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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2003 Decided May 2, 2003
No. 01-5205
TODD EMERSON BAKER,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00525)
–————
Kathleen A. Ryan, Student Counsel, argued the cause for
appellant. With her on the brief were Steven H. Goldblatt,
Director of the Appellate Litigation Program, Georgetown
University Law Center, appointed by the court, Cary Berke-
ley Kaye, Supervising Attorney, and Francisco A. Rodriguez,
Student Counsel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Edward E. Schwab, Assistant Corporation Counsel, argued
the cause for appellee. With him on the brief was Charles L.
Reischel, Deputy Corporation Counsel. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: When District of Columbia prison-
ers are transferred to the correctional facilities of a State, to
what extent, if any, does the District of Columbia continue to
be responsible for ensuring that the care received by such
prisoners does not violate the Eighth Amendment proscrip-
tion against cruel and unusual punishment? That is the
question posed by Todd Emerson Baker’s complaint arising
from the medical care he received while serving a District of
Columbia sentence in a correctional facility of the Common-
wealth of Virginia. It remains to be seen if the question will
be answered in his case. The immediate question on appeal
is whether the district court erred in dismissing Baker’s
complaint against the District of Columbia for failure to state
a cause of action pursuant to Federal Rule of Civil Procedure
12(b)(6). Upon de novo review, see Atchinson v. Dist. of
Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996), and taking the
allegations in the complaint as true, see Phillips v. Bureau of
Prisons, 591 F.2d 966, 968–69 (D.C. Cir. 1979), we hold that
the district court erred in dismissing Baker’s complaint by
applying a subjective deliberate indifference standard to his
claim that the District of Columbia had a policy or custom
that caused the violations. We leave to the district court on
remand to address the preclusive effect, if any, of judgments
in the Eastern District of Virginia in a related case and,
absent preclusion, to determine whether Baker’s claim
against the District of Columbia may proceed.
I.
For purposes of this appeal, it is undisputed that Baker,
while serving a District of Columbia sentence was, at the
3
relevant times, incarcerated in the Greensville Correctional
Center in the Commonwealth of Virginia. However, the
record and the parties are unclear as to whether Baker was
transferred to Greensville as a prisoner under the authority
of the District of Columbia or the Federal Bureau of Prisons.
See National Capitol Revitalization and Self–Government Im-
provement Act of 1997, Pub. L. 105–33, 111 Stat. 251, 712,
734–40. His complaint, including various amendments and
supplementary pleadings, describes events between April 24,
2000, and April 24, 2001, when he was transferred from
Greensville to a correctional facility in North Carolina. Dur-
ing almost all of that time, medical care at Greensville was
provided by Corrections Medical Services (‘‘CMS’’), a private
company under contract with the Virginia Department of
Corrections; at other times Baker’s allegations of inadequate
medical care involved medical personnel who were state
employees at Greensville.
According to Baker’s complaint, he suffered two unrelated
medical conditions during his incarceration at Greensville for
which surgery was ultimately recommended. First, in April
2000 he developed a facial abscess and swelling on the left
side of his nose and face that eventually closed 80% of his left
eye and ultimately ruptured in April 2001. A CMS doctor
initially told him it was a spider bite or perhaps a sinus
infection but wrote in Baker’s medical records that he was
suffering from erysipilas, an acute disease of the skin marked
by spreading inflammation and fever. X-rays were taken and
Baker was given three days of antibiotics. Despite continued
swelling and headaches he received no further treatment for
eight months. In December 2000, after the condition wors-
ened, he was informed that the abscess was a ‘‘sebaceous
cyst.’’ Medication was prescribed and Baker was told by
medical personnel that if the knot did not go away he should
see a dermatologist. During one of these consultations, three
medical staff members laughed at Baker’s confusion about his
medical condition. A few weeks later, the CMS doctor
changed her diagnosis a third time, advising the swelling was
from bad root canal work. In the following weeks, when
Baker sought help again as the condition continued, he was
4
told no doctor was available. Medical staff also improperly
indicated in Baker’s medical records that he was failing to
attend scheduled appointments. Finally at the end of March
2001, after repeatedly requesting medical treatment, Baker
was informed by another doctor at Greensville that surgery
was indicated but he should wait until he was older and the
abscess had spread to other parts of his face. In April, the
abscess burst and continued to ooze for weeks.
