Daskalea v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 1999 Decided August 8, 2000

No. 98-7207

Sunday Daskalea,
Appellee

v.

District of Columbia and
Margaret A. Moore, Director, D.C. Department of Correc-
tions,
Appellants

Appeal from the United States District Court
for the District of Columbia
(No. 96cv02496)

Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, Office of Corporation Counsel, argued the cause for
appellants. With him on the briefs were Jo Anne Robinson,
Interim Corporation Counsel at the time appellants' main
brief was filed, Robert R. Rigsby, Interim Corporation Coun-

sel at the time appellants' reply brief was filed, and Charles
L. Reischel, Deputy Corporation Counsel. Donna M. Mura-
sky, Assistant Corporation Counsel, entered an appearance.

Gregory L. Lattimer argued the cause and filed the brief
for appellee.

Before: Sentelle, Henderson, and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Uncontradicted evidence at the
trial of this case established the routine sexual abuse of
women inmates by prison guards at the District of Columbia
Jail. The plaintiff, Sunday Daskalea, suffered from a con-
tinuing course of such abuse, culminating in an evening
during which "correctional" officers forced her to dance
naked on a table before more than a hundred chanting,
jeering guards and inmates. The District asks us to relieve it
of all responsibility for this conduct, contending that the facts
fail to establish the "deliberate indifference" necessary to
sustain a municipality's liability for the acts of its employees.
But "deliberate indifference" is precisely how any reasonable
person would describe the District's attitude toward its wom-
en prisoners, and we therefore uphold in full the jury's award
of $350,000 in compensatory damages. We are unable, how-
ever, to uphold the jury's punitive damages award because
District of Columbia law bars the imposition of such awards
against the District. And because Daskalea sued co-
defendant Margaret Moore solely in her official capacity as
Director of the Department of Corrections, plaintiff must look
to the District alone for payment of compensation.

I

This is not the first time the federal courts have reviewed
charges of sexual abuse by D.C. correctional officers against
female inmates. In 1993, a class action was filed on behalf of
all women prisoners under the care of the District of Colum-
bia correctional system. See Women Prisoners v. District of
Columbia, 877 F. Supp. 634 (D.D.C. 1994). In that case, the

district court found a pattern of rape and sexual assault--
coupled with other forms of sexual harassment, inadequate or
nonexistent staff training, and retaliation against women who
filed complaints--that rose to a level of objective cruelty
sufficient to violate the Eighth Amendment. See Women
Prisoners, 877 F. Supp. at 639-43, 664-67; see also Women
Prisoners v. District of Columbia, 93 F.3d 910, 929, 931 (D.C.
Cir. 1996). The court further found that the inmates had
filed complaints and written letters to prison administrators
to no avail, and that the harassment was obvious and widely
known. It concluded that the District of Columbia had acted
"with 'deliberate indifference' to the condition of sexual
harassment which women prisoners at the [District's facili-
ties] must endure," and that the District was therefore liable
under 42 U.S.C. s 1983 for the violation of the inmates'
constitutional rights. See Women Prisoners, 877 F. Supp. at
665-67.1

On the basis of the foregoing, the Women Prisoners court
issued a detailed order on December 13, 1994, requiring the
Department of Corrections to "take all action necessary to
remedy and prevent" sexual harassment of female inmates by
its employees. The court specifically directed the Depart-
ment to issue, distribute, and post a sexual harassment policy
within sixty days, and to conduct mandatory training on
sexual harassment for both employees and female inmates.
See Women Prisoners, 877 F. Supp. at 679-81.

On May 15, 1995, the Department of Corrections issued a
policy in response to the Women Prisoners order. The policy
forbade sexual misconduct and harassment, as well as retalia-
tion for the filing of complaints regarding such behavior, and
directed the institution of mandatory training. Although
some of the guards who testified at Daskalea's trial remem-

__________
1 The District did not appeal the district court's finding of
liability. See Women Prisoners, 93 F.3d at 928. Although it did
appeal aspects of the court's remedial order, the District did not
challenge the requirement, discussed below, that it promulgate a
sexual harassment policy. This court ultimately overturned por-
tions of the remedy not relevant here and remanded for further
proceedings. See id. at 931-32.

bered receiving the policy, others did not. No inmate testi-
fied to receiving the policy, and officers admitted that the
policy was never posted. There was no evidence that the
training requirements were implemented nor that any signifi-
cant corrective intervention occurred.

Against this background, we now turn to a consideration of
the specific facts of Daskalea's case.

A

Daskalea was arrested on drug charges and sent to the
D.C. Jail on October 26, 1994--two months before the district
court issued its decision and order in the Women Prisoners
litigation. She was initially housed in South 1, the unit used
primarily for women awaiting trial and for those in either
solitary confinement or protective custody. From the begin-
ning of her confinement, Daskalea testified that she was
called "whore," "white bitch," "cracker," and other epithets by
guards and inmates alike.2

In January 1995, Daskalea was moved to Southeast 1.
This unit housed approximately eighty women who were
serving short-term sentences. Upon arrival, she was met
with rumors that she was an undercover FBI agent. She was
threatened by other inmates, including one who--in the pres-
ence of several guards who did not intervene--told her:
"Bitch, you better sleep with one eye open." Daskalea's fears
of attack were realized when she was subsequently assaulted
by two inmates.

The civilian employee in charge of the Jail's library, Ed-
ward Gardner, was well known for providing inmates with
cigarettes in exchange for sex. It was also widely known that

__________
2 This recitation of facts is taken from the testimony of plain-
tiff's witnesses, which stands largely unrebutted because the Dis-
trict did not offer any evidence of its own. Even if that were not
the case, when reviewing a jury's verdict we must adopt the version
of the facts most favorable to the party prevailing below. See
Kirkland v. District of Columbia, 70 F.3d 629, 635 (D.C. Cir. 1995).

the rooms adjacent to the library were routinely used for sex
between library staff and inmates. When Daskalea first
attempted to use the library's research materials, Gardner
leered at her and rubbed his genitals. She rebuffed his
advances, and thereafter had difficulty obtaining any assis-
tance from the library staff. Some time later, a guard took
Daskalea out of her cell and brought her to the library. The
guard led her to a room where a male inmate, notorious for
engaging in sexual misconduct in the library, was waiting.
The inmate then attacked her, attempting a sexual assault.

