Konah v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
LENA T. KONAH, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-904 (RMC)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
___________________________________ )

OPINION

Lena T. Konah worked as a licensed practical nurse at the D.C. Jail until the

events that underlie this lawsuit caused her to take a leave of absence and eventually decide not

to return. On her last day of work, Ms. Konah was accosted by a group of semi-clothed inmates

who made repeated lewd comments and one of whom grabbed her buttocks. Totally unnerved

by the experience, Ms. Konah contends that the District of Columbia failed to train its

correctional employees to respond adequately to inmates’ sexual abuse of staff and thus violated

her right to equal protection under the Fifth Amendment’s Due Process Clause. The District

moves for summary judgment. For the reasons stated below, the Court will grant the motion.

I. FACTS

This case has previously been addressed by the Court. The facts and procedural

history are set forth in detail in Konah v. District of Columbia (Konah I), 815 F. Supp. 2d 61

(D.D.C. 2011) (granting in part and denying in part motion to dismiss; exercising supplemental

jurisdiction over state-law claims) and in Konah v. District of Columbia (Konah II), 915 F. Supp.

2d 7 (D.D.C. 2013) (granting summary judgment to Unity and Sgt. Robert Jefferson; granting

partial judgment on the pleadings to the District). There is now only one count remaining: a

1
claim against the District of Columbia under Monell v. Department of Social Services of the City

of New York, 436 U.S. 658, 691–92 (1978), alleging sexual harassment by inmates due to

inadequate training of correctional officers. See 3d Am. Compl. [Dkt. 64] ¶¶ 54–62. This

Opinion reviews only the facts relevant to the outstanding claim and states them in the light most

favorable to Ms. Konah. No additional discovery was conducted after Konah II was issued, and

that opinion was based on an extensive record, which included depositions of many key

witnesses, documentary evidence, and video recordings. Therefore, the Court cites to the facts as

set forth in Konah II except where additions are necessary or where the parties contend that a

material factual dispute remains.

A. Background

From November 2006 through September 2009, Ms. Konah worked as a Licensed

Practical Nurse (LPN) for Unity Health Care, Inc., which provides medical services to inmates at

the D.C. Central Detention Facility (CDF, also referred to as the D.C. Jail) under contract with

the District’s Department of Corrections (DOC). Konah II, 915 F. Supp. 2d at 12. One of the

duties of LPNs was to distribute medicine to inmates, which nurses typically did in the housing

units of the jail. Id. at 13. Correctional officers were required to accompany nurses at all times

when they dispensed medication, and if an officer was not immediately available, a nurse could

“just come back and wait for one.” Id. (quoting Konah Dep. at 100; other record citations

omitted). Waiting for an officer was Ms. Konah’s typical practice. Id.

It was not uncommon for inmates to insult or assault staff at CDF by cursing them

or using other inappropriate language, masturbating in front of them, or throwing urine, feces, or

other liquids at them. Id. at 13, 25. The targets of these attacks were both correctional

employees and contractors, including Unity nurses; both men and women were victims. Id.; see

also Jefferson Dep., Def. Mot. Summ. J. (Def. MSJ) [Dkt. 90], Ex. 2 [Dkt. 90-4] at 42–45, 91–92
2
(“Q. . . . [I]s the yelling, the cursing, the throwing of fecal matter, the throwing of urine, is that

only limited to female officers? A. No.”). As Dr. Benedict Kargbo, a CDF treatment specialist,

testified:

Q. Is the act of inmates throwing urine or feces at correctional
staff, is that common?
A. Yes. It happen[s] all the time.
Q. And does it happen in other jails that you’ve worked in?
A. Yes, it does.
Q. And is it directed at females only?
A. No.
Q. Is it directed at nurses only?
A. No.

Kargbo Dep., Def. MSJ, Ex. 5 [Dkt. 90-7] at 46–47, 62–63, 68–69. Sergeant Jefferson

acknowledged, however, that inmates did not masturbate “frequently” in front of males, directing

that behavior largely at female staffers. Jefferson Dep. at 42–44.

“Assault by Throwing Substances,” including “liquids, blood, waste, chemicals,

urine, etc.” was listed as a Class I Major Offense in the Inmate Handbook given to all CDF

inmates, and “[w]illfully subjecting an employee of the DOC to offensive bodily contact” was a

Class II Serious Offense. See Inmate Handbook, Def. MSJ, Ex. 6 [Dkt. 90-8] at 16, 20. These

violations were punishable with administrative penalties ranging from loss of privileges or work

assignment to disciplinary detention; for a Class I Major Offense, disciplinary detention could be

imposed for the remainder of an inmate’s time in custody. Id. at 19–20, 23. Class I Major

Offenses could also be prosecuted criminally. Id. at 16.

