UNIVERSITY LEGAL SERVICES, INC. v. BOWSER et al

Filing 23

MEMORANDUM AND OPINION. Defendants' motion to dismiss 15 will be GRANTED IN PART and DENIED IN PART, as follows: all claims against the individual defendants in Counts 1 and 2 will be dismissed, and Count 2 will be dismissed in its entirety. Plaintiff's claim against the District of Columbia in Count 1 will be permitted to proceed. Signed by Judge Ketanji Brown Jackson on 3/30/19. (lckbj3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNIVERSITY LEGAL SERVICES,
INC.,
Plaintiff,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.

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No. 18-cv-0301 (KBJ)

MEMORANDUM OPINION
Plaintiff University Legal Services, operating as Disability Rights DC
(“DRDC”), serves as the protection and advocacy (P&A) system for the District of
Columbia. (See First Am. Compl. (“FAC”), ECF No. 14, at 1.) 1 Two federal statutes—
the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”),
42 U.S.C. §§ 15001–15115, and the Protection and Advocacy for Individuals with
Mental Illness Act (“PAIMI Act”), 42 U.S.C. §§ 10801–10851—task DRDC with
protecting, and advocating for, the rights of individuals with developmental disabilities
and mental illnesses. These statutes specifically provide DRDC with a “federal
mandate to act to protect people with disabilities in the District of Columbia,
investigate allegations of abuse and neglect, provide legal advocacy for people with
disabilities, and determine whether investigations . . . [are] fully and independently
conducted[.]” (Id. at 2.)

Page-number citations to documents that the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.

1

In the instant lawsuit, DRDC alleges that the District of Columbia, D.C. Mayor
Muriel Bowser, in her official capacity, and Clinton Lacey, the Director of the D.C.
Department of Youth and Rehabilitative Services (“DYRS”), in his official capacity
(collectively, “Defendants”), “have violated the right of [DRDC] to promptly obtain
from Defendants the complete, unredacted records relating to allegations of abuse and
neglect of individuals with disabilities under their supervision and/or care.” (Id. at 2,
¶¶ 2–5.) DRDC’s First Amended Complaint contains two counts: Count 1 is a claim
brought under the DD and PAIMI Acts based on Defendants’ alleged ongoing failure to
provide records to DRDC timely (see id. at ¶¶ 45–56), and Count 2 is a claim brought
under section 1983 of Title 42 of the United States Code (“Section 1983”) based on
Defendants’ alleged violation of DRDC’s statutory rights as the P&A system for the
District (see id. at ¶¶ 57–65).
Before this Court at present is Defendants’ Motion to Dismiss DRDC’s First
Amended Complaint. (See Defs.’ Mot. to Dismiss First Am. Compl. (“Defs.’ Mot.”),
ECF No. 15.) Defendants argue that DRDC’s claims are moot, due to the District’s
production of certain records relating to one alleged instance of abuse. (See id. at 13–
17; see also Defs.’ Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 18, at 8–
13). Defendants also argue that DRDC’s Section 1983 claim should be dismissed,
because DRDC has failed to allege facts sufficient to support municipal liability. (See
Defs.’ Mot. at 19–25; see also Defs.’ Reply at 13–18.) In the alternative, Defendants
move to dismiss the Section 1983 claim (Count 2) as duplicative of Count 1 (see Defs.’
Mot. at 25; see also Defs.’ Reply at 18–19), and they further argue that any claims

2

against the individual defendants should be dismissed as duplicative of the claims
against the District (see Defs.’ Mot. at 28–29; see also Defs.’ Reply at 20–21).
For the reasons explained below, this Court concludes that DRDC’s claims are
not moot because they are based on an allegedly ongoing policy of the District.
However, because DRDC has not pleaded facts that can plausibly support municipal
liability under any theory, Count 2 must be dismissed; and DRDC’s claims against the
individual defendants will be dismissed as duplicative of its claims against the District.
Accordingly, Defendants’ motion will be GRANTED IN PART and DENIED IN
PART: the Court will DISMISS without prejudice DRDC’s Section 1983 claim in
Count 2 and DRDC’s claims against the individual defendants, while DRDC’s Count 1
claim against the District will be permitted to proceed.
I.

BACKGROUND
A.

Protection And Advocacy Systems Pursuant To The DD And PAIMI
Acts

The DD Act provides states with federal funding “to improve community
services, such as medical care and job training, for individuals with developmental
disabilities.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 250 (2011)
(citation omitted). A parallel statute, the PAIMI Act, provides funding for similar
protections for the mentally ill. See id. (citation omitted). Both the DD and PAIMI
Acts are based upon congressional findings that individuals with developmental
disabilities and mental illnesses are uniquely susceptible to discrimination, neglect, and
abuse, see 42 U.S.C. §§ 15001(a)(4),(5) (DD Act); id. §§ 10801(a)(1),(3) (PAIMI Act),
and that preexisting state systems for monitoring and supporting these individuals were
inadequate, see id. §§ 15001(a)(6),(11) (DD Act); id. § 10801(a)(4) (PAIMI Act).
3

