Harris v. Bowser, Civil Action 18-768 (CKK)

CourtUnited States District Courts. United States District Court (Columbia)
PartiesWARREN R. HARRIS, Plaintiff, v. MURIEL E. BOWSER, et al., Defendants.
Docket NumberCivil Action 18-768 (CKK)
Decision Date01 October 2021

WARREN R. HARRIS, Plaintiff,

MURIEL E. BOWSER, et al., Defendants.

Civil Action No. 18-768 (CKK)

United States District Court, District of Columbia

October 1, 2021



Plaintiff Warren R. Harris (“Plaintiff” or “Mr. Harris”) moves this Court for summary judgment in favor of his Fifth Amendment substantive and procedural due process claims, pursuant to Federal Rule of Civil Procedure 56(a), and further moves to exclude the report and testimony by Defendants' expert, Mr. Tim Gravette. Defendants Mayor Muriel E. Bowser, Director of the District of Columbia Department of Behavioral Health (“DBH”) Barbara J Bazron, Chief Executive Officer of St. Elizabeths Hospital Mark J. Chastang, and Director of the District of Columbia Department of Corrections (“DOC”) Quincy L. Booth (collectively, the “Defendants”) - having been sued in their official capacities only - oppose the Plaintiff's motions and cross-move for summary judgment.[1] For the reasons explained herein, Plaintiff's [55] Motion for Summary


Judgment is DENIED; Plaintiff's [57] Motion to Exclude the Expert Report and Testimony of Tim Gravette is DENIED; and Defendants' [60] Cross-Motion for Summary is GRANTED.

I. Background

In presenting the facts pertinent to resolving the present motions, this Court “assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1). In most instances the Court shall cite to Plaintiff's [55] Statement of Undisputed Material Facts (“Pl's SUMF”), unless Defendants dispute or controvert relevant aspects of a fact proffered by Plaintiff. In such instances, the Court shall also cite to Defendants' [61-1] Response to Plaintiff's Statement of Undisputed Material Facts (“Defs.' Resp. to SUMF”) and/or to Defendants' [60-5] Statement of Undisputed Material Facts (“Defs.' SUMF”), with cites to Plaintiff's [64-1] Response to Defendants' Statements of Undisputed Material Facts (“Pl.'s Resp. to SUMF”), as needed. The Court shall also cite directly to the record, where appropriate, to provide additional information not covered by the parties' Statements of Material Facts, or to provide applicable references to testimony and exhibits.


Plaintiff was committed to St. Elizabeths Hospital (the “Hospital”) in 1981 after being found not guilty by reason of insanity (“NGRI”) of a violent crime.[2] Patients involuntarily committed to the Hospital are assigned a “Privilege Level, ” ranging from Class A through Class E, which refers to the authorized access by patients to public areas of the Hospital, the Hospital grounds, and the community. Pl.'s SUMF ¶¶ 5-6; see Hospital Policy No. 102-02, attached as Ex. A to Lee Declaration. Plaintiff challenges the Defendants' use of restraints during Plaintiff's transport to court on April 5, 2017, as a violation of his substantive and procedural due process rights under the Fifth Amendment. See generally Complaint, ECF No. 1.

Hospital Policy No. 401-02, Transportation of Patients, which was in effect during Plaintiff's April 2017 transport provides in relevant part that “[i]t is the policy of Saint Elizabeths Hospital (SHE) to provide transportation services to patients when necessary and requiring transport to or from court, and other locations.” Pl.'s SUMF ¶ 10; see Hospital Policy No. 401-02, attached as Ex. B to the Lee Declaration, ECF No. 56. Also effective during Plaintiff's April 2017 transport was Policy NPM 3-19, Escorting Individuals in Care to and from Court Appearances, (“NGRI Patient Court Transport Policy”) which provides that NGRI patients requiring transport to court “will be transported by Department of Corrections (DOC) personnel.” Pl.'s SUMP ¶ 21; see NGRI Patient Court Transport Policy, attached as Ex. E to Lee Declaration, ECF No. 56. During DOC transport, DOC used “full” restraints - handcuffs, leg irons, and belly chains - while transporting persons. Defs' SUMP ¶ 8.