On April 21, 2009, several nurses, including Ms. Konah, sent a letter to Unity

management, complaining about security practices at the jail. Konah II, 915 F. Supp. 2d at 13;

see also April 21, 2009 Letter (4/21/09 Letter), Pl. Opp. Mot. Summ. J. (Pl. Opp.) [Dkt. 91], Ex.

5 [Dkt. 91-6] at 1. Titled “Deplorable Security Conditions During Medication Administration,”

the letter stated, in relevant part:
3
 We are writing this notice because of the deplorable security
conditions we are facing during medication pass. On 4/11/09 feces
were thrown on nurse Igwulu Francisca. On 4/19/09 some
unknown liquid was thrown on nurse Tyler Ashly. Before then,
about a week ago, unknown liquid was thrown on nurse Akoto
Joyce. A similar incident happened to nurse Harper and nurse
Nwaobilor. Nurse Tangunyi was hit with a bar of soap from
behind. Unknown liquid was thrown on nurse Tandong.

Curiously notwithstanding all this incidents and all our pleas for
the situation to be looked into, nothing has been done. . . . We
keep wondering if a nurse needs to be stabbed or even killed here
before this issue will be looked into.

We had previously brought our predicaments to the nursing
administrator who promised to get in touch with the DOC
administration so that the officers will bring the inmates to the
bubble or to the sick call room to be medicated, but till this date we
have not hear of the out come. . . .

4/21/09 Letter at 1 (alteration in brackets; all other spelling and formatting as in original).

Nurses Tangunyi is male; Nurses Francisca Igwulu and Ashly (or Ashley) Tyler are females; Ms.

Konah is female, and the rest of the nurses’ genders are not in the record. Konah Dep., Def.

MSJ, Ex. 1 [Dkt. 90-3] at 70–72.

“The bubble” referenced in the 4/21/09 Letter is the glass-walled control module

staffed by corrections employees that sits at the entrance of each “open population” housing unit

in the D.C. Jail. Open-population inmates are often released from their cells to mingle and

congregate generally in their cell block. From the bubble, a corrections sergeant controls two

gates for each cell block: one gate connects the cell block to a narrow hallway called the “sally

port” 1 while the second gate connects the sally port to the main hallway of the jail. The sally

port is the ingress and egress to the cell block for inmates and corrections staff, and inmates are

not supposed to be in the sally port without a corrections officer as an escort. Only one gate in

1
A modern sally port is most often a controlled entrance into a secured and protected area, such
as a prison.

4
the sally port may be open at any given time because otherwise, inmates could run out into the

hallway of the jail, which would be a security breach. Also referenced in the 4/21/09 Letter are

“sick call rooms,” which are small rooms with Dutch doors adjacent to the sally ports. A nurse

can stand inside a sick-call room with the bottom half of the door closed and locked and dispense

medication through the open top half of the door. To access a sick-call room, a nurse would sign

out the key and return it when s/he was done. Konah II, 915 F. Supp. 2d at 12–13 (record

citations omitted).

The parties dispute the evolution of the policy on the use of sick-call rooms. It is

clear that prior to the 4/21/09 Letter, sick-call rooms were available for use, but the nurses’

prevailing practice was to enter the cell blocks and dispense medication to inmates in open

population or cell-to-cell. See Konah II, 915 F. Supp. 2d at 13. For example, CDF records show

that Ms. Konah signed out a key and used a sick-call room in March 2009, id. (citations omitted),

but she asserts that “the only policy on dispensing medications that she knew and understood

. . . [was] that nurses dispensed medications on the units walking around the tiers/units and that

there was no specific place to dispense medications,” Pl. Statement of Material Facts in Dispute

(Pl. SOF), Dkt. 91-1, ¶ 2.

