COLBERT et al v. DISTRICT OF COLUMBIA et al

Filing 63

MEMORANDUM AND OPINION on 57 motion for partial reconsideration. Signed by Judge Rosemary M. Collyer on 6/25/2015. (KD)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
KATINA COLBERT, et al.,
Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
_________________________________

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Civil Action No. 13-531 (RMC)

OPINION
Plaintiff Jacqueline Colbert brought this suit in her individual capacity, as next
friend of her intellectually disabled adult daughter Katina Colbert (K.C.), and as personal
representative of the Estate of T.C., K.C.’s deceased infant child. While she allegedly is unable
to consent to sexual activity, K.C. became pregnant while residing in a group home for disabled
adults. The group home was operated by Total Care Services, under contract with the District of
Columbia. With little or no prenatal care, K.C. gave birth to a daughter, T.C. T.C. had
significant medical problems and died when she was just over a year old. Based on an alleged
violation of K.C.’s constitutional rights as well as numerous other grounds, Jacqueline Colbert
seeks damages from Total Care and the District of Columbia.
On January 12, 2015, the Court dismissed, inter alia, Ms. Colbert’s claim under
the Rehabilitation Act, 29 U.S.C. § 794(a), for failure to state a claim. Ms. Colbert now moves
for reconsideration and reinstatement of the Rehabilitation Act claim. As explained below, the
motion for reconsideration will be denied.

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I. FACTS
In September 2008, K.C. was 31 years old and living in an emergency shelter for
the homeless in the District of Columbia. Am. Compl. [Dkt. 29] ¶ 87. She had three small
children who were in the custody of D.C. Child and Family Services. Id. For reasons that are
unexplained, K.C. was hospitalized and referred for a psychological assessment. Id. Dr. Tonya
Lockwood, a licensed psychologist, conducted the assessment. Dr. Lockwood determined that
K.C. had an IQ of 53; that she functioned “within the moderate range of mental retardation
cognitively and adaptively;” 1 that she needed “medical and psychiatric stabilization;” that she
needed to be referred to a neurologist to “rule out . . . dementia;” that she suffered from
“symptoms of Post Traumatic Stress Disorder;” and that she had “symptoms of depression as
well as grief related to the loss of her children and her own mortality.” Surreply [Dkt. 51], Ex. 2
(Lockwood Report) at 1, 8. 2 Dr. Lockwood determined that K.C. was “unable to make
independent decisions with regard[ ] to her finances, medical treatment, housing, habilitation,
and life planning,” and recommended “emergency residential placement in a community
residential facility with on-site medical support as well as 24-hour supervision.” Id. at 8. Soon
thereafter, K.C. moved into a group home operated by Total Care, under contract with the
District. It is unclear whether K.C. was voluntarily or involuntarily committed to the custody of
the District of Columbia.
Due to K.C.’s “retardation and low developmental age,” Ms. Colbert alleges that
K.C. was and is incapable of consenting to sexual activity. Id. ¶ 11. Even so, K.C. became