As a condition of receiving federal funding under the DD and PAIMI Acts, a
state must establish a system “to protect and advocate the rights of individuals” with
developmental disabilities and mental illnesses, which is commonly referred to as a
“P&A system.” Id. § 15043(a)(1) (DD Act); id. § 10803(2)(A) (PAIMI Act). The DD
and Paimi Acts further require that state P&A systems have comprehensive
investigatory powers. See Ctr. For Legal Advocacy v. Hammons, 323 F.3d 1262, 1270
(10th Cir. 2003) (describing the statutorily mandated records access as “quite broad”);
see also Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97
F.3d 492, 497 (11th Cir. 1996). These broad powers include “the authority to
investigate incidents of abuse and neglect . . . if the incidents are reported to the system
or if there is probable cause to believe that the incidents occurred[.]” 42 U.S.C. §
15043(a)(2)(B) (DD Act); id. § 10805(a)(1)(A) (PAIMI Act). Moreover, consistent
with certain statutory requirements, P&A systems must be granted access to “all
records” of individuals who may have been abused, see id. § 15043(a)(2)(I)(iii)(II) (DD
Act); § 10805(a)(4)(B)(iii) (PAIMI Act), as well as “other records that are relevant to
conducting an investigation,” id. § 15043(a)(2)(J)(i). To this end, the PAIMI Act’s
implementing regulations require that access to records be “extended promptly.” 42
C.F.R. § 51.41(a). 2 Likewise, the DD Act specifies that covered entities must grant
access to records “within three business days” of the request. 42 U.S.C.
§ 15043(a)(2)(J)(i); 45 C.F.R. § 1326.25(c)(2). 3
The Center for Mental Health Services, within the Substance Abuse and Mental Health Services
Administration under the Department of Health and Human Service (“HHS”), promulgated the PAIMI
Act’s implementing regulations. See Substance Abuse and Mental Health Services Administration;
Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62
Fed. Reg. 53548-01, 53548, 53559 (Oct. 15, 1997).

2

3

The Administration on Intellectual and Developmental Disabilities, within the Administration for

4

In addition to investigatory powers, P&A systems also have the statutory
authority to vindicate the purposes of the DD and PAIMI Acts by “pursu[ing]
administrative, legal, and other appropriate remedies to ensure the protection of
individuals with mental illness,” 42 U.S.C. § 10805(a)(1)(B), or developmental
disabilities, id. § 15043(a)(2)(A)(i).
B.

Factual And Procedural Background 4

DRDC has served as the designated P&A program for the District of Columbia
since 1996. (See FAC at ¶ 1.) At some point in July of 2017, DRDC received
complaints that, over a period of several months, DYRS staff physically abused and
neglected “C.G.,” a child who had been committed to DYRS custody and was detained
at the Youth Services Center in Washington, D.C. (See id. at ¶¶ 17–19.) On August 2,
2017, DRDC made the first of a series of specific, repeated requests to DYRS for
records related to the alleged abuse of C.G. (See id. at ¶¶ 20–22.) From August to
October of 2017, DYRS provided some—but not all—of the requested records. (See id.
at ¶¶ 23–33.)
On February 9, 2018, DRDC filed a complaint in this Court, along with a motion
for a preliminary injunction seeking the outstanding records regarding C.G. (See
Compl., ECF No. 1; Mot. for a Prelim. Injunction, ECF No. 3; see also FAC at ¶ 41.)
Two weeks later, on February 23, 2018, Defendants produced records regarding C.G.,
and they supplemented this production on March 2, 2018. (See FAC at ¶¶ 42–43.) On

Community Living under HHS, promulgated the DD Act’s implementing regulations. See
Developmental Disabilities Program, 80 Fed. Reg. 44796-01, 44796, 44802, 44817 (July 27, 2015).
The facts recited in this opinion are gleaned from Plaintiffs’ First Amended Complaint, and this Court
has treated the complaint’s allegations as true for the purpose of resolving the instant motion to
dismiss. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
4

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March 8, 2018, the parties appeared for a status conference, during which DRDC
withdrew its motion for a preliminary injunction in light of Defendants’ document
productions. (See Min. Entry of Mar. 8, 2018.) The Court expressed some concerns
about possible mootness and DRDC’s failure to plead the pattern and practice claim that
DRDC’s counsel seemed to assert. (See generally Tr. of Mar. 8, 2018 Status
Conference.)
On March 22, 2018, DRDC filed a First Amended Complaint, which lamented
“Defendants’ repeated failure to comply with [DRDC’s] requests for access to records
in the time set forth under the PAIMI Act and DD Act[.]” (See FAC at 2.) To
demonstrate this alleged failure, DRDC added allegations concerning three additional
incidents and claimed that they were indicative of Defendants’ years-long “policy
and/or practice of failing to provide timely responses” to DRDC’s requests. (See FAC
at ¶¶ 34–35.) Specifically, in addition to DYRS’s failure to provide C.G.’s records
timely in 2017, DRDC alleged that: (1) in 2014, DYRS refused to provide records
related to a DRDC investigation into a report that a child was physically assaulted, and
DYRS required DRDC to seek a court order for access to the records (see id. at ¶¶ 36–
37); (2) in the summer of 2013, the D.C. Child and Family Services Agency demanded
that DRDC submit a Freedom of Information Act (“FOIA”) request in response to a
records request related to a DRDC investigation into a child abused at a psychiatric
hospital (see id. at ¶ 38); and in 2017, the Office of the State Superintendent of
Education asserted that DRDC needed to submit a FOIA request to obtain records about
alleged abuse of a child in an out-of-state facility (see id. at ¶¶ 39–40).