Second, in August 2000, Baker injured his leg during a
softball game and sought medical attention. Medical staff did
not attend to Baker for over 45 minutes, despite his severe
pain, and after X-rays were taken, he was returned to his cell
without a wheelchair or pain medication. Two days passed
before Baker received additional medical treatment and pain
medication. At a second consultation with a CMS doctor, he
was taken off bed rest and, without any detailed examination,
told to exercise. After two more weeks, during which Baker
was in pain, had a fever, and was without some of the
prescribed pain medication, Baker was seen by a doctor and
told the X-ray results were normal. Baker later fell down at
work because of his leg injury; no report of this incident was
provided to the medical staff. Despite filing numerous griev-
ances with prison officials, Baker was not provided with
access to specialists for additional treatment. In January
2001 the X-ray technician told Baker that X-rays would not
help diagnose whether Baker had torn ligaments or cartilage
and that he would have to see an orthopedist for a proper
diagnosis. A CMS doctor responded that access to a special-
ist would require Baker to go through therapy first and that
‘‘opposition from the HMO and other officials makes even
therapy difficult to obtain.’’ Indeed, according to the doctor,
‘‘if inmates are not diabetics, HIV positive, or have high blood
pressure the chances of getting more than minimal care is not
going to happen and the result from the lack of care makes
[the doctor] look like the villain to the inmates.’’ Amended
Complaint at 5. In February 2001, Baker finally was seen by
an orthopedic specialist who told him that he probably had a
torn cartilage that would require additional treatment. How-
ever, a nurse informed Baker that because of his imminent
5
transfer, any request for further treatment might well not be
fulfilled.
Baker, proceeding pro se, filed suit in the United States
District Court for the District of Columbia for declaratory
and injunctive relief and damages under 42 U.S.C. § 1983 for
violations of his Eighth Amendment rights during his incar-
ceration, under state common law for medical malpractice,
and under the Interstate Corrections Compact, D.C. Code
Ann. § 24–1001 (2001). He named as defendants the District
of Columbia, the directors of the Federal Bureau of Prisons
and the Virginia Department of Corrections, and six medical
personnel, of whom some were employed by a private con-
tractor, and prison administrators. The District of Columbia
moved to dismiss the complaint under Rule 12(b)(6), and the
district court granted the motion. According to the district
court, proving the District of Columbia’s liability would have
required Baker to show that the District of Columbia was
subjectively aware of Baker’s medical needs, but because all
of the individual defendants were either Virginia correctional
officials or private contractors, this was not possible. The
district court dismissed all claims against both the District of
Columbia and the Federal Bureau of Prisons, and transferred
Baker’s claims against the Virginia defendants to the Eastern
District of Virginia.
In the Eastern District, Baker amended his complaint to
add and subtract defendants; the district court dismissed
other defendants. The Virginia defendants first moved to
dismiss Baker’s claims based on the facial injury because of a
failure to exhaust administrative remedies under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a). The district
court granted the motion, and thereafter denied Baker’s
motion for reconsideration, ruling in the alternative that there
was no Eighth Amendment violation because the defendants’
treatment of the facial condition was more akin to ‘‘medical
malpractice’’ than ‘‘deliberate indifference.’’ Baker v. Dist. of
Columbia, Action No. 2:01cv472, at 2 & n.1 (E.D. Va., Jan. 30,
2002) (Order). The Virginia defendants then moved for sum-
mary judgment with respect to the leg claims, again arguing
that any shortcomings in Baker’s medical care were closer to
6
‘‘medical malpractice’’ rather than to ‘‘deliberate indifference’’
under the Eighth Amendment; in September 2002, the Virgi-
nia district court granted that motion as well. Baker v. Dist.
of Columbia, Action No. 2:01cv472 (E.D. Va. Sept. 27, 2002)
(Opinion and Final Order). Baker appealed and the Court of
Appeals for the Fourth Circuit affirmed ‘‘on the reasoning of
the district court.’’ Baker v. Dist. of Columbia, No. 02–7665
(4th Cir. Jan. 7, 2003) (unpub. op.).