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Despite Dr. Lockwood’s finding that K.C. was “moderately” retarded, Ms. Colbert
characterizes K.C.’s level of mental disability variously as “moderate,” “profound,” and
“severe.” See Am. Compl. ¶¶ 9-10.
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Plaintiff filed only pages 1, 8 and 9 of what appears to be a nine page report.
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pregnant and delivered T.C. on April 3, 2011. K.C. and Ms. Colbert shared joint legal custody of
T.C., and Ms. Colbert was awarded sole physical custody. 3 Id. ¶¶ 3, 5, 21. T.C. was born with
medical conditions that required surgery, hospitalization, and medical care; T.C. died on April
18, 2012. Id. ¶¶ 17, 54.
Ms. Colbert, for herself, on behalf of K.C., and on behalf of the Estate of T.C.,
filed a fifteen count Amended Complaint. The Counts are asserted against both the District of
Columbia and Total Care, unless otherwise noted:
Count I––Negligence;
Count II––Wrongful Birth;
Count III––Breach of Fiduciary Duty arising from special
relationship;
Count IV––Negligent Infliction of Emotional Distress;
Count V–– Intentional Infliction of Emotional Distress;
Count VI––Wrongful Death;
Count VII––Survival Act;
Count VIII––Violation of D.C. Code § 44-504(a)(3) and (4)
(negligence per se) (against Total Care);
Count IX––Violation of D.C. Code §§ 7-1301.02 et seq. and 71305.14 (right to care of persons with intellectual disabilities);
Count X––Violation of D.C. Code §§ 7-1301.02 et seq. and 71305.13 (right to adequate habilitation program) (against the
District);
Count XI––Violation of the Fifth Amendment pursuant to 42 U.S.C.
§ 1983 (against the District);
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Kelvin Martinez, an intellectually disabled man who lived in the same group home as K.C.,
claimed that he was T.C.’s father. However, paternity was never established because Mr.
Martinez is indigent and he was unable to find a public source to pay for a paternity test. Reply
[Dkt. 21] at 5.
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Count XII––Violation of Title IX, 20 U.S.C. § 1681;
Count XIII––Violation of the Rehabilitation Act, 29 U.S.C. § 701;
Count XIV––Violation of the D.C. Consumer Protection Procedures
Act, D.C. Code §§ 28-3901 et seq. (against Total Care); and
Count XV––Punitive Damages (against Total Care).
See Am. Compl. [Dkt. 29].
On Defendants’ motions to dismiss or for summary judgment, the Court
dismissed the following claims:
(1) those portions of Count XI that allege endangerment (id. ¶¶ 105114), equal protection (id. ¶¶ 120-126), and deprivation of due
process under an entitlement theory (id. ¶¶ 127-133);
(2) Count XII, alleging a violation of Title IX of the Education
Amendments (id. ¶¶ 134-144); and
(3) Count XIII, alleging a violation of the Rehabilitation Act (id.
¶¶ 145-153).
See Op. [Dkt. 52]; Order [Dkt. 53].4 Ms. Colbert now moves for partial reconsideration and
reinstatement of Count XIII. See Mot. for Partial Recons. [Dkt. 57]; Reply [Dkt. 61]; Reply
[Dkt. 62]. Defendants oppose. See Total Care Opp’n [Dkt. 58] District Opp’n [Dkt. 60].
II. LEGAL STANDARD
Federal Rule of Civil Procedure 54(b) governs the motion for reconsideration.
Rule 54(b) provides that “any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at

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The Court also required the parties to meet and confer and file a joint proposed schedule for
limited jurisdictional discovery regarding Jacqueline Colbert’s sole remaining federal claim––the
Fifth Amendment substantive due process claim against the District of Columbia based on the
theories of special relationship and deliberate indifference.
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any time before the entry of judgment adjudicating all the claims and all the parties’ rights and
liabilities.” Fed. R. Civ. P. 54(b). Relief under Rule 54(b) is available “as justice requires.” DL
v. Dist. of Columbia, 274 F.R.D. 320, 324 (D.D.C. 2011). To determine “what justice requires”
courts examine the relevant circumstances. Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C.
2005). Relevant circumstances include whether the court has “‘patently misunderstood a party,
has made a decision outside the adversarial issues presented to the Court by the parties, has made
an error not of reasoning, but of apprehension, or where a controlling or significant change in the
law or facts [has occurred] since the submission of the issue to the Court.’” Ficken v. Golden,
696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.
2004)) (alterations in original). A court’s discretion under Rule 54(b) is “subject to the caveat
that, where litigants have once battled for the court's decision, they should neither be required,
nor without good reason permitted, to battle for it again.” Singh v. George Washington
University, 383 F. Supp. 2d 99, 101 (D.D.C. 2005).
III. ANALYSIS
A. Motion for Reconsideration
The Court dismissed Count XIII, holding that Ms. Colbert had failed to state a
disparate treatment claim under the Rehabilitation Act because she did not allege that Total Care
treated K.C. differently than able-bodied individuals. 5 Ms. Colbert seeks reconsideration and