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Defendants filed the Motion to Dismiss that is presently before the Court on
April 12, 2018 (see Defs.’ Mot.), and this Court held a hearing on Defendants’ motion
on February 12, 2019 (see Feb. 12, 2019 Hr’g Tr. (“Tr.”)). In briefing and through oral
argument, Defendants maintain that the entire case is moot in light of the District’s
production of C.G.’s records, and thus is subject to dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. (See Defs.’ Mot. at
13–19; Defs.’ Reply at 8–13.) Defendants also argue that DRDC has not plausibly
alleged municipal liability as required to sustain a Section 1983 claim against
Defendants, and that, therefore, Count 2 must be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6). (See Defs.’ Mot. at 19–25; Defs.’ Reply at 13–18.) In the
alternative, Defendants contend that Count 2 should be dismissed as duplicative of
Count 1. (See Defs.’ Mot. at 25; Defs.’ Reply at 18–19.) Defendants also ask the Court
to dismiss all of the official capacity claims against the two individual defendants—
D.C. Mayor Muriel Bowser and DYRS Director Clinton Lacey—which Defendants view
as entirely duplicative of the claims against the District. (See Defs.’ Mot. at 28–29;
Defs.’ Reply at 20–21.)
II.

LEGAL STANDARDS
A.

Rule 12(b)(1) Motions To Dismiss For Lack Of Subject-Matter
Jurisdiction

“The doctrines of standing, mootness, and ripeness are ‘[t]hree inter-related’
doctrines of justiciability that determine the ‘constitutional boundaries’ of a court’s
jurisdiction.” Jeong Seon Han v. Lynch, 223 F. Supp. 3d 95, 102 (D.D.C. 2016)
(quoting Worth v. Jackson, 451 F.3d 854, 855, 857 (D.C. Cir. 2006)). A determination
that a claim is moot means that “the court lacks jurisdiction to entertain the claim, and
7

must dismiss it.” Id. at 103. Accordingly, a challenge to a complaint based on
mootness is properly raised under Federal Rule of Civil Procedure 12(b)(1), which
allows defendants to challenge claims for “lack of subject-matter jurisdiction.” Fed. R.
Civ. P. 12(b)(1); see, e.g., Jeong Seon Han, 223 F. Supp. 3d at 102–03, 110 (reviewing
motion to dismiss on mootness grounds under Rule 12(b)(1)); Friends of Animals v.
Salazar, 670 F. Supp. 2d 7, 10–11 (D.D.C. 2009) (same). And, while it is ordinarily the
burden of a plaintiff to prove that a court has subject-matter jurisdiction, when
mootness is at issue, “[t]he initial ‘heavy burden’ of establishing mootness lies with the
party asserting a case is moot[.]” Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n,
628 F.3d 568, 576 (D.C. Cir. 2010) (citation omitted). The party opposing mootness
bears the burden of proving that an exception to the doctrine applies. See id.
In determining whether to dismiss a claim as moot under Rule 12(b)(1), “the
court must treat the complaint’s factual allegations as true and afford the plaintiff the
benefit of all inferences that can be derived from the facts alleged.” Jeong Seon Han,
223 F. Supp. 3d at 103 (internal quotation marks and citations omitted). However,
courts apply “closer scrutiny” to factual allegations in a Rule 12(b)(1) analysis than in a
Rule 12(b)(6) analysis, because federal courts have an independent, affirmative
obligation to ensure that they have jurisdiction. See Delta Air Lines, Inc. v. ExportImport Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015).
B.

Rule 12(b)(6) Motions To Dismiss For Failure To State A Claim Upon
Which Relief Can be Granted

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the
legal sufficiency of a complaint[.]” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). If the complaint “fail[s] to state a claim upon which relief can be granted[,]” the

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Court must dismiss it. Fed. R. Civ. P. 12(b)(6). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted). Plaintiffs need not provide “detailed
factual allegations,” but they must include facts that “raise a right to relief above the
speculative level” and that “nudge[] their claims across the line from conceivable to
plausible[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (internal
quotation marks and citations omitted).
It is the moving party’s burden to show that a complaint is legally insufficient.
See Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 819 F.3d 476, 481
(D.C. Cir. 2016). “[T]he Court must construe the complaint in favor of the plaintiff,”
but it need not accept unsupported inferences or “legal conclusions cast as factual
allegations.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal
quotation marks and citation omitted). When resolving a motion to dismiss under Rule
12(b)(6), a court is limited to the “four corners of the complaint, as well as any
documents attached as exhibits or incorporated by reference, documents upon which the
plaintiff’s complaint necessarily relies, and facts of which the Court may take judicial
notice.” Tyson v. Brennan, 306 F. Supp. 3d 365, 369 (D.D.C. 2017) (internal quotation
marks, alteration, and citation omitted).

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III.

ANALYSIS
A.