After receiving the 4/21/09 Letter, Vali Zabiheian, Unity’s Health Services

Administrator and the senior management representative for Unity at the D.C. Jail, implemented

a “sick call room policy” for medication distribution. Konah II, 915 F. Supp. 2d at 13. Under

the new policy, “medication administration and dispensing by the nursing and pharmacy staff”

was to “take place in the sick call rooms on the housing units,” and Unity staff would “no longer

walk on the housing units to administer medicine in open population.” Id. (citing Apr. 22, 2009

Zabiheian Memo at 1). Despite the protection of a sick-call room, a corrections officer was

5
required to escort each nurse at all times. Id. This sick-call room policy was posted at CDF

where Unity employees clock in, in the nursing station, and in the medication room, and a copy

was sent to Warden Simon Wainwright. Id. In addition, at an April 30, 2009 meeting, all

nursing staff, including Ms. Konah, were instructed to use the sick-call rooms when dispensing

medicine. Id. at 13–14. Ms. Konah signed the attendance sheet for the April 30, 2009 training,

and the meeting record reflects her attendance. Id. at 14 (record citations omitted). Ms. Konah

further admitted that the signature is hers, but she equivocated during her deposition about

whether she was at the meeting. 2 Id. (record citations omitted). Ms. Konah’s counsel argues that

even after the sick-call room policy was instituted, Ms. Konah continued to pass medications in

the company of an officer in the housing unit because she did not understand that the policy had

changed. E.g., Pl. SOF ¶ 4.

B. August 5, 2009 Incident

Ms. Konah’s Monell claim derives from an incident that occurred on August 5,

2009, in which a crowd of semi-clad inmates in the sally port surrounded her and grabbed her

buttocks. 3 While the summary judgment record contains some disputes about details of the

2
As the Court noted in Konah II, Ms. Konah’s deposition testimony contained numerous
instances in which she claimed she could not remember or explain significant events or concepts,
both relevant and irrelevant to the case. See Konah II, 915 F. Supp. 2d at 16 n.7. Ms. Konah
relies on the exact same deposition testimony in opposing the District’s motion for summary
judgment. The Court again finds that Ms. Konah’s nonresponsive answers are insufficient to
create legitimate disputes of material fact. Id. at 16 (citing, inter alia, Bonieskie v. Mukasey, 540
F. Supp. 2d 190, 195 (D.D.C. 2008)).
3
Ms. Konah alleges that she filed other “complaints of sex harassment by inmates with her
supervisors” that “receiv[ed] no action or response.” Pl. SUF ¶¶ 10, 12. She cites pages 46 and
69–70 of her deposition as support, but the testimony at those pages states only that Ms. Konah
agreed that the “incidents in [the 4/21/09 Letter] happened to [her].” Importantly, the 4/21/09
Letter did not allege sexual harassment. Asked whether she had ever made other reports to a
supervisor about sexual harassment, Ms. Konah’s inconsistent testimony concluded with her
statement that she “can’t recall” doing so. Konah Dep. at 70. Ms. Konah has offered no other
evidence of such reports before her complaint to the D.C. Office of Human Rights. See DCOHR
6
incident, see Konah II, 915 F. Supp. 2d at 19–20, the Court views the essential facts in the light

most favorable to Ms. Konah as summarized in Konah II:

Ms. Konah was assigned to dispense medication to inmates on
August 5, 2009, in a CDF housing unit known as Southwest–1 or
SW 1. [Sergeant Robert] Jefferson was on duty at the Southwest–1
bubble that day. Ms. Konah varied from her usual practice of
waiting for an officer and entered the sally port unescorted. She
began to dispense medications to inmates in the sally port, close to
the front gate. While she was there, the bubble gate opened and
closed a few times, presumably to admit and discharge inmates
obtaining medications. However, a group of inmates from the
housing unit, dressed only in their undergarments, approached Ms.
Konah in the sally port, making especially lewd and sexually
threatening comments. She went to the bubble and asked Sgt.
Jefferson to open the front gate to the corridor outside the unit so
she could get away from the inmates, but he refused to respond or
to open the gate, leaving her trapped in the sally port. As Ms.
Konah returned to the front gate, the semi-clothed inmates
surrounded her, calling her names and using sexually explicit
language; one inmate grabbed her on the buttocks. Ms. Konah
asked him something to the effect of “why did you touch me?” and
screamed for help from Sgt. Jefferson. Dr. Benedict Kargbo, a
treatment specialist at the Jail, entered the sally port from the
housing unit, saw what was happening, and told the inmate to back
away from Ms. Konah, which he did immediately. Dr. Kargbo
joined Ms. Konah’s demands that the front gate be opened. Sgt.
Jefferson eventually opened the front gate. With a corrections
officer at the entrance, Ms. Konah and Dr. Kargbo left the sally
port at the front gate and entered the main hallway of the Jail.