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The Court explained that the purpose of the Act is to “eliminate discrimination on the basis of
disability and to ensure evenhanded treatment between the disabled and the able-bodied.” Op.
[Dkt. 57] at 21 (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). Because Total
Care’s sole purpose is to provide housing and residential services to the disabled, Ms. Colbert
did not and could not allege that Total Care (under contract with the District) treated K.C.
differently than able-bodied individuals because Total Care did not provide services to the ablebodied. Id.
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reinstatement of Count XIII because she intended to assert a claim for failure to accommodate,
not a claim for disparate treatment, under the Act.
The Rehabilitation Act, also known as the Rehab Act, provides that “[n]o
otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability
. . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). 6
To state a claim under the Act, a plaintiff must allege that:
(1) she is disabled; (2) she is otherwise qualified, (3) she was
excluded from, denied the benefit of, or subject to discrimination
under a program or activity, and (4) the program or activity is carried
out by a federal executive agency or with federal funds.
Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008). A defendant may
assert as an affirmative defense to liability that accommodating the plaintiff’s disabilities would
constitute an undue burden. Id. The Act does not “guarantee the handicapped equal results”
from receipt of federally-funded services. Alexander v. Choate, 469 U.S. 287, 304 (1985).
Instead, it requires that federally funded programs make “reasonable accommodations” to enable
“meaningful access” to services. Id. at 301; accord Wright v. Giuliani, 230 F.3d 543, 548 (2d
Cir. 2000).
In her motion for reconsideration, Ms. Colbert clarifies that she did not intend to
allege disparate treatment under the Rehab Act, but meant to allege a claim for failure to
accommodate under the Act. See Mot. for Partial Recons. [Dkt. 57] at 2-6. The Supreme Court
defined the scope of an accommodation claim in Southeastern Community College v. Davis, 442
U.S. 397, 410 (1979). There, a hearing disabled student (Ms. Davis) sought admission to a

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The District and Total Care receive federal funding and thus they are covered by the Rehab
Act. Am. Compl. ¶ 146
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nursing school. Because her inability to understand spoken speech was an obstacle to full
participation in the clinical program and she would not be able to function safely as a registered
nurse even with full time supervision, the college denied her admission. Id. at 401-02. Ms.
Davis sued, arguing that the college should accommodate her disability by modifying the
program so that her hearing impairment would not bar her from participation. The Court held
that the college was not required to admit Ms. Davis because the accommodations sought––such
as full time personal supervision whenever Ms. Davis attended patients and the elimination of
clinical classes––would have compromised the essential nature of the training program and that
such a fundamental alteration in the nature of a program was more than the Rehab Act required.
Davis, 442 U.S. at 409-10.
Any interpretation of the Rehab Act must be “responsive to two powerful but
countervailing considerations––the need to give effect to the statutory objectives and the desire
to keep [the Act] within manageable bounds.” Alexander, 469 U.S. at 299. With this in mind,
the Davis court “struck a balance between the statutory rights of the handicapped to be integrated
into society and the legitimate interests of [federally-funded programs] in preserving the integrity
of their programs: while a [program] need not be required to make ‘fundamental; or ‘substantial’
modifications to accommodate the handicapped, it may be required to make ‘reasonable’ ones.”
Alexander, 469 U.S. at 301 (interpreting Davis).
In keeping with the scope of the Rehab Act, Alexander held that a recipient of
federal funds does not have to alter the benefit provided to meet an individual’s particular needs.
In that case, the State of Tennessee reduced Medicaid benefits from twenty in-patient hospital
days per year to fourteen. Medicaid recipients with disabilities brought a class action against the
State alleging that the reduction denied them “meaningful access” to Medicaid services. Id. at

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302. The Supreme Court held that the Rehab Act does not require a State to alter the definition
of the benefit being offered because the disabled may have greater medical needs:
To the extent respondents further suggest that their greater need for
prolonged inpatient care means that, to provide meaningful access
to Medicaid services, Tennessee must single out the handicapped for
more than 14 days of coverage, the suggestion is simply unsound.
At base, such a suggestion must rest on the notion that the benefit
provided through state Medicaid programs is the amorphous
objective of “adequate health care.” But Medicaid programs do not
guarantee that each recipient will receive that level of health care
precisely tailored to his or her particular needs. Instead, the benefit
provided through Medicaid is a particular package of health care
services.
Id. at 302-03 (emphasis in original).
In Modderno v. King, 82 F.3d 1059 (D.C. Cir. 1996), the D.C. Circuit applied
Alexander to a claim of discrimination on the basis of a mental disability because the plaintiff’s
health insurance provided less coverage for mental illnesses than for physical illnesses. The
Circuit held that such limits on mental health care were not discriminatory because they were
neutrally applied, despite the possibility that those with mental illness may require more care. Id.
at 1062. “Perhaps mentally disabled individuals are more vulnerable to discrimination than the
physically disabled. If so, then Congress might wish to enact a statute affording the mentally
disabled special protection. But the Rehabilitation Act is simply not such a statute.” Id. While
the Rehab Act requires reasonable accommodations to ensure access to existing programs, the
Act does not require that a recipient of federal funds provide additional or different substantive
benefits. Wright, 230 F.3d at 548. “The disabilities statutes 7 do not require that substantively
different services be provided to the disabled, no matter how great their need for the services