As time went on, the campaign of fear, harassment, and
violence against Daskalea--on the part of both staff and
inmates--intensified. Guards told her they would break her.
One day, when inmates were supposed to be on lockdown, a
prisoner known as Bootsie came to Daskalea's cell and spat
and cursed at her. Later that day a guard, Sgt. Theresa
Noble, forcibly restrained Daskalea's hands while Bootsie
attacked her. Plaintiff stopped sleeping at night for fear she
would be raped or assaulted.

The testimony at trial disclosed a culture of routine accep-
tance of sexual encounters between staff and inmates on
Southeast 1. One cell, known as Cell 73, was kept empty and
used for sex between prisoners and guards. It was also used
by staff to sleep off drunkenness--particularly by Officer
Yvonne Walker, the officer in charge of the evening shift.
There was also testimony that one of the inmates, Jacky
Newby, was threatened by a guard jealous of Newby's sexual
relationship with evening-shift guard Quida Graham.

Daskalea repeatedly complained to the authorities about
sexual harassment. She filed more than fifteen official Inter-
nal Grievance Procedure Forms and wrote letters directly to,
among others, the Deputy Warden, Warden, and Director
Moore. She also wrote to the judge in her criminal case, who
held a hearing at which Daskalea's complaints of sexual
harassment were aired. Notwithstanding the judge's written
recommendation that "defendant be moved from D.C. Jail,"

J.A. at 484 (commitment order), she was not. Nor did prison
authorities intervene in any other way to stop the abuse.

All of the above turned out to be a mere prelude to the
events of July 20, 1995. During the weeks preceding that
date--on at least three occasions and perhaps as often as
weekly--Officer Walker, the head guard on the evening shift,
organized a series of evenings during which female inmates
stripped and danced provocatively to loud music. Both fe-
male and male guards were present and, according to the
testimony at trial, some guards assaulted inmates who re-
fused to dance.

On the evening of July 20, the Jail's cell doors were kept
open because the air conditioning system was malfunctioning.
Sometime that evening, while plaintiff was sitting in her cell,
loud music began and inmates started moving to the dining
area. Daskalea followed, arriving late and standing at the
back of the crowd. There, at the center of attention, was
Officer Walker, doing a handstand on one of the dining tables
and gyrating her hips provocatively. Soon, at Walker's insti-
gation, three inmates climbed onto the table and began
dancing, completely naked, while the crowd cheered. One of
the dancing inmates performed a lewd act, and Officer Walk-
er placed her head between the inmate's legs to get a closer
look. By that point, all of the inmates, numerous female
guards, and several male guards and maintenance workers
were in attendance.

Then, someone called out Daskalea's name. Fearing what
might be coming, plaintiff fled back to her cell, but was
unable to close the door. A few minutes later, Officer Walker
bellowed out the command: "Get Sunday down here!" The
crowd began chanting Daskalea's name, and the dancing
stopped. Two inmates pulled plaintiff out of her cell, one
taking each arm while a third followed behind preventing
escape. The inmates dragged Daskalea to the center of the
crowd. Officer Walker commanded her to dance, and when
Daskalea hesitated, Walker visibly angered. Afraid, Daska-
lea complied. She removed all of her clothes except for her
underwear and attempted to dance to the music. But she

was in such a state of shock and fear that her legs trembled.
Guards began shouting and clapping; some flashed money.
Officer Walker tried to get Daskalea to remove her under-
wear. An inmate began rubbing baby oil all over Daskalea's
body. The inmate then began rubbing her own body against
Daskalea's. Plaintiff lost control of her legs and collapsed to
the ground. The other inmate lay on top of her. Eventually,
the guards permitted Daskalea to take her clothes and return
to her cell. Later that night, both guards and inmates
approached her, communicating sexual interest. One guard
exposed herself to Daskalea while telling her how much she
enjoyed the dance.

During the next few days, word spread about the incident.
When inmate Newby submitted a grievance complaining of
sexual harassment, assault, and threats by correctional offi-
cers, Lt. Edward Given "counseled" Newby to mind her own
business. Subsequently, Daskalea was summoned to the
office of a Mr. Lytle, who asked her about the forced strip-
tease. Although Daskalea expressed concern that guards
would retaliate against her if she discussed it, Lytle assured
her that they would not.

Just days later, however, an officer arrived at Daskalea's
cell and demanded that she turn over all of her underwear as
"contraband." Plaintiff's request to talk to Lytle was ig-
nored. A lieutenant appeared, told Daskalea she was going
to solitary, and when she protested threatened to mace her.
She was then placed in solitary confinement, without any of
her belongings and, at first, without a mattress. A guard
who went back to Daskalea's cell to retrieve her personal
items, including her legal papers, found another guard going
through them. The second guard told the first that Daskalea
would not be getting them back.

Daskalea's requests to call an attorney were refused. She
wrote a letter to the Warden to report the forced stripping.
When she subsequently saw the Warden, however, he
brushed her off and turned away.

The Warden appointed a committee, headed by Acting
Deputy Warden Brenda Makins, to investigate the nude

dancing incidents. When the Makins' Committee asked to
speak with Daskalea in early August--at which time she was
being held in solitary confinement--it was informed that she
had already been discharged. The Committee concluded that
Daskalea had been forced to dance for the assemblage (in-
cluding both female and male guards) against her will, and
that nude dancing had taken place on three earlier dates the
same month. The Makins Report named fourteen guards
who had "aided and abetted" the "sexual misconduct" and/or
"assault." These included the lead guard, Officer Walker,
who was also found to have attacked another prisoner while
the prisoner was hand-cuffed and in the presence of other
guards. In addition, the Committee concluded that eight
officers, ranging from corporals to lieutenants, had been
negligent, and that the "misconduct/assault was effected due
to," among other things, "poorly trained supervisors." The
Committee further found that officers had tried to cover up
the incidents by providing it with false information. At trial,
Director Moore testified that she had never read the Makins
Report.