Ms. Konah was immediately taken to the infirmary. She also met
with Unity and CDF management, including the Warden. She
declined to press criminal charges against the inmate, who had
been placed on lockdown and charged with several Class II Serious
Offenses.

Id. at 14–15 (record citations omitted).

Compl., Pl. Opp., Ex. 11 [Dkt. 91-12] at 1 (complaining that she had been “subjected to
derogatory comments and other sexually harassing acts by inmates”).

7
 C. Ms. Konah’s Other Evidence Regarding CDF

Ms. Konah has submitted collateral materials that, she argues, support her Monell

claim. The Court finds that these materials deserve no significant weight because they are of

dubious relevance at best. Ms. Konah has submitted the District of Columbia Inspector

General’s 2009 “Report of Re-inspection of the Central Detention Facility,” Pl. Opp., Ex. 8, Dkt.

91-9 (OIG Report); a March 2009 report from the Commission on Accreditation for Corrections,

id., Ex. 9, Dkt. 91-10; and testimony from the Director of the D.C. Prisoners’ Project before the

D.C. Council, id., Ex. 15, Dkt. 91-16. Ms. Konah asserts that these documents show “DOC

officials and policy maker [sic] were aware that correctional officers at the CDF were not

adequately trained in sexual abuse or security, and that it was a practice and custom at the CDF

for the correctional officers not to follow DOC Post Orders, and that the failure to adequately

train the correctional officers would lead to harm and violations of constitutional rights.” Pl.

SOF ¶ 27. The cited documents, however, almost exclusively discuss inmate conditions and not

sexual abuse or security. 4 E.g., OIG Report at 4 (finding that “DOC had addressed key findings

and recommendations from a previous inspection,” listing as examples “decreasing vermin

contamination throughout the CDF” and “delivering proper dietetic meals to inmates”). Ms.

Konah also embellishes the OIG Report’s reference to inconsistent following of post orders,

which in reality bore no relation to inmate assaults on staff, much less sex-based harassment or

attacks. Id. at 18.

4
Ms. Konah’s opposition brief is disconcertingly rife with similar material misrepresentations of
fact. For example, citing pages “42–34 [sic]” of Sergeant Jefferson’s deposition, she asserts:
“[Sergeant Jefferson] further stated that he did not take sexual harassment seriously and if a staff
brought it to his attention he would not report it.” Pl. Opp. at 12. Absolutely nothing in Sergeant
Jefferson’s deposition—on page 42, nearby pages, or otherwise—supports that assertion.

8
 The Court does not rely on other materials submitted by Ms. Konah because

tenuous relevance is the least severe of their infirmities. For example, she has offered two

newspaper articles from the Washington City Paper describing assaults on inmates by other

inmates, which are inadmissible hearsay. See Pl. Opp., Ex. 13 [Dkt. 91-14] & Ex. 14 [Dkt. 91-

15]. She has also included a conclusory report from a “Correctional Consultant” (whose

credentials are unrevealed and who has not been accepted as an expert by the Court) that asserts

that the District “acted in a manner that was inconsistent with and below the applicable standard

of care and accepted practices and procedures” on August 5, 2009, id., Ex. 17, Dkt. 91-18.

“[U]nsworn, unauthenticated documents cannot be considered on a motion for summary

judgment,” Akers v. Liberty Mutual Group, 744 F. Supp. 2d 92, 97 (D.D.C. 2010) (quoting Orsi

v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993)), and “‘sheer hearsay . . . counts for nothing’ on

summary judgment.” Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (quoting Gleklen

v. Democratic Cong. Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000)). Were these

materials admissible on summary judgment, they would nonetheless remain irrelevant because

they do not bear on Ms. Konah’s Monell claim of a practice or custom of DOC that violated Ms.

Konah’s equal protection rights.

II. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if 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); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly

granted against a party who “after adequate time for discovery and upon motion . . . fails to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

9
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the

nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that

would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249–50 (citations omitted).

III. ANALYSIS

In Konah II, this Court denied the District’s motion for judgment on the pleadings

on Ms. Konah’s Monell claim because she had “alleged sufficient facts to state a claim that

District officials knew of the problem”—“that the District did not sufficiently train its employees

in the Department of Corrections to ensure that Unity nurses were not subjected to constant

gender-based lewd and nasty catcalls or acts by the inmates”—“and that their failure to address it

was deliberately indifferent.” Konah II, 915 F. Supp. 2d at 31–32. But allegations are not

evidence. The record on summary judgment shows no genuine disputes of material fact, and the

District is entitled to judgment as a matter of law. Accordingly, the motion for summary

judgment will be granted.

