zone of danger” test, a
plaintiff may recover “if the defendant’s actions caused [plaintiff physical injury or caused
plaintiff] to be ‘in danger of physical injury’ and . . . , as a result, the plaintiff ‘feared for his own
safety.’” Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 796 (D.C. 2011) (quoting
Williams v. Baker, 572 A.2d 1062, 106) (D.C. 1990) (en banc)). Alternatively, the D.C. Court
of Appeals permits NIED claims when an individual was not within the zone of danger where
there is an “special relationship” between the parties:
[A] plaintiff may recover for negligent infliction of emotional distress if the
plaintiff can show that (1) the defendant has a relationship with the plaintiff, or
has undertaken an obligation to the plaintiff, of a nature that necessarily
implicates the plaintiff’s emotional well-being, (2) there is an especially likely
risk that the defendant’s negligence would cause serious emotional distress to the
plaintiff, and (3) negligent actions or omissions of the defendant in breach of that
obligation have, in fact, caused serious emotional distress to the plaintiff.
Hedgepeth, 22 A.3d at 810–811.
Focusing solely on the “special relationship” test, Defendants contend that Lesesne’s
negligent infliction of emotional distress claim should be dismissed because “no one at the DOC
undertook a relationship with the Plaintiff such that his emotional well-being was the subject and
purpose of the engagement.” Defs.’ Mem. at 15. While that might be so, Defendants do not
explain why the zone of danger test—the more common means of establishing an NIED claim—
would not apply in these circumstances. As the Attorney General’s Office surely recognizes, the
District may be liable under the zone of danger test if its “negligent conduct has put the Plaintiff
in danger of bodily harm’” and resulted in serious emotion distress. Hedgepeth, 22 A.3d at 811
(citing Williams, 572 A.2d at 1067) (footnote omitted). Here, Lesesne claims that the District’s
“negligent conduct in denying physical and occupational therapy as directed by [p]laintiff’s
attending physicians,” caused him to suffer “serious emotional distress” as well as “mental and
emotional anguish and distress.” Am. Compl. ¶¶ 50–51. By virtue of his custody, Lesesne thus
adequately alleges that Defendants’ negligence placed him within a “zone of danger” resulting in
serious emotional harm, and the claim survives Defendants’ motion to dismiss.
For the reasons discussed above, the Court will grant Defendants’ motion in part and
deny it in part. Plaintiff’s constitutional claims against the District of Columbia, all claims
against the DOC, all claims against individual defendants in their official capacities, and all
claims against Dr. Lesansky in any capacity will be dismissed. An order accompanies this
CHRISTOPHER R. COOPER
United States District Judge
August 21, 2014
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