B

Daskalea was released from prison at the end of August
1995. On October 30, 1996, she filed a lawsuit alleging
violations of her civil rights under 42 U.S.C. s 1983. Her
second amended complaint added common law claims of
negligent supervision and intentional infliction of emotional
distress. The parties agreed to refer the case to a magistrate
judge for all purposes pursuant to 28 U.S.C. s 636(c)(1).

At trial, the named defendants were the District of Colum-
bia and Director Moore. Daskalea testified on her own
behalf, along with other inmates and six former or present
Department of Corrections employees. Among the latter
were Brenda Makins, head of the investigatory committee,
whose report was introduced into evidence. Daskalea also
called as a witness defendant Moore, who, among other
things, testified about the district court's findings and order
in the Women Prisoners case; the order itself was entered

into evidence. Defendants introduced no evidence. The jury
found them liable on all counts and awarded $350,000 in
compensatory damages and $5 million in punitive damages.
Defendants moved for judgment as a matter of law or, in the
alternative, for a new trial or remittitur on the ground that
the damages award was excessive. The court denied the
motion.

In this court, defendants press most of the arguments they
advanced below. In particular, they deny liability under
section 1983, deny liability under the common law of the
District, assert immunity against punitive damages, and con-
tend that Director Moore cannot be held personally liable
because she was sued solely in her official capacity. We
consider each of these contentions below.

II

We begin with an examination of the issues raised by the
District regarding the jury's finding of liability and award of
damages under 42 U.S.C. s 1983.

A

Section 1 of the Civil Rights Act of 1871, now codified at 42
U.S.C. s 1983, provides a cause of action for monetary dam-
ages and injunctive relief against "[e]very person who, under
color of [law] ... subjects or causes to be subjected, any
person ... to the deprivation of any rights, privileges, or
immunities secured by the Constitution...." The District
does not dispute that the guards who assaulted and torment-
ed plaintiff violated her Eighth Amendment right to be free
of "cruel and unusual punishments." U.S. Const. amend.
VIII; see Hudson v. McMillian, 503 U.S. 1, 7-9 (1992)
(holding Eighth Amendment is violated, even in the absence
of serious injury, when guard uses force against prisoner
maliciously and sadistically to cause harm, rather than in
good-faith effort to maintain discipline); Schwenk v. Hart-
ford, 204 F.3d 1187, 1196-97 (9th Cir. 2000) (holding guard's
attempted rape of prisoner constituted Eighth Amendment

violation). The only question is whether the District may be
held liable for that violation.3

There is also no disagreement over the appropriate stan-
dard for determining whether the District may be held liable.
In Monell v. Department of Social Services, 436 U.S. 658
(1978), the Supreme Court ruled that a municipality is a
"person" who can be held liable under section 1983, but only
when the municipality's "policy or custom ... inflicts the
injury." Id. at 694. In subsequent cases, the Supreme Court
and this court have held that a city's inaction, including its
failure to train or supervise its employees adequately, consti-
tutes a "policy or custom" under Monell when it can be said
that the failure amounts to " 'deliberate indifference' towards
the constitutional rights of persons in its domain." City of
Canton v. Harris, 489 U.S. 378, 388-89 & n.7 (1989) (recog-
nizing municipal liability under s 1983 for failure to train
adequately); see Rogala v. District of Columbia, 161 F.3d 44,
56 (D.C. Cir. 1998) (recognizing liability for failure to train or
supervise); Triplett v. District of Columbia, 108 F.3d 1450,
1453 (D.C. Cir. 1997) (noting that "inaction giving rise to or
endorsing a custom" can be basis of s 1983 liability).4

The District has no objection to the manner in which the
jury was charged on the question of municipal liability. Its
only contention is that there was insufficient evidence upon
which to base a finding of deliberate indifference, and that the
magistrate should therefore have granted its motion for judg-
ment as a matter of law under Federal Rule of Civil Proce-
dure 50(a). We review de novo a trial court's ruling on such a
motion. See United States ex rel. Yesudian v. Howard Univ.,
153 F.3d 731, 735 (D.C. Cir. 1998). Because granting judg-
ment as a matter of law "intrudes upon the rightful province
of the jury, it is highly disfavored." Id. (quoting Boodoo v.

__________
3 Although plaintiff's complaint also asserted violations of due
process and equal protection under the Fifth Amendment, only the
Eighth Amendment issue was submitted to the jury.

4 See also Atchinson v. District of Columbia, 73 F.3d 418, 419
(D.C. Cir. 1996) (failure to train); Parker v. District of Columbia,
850 F.2d 708, 712 (D.C. Cir. 1988) (same).

Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994)). It "is warranted
only if 'no reasonable juror could reach the verdict rendered
in th[e] case.' " Id. (quoting Anderson v. Group Hospitaliza-
tion, Inc., 820 F.2d 465, 473 (D.C. Cir. 1987)).

We conclude that the jury had more than sufficient evi-
dence upon which to base its finding of deliberate indiffer-
ence. Only seven months prior to Daskalea's forced strip-
tease, a federal district court had found the District liable
under section 1983 for being deliberately indifferent to the
repeated sexual abuse and harassment of women prisoners by
D.C. correctional officers. The court noted a failure to train
officers to prevent such misconduct, and ordered the District
to take all steps necessary to prevent sexual harassment of
female prisoners, including the institution of mandatory train-
ing. Given this history, the District and its policymakers
were on notice that D.C. guards lacked basic respect for the
rights of female inmates, and that absent substantial inter-
vention, the pattern of unconstitutional behavior would per-
sist.