DRDC’s Claims Are Not Moot Because There Has Been No
Intervening Event That Affects The Claims Presented In The
Operative Complaint

“The mootness inquiry . . . asks whether events subsequent to the filing of the
complaint ‘have so transpired that the decision will neither presently affect the parties’
rights nor have a more-than-speculative chance of affecting them in the future.’”
Hardaway v. D.C. Housing Auth., 843 F.3d 973, 978 (D.C. Cir. 2016) (quoting Am. Bar
Assoc. v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011)). When a potentially impactful
event occurs after the filing of the complaint but before the resolution of the case, the
court must assess whether the parties have “a continuing interest in the litigation[,]”
see id. at 979 (internal quotation marks omitted), and if it decides that they do not, the
court must suspend its exercise of jurisdiction over the matter. This is because, as the
Supreme Court has explained, “mootness . . . deprives us of our power to act; there is
nothing for us to remedy, even if we were disposed to do so.” Spencer v. Kemna, 523
U.S. 1, 18 (1998).
Many different kinds of events may moot a case, including changes of law or fact
due to government action, the conduct of the parties, or the passage of time. For
example, if a plaintiff files a lawsuit challenging an order of a court or other
adjudicative body, subsequent proceedings that alter that order may render the case
moot. See, e.g., Holiday CVS, LLC v. Holder, 493 Fed. Appx. 108 (D.C. Cir. 2012)
(finding a challenge to an administrative order moot when the order was no longer in
effect due to subsequent administrative proceedings). Similarly, when a plaintiff files
suit to question the legality of a law, the repeal or expiration of that law will moot the
case. See, e.g., Burke v. Barnes, 479 U.S. 361, 365 (1987) (finding the case moot when
10

the challenged bill expired during the pendency of the appeal); Fund for Animals v.
Mainella, 335 F. Supp. 2d 19, 23–24 (D.D.C. 2004) (finding a challenge to a regulation
authorizing a time-limited bear hunt moot upon conclusion of the hunt). The parties’
own conduct may moot a case as well, as happens when they reach a settlement. See
U.S. Bancorp Mortg. Co. v. Bonner Mail Partnership, 513 U.S. 18, 25 (1994). And
mootness can also occur due to a change in the parties’ circumstances or relationship
over time. See, e.g., Kemna, 523 U.S. at 3, 18 (holding that a prisoner’s suit attacking
termination of his parole status became moot once he was released from prison); Dove
v. United Sates, 423 U.S. 325, 325 (1976) (per curiam) (dismissing petition for
certiorari where civil plaintiff died and the cause of action did not survive death);
Brewer v. Lynch, 8-cv-1747, 2015 WL 13604257, *9 (D.D.C. 2015) (dismissing claims
for declaratory and injunctive relief against defendant employer as moot where plaintiff
was no longer an employee and had no prospect of returning as an employee).
In order for this Court to assess properly whether an event subsequent to the
filing of the instant lawsuit has rendered the claims that DRDC is making moot, as
Defendants argue, the Court must first identify what DRDC’s claims entail. In this
regard, per the plain language of DRDC’s amended complaint, this lawsuit is not simply
and solely about DYRS’s failure to provide records about C.G., but instead arises from
DYRS’s alleged ongoing pattern of failing to provide records timely when DRDC
requests them, in violation of the DD and PAIMI Acts. For example, although the
introductory paragraphs of DRDC’s complaint previously referred to DRDC’s inability
to obtain prompt access to records “relating to allegations of abuse and neglect of a
child[,]” the amended complaint now references Defendants’ alleged repeated failure to

11

provide DRDC with timely access to records pertaining to such “individuals.” (See
Redlined Version of Am. Compl., ECF No. 14-1 at 2 (emphasis added); see also id. at
¶ 48 (replacing “the records of C.G.” with “such records”).) Moreover, where DRDC
once presented C.G.’s case—alone—as the facts underlying its claims, C.G.’s facts are
now offered as but one example of the District’s allegedly unlawful conduct (see id. at
2 (adding “Most recently . . .”); see also id. at ¶ 47 (adding “For example . . .”)), and
DRDC has added other examples of the District’s failure to comply with the DD and
PAIMI Acts (see id. at ¶¶ 36–40).
Additionally, and importantly, the language that DRDC uses to describe its
claims has been amended to allege specifically that Defendants’ “repeated” failures to
provide timely access constitute more than isolated failures to provide records in one or
more individual cases and instead amount to an unlawful “policy and/or practice.” (Id.
at 2–3 (adding the following sentence: “Defendants have unlawfully maintained and
continue to maintain a policy and/or practice of failing to provide timely responses to
[DRDC]’s requests to access records pursuant to [DRDC]’s authority as the designated
P&A system for the District of Columbia.”); see also id. at ¶ 16 (adding a nearly
identical sentence); ¶¶ 34–35 (adding similar language); ¶ 61 (describing evidence of
alleged “policy and/or practice”).) Thus, it is clear beyond cavil that DRDC has
brought a claim that now transcends its concerns about access to C.G.’s records and
encompasses a broader complaint about the District’s persistent failure to honor
DRDC’s records requests as the DD and PAIMI Acts require. 5