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The “disabilities statutes” referred to are the Rehab Act and the Americans with Disabilities
Act, 42 U.S.C. § 12131.
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may be. They require only that covered entities make ‘reasonable accommodations’ to enable
‘meaningful access’ to such services as may be provided, whether such services are adequate or
not.” Id.; see also Lincoln Cercpac v. Health and Hospitals Corp., 147 F.3d 165, 168 (2d Cir.
1998) (Rehab Act claim brought by disabled children who were transferred from one
rehabilitation center to another with fewer services was properly dismissed; the Rehab Act does
not “guarantee any particular level of medical care for disabled persons” nor does it “assure
maintenance of service previously provided.”).
In support of her Rehab Act claim, Ms. Colbert asserts:
148. Because of her mental disabilities, [K.C] was vulnerable to
sexual assault and nonconsensual sex and pregnancy.
149. Defendants knew that in order for [K.C.] to enjoy the benefits
and services of her residential program, she required
accommodation for her disability through 24-hour supervision and
adequate birth control.
150. Defendants failed to reasonably accommodate [K.C.’s]
disability, failed to provide adequate supervision and failed to
provide adequate birth control. Defendants exacerbated the harm
to [K.C.] by facilitating and encouraging her to have sexual conduct
with residents, District contractors and other strangers.
Am. Compl. [Dkt. 29] ¶¶ 148-150 (emphasis added). 8 The Amended Complaint does not allege
that K.C. was denied meaningful access to residential care services. In fact, Ms. Colbert
concedes that K.C. resided at a Total Care facility and received a “range of services.” Id. ¶¶ 3, 7,
12. Instead, the Amended Complaint asserts that the services provided were not adequate to

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The Amended Complaint often repeats the allegations that Defendants failed to provide K.C.
with birth control and 24 hour supervision. See Am. Compl. ¶ 29(a) (Defendants failed to
provide birth control); ¶ 29(b) (Defendants failed to provide 24-hour supervision; ¶ 58
(Defendants should have known that the failure to provide birth control and 24 hour supervision
would cause severe emotional distress); ¶ 116 (Defendants failed to attend to K.C.’s needs by
failing to provide birth control, 24-hour supervision, and protection from nonconsensual sex).
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meet K.C.’s individualized needs for 24-hour supervision and birth control. See id. ¶ 150. But
the Rehab Act does not guarantee that K.C. receive a level of care precisely tailored to her
particular needs. See Alexander, 469 U.S. at 302-03. The Rehab Act requires reasonable
accommodations to assure access to existing programs; it does not require that additional or
different substantive benefits be provided. See Wright, 230 F.3d at 548. Ms. Colbert alleges no
denial of service to K.C. She argues that the services provided were deficient. The deficiency in
services related to K.C.’s individualized needs is not “the sort of harm the Rehabilitation Act was
intended to redress.” Modderno, 82 F.3d at 1061.
In sum, Ms. Colbert failed to state a claim under the Rehabilitation Act. She has
not demonstrated that the Court patently misunderstood a party, made a decision outside the
adversarial issues presented, or made an error of apprehension. See Ficken, 696 F. Supp. 2d at
35 (quoting Cobell, 224 F.R.D. at 272). Further, there has been no controlling or significant
change in the law or facts. See id. Accordingly, Ms. Colbert’s motion for reconsideration will
be denied.
B. Motion to Amend
As an alternative to reconsideration, Ms. Colbert seeks to amend the complaint. 9
See Mot. for Partial Recons. [Dkt. 57] at 8-9. Leave to amend should be granted “when justice so
requires.” Fed. R. Civ. P. 15(a). However, denial of leave to amend based on futility is warranted
if the proposed claim would not survive a motion to dismiss. Foman v Davis, 371 U.S. 178, 18182 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). Ms. Colbert has
utterly failed to show that justice requires amendment. Her motion does not indicate what she