Notwithstanding the court's unequivocal findings and or-
der, the sexual abuse of women prisoners at Southeast 1
continued in an open and notorious manner. The use of the
library for sexual trysts between guards and inmates was well
known. Nude dancing incidents, accompanied by blaring
music and raucous crowds, took place on a regular basis.
There was no evidence that a training program or any other
corrective measure was implemented. Daskalea repeatedly
complained of sexual abuse, sending grievance forms and
letters to everyone from correctional officers to the Deputy
Warden, Warden, and Director of the Department. Given
the notice afforded by the Women Prisoners order and
Daskalea's own letters, and the open and notorious nature of
the continued abuse, a jury could reasonably have concluded
that the District was deliberately indifferent to the constitu-
tional rights of its women prisoners. See Canton, 489 U.S. at
390 n.10 (recognizing municipal liability where officers "so
often violate constitutional rights that the need for further
training must have been plainly obvious to the city policymak-
ers"); Atchinson, 73 F.3d at 421 (same); see also Board of

County Comm'rs v. Brown, 520 U.S. 397, 407-08 (1997)
(recognizing that "the existence of a pattern of tortious
conduct by inadequately trained employees may tend to show
that the lack of proper training ... is the 'moving force'
behind the plaintiff's injury"); id. at 407 (noting that "munici-
pal decisionmakers['].... continued adherence to an ap-
proach that they know or should know has failed to prevent
tortious conduct by employees may establish the conscious
disregard for the consequences of their action--the 'deliber-
ate indifference'--necessary to trigger municipal liability").

Finally, the jury had additional, direct evidence from which
it could have concluded that the District's policymakers were
indifferent to the plight of women in the Jail, and specifically
to the plight of Sunday Daskalea. Margaret Moore, Director
of the Department of Corrections, testified at the trial. Not-
withstanding the notoriety of the incident, Moore conceded
that she had not read the Makins Report and had not
familiarized herself with the events at issue. Moreover,
notwithstanding the findings of the report, Moore pronounced
herself unaware of the multiple nude dancing incidents that
preceded Daskalea's humiliation, and she took no action to
protect Daskalea from the subsequent harassment and soli-
tary confinement that a jury reasonably could have regarded
as retaliation for Daskalea's complaints.

The District's principal defense to section 1983 liability is
that, because the abuses in this case were committed by
female guards, while those in Women Prisoners were commit-
ted by males, Women Prisoners did not sufficiently put it on
notice of the kind of constitutional violations that Daskalea
would suffer. We reject this argument as cutting the notice
issue much too finely. Moreover, its premise is factually
inaccurate: several of the incidents in this case did involve
male-on-female harassment. To take but three examples:
the librarian who demanded sexual favors of Daskalea was a
male; the guard who brought her to the library to be
attacked by a male prisoner was a male; and the group of
guards and other employees who were "entertained" by Das-
kalea's forced striptease included several males.

 The District also attempts to turn the very court order that
required it to issue a harassment policy into a defense against
liability for its guards' harassment. Because the Department
of Corrections eventually did issue such a policy, the District
argues, it is clear that sexual harassment was against District
"policy" and hence may not be the subject of a section 1983
action. This argument has two flaws. First, the policy upon
which the District relies was not issued until well after many
of the events of which Daskalea complains. Second, a "pa-
per" policy cannot insulate a municipality from liability where
there is evidence, as there was here, that the municipality was
deliberately indifferent to the policy's violation. See Ware v.
Jackson County, 150 F.3d 873, 882 (8th Cir. 1998) ("[T]he
existence of written policies of a defendant are of no moment
in the face of evidence that such policies are neither followed
nor enforced."). That evidence included not only the contin-
ued blatant violation of the policy, but also the fact that the
policy was never posted, that some guards did not recall
receiving it, that inmates never received it, and that there
was no evidence of the training that was supposed to accom-
pany it. Indeed, the Department purportedly had a "policy"
against sexual harassment even before the court order in
Women Prisoners--a policy that court found to have been "of
little value." 877 F. Supp. at 640.

The District makes one further attempt at legal jujitsu--
trying to turn Daskalea's evidence against her by arguing
that the very fact that guards sought to conceal the July 20
incident is proof that the abuse was only undertaken "by a
small group of rogue employees, acting surreptitiously." Re-
ply Br. at 16. In Triplett v. District of Columbia, we did note
that "[c]over-up efforts at relatively low levels in the hierar-
chy not only reduce the likelihood that policymakers will
learn of the covert practice, but suggest a belief by the
subordinates that their behavior violates established policy."
108 F.3d 1450, 1453 (D.C. Cir. 1997). But here the miscon-
duct can hardly be described as that of a few "rogues." The
District's own investigative committee charged fourteen
guards with "aiding and abetting" sexual misconduct and/or
assault, and charged several more--including supervisors and

lieutenants--with negligence. Moreover, whatever the par-
ticipants did to cover up the July 20 incident, the series of
bacchanalian nights that preceded it was open and notorious,
and the jury could reasonably have concluded that if such
behavior were not known to prison policymakers, it was only
because of their deliberate indifference to conditions at the
Jail. Accordingly, we affirm the jury's verdict against the
District under 42 U.S.C. s 1983. 5

B

The District urges that even if we affirm the jury's finding
of liability, we should grant a new trial with respect to the
amount of the compensatory damages award. We review
trial courts' rulings on motions for new trial only for an abuse
of discretion. See Langevine v. District of Columbia, 106
F.3d 1018, 1023 (D.C. Cir. 1997). A jury award must stand
unless it is "beyond all reason" or "so great as to shock the
conscience." Williams v. Steuart Motor Co., 494 F.2d 1074,
1085 (D.C. Cir. 1974). "Courts may not set aside a jury
verdict merely deemed generous; rather, the verdict must be
so unreasonably high as to result in a miscarriage of justice."
Langevine, 106 F.3d at 1024 (citing Barry v. Edmunds, 116
U.S. 550, 565 (1886)). And remittitur of a jury verdict is
appropriate only if the verdict "is so inordinately large as
obviously to exceed the maximum limit of a reasonable range
within which the jury may properly operate." Id. at 1024
(internal quotation omitted); see Carter v. District of Colum-
bia, 795 F.2d 116, 135 n.13 (D.C. Cir. 1986).