DRDC’s brief in opposition and its arguments at the motion hearing further bolster this interpretation
of DRDC’s claims. (See, e.g., Tr. at 5:24–5:25 (characterizing DRDC’s legal claim as a “continuing
claim . . . about the relationship between [DRDC] and DYRS”); see also Pl.’s Opp’n to Defs.’ Mot.
(“Pl.’s Opp’n”), ECF No. 16, at 9 (“Defendants have refused repeatedly to provide records requested by
5

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Significantly for present purposes, it is also quite clear that Defendants have
failed to point to any event subsequent to the filing of DRDC’s amended complaint that
has even conceivably altered or impacted DRDC’s claim concerning DYRS’s alleged
ongoing failure to provide timely access to records. In this regard, Defendants insist
that, because C.G.’s records have now been produced, DRDC’s claims are moot. (See
Defs,’ Mot. at 14–16; see also Tr. at 14:23–15:2 (confirming that Defendants’ mootness
argument “rests on the total and complete production [of C.G.’s records] since the
initiation of this lawsuit”).) But Defendants have not explained how the provision of
records related to C.G. eight months after DRDC requested them and only after DRDC
filed a lawsuit has any bearing on DRDC’s current contention that DYRS’s unlawfully
tardy tender of C.G.’s records is, unfortunately, par for the course. (See Pl.’s Opp’n to
Defs.’ Mot. (“Pl.’s Opp’n”), ECF No. 16, at 18 (“[A]n active controversy continues to
exist between the parties because . . . Defendants regularly fail to comply with their
obligation to provide requested records within the statutorily-prescribed timeframes.”
(emphasis added)); see also id. at 28–29.)
To be sure, Defendants might well have acted to address the alleged unlawful
practice that DRDC identifies in its amended complaint—say, by issuing a statement to
all agencies explaining the requirements of the DD and PAIMI Acts and requiring them
to provide records within three days, or promptly, as required by the law—and if
Defendants had opted to do so, there would be a colorable argument that such a

DRDC in connection with its statutory access and investigative authority.”); id. at 14 (“Defendants’
repeated actions of denying access to records and refusing to promptly provide complete, unredacted
records relating to allegations of abuse and neglect of individuals with disabilities prevented DRDC
from protecting C.G. and hundreds of other individuals with disabilities in the custody and/or care of
Defendants.”); id. at 18, 28–29, 32, 40–41.)

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subsequent event renders the claims that DRDC seeks to litigate in the instant case
moot. But as things currently stand, Defendants have done nothing other than produce
requested records with respect to C.G., and not only did this event occur prior to the
filing of DRDC’s amended complaint, see Hardaway, 843 F.3d at 978, but it also has no
impact whatsoever on the right that DRDC seeks to vindicate here: its statutory right to
production of documents in a timely fashion, which DRDC alleges that DYRS routinely
violates as a matter of practice. See Del Monte Fresh Produce Co. v. United States, 570
F.3d 316, 321 (D.C. Cir. 2009) (“[A] plaintiff’s challenge will not be moot where it
seeks declaratory relief as to an ongoing policy.”); see also Goings v. Court Services
and Offender Supervision Agency for D.C., 786 F. Supp. 2d 48, 62–63 (D.D.C. 2011)
(holding that a challenge to a no contact order was not mooted even though certain
conditions of the order had been modified); Worth v. Jackson, 483 F. Supp. 2d 1, 7
(D.D.C. 2004) (declining to dismiss as moot claims based on ongoing agency policies
and practices even though certain formal directives codifying those policies had been
superseded).
The fact that “the District has indicated no intention of declining to follow the
requirements of the DD Act and the PAIMI Act where applicable” (Defs.’ Mot. at 15) is
of no moment. To start, this observation rejects DRDC’s allegation that the District
maintains a practice of failing to fulfill its statutory obligations and thus flouts a
fundamental tenet of Rule 12(b) motions. See Jeong Seon Han, 223 F. Supp. 3d at 103
(explaining that “the court must treat the complaint’s factual allegations as true and
afford the plaintiff the benefit of all inferences that can be derived from the facts
alleged”). It is also entirely irrelevant to Defendants’ mootness concerns, because

14

Defendants’ mere representation, made in the context of litigation, that they have no
intention of failing to do what the law requires neither relates to any intervening change
in fact or law nor neuters any claim that Defendants have heretofore maintained a
practice of unlawful behavior, as Defendants themselves concede. (See Tr. at 18:7–
18:17 (admitting that “a bare representation” that the District intends to follow the law
does not moot DRDC’s claim that the District has an ongoing practice of failing to
provide timely records).)
Finally, while the parties devote much of their briefing to whether any exception
to mootness applies such that the Court can continue to exercise jurisdiction over this
case (see, e.g., Defs.’ Mot. at 13–19; Pl’s. Opp’n at 16–30; Defs.’ Reply at 8–13), these
arguments are plainly predicated on the assumption that “events subsequent to the filing
of the complaint” have rendered claims moot, so that an exception is required in order
to sustain this Court’s exercise of its subject-matter jurisdiction. But Defendants have
failed to identify any event subsequent to the filing of the operative complaint that has
mooted the present controversy, as explained above. Therefore, Defendants have not
carried their “heavy burden” of establishing mootness in the first place, see Honeywell,
628 F.3d at 576, and this Court need not consider whether any exceptions to mootness
might otherwise apply.
Accordingly, Defendants’ motion to dismiss will be denied to the extent that it
seeks to dismiss DRDC’s claims as moot.
B.