Constitutional claims against municipalities under 42 U.S.C. § 1983 are subject to

a two-step analysis. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)

(citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)). First, a court must find that
10
the plaintiff suffered “a predicate constitutional violation.” Id. (citation omitted). At the second

step, a court must determine whether “a custom or policy of the municipality caused the

violation.” Id. (citing Collins, 503 U.S. at 120; other citations omitted); see also Monell, 436

U.S. at 694 (“[I]t is when execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under § 1983.”).

The predicate constitutional violation that Ms. Konah allegedly suffered is sexual

harassment, which can constitute discrimination based on gender in violation of the equal

protection component of the Fifth Amendment’s Due Process clause. 5 See Pl. Opp. at 11. As

the Court stated in Konah II:

“[T]he Due Process Clause of the Fifth Amendment forbids the
Federal Government to deny equal protection of the laws.” Davis
v. Passman, 442 U.S. 228, 234 (1979) (citations omitted). “To
withstand scrutiny under the equal protection component of the
Fifth Amendment’s Due Process Clause,” gender classifications
must meet so-called “intermediate scrutiny,” meaning that they
“must serve important governmental objectives and must be
substantially related to achievement of those objectives.” Id. at
235; see also United States v. Virginia, 518 U.S. 515, 533 (1996)
(applying same test to Fourteenth Amendment equal protection
claim of gender discrimination). “The equal protection component
of the Due Process Clause thus confers . . . a federal constitutional
right to be free from gender discrimination which cannot meet
these requirements.” Passman, 442 U.S. at 235.

915 F. Supp. 2d at 30–31. A sexual harassment claim brought under the equal protection clause

is actionable under § 1983. See, e.g., Annis v. Cnty. of Westchester, N.Y., 36 F.3d 251, 254 (2d

Cir. 1994) (“[H]arassment that transcends coarse, hostile and boorish behavior can rise to the

5
Because the District is treated as a federal enclave and not a state for the purpose of analyzing
constitutional due process claims, such suits against the District “must be brought under the Fifth
and not the Fourteenth Amendment.” See Fisher v. Fulwood, 774 F. Supp. 2d 54, 55 n.1 (D.D.C.
2011).

11
level of a constitutional tort.”); Pontarelli v. Stone, 930 F.2d 104, 113–114 (1st Cir. 1991),

abrogated on other grounds by Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380 (1993).

The record is clear that all staff at the D.C. Jail—whether employed by the

District of Columbia or Unity and whether male or female—were subject to some amount of

verbal abuse and noxious substances from inmates. It is also clear that masturbation by inmates

occurred most often in sight of female staff, although masturbation was not exhibited to Ms.

Konah on August 5, 2009, or, perhaps, ever during her tenure at the D.C. Jail. See Konah Dep.

at 68–73, 248–50 (referring to nonspecific incidents of “sexual remarks” that she “can’t recall”

but never mentioning exhibitionist self-gratification). Notably, the nursing staff employed by

Unity at the D.C. Jail in April 2009 was largely, although not exclusively, women, but they

attributed inmate misconduct to a lack of security, not sexual harassment directed against their

gender. Nonetheless, there is also no dispute that inmates directed lewd, sexually explicit

comments specifically at Ms. Konah and that one inmate grabbed her on the buttocks on August

5, 2009.

The Court is left with the complexity—through record evidence now or at a later

trial—of attempting to cull inmate misconduct directed to both sexes from that directed to

women due to the recipient’s gender. This complicated and time-consuming task could

ultimately be for naught because it is unclear that § 1983 would cover a claim of sexual

harassment when the offense arises from lewd inmate conduct. 6 The Court avoids this quagmire

6
In the context of an alleged hostile work environment in a jail, under Title VII, 42 U.S.C.
§ 2000e et seq., courts have ruled that an “employer may be liable if he ‘fails to take immediate
and appropriate corrective action in response to a hostile work environment of which the
employer knew or reasonably should have known.’” Konah II, 915 F. Supp. 2d at 24 (quoting
Beckford v. Department of Corrections, 605 F.3d 951, 957–58 (11th Cir. 2010)). But “[c]ourts
12
by moving instead to the second part of the Monell test, which proves to be dispositive even if

Ms. Konah had proved an equal protection violation.