The District argues that there was insufficient evidence to
justify a compensatory award of $350,000 because Daskalea

__________
5 The District also contends that proof of its adherence to the
harassment policy is demonstrated by the fact that employees were
disciplined for its violation. But while there was some evidence
that discipline followed the July 20 incident, too late to be of any
comfort to Daskalea, the only person identified as having been
terminated was Brenda Makins--the author of the investigative
report that found serious wrongdoing at the Jail--allegedly because
she had lied about her home address.

"suffered no physical injury," because her damages evidence
was limited to her own testimony, and because she did not
establish a "causal link" between the unlawful acts and the
harm she suffered. We disagree.

First, it is well established that "mental and emotional
distress" are "compensable under s 1983," even in the ab-
sence of physical injury. Carey v. Piphus, 435 U.S. 247, 264
(1978); see Gray v. Spillman, 925 F.2d 90, 94 (4th Cir. 1991)
(noting that "even in the absence of physical injury," plaintiff
may prove actual damages under s 1983 "based on injuries
such as 'personal humiliation' and 'mental anguish and suffer-
ing' ") (quoting Memphis Community Sch. Dist. v. Stachura,
477 U.S. 299, 307 (1986)). Moreover, Daskalea plainly did
suffer "physical" injury through sexual assault. If what the
District means is that she did not suffer permanent injury
from such attacks, we emphatically disagree with the proposi-
tion that a person may not recover damages for a constitu-
tional violation unless she suffers lasting physical harm.

Second, no expert testimony was required to bolster that of
Daskalea and her witnesses, or to show the causal link
between her treatment in prison and her injuries. See Price
v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996) ("A
survey of the case law reveals that a plaintiff's testimony,
standing alone, may support a claim of emotional distress
precipitated by a constitutional violation.") (collecting cases).
The unrebutted evidence showed that she was subjected to
continuing sexual abuse and harassment, was denied library
assistance because she refused to have sex with the librarian,
was set up by correctional officers to be assaulted, was
attacked with the assistance of correctional officers, was
forced to perform a striptease for guards and inmates, and
thereafter was confined in isolation without underwear or a
mattress. Daskalea testified that, as a result, she felt con-
stant stress, anxiety, and dread of imminent sexual attack.
She had to sleep during the day for fear of what the guards
might do at night. After her release, she suffered from
insomnia and eating disorders, and spent months emotionally
and psychologically debilitated, withdrawn, and depressed.
These injuries are hardly surprising or unexpected in light of

the abuse Daskalea suffered, and it does not take an expert to
confirm the jury's common sense with respect to both their
existence and cause.

Finally, we have no basis for questioning the amount of the
jury's award. The jury's valuation of Daskalea's damages
"was neither beyond all reason nor so great as to shock the
conscience." Langevine, 106 F.3d at 1024 (affirming award of
$200,000 under s 1983 for, inter alia, pain, suffering, humilia-
tion, and emotional distress, despite only minor physical
injury arising from single incident). Indeed, a "court must be
especially hesitant to disturb a jury's determination of dam-
ages in cases involving intangible and non-economic injuries."
Id. The magistrate's denial of the District's motion for a new
trial is therefore affirmed.6

III

In addition to finding the District liable for violating section
1983, the jury found it liable on Daskalea's pendent claim for
negligent supervision under the common law. The damages
verdict did not distinguish between the grounds for liability,
and Daskalea concedes that both theories represented at-
tempts to impose liability for the same predicate acts. The
District challenges this ground for liability as well.

Under District of Columbia law, prison authorities have "a
duty to exercise reasonable care under the circumstances in
the protection and safekeeping of prisoners," Toy v. District
of Columbia, 549 A.2d 1, 6 (D.C. 1988), including the duty "to
use reasonable care in supervising and controlling" their
employees, Morgan v. District of Columbia, 449 A.2d 1102,

__________
6 The District contends that a new trial should also be granted
because the magistrate judge wrongly denied it an opportunity to
cross-examine Daskalea as to whether some of the stress she
suffered was actually caused by her alleged post-release activities
as an informant. We review such a claim only for abuse of
discretion. See United States v. White, 116 F.3d 903, 919 (D.C. Cir.
1997). The magistrate found the District's proposed cross-
examination to be both irrelevant and prejudicial, and we perceive
no error.

1108 & n.3 (D.C. 1982), rev'd on other grounds, 468 A.2d 1306
(1983) (en banc).7 The District may be held liable for dam-
ages caused by its negligence in carrying out that duty. See
Finkelstein v. District of Columbia, 593 A.2d 591, 594-95
(D.C. 1991) (holding District liable for negligence in death of
prisoner). That the District negligently supervised its em-
ployees in this case is an a fortiori conclusion from the
finding, discussed in Part II.A. above, that the District dis-
played deliberate indifference with respect to the treatment
of women prisoners by correctional officers.

The District's only real challenge to liability for negligent
supervision is its claim that proof of the standard of care
requires expert testimony, which Daskalea did not offer.
That, however, is not the law of the District of Columbia. To
the contrary, the rule is that "[p]roof of a deviation from the
applicable standard of care need not include expert testimony
where the alleged negligent act is 'within the realm of com-
mon knowledge and everyday experience.' " Toy, 549 A.2d at
6 (quoting District of Columbia v. White, 442 A.2d 159, 164
(D.C. 1982)). Expert testimony is required only "where the
subject presented is 'so distinctly related to some science,
profession, or occupation as to be beyond the ken of the
average layperson.' " Id. (quoting District of Columbia v.
Peters, 527 A.2d 1269, 1273 (D.C. 1987)).