Count 2 Must Be Dismissed Because DRDC Has Failed To Allege
Facts Sufficient To Support Municipal Liability

“To state a claim for relief against a municipality under Section 1983, a plaintiff
must satisfy two requirements: she must plead ‘a predicate [federal or] constitutional

15

violation’ and that ‘a custom or policy of the municipality caused the violation.’” Blue
v. Dist. of Columbia, 811 F.3d 14, 18 (D.C. Cir. 2015) (quoting Baker v. Dist. of
Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003); see also Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658, 690 (1978). Significantly for present
purposes,
[t]his circuit has identified several ways in which a plaintiff may allege a
municipal policy or custom. Specifically, she may point to (1) “the explicit
setting of a policy by the government that violates the [law],” (2) “the action of a
policy maker within the government,” [or] (3) “the adoption through a knowing
failure to act by a policy maker of actions by his subordinates that are so
consistent that they have become ‘custom[.]’”
Blue, 811 F.3d at 18–19 (quoting Baker, 326 F.3d at 1306). 6 It is important to note that
allegations of respondeat superior (also known as vicarious liability) are not enough to
establish municipal liability under Section 1983. See City of Canton v. Harris, 489
U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694–95). Instead, the complaint must
plausibly allege “that a municipal policy was the moving force behind the [alleged]
violation[.]” Baker, 326 F.3d at 1306 (internal quotation marks and citations omitted);
see also Page v. Mancuso, 999 F. Supp. 2d 269, 282 (D.D.C. 2013) (collecting cases
explaining the pleading standard for municipal liability).
The first prong of municipal liability is indisputably sufficiently alleged in this
case: Defendants do not, and cannot, contest that failing to provide records timely in
accordance with the requirements of the DD and PAIMI Acts is a violation of federal
One other means of establishing municipal liability involves alleging and/or demonstrating “the
failure of the government to respond to a need (for example, training of employees) in such a manner as
to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional
violations.” Blue, 811 F.3d at 19 (quoting Baker, 326 F.3d at 1306) (some internal quotation marks
omitted). DRDC’s complaint contains no allegations that could plausibly support this theory of
municipal liability, and DRDC advances no arguments related to establishing municipal liability in this
way. (See generally Pl.’s Opp’n; Tr.)
6

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law. (See generally Defs.’ Mot.; Defs.’ Reply; Tr.) See Page, 999 F. Supp. 2d at 284
(considering only the second prong of municipal liability where the underlying
violation of law was conceded). Thus, Defendants rest their argument to dismiss Count
2 on the second prong of municipal liability, insofar as they contend that DRDC has not
plausibly alleged facts that are sufficient to support any theory of municipal liability for
the alleged violation. 7
To this end, Defendants first argue that DRDC has not sufficiently alleged that
the District had an explicit policy to violate the DD and PAIMI Acts. (See Defs.’ Mot.
at 20–21.) DRDC responds that “[a]n explicit written policy is not required in order to
establish a ‘policy or custom’ for purposes of a [Section] 1983 claim,” (Pl.’s Opp’n at
34), and also explains that “the actions of the policy maker are sufficient to establish a
policy[,]” (id. at 35). Thus, it appears that DRDC is not actually attempting to establish
municipal liability through an explicit policy, which explains why its complaint is
entirely devoid of any allegation that such a policy existed. (See generally FAC; see
also Pl.’s Opp’n at 38 (arguing that “DRDC sufficiently has pled a [section] 1983 claim
both by alleging facts that demonstrate that the District’s policymaker acted to deny
access and refused to provide timely access to records and also that the District has a
custom and practice demonstrating a policy because the District has persistently acted
in violation of the PAIMI and DD Acts.”).)
With respect to DRDC’s contentions regarding the actions and intentions of
District policymakers, Defendants maintain that DRDC has not sufficiently alleged

Because DRDC has brought the first count of the complaint pursuant to its statutory rights as the P&A
system under the DD and PAIMI Acts, rather than under Section 1983, Defendants’ municipal liability
argument applies only to Count 2. (See Tr. at 45:24–46:5.)

7

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municipal liability through the action of any policymaker, because “there are no
allegations concerning the individual or individuals who withheld timely production of
records or their authority to render final policy decisions[.]” (Defs.’ Mot. at 21; see
also Defs.’ Reply at 14–16.) DRDC insists that its complaint relates to the actions of
two District policymakers: “DYRS’[s] General Counsel [who] is the individual who
acted on behalf of DYRS regarding DRDC’s records requests” and “DYRS’[s] Director,
Neil Stanley, [who] was a direct recipient of correspondence concerning DYRS’[s]
refusal to provide information in response to DRDC’s requests.” (Pl.’s Opp’n at 35.)
But DRDC made no reference to either of these individuals in the amended complaint.
(See generally FAC; see also Tr. at 38:23–39:2.) In fact, DRDC fails to describe the
actions of any individual, much less one who is also alleged to be a policymaker. See
Triplett v. Dist. of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (“The issue of final
policymaking authority is one of state law.” (citing Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 737 (1989))); see also Byrd v. Dist. of Columbia, 807 F. Supp. 2d 37, 75–76
(D.D.C. 2011) (finding that plaintiffs had not pleaded municipal liability based on the
action of a policymaker where they “failed to identify any portion of the D.C. Code
specifically granting [policymaking] authority” to the alleged policymakers). 8
The D.C. Circuit has clarified that in order to plead a plausible claim of
municipal liability through “‘the action of a policy maker within the government,’”
Blue, 811 F.3d at 19 (quoting Baker, 326 F.3d at 1306), a plaintiff needs to at least