Because a municipality is liable only “where the municipality itself causes the

constitutional violation at issue,” Simms v. District of Columbia, 587 F. Supp. 2d 269, 276

(D.D.C. 2008) (citing Monell, 436 U.S. at 694), there must be “an affirmative link . . . such that a

municipal policy was the moving force behind the constitutional violation,” Baker, 326 F.3d at

1306 (internal quotation marks and citations omitted). While a plaintiff may bring suit based on

an actual, identifiable policy or practice, an actionable policy may also exist when a municipality

fails “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.” Baker, 326 F.3d at 1306 (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

The Supreme Court has cautioned that “[a] municipality’s culpability for a deprivation of rights

is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 131 S. Ct.

1350, 1359 (2011).

A municipality is deliberately indifferent when it has knowledge that its agents

are likely to violate constitutional rights, and the municipality “adopt[s] a policy of inaction.”

Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). A court must determine

“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. 825, 841

(1994)). A municipality is not deliberately indifferent simply because it fails to “take reasonable

care to discover and prevent constitutional violations.” Warren, 353 F.3d at 39. For liability to

have repeatedly declined to impose sexual harassment liability upon correctional institutions for
the sexually offensive conduct of inmates, as long as the defendant institution took proper
preventive and remedial steps with regard to inmate behavior.” Powell v. Morris, 37 F. Supp. 2d
1011, 1017 (S.D. Ohio 1999).

13
attach, “the identified deficiency in the city’s training program must be closely related to the

ultimate injury.” Harris, 489 U.S. at 391.

Ms. Konah cannot meet the “stringent standard of fault” for the alleged failure-to-

train for three reasons. See Thompson, 131 S. Ct. at 1360 (quoting Board of Comm’rs of Bryan

Cnty. v. Brown, 520 U.S. 397, 410 (1997)). First, setting aside her apparent violation of the new

sick-call room policy, the precipitating cause of the August 5, 2009 incident was Ms. Konah’s

own decision to violate longstanding policy and deviate from her standard practice of waiting for

a corrections officer to escort her before entering the housing unit. See Konah Dep. at 100 (“Q.

And do you typically wait for an officer if one is not available? A. Yes.”). This alone is

sufficient to grant summary judgment for the District because a Monell plaintiff must show that

“the identified deficiency in the city’s training program” was “closely related to the ultimate

injury.” Harris, 489 U.S. at 391. Ms. Konah seeks to expand this lawsuit into a referendum on

whether DOC officials “take sexual harassment or sexual abuse seriously,” Pl. Opp. at 12, or

whether DOC employees had “received sexual harassment or sexual abuse training,” id. at 10,

but the alleged harm was caused by Ms. Konah’s admitted choice to enter the sally port without

waiting for the security of a corrections officer. There is no suggestion that Ms. Konah was

forced to enter the housing unit without an escort or that she could not have waited for an officer

to accompany her, as she herself conceded at her deposition. 7 See Konah Dep. at 103–04. To

the extent that Ms. Konah complains that Sergeant Jefferson should have opened the gate to

allow her to escape the inmates in the sally port, as the Court concluded in Konah II, “[e]ven

7
The Third Amended Complaint alleges that Ms. Konah “was assigned by her supervisor to
dispense medications to inmates . . . without security escort,” 3d Am. Compl. ¶ 14, but at the
close of discovery, Ms. Konah pointed to no evidence to support that assertion. Mere
unsubstantiated allegations are insufficient to survive summary judgment. See Greene, 164 F.3d
at 675.

14
[Ms. Konah’s] deposition, viewed in the light most favorable to her and setting aside the many

inconsistencies and memory gaps, does not tend to show that Sgt. Jefferson ‘just did not open the

gate’ for any reason other than that there were inmates in the sally port who would have been

able to escape confinement.” 915 F. Supp. 2d at 23. It is worth noting that Ms. Konah conceded

at deposition that her claims are based on her belief that Sergeant Jefferson “did not open the

gate to let me out as I asked him before the inmate came and touched me.” Konah Dep. at 227–

28. There is no evidence tending to show that any municipal policy was the “moving force”

behind the August 5, 2009, incident, rather than Ms. Konah’s own decision to enter the unit

without a corrections officer escort, mandated by DOC policy and as per her typical practice.