It is true that in cases involving assaults on prisoners by
fellow prisoners, the District of Columbia Court of Appeals
has held expert testimony necessary to establish the standard
of care for "secur[ing] the safety of an inmate," because a
"reasonably prudent juror cannot be expected to appreciate
the ramifications of prison security." District of Columbia v.
Carmichael, 577 A.2d 312, 314 (D.C. 1990) (quoting Hughes,
425 A.2d at 1303); cf. Toy, 549 A.2d at 9 (holding expert
testimony necessary to establish standard of care for adminis-
tration of cardiopulmonary resuscitation). But it does not

__________
7 See Finkelstein v. District of Columbia, 593 A.2d 591, 594
(D.C. 1991); District of Columbia v. Mitchell, 533 A.2d 629, 639
(D.C. 1987); Hughes v. District of Columbia, 425 A.2d 1299, 1302
(D.C. 1981).

take an expert to establish that the District was negligent in
permitting the kind of persistent, open and notorious conduct
at issue here. Surely a juror could reasonably conclude that
the District had been negligent (at best) when it failed to
notice, let alone stop, a continuing series of evening stripteas-
es, accompanied by blaring music and guard-on-inmate vio-
lence. See Morgan, 449 A.2d at 1106, 1109 (stating that
expert testimony is not required to establish "standard of
care for control and supervision of police officers" because
"[d]iscipline of police officers ... is not a matter which
laymen are incapable of intelligently evaluating without the
assistance of expert testimony") (internal quotation omitted).

Nor did Daskalea's jury have to rely only upon its common
sense. As we have noted, the Department's own investigat-
ing committee concluded that eight officers, ranging from
corporals to lieutenants, had been negligent, and that the
"misconduct/assault was effected due to," among other things,
"poorly trained supervisors." Moreover, Patricia Jackson,
Deputy Warden at the time of the events in question, testified
that she agreed with the committee that the supervision had
been inadequate, that officers were negligent, and that the
Jail was grossly negligent in protecting women from sexual
misconduct.

The District also attacks the amount of damages awarded
for negligent supervision, noting that the District of Columbia
Code bars local law claims against the District unless, within
six months after the injury, the potential claimant gives notice
in writing of the "circumstances." D.C. Code s 12-309; see
Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C.
1999). Because Daskalea did not send the required notice
until November 21, 1995, the District contends she cannot
recover for any injuries suffered before May 21 of that year.
We need not resolve the merits of this contention, however,
as it has no bearing on the result in this case. The six-month
notice requirement of the D.C. Code does not apply to
plaintiff's claim under section 1983, see Brown v. United
States, 742 F.2d 1498, 1509 (D.C. Cir. 1984) (en banc), and

that cause of action therefore provides an independent basis
for the full amount of the damages award. 8

IV

In addition to compensatory damages, the jury awarded
Daskalea $5 million in punitive damages for her D.C. common
law claims. In this Part, we consider the permissibility of
that award.

Daskalea did not seek punitive damages under 42 U.S.C.
s 1983, conceding that she was not eligible for them in light
of the Supreme Court's decision in City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981). See Daskalea Br. at 19.
In Fact Concerts, the Court considered whether punitive
damages may be awarded against municipalities under section
1983. It began by noting that municipalities had long been
held immune from punitive damages under the law of the
"vast majority" of the states. 453 U.S. at 259-60. It then
surveyed the rationales for that result, declaring that "puni-
tive damages imposed on a municipality are in effect a
windfall to a fully compensated plaintiff[,] are likely accompa-
nied by an increase in taxes or a reduction of public services
for the citizens footing the bill," and punish only the "blame-
less or unknowing taxpayers" rather than the true wrong-
doer, the offending government official. Id. at 267. Finding
the same principles applicable to suits brought under section
1983, the Supreme Court concluded that "a municipality is
immune from punitive damages" under that statute as well.
Id. at 271. In a footnote, the Court preserved a potential
exception: "It is perhaps possible to imagine an extreme
situation where the taxpayers are directly responsible for
perpetrating an outrageous abuse of constitutional rights."
Id. at 267 n.29

The District contends that it is immune from punitive
damages for the common law tort of negligent supervision,

__________
8 For the same reason, we need not address Daskalea's com-
mon law claim of intentional infliction of emotional distress, which
involves the same predicate acts and produces no difference in the
damages award.

just as it is for a violation of section 1983. As the District
points out, the D.C. Court of Appeals has never permitted
such an award. In Smith v. District of Columbia, 336 A.2d
831 (D.C. 1975), a case decided before Fact Concerts, the
Court of Appeals rejected a claim against the District for
punitive damages resulting from false arrest and assault.
The court noted that "[t]he clear weight of authority in the
states is that as a general rule there can be no recovery of
punitive damages against a municipality absent a statute
expressly authorizing it." 336 A.2d at 832. It then proceed-
ed to quote six paragraphs from a Florida Supreme Court
opinion explaining the rationales for such immunity--ratio-
nales similar to those later surveyed by the U.S. Supreme
Court in Fact Concerts. See 336 A.2d at 832 (quoting Fisher
v. City of Miami, 172 So. 2d 455, 457 (Fla. 1965)).9 On the
basis of the Florida court's rationales, the D.C. Court of
Appeals concluded: "Absent extraordinary circumstances not
present here, we agree with the weight of authority and
conclude the District of Columbia is not liable for punitive
damages." Id. at 832.

The District argues that notwithstanding the Court of
Appeals' caveat--"absent extraordinary circumstances not
present here"--punitive damages are never available against
the District for wrongs committed by its employees. That
argument is not without support. The Florida opinion upon
which Smith rested held municipalities wholly immune in the
absence of a legislative authorization. See Fisher, 172 So. 2d
at 457. And in a subsequent en banc opinion, the D.C. Court
of Appeals stated, this time without qualification, albeit in
dictum, that: "punitive damages may not be awarded against
the District of Columbia." Finkelstein v. District of Colum-
bia, 593 A.2d 591, 599 (D.C. 1991) (en banc) (citing Smith, 336
A.2d at 832). The following year, the court again rejected a
claim for punitive damages against the District, citing Fact
Concerts as "reaffirming [the] common law principle that

__________
9 Fact Concerts cited both Smith and Fisher as examples of
"[j]udicial disinclination to award punitive damages against a munic-
ipality." 453 U.S. at 260 & n.21.

municipalities [are] immune from punitive damages." Ramos
v. District of Columbia Dep't of Consumer and Regulatory
Affairs, 601 A.2d 1069, 1074 n.9 (D.C. 1992).