8
While DRDC’s amended complaint mentions in passing that DRDC staff spoke with DYRS’s assistant
general counsel on the phone, it does not describe the substance of the conversation or any subsequent
action by that individual. (See FAC at ¶ 37.) At the motion hearing, DRDC told the Court that it had
attached correspondence with government officials from 2014 to the complaint (see Tr. at 38:23–
39:15), but neither the initial nor the operative, amended complaint includes any such attachments (see
Compl.; FAC).

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allege (1) that the relevant individual engaged in an action and (2) that such actor was a
policymaker, see id. at 19–20 (explaining that a court cannot assess whether a
policymaker’s action or decision established municipal liability unless the plaintiff has
adequately described the contours of the challenged conduct and that the actor is a
policymaker); see also Coleman v. Dist. of Columbia, 828 F. Supp. 2d 87, 91–92
(D.D.C. 2011) (dismissing claim of municipal liability where the complaint failed to
establish that two officials were policymakers); cf. Ryan v. Dist. of Columbia, 306 F.
Supp. 3d 334, 343–45 (D.D.C. 2018) (rejecting municipal liability at summary
judgment where plaintiff failed to support “bald assertions” that the D.C. Fire Chief is a
policymaker). DRDC does not make either allegation in its amended complaint;
therefore, its pleading fails to allege a “custom or policy” for the purpose of Section
1983 municipal liability based on the conduct of any purported policymaker.
Finally, DRDC’s amended complaint cannot be fairly read to allege a “custom or
policy” that is sufficient to support municipal liability based on the examples it
provides. “When a plaintiff seeks to establish municipal liability in the absence of an
explicit policy, he must allege ‘concentrated, fully packed, precisely delineated
scenarios as proof that an unconstitutional policy or custom exists.’” Ryan, 306 F.
Supp. 3d at 346 (quoting Page, 999 F. Supp. 2d at 284). And “[t]o clear this high
hurdle, plaintiffs ordinarily couch ‘custom or practice’ liability on allegations of
practices so persistent and widespread as to practically have the force of law.” Id.
(internal quotation marks and citation omitted). Here, DRDC merely cites “four alleged
isolated incidents of three separate District agencies failing to timely provide records
over a four-year period[,]” as Defendants maintain. (Defs.’ Mot. at 22; see also id. at

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22–25; Defs.’ Reply at 13–14, 16–18.) This smattering of alleged violative conduct
falls far short of meeting the high threshold for municipal liability, and DRDC’s
complaint is otherwise devoid of the kinds of facts that might provide illuminating
context for DRDC’s assertion that the alleged incidents constitute a custom or
practice—for example, the complaint says nothing about the frequency with which
DRDC requests records from any agency, or the overall rate at which the District fails
to timely provide records as required by the DD and PAIMI Acts. (See generally
FAC.) 9
DRDC also suggests that because it is the only possible plaintiff that can bring
these claims through its role as the sole P&A system of the District of Columbia, the
custom and practice standard should be relaxed. (See Pl.’s Opp’n at 37 n.11.) But it
cites no authority for this proposition. And notwithstanding the unique relationship
between DRDC and the District, DRDC’s role, standing alone, does not give rise to any
inferences about the frequency and nature of the interactions between these parties:
DRDC could have made four requests in total to the District for records over the past
five years, or it could have made 400 or 4,000. The existence of a custom or practice
simply cannot be divined based on the scant facts DRDC alleges.
Even if DRDC’s amended complaint adequately alleged that the District has a
custom or practice of failing to provide records timely each time DRDC requests them,
DRDC’s pleading is still missing the necessary “causal link” between the various

9
At the hearing, DRDC’s counsel represented that DYRS has “never” timely provided records. (See Tr.
at 5:21–6:3; 11:9–11:12; 11:18–11:21.) This allegation, if made with supporting facts, might be
sufficient to establish municipal liability; however, it does not appear in DRDC’s pleading, to which
the Court’s Rule 12(b)(6) analysis is limited. See Tyson, 306 F. Supp. 3d at 369; see also Kingman
Park Civic Assoc. v. Gray, 27 F. Supp. 3d, 160 n.7 (D.D.C. 2014).