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Ms. Colbert already has filed three versions of the complaint. See Compl. [Dkt.1]; Am. Compl.
[Dkt. 27]; Am. Compl [Dkt. 29] (corrected amended complaint).
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would allege that would save her Rehab Act claim, and she did not file a proposed second amended
complaint. See LCvR 15.1 (a motion for leave to file an amended pleading “shall be accompanied
by an original of the proposed pleading as amended”). Accordingly, the motion to amend will be
denied.
C. Count XI, Claim for Violation of K.C.’s Right to Due Process
In her motion for reconsideration Ms. Colbert emphasizes that she alleges a Fifth
Amendment due process claim under numerous theories, one of which is that Defendants
interfered with K.C.’s fundamental right to sexual reproductive health care, including birth
control. See Mot. for Partial Recons. [Dkt. 57] at 9-10; Reply [Dkt. 62] at 4. Ms. Colbert points
to Count XI of the Amended Complaint, which alleges: (1) Defendants violated K.C.’s Fifth
Amendment rights under numerous theories, including that the District has a policy that “there
were to be no restrictions or safeguards imposed by the District, any residential provider such as
Total Care, or any family member on any sexual activities of intellectually disabled individuals,
including [K.C.]” without regard to the individual’s capacity to consent to sex, see Am. Compl.
¶ 96; and (2) the policy “deprived [K.C.] of her liberty interest in having health care decisions––
such as birth control––made pursuant to the Health Care Decisions Act, D.C. Code § 21-2210,
after a determination of her best interests,” see id. ¶ 97. The Court dismissed the theories of
endangerment (id. ¶¶ 105-114), equal protection (id. ¶¶ 120-126), and entitlement (id. ¶¶ 127133), but the other theories remain. See Op. [Dkt. 52]. Further, even though Ms. Colbert has
asserted a violation of due process, the Court has determined that she has stated a constitutional
claim only if K.C. was involuntarily in the custody of the District:
[T]he District had an affirmative constitutional duty of care only if
K.C. was involuntarily in the custody of the District. See Estate of
Phillips v. District of Columbia, 455 F.3d 397, 406 (D.C. Cir. 2006)
(quoting DeShaney, 489 U.S. at 200-02) (“‘[W]hen the State by the
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affirmative exercise of its power so restrains an individual’s liberty
that it renders him unable to care for himself, and at the same time
fails to provide for his basic human needs,’ such as in the custodial
context if the state restrains a person from acting on his own behalf,
a ‘special relationship’ exists which gives rise to an affirmative duty
to protect that person.”). Again, discovery is needed to determine
whether K.C. was voluntarily or involuntarily in the District’s
custody at the time she became pregnant and gave birth. If she was
voluntarily in the District’s custody, Ms. Colbert has failed to state
a constitutional claim.
Op. [52] at 14 (emphasis in original); see also id. at 9-13. The Court ordered the parties to meet
and confer and file a joint proposed schedule for limited jurisdictional discovery, see id. at 22;
Order [Dkt. 53] at 1-2, but they did not do so due to Plaintiff’s motion for partial reconsideration.
They will again be ordered to submit such a schedule.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s motion for reconsideration or to amend
[Dkt. 57] will be denied. The parties will be required to meet and confer and file a joint
proposed schedule for limited jurisdictional discovery regarding Ms. Colbert’s sole remaining
federal claim––the Fifth Amendment substantive due process claim against the District of
Columbia based on the theories of special relationship and deliberate indifference. Limited
discovery will be permitted to determine whether K.C. was voluntarily or involuntarily
committed to the custody of the District of Columbia in 2010-2011 and to determine whether a
D.C. custom or policy was the moving force behind the alleged substantive due process
violation. A memorializing Order accompanies this Opinion.

Date: June 25, 2015

/s/
ROSEMARY M. COLLYER
United States District Judge

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