The second fatal shortcoming in Ms. Konah’s Monell claim is the disconnect

between the sexual harassment she suffered on August 5, 2009, and the evidence she has offered

to show that the District was deliberately indifferent to a need for better corrections officer

training. Again, despite counsel’s attempt to transform this case into a sweeping review of

management of the D.C. Jail, the circumstantial evidence relied on by Ms. Konah does not show

“deliberate indifference to the risk that not addressing the need will result in constitutional

violations.” See Baker, 326 F.3d at 1306. Ms. Konah’s proffered evidence of deliberate

indifference supports two conclusions: first, in 2009, CDF had a general problem of inmates

cursing and throwing fecal matter or urine at staff, including nurses; and, second, in the late

2000s, the District was actively trying to remedy inmate conditions and overall management at

CDF. But none of this evidence shows that the District was deliberately indifferent to any

problem of sexual harassment of staff by inmates, which is the alleged constitutional violation at

issue. The 4/21/09 Letter, relied on by Ms. Konah, stated nurses’ concerns about security and

thrown bodily waste, not sexual harassment, and even the most relevant part of the OIG

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Report—the section regarding correctional officer compliance with post orders—did not mention

staff security, much less sexual harassment of contractors. To the contrary, it primarily

addressed issues regarding “a safe, clean, secure, and human environment for inmates.” OIG

Report at 18. Generalized concerns about a need for increased safety at CDF are not sufficient to

prove deliberate indifference to sexual harassment of the kind experienced by Ms. Konah. Thus,

there is no evidence that the District “adopt[ed] a policy of inaction” that led to a violation of

constitutional rights. Warren, 353 F.3d at 39.

Third, even assuming that the ongoing, general concerns about conditions at CDF

somehow should have put the District on notice of the risk of nurses experiencing sexual

harassment, the record reflects that Unity and the District collaborated to address those concerns.

The day after receiving the 4/21/09 Letter, Unity determined that all nurses would be required to

distribute medication from within the sick-call rooms. This policy was distributed to Unity and

CDF staff and was the subject of the April 30, 2009 Unity staff meeting. Ms. Konah argues that

“she did not understand that the policy had changed,” Pl. SOF ¶ 4, but her subjective lack of

understanding is not evidence that the District “knew or should have known of the risk of

constitutional violations.” Baker, 326 F.3d at 1307; see also Konah II, 915 F. Supp. 2d at 26

(observing that Unity was bound by DOC security policies and concluding that “Unity took

reasonable and appropriate corrective steps to ensure that the environment for Unity nurses at

CDF would be as safe and non-hostile as a job situation in a jail requiring direct contact with

inmates could be”). Moreover, as the Court discussed in Konah II, “[t]he follow-up by Unity

and DOC to the August 5, 2009 incident was also comprehensive, including the immediate

medical evaluation of Ms. Konah by the infirmary, a meeting with the warden, the offer of

criminal prosecution, and the use of the internal CDF disciplinary system to which inmates are

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subject.” 915 F. Supp. 2d at 26. These responses are far more robust than the failure to respond

that the Ninth Circuit found supported a correctional facility’s Title VII hostile work

environment liability for failure to respond to inmate sexual misconduct in Freitag v. Ayers, 468

F.3d 528, 540–41 (9th Cir. 2006), cited by Ms. Konah. In Freitag, for example, there were

specific complaints “by female officers about exhibitionist masturbation,” and the jail had

neither used its own disciplinary process sufficiently nor adopted any of the other corrective

measures available. Id. The responses to the 4/21/09 Letter and to the August 5, 2009 incident

do not reflect deliberate indifference.

There is no doubt that the August 5, 2009 incident justifiably unnerved Ms.

Konah. However, persons who work in close contact with inmates face dangerous and difficult

circumstances each day, even in the best-managed facilities. Were Ms. Konah able to prove that

inmate sexual harassment violated her rights to equal protection of the laws, there is no evidence

that the District failed to train correctional officers in a way that would have averted the incident,

and there is evidence that Ms. Konah could have avoided it by following known policy. On

these facts, Ms. Konah has not shown that the any custom or policy is to blame for her alleged

constitutional injury.

IV. CONCLUSION

For the foregoing reasons, the District of Columbia’s Motion for Summary

Judgment, Dkt. 90, will be granted. A memorializing Order accompanies this Opinion.

Date: September 20, 2013

/s/
ROSEMARY M. COLLYER
United States District Judge

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