We need not go as far as the District urges to resolve this
case. Even if the D.C. Court of Appeals would permit
punitive damages in some not-yet-presented category of "ex-
traordinary" cases, we are unable to conclude that this case
would fit within that category. That is not, in any way, to
minimize the offensiveness of the District's conduct here.
But this is not a case that falls within the exception noted in
Fact Concerts, where a jurisdiction's taxpayers are directly
responsible for perpetrating the policies that caused the
plaintiff's injuries. Nor is this a case where a municipality or
its policymakers have intentionally adopted the unconstitu-
tional policy that caused the damages in question.10 Rather,
this is a case where the charge against the District is "delib-
erate indifference," and the D.C. Court of Appeals has given
no hint that it would permit an award of punitive damages in
such a case--if it would permit such an award at all. Because
our role in deciding a pendent District of Columbia claim is
only to ascertain what District law is, "not what it ought to
be," Women Prisoners, 93 F.3d at 922 (quoting Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)), we are
unable to do for Daskalea what the D.C. Court of Appeals has
never done for any plaintiff.

V

The other named defendant in this case, Margaret Moore,
served at all relevant times as the Director of the D.C.
Department of Corrections. The jury returned a general

__________
10 Cf. Kolstad v. American Dental Ass'n, 119 S.Ct. 2118, 2125-
26 (1999) (noting that "[t]he justification of exemplary damages lies
in the evil intent of the defendant") (internal quotation omitted);
Rieser v. District of Columbia, 563 F.2d 462, 481-82 (D.C. Cir.
1977) (declining to find "extraordinary circumstances" justifying
punitive damages against District, notwithstanding parole officers'
breach of duty leading to murder of plaintiff's daughter), vacated
then reinstated in relevant part by en banc court, 580 F.2d 647
(D.C. Cir. 1978).

verdict finding "defendants" liable on all counts. Moore and
the District contend that Moore was sued solely in her official
capacity, and hence cannot be held personally liable for the
damages award. Daskalea contends that she sued Moore in
her individual (personal) capacity, and that Moore therefore is
liable not only for the $350,000 in compensatory damages, but
also--because she is not an immune municipality--for $5
million in punitive damages. See generally Kentucky v. Gra-
ham, 473 U.S. 159, 165-66 (1985) (holding that a government
official may be held personally liable only if sued in an
individual rather than official capacity); Atchinson v. District
of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (same); Esk-
ridge v. Jackson, 401 A.2d 986, 989 n.7 (D.C. 1979) (same
under D.C. law); Keith v. Washington, 401 A.2d 468, 470-71
(D.C. 1979) (same). The magistrate judge agreed with Das-
kalea and held Moore personally liable for the entire amount
of both awards.

Neither the complaint nor any other pleading filed by
plaintiff indicates whether Moore was charged in her official
or her individual capacity. In some circuits, that would be
the end of the matter, as they require a plaintiff who seeks
personal liability to plead specifically that the suit is brought
against the defendant in her individual capacity.11 Although
it has not definitively resolved the issue, see Hafer v. Melo,
502 U.S. 21, 24 n.* (1991), the Supreme Court has typically
looked instead to the "course of proceedings" to determine
the nature of an action. See Graham, 473 U.S. at 167 n.14;
Brandon v. Holt, 469 U.S. 464, 469 (1985). Following the
Supreme Court's lead, this circuit has joined those of its
sisters that employ the "course of proceedings" approach.
See Atchinson, 73 F.3d at 425.12 Like the Supreme Court,

__________
11 See Soper ex rel. Soper v. Hoben, 195 F.3d 845, 853 (6th Cir.
1999) ("Generally, plaintiffs must designate in which capacity they
are suing defendants; if not, by operation of law, defendants are
deemed sued in their official capacities."); see also Hafer v. Melo,
502 U.S. 21, 24 n.* (1991) (citing Wells v. Brown, 891 F.2d 591, 592
(6th Cir. 1989); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989)).

12 See Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (examin-
ing "the nature of the plaintiff's claims, the relief sought, and the

however, we remind litigants that "it is obviously preferable
for the plaintiff to be specific in the first instance to avoid any
ambiguity." Hafer, 502 U.S. at 24 n.* (internal quotation
omitted).

We conclude that the course of proceedings in this case
neither put Moore on notice that she was being sued in her
individual capacity, nor evidenced her understanding that her
personal liability was at stake. As noted, the complaint itself
did not give her such a warning, stating only that "Defendant
Moore is the Director of the D.C. Department of Corrections
and is responsible for the overall operation of that Depart-
ment and each institution of which it is comprised, including
the D.C. Jail." Nor did the complaint seek to hold the
defendants jointly and severally liable, a formulation that
might have given some indication of an intention to sue Moore
in her personal capacity. See Atchinson, 73 F.3d at 425.
Indeed, at several points the complaint refers to "defendant's
failure" in the possessive singular, suggesting that plaintiff
viewed Moore and the District as interchangeable. See
Compl. p p 21, 23, 25, 27.

Daskalea contends that the fact that Moore was named at
all indicates an intention to hold her personally liable, because
naming Moore would have added nothing to the available
damages if she had been named only in her official capacity.
Although the latter point is true, it does not prove the former.
Complaints often include surplusage. Indeed, it is not un-
common for civil rights complaints to name both the munici-
pality and an officer charged in his or her official capacity.
On occasion this may be due to a misunderstanding of the law
of section 1983, but it also may be done in an effort to

__________
course of proceedings"); Jackson v. Georgia Dep't of Transp., 16
F.3d 1573, 1575 (11th Cir. 1994); Frank v. Relin, 1 F.3d 1317, 1326
(2d Cir. 1993); see also Hafer, 502 U.S. at 24 n.* (citing Houston v.
Reich, 932 F.2d 883, 885 (10th Cir. 1991); Melo v. Hafer, 912 F.2d
628, 635-36 (3rd Cir. 1990); Conner v. Reinhard, 847 F.2d 384, 394
n.8 (7th Cir. 1988); Lundgren v. McDaniel, 814 F.2d 600, 603-604
(11th Cir. 1987)).