Both Policy 401-02 and NPM 3-19 were superseded by DBH Policy 401.03, General


Transportation Procedures for Post-Trial Forensic Individuals in Care (effective Mar. 31, 2021) (“DBH Transport Policy”) (attached as Defendants' Ex. 3, ECF No. 60-3). Defs' SUMF ¶ 12. That policy provides that Class A forensic patients will continue to be transported by DOC staff to and from court proceedings and external appointments, while in restraints, while forensic patients Class B and higher who have been determined to be at low risk or harm or elopement will be transported by Hospital staff, without using restraints. DBH Policy, 401.03, Section III (B). Forensic patients Class B and higher who have been determined to be at high risk for harm or elopement will be temporarily classified as Class A and subject to transport in the same manner as Class A forensic patients. Id. Within 48 hours prior to a medical or community-services appointment, the patient's treatment team will conduct a clinical risk assessment to evaluate the individual's risk of harm to self or others and risk of elopement, and the same will be done within 72 hours of a scheduled in-court hearing. DBH Policy 401.03, Section IV (A) (2); (IV) (B)(2).

II. Legal Standard

A. Federal Rule of Civil Procedure 12(b)(1)

Pursuant to Fed.R.Civ.P. 12(b)(1), “courts must dismiss any claim over which they lack subject matter jurisdiction.” Pub. Employees for Environmental Responsibility v. Nat'l Park Serv., Civil Action No. 19-3629, 2021 WL 1198047, *5 (D.D.C. Mar. 30, 2021) (PEER) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506-507 (2006)). “Such a motion can be raised ‘at any time' during the litigation, ” id. (quoting Fed.R.Civ.P. 12(h)(3)), and “in deciding a 12(b)(1) motion, a court need not limit itself to the complaint; rather, it ‘may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction in the case, '” Toth v. Wells Fargo Bank, N.A., 82 F.Supp.3d 373, 376 (D.D.C. 2015) (citations omitted). “A motion to dismiss for mootness is properly brought under Rule 12(b)(1) because mootness itself deprives the court of jurisdiction.” Indian River Cty. v. Rogoff, 254 F.Supp.3d 15, 18 (D.D.C. 2017).


B. Federal Rule of Civil Procedure 56

Summary judgment is appropriate if the movant carries the burden of showing “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, ” based upon the pleadings, depositions, and affidavits, and other factual materials in the record. Fed.R.Civ.P. 56(a); Ali v. Tolbert, 636 F.3d 622, 628 (D.C. Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Fed.R.Civ.P. 56(a). Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant fact; the dispute must be “genuine, ” meaning the nonmoving party must establish more than “[t]he mere scintilla of evidence” in support of its position, Anderson, 477 U.S. at 252, “must do more than simply show that there is some metaphysical doubt as to the material facts, ” Scott v. Harris, 550 U.S. 373, 380 (2007), and cannot rely on “mere allegations” or conclusory statements, see Estate of Parsons v. Palestinian Authority, 651 F.3d 118, 123 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150 (D.C. Cir. 1993).

The nonmoving party must present specific facts “‘such that a reasonable jury could return a verdict for the nonmoving party.'” Grosdidier v. Broadcasting Bd. of Governors, Chairman, 709 F.3d 19, 23 (D.C. Cir. 2013) (quoting Anderson, 477 U.S. at 248); see also Fed. R. Civ. P. 56(c)(1). If the evidence proffered “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010). Furthermore, “[if] opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court


should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). The Court is only required to consider the materials explicitly cited by the parties, but may, on its own accord, consider “other materials in the record.” Fed.R.Civ.P. 56(c)(3). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009); see also Sibert-Dean v. Wash. Metro. Transit Auth., 751 F.Supp.2d 87, 90 (D.D.C. 2010) (requiring the non-moving party's factual representations made in an affidavit to be supported by facts in the record). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the district court may “consider the fact undisputed for...

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