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agencies’ denial of DRDC’s records requests and an unlawful policy or practice that
had been “promulgated or sanctioned by the municipality.” See Page, 999 F. Supp. 2d
at 284–85 (internal quotation marks and citation omitted). Plausible “custom or policy”
claims require more than just frequency; they also require facts from which a court can
plausibly infer that the defendant municipality promoted or condoned the unlawful
conduct such that imposing municipal liability is appropriate. See id. It is true that, in
some circumstances, where this necessary causal link exists, even a single instance of
alleged misconduct may be sufficient to plead municipal liability. (See Pl.’s Opp’n at
36.) See also Atchinson v. Dist. of Columbia, 73 F.3d 418, 421 (D.C. Cir. 1996)
(explaining that “‘proof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell’ absent proof that the activity was caused by a
municipal policy” (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985)
(plurality))). Here, however, DRDC has failed to allege municipal liability through a
custom or practice because it has pleaded no facts supporting the existence of a
municipal policy beyond the four instances in which the District allegedly employed it.
See Paul v. Dist. of Columbia, 815 F. Supp. 2d 193, 198 (D.D.C. 2011) (“Merely stating
that certain actions constitute a municipality’s ‘official policy,’ without more, is not
enough to survive a motion to dismiss because ‘[t]hese are the kind of naked assertions
which both Iqbal . . . and Twombly . . . have firmly rejected.’” (quoting Harris v. Dist.
of Columbia, 696 F. Supp. 2d 123, 129 (D.D.C. 2010) (alteration and ellipses in
original))).
Thus, this Court concludes that DRDC has not come close to clearing the “high
hurdle[,]” Ryan, 306 F. Supp. 3d at 346, of demonstrating municipal liability through

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custom or practice, see, e.g., Sheller-Paire v. Gray, 888 F. Supp. 2d 34, 40 (D.D.C.
2012) (finding insufficient allegations of a policy or practice where the plaintiff cited
“only four incidents where fire department management allegedly failed to respond to
his requests to provide more information [about] and to investigate his being placed on
leave”); see also Carter v. Dist. of Columbia, 795 F.2d 116, 123–24 (D.C. Cir. 1986)
(rejecting the argument that evidence of 13 “actual instances of misconduct” was
“sufficient to demonstrate a pervasive pattern”). As a result, the Court will grant
Defendants’ motion to dismiss Count 2 for failure to state a claim upon which relief can
be granted. 10
C.

DRDC’s Official Capacity Claims Against Mayor Muriel Bowser And
DYRS Director Clinton Lacey Are Duplicative

It is well established that claims “that stem from identical allegations, that are
decided under identical legal standards, and for which identical relief is available” are
duplicative, Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 81 (D.D.C. 2010), and
that a district court may exercise its discretion to dismiss them, see DTCC Data
Repository LLC v. U.S. Commodity Futures Trading Comm’n, 25 F. Supp. 3d 9, 18
(D.D.C. 2014). Moreover, courts have long made clear that bringing a claim against an
individual employee of the District of Columbia in her official capacity is simply
another way to bring a claim against the District. See, e.g., Cooke-Seals v. Dist. of
Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997). In general, when a claim is brought
against a District official and the District, the two claims “merge,” becoming the
“functional equivalent” of one another, id. (emphasis omitted); thus, courts in this

Because the Court is dismissing Count 2 based on this ground, it will not address Defendants’
arguments that Count 2 should be dismissed as duplicative. (See Defs.’ Mot. at 25; Defs.’ Reply at
18–19; see also Pl.’s Opp’n at 38–40.)
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jurisdiction often exercise their discretion to dismiss official capacity claims brought
against District officials as duplicative of identical claims brought against the District,
see, e.g., id.; N.B. v. Dist. of Columbia, 244 F. Supp. 3d 176, 188 (D.D.C. 2017).
In the instant case, Defendants have moved to dismiss DRDC’s claims against
Mayor Muriel Bowser and DYRS Director Clinton Lacey, in their official capacities
(see Defs.’ Mot. at 28–29), as duplicative of DRDC’s claims against the District, and
DRDC’s amended complaint makes clear that the claims against those individual
defendants are identical to the claims that DRDC has brought against the District (see
FAC at ¶¶ 45–65). In fact, neither Bowser nor Lacey are mentioned anywhere in the
complaint beyond the paragraphs identifying them as defendants in their official
capacity. (See generally id.) Furthermore, as Defendants have noted in their reply,
“‘[a]ny injunctive relief that the Court might grant against the District of Columbia will
be binding as to both defendants’” as well as to anyone else who ultimately holds the
individual defendants’ positions. (See Defs.’ Reply at 21 (quoting Zervas v. Dist. of
Columbia, 817 F. Supp. 148, 151 (D.D.C. 1993)).)
This Court agrees, and thus concludes that the claims that DRDC has brought
against the individual defendants are duplicative of its claims against the District.
Accordingly, the Court will exercise its discretion to dismiss the individual defendants
from this case. See, e.g., N.B., 244 F. Supp. 3d at 178, 189 (dismissing claims seeking
declaratory and injunctive relief against individual defendants in their official capacity
when the District was also a defendant).

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IV.

CONCLUSION
For the reasons explained above, this Court concludes that DRDC’s claims are

not moot; however, DRDC has failed to plead municipal liability plausibly, and
DRDC’s claims against the individual defendants are duplicative of its claims against
the District. Therefore, as set forth in the accompanying Order, Defendants’ motion to
dismiss will be GRANTED IN PART and DENIED IN PART, as follows: all claims
against the individual defendants in Counts 1 and 2 will be dismissed, and Count 2 will
be dismissed in its entirety.

DATE: March 30, 2019

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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