"personalize" the otherwise faceless municipal entity being
sued.13

Once the complaint was filed, attorneys for the District
repeatedly expressed their understanding that Moore had
been sued solely in her official capacity. District counsel
expressed that understanding in their answer to the com-
plaint. See J.A. at 511 (stating that Moore had been "sued
solely in her official capacity"). They did so again in their
trial brief, specifically noting that because plaintiff "has sued
only the District and the Director of the Department of
Corrections in her official capacity, plaintiff's claim is gov-
erned by the standards set forth in Monell." J.A. at 43. And
they did so yet again, with great clarity, on four occasions
during the trial.14 Not once, prior to rebuttal argument, did
Daskalea's attorney dispute opposing counsel's characteriza-
tion of the nature of the case. To the contrary, plaintiff's own
trial brief, which addressed only one claim, mentioned only a
single defendant--the District of Columbia. See Pl. Trial Br.
at 1 (Jan. 12, 1998).

Moreover, both Moore and her counsel plainly acted on the
understanding that she had been sued solely in an official
capacity. Moore did not hire separate counsel, but relied

__________
13 The fact that the complaint sought punitive damages did not
put Moore on notice that she was being sued in her individual
capacity. Although we hold in Part IV that such damages are
unavailable against the District (or against Moore if sued in an
official capacity), Daskalea prosecuted the case on the understand-
ing that punitive damages would be available against the District if
she succeeded on a negligent supervision theory.

14 Those four occasions were: (1) before jury selection, see Tr.
at 8-9 (Court: "So it is only Margaret Moore?" D.C. Counsel: "In
her official capacity."); (2) when Moore testified, see J.A. at 216
("Ms. Moore is also named as a defendant in her official capacity.");
(3) when moving for directed verdict at the close of plaintiff's
evidence, see J.A. at 359 ("Margaret Moore's sued solely in her
official capacity."); and (4) in closing argument, see Trial Tr. at 902
("She is sued in this case in official capacity, which means that she's
sued just because she's the head of the Department of Correc-
tions.").

instead upon the District of Columbia Office of Corporation
Counsel, which represented the District in the case. Al-
though joint representation would not necessarily have been
unusual even if Moore had been sued individually, it would
have raised potential conflicts that would have had to have
been addressed. See Atchinson, 73 F.3d at 427 ("[N]aming
the officials in their individual capacities ... may make
continued joint representation problematic, if not impossible.
A municipality and officials named individually may have
mutually exclusive defenses.").

Corporation Counsel certainly defended the case as if
Moore had nothing personally at risk. A government official
sued under section 1983 has available to her the defense of
qualified immunity, a defense unavailable in an official-
capacity suit. See Graham, 473 U.S. at 166-167; Atchinson,
73 F.3d at 425. Corporation Counsel did not offer that
defense on Moore's behalf, notwithstanding that it surely
would have been at least colorable had she been sued individ-
ually. Nor did Corporation Counsel (or plaintiff's counsel, for
that matter) seek to introduce evidence of Moore's personal
finances, despite the fact that punitive damages awards are
supposed to be based on a defendant's "personal financial
resources." Fact Concerts, 453 U.S. at 269; see also Jona-
than Woodner Co. v. Breeden, 665 A.2d 929, 940 (D.C. 1995).
Other than assuming complete incompetence (as well as gross
malpractice) on the part of Moore's attorneys, the only expla-
nation for these lapses must have been their perception that
Moore had been sued in her official capacity alone.

As against all of this, Daskalea draws our attention to a
pretrial deposition at which counsel focused on the specifics of
Moore's involvement, as well as to a pretrial conference at
which her lawyer told lawyers for the District that "we're
coming dead at your directors," and that "your Director was
negligent." These events did not, however, serve to put
Director Moore on notice that plaintiff was seeking to hold
her individually liable: Moore's personal involvement, even
her personal negligence, was equally relevant to proving the
District's own deliberate indifference and negligent supervi-
sion.

 Finally, Daskalea calls our attention to her counsel's closing
rebuttal argument, during which he told the jury: "Margaret
Moore is an actor here. Margaret Moore is responsible for
this. Margaret Moore isn't some figurehead...." Even if
this were enough to make Moore's personal stake clear, it was
simply too late to do so in a rebuttal argument--the last piece
of advocacy prior to the jury's deliberations. By that time it
was too late for Moore to hire separate counsel, to proffer a
defense of qualified immunity, or to introduce evidence that
her personal assets did not approach $5 million. Indeed, by
that time it was too late for Moore's counsel to respond in any
way at all. Such notice can hardly be characterized as fair.
See Atchinson, 73 F.3d at 427-28 (affirming denial, due to
concern for prejudice, of plaintiff's motion to amend complaint
to name official in individual capacity shortly before trial).
Accordingly, we reverse the award of damages against Moore
in her individual capacity.

VI

Sexual assault, forced naked dancing, and the other indigni-
ties borne by Sunday Daskalea at the District of Columbia
Jail are "simply not part of the penalty that criminal offend-
ers pay for their offenses against society." Farmer v. Bren-
nan, 511 U.S. 825, 834 (1994) (internal quotation omitted); see
Women Prisoners, 93 F.3d at 929. To the contrary, "when
the State takes a person into its custody and holds [her] there
against [her] will, the Constitution imposes upon it a corre-
sponding duty to assume some responsibility for [her] safety
and general well-being." DeShaney v. Winnebago County
Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989). Because
the evidence at trial established that the District of Columbia
wholly failed to live up to that responsibility, we affirm in full
the jury's award of $350,000 in compensatory damages. At
the same time, however, District law requires us to reverse
the award of punitive damages, and plaintiff's failure to sue
co-defendant Moore in her individual capacity means that the
District alone is responsible for payment.