In the meantime, Baker timely appealed to this court the
dismissal of his § 1983 claim against the District of Columbia.
II.
On appeal, Baker, assisted by amicus,1 contends that the
district court incorrectly analyzed his claim against the Dis-
trict of Columbia under Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978). Essentially, he contends that the dis-
trict court erred by confusing the ‘‘deliberate indifference’’
required to find an underlying Eighth Amendment violation
by the Virginia defendants, which does require subjective
knowledge, with the ‘‘deliberate indifference’’ required to find
that the District of Columbia ignored the unconstitutional
conduct of the Virginia prison officials to whom it had en-
trusted its prisoners, which only requires objective knowl-
edge. He contends that under Monell he may state a claim
against the District of Columbia based on a policy or custom
without any analysis of the subjective state of mind of District
of Columbia officials.
The distinction between the two ‘‘deliberate indifference’’
standards was drawn by the Supreme Court in Collins v. City
of Harker Heights, 503 U.S. 115, 124 (1992). Accordingly, in
considering whether a plaintiff has stated a claim for munici-
pal liability, the district court must conduct a two-step inqui-
ry. See Collins, 503 U.S. at 120. First, the court must
determine whether the complaint states a claim for a predi-
cate constitutional violation. Id. Second, if so, then the court
1 The court expresses appreciation to amicus for its assistance
in this appeal.
7
must determine whether the complaint states a claim that a
custom or policy of the municipality caused the violation. Id.;
Monell, 436 U.S. at 694. Each inquiry is separate and serves
different purposes. Collins, 503 U.S. at 124; see also Farmer
v. Brennan, 511 U.S. 825, 840–42 (1994); City of Canton v.
Harris, 489 U.S. 378, 388 n.8 (1989).
Under the first prong, the district court should have ad-
dressed whether Baker’s complaint stated a predicate claim
of deliberate indifference by prison officials to Baker’s serious
medical needs in violation of his Eighth Amendment rights
under Estelle v. Gamble, 429 U.S. 97, 106 (1976). To show
deliberate indifference, Baker had to allege that officials had
subjective knowledge of the serious medical need and reck-
lessly disregarded the excessive risk to inmate health or
safety from that risk. Farmer, 511 U.S. at 837. In order to
establish this predicate violation, neither District of Columbia
policy makers nor employees need be implicated. All that is
being established at this stage is that there is some constitu-
tional harm suffered by the plaintiff, not whether the munici-
pality is liable for that harm.
Under the second prong, the district court should have
determined whether Baker’s complaint stated a claim that a
policy or custom of the District of Columbia caused the
constitutional violation alleged under the first prong. See
Monell, 436 U.S. at 694; Harris, 489 U.S. at 389. The court
must determine whether the plaintiff has alleged an ‘‘affirma-
tive link,’’ City of Oklahoma City v. Tuttle, 471 U.S. 808, 823
(1985) (op. of Rehnquist, J.), such that a municipal policy was
the ‘‘moving force’’ behind the constitutional violation, Harris,
489 U.S. at 389 (quotation omitted). There are a number of
ways in which a ‘‘policy’’ can be set by a municipality to cause
it to be liable under § 1983: the explicit setting of a policy by
the government that violates the Constitution, see Monell, 436
U.S. at 694–95; the action of a policy maker within the
government, City of St. Louis v. Praprotnik, 485 U.S. 112,
123–30 (1988); the adoption through a knowing failure to act
by a policy maker of actions by his subordinates that are so
consistent that they have become ‘‘custom,’’ id. at 130; or the
failure of the government to respond to a need (for example,
8
training of employees) in such a manner as to show ‘‘deliber-
ate indifference’’ to the risk that not addressing the need will
result in constitutional violations, Harris, 489 U.S. at 390;
Daskalea v. Dist. of Columbia, 227 F.3d 433, 441 (D.C. Cir.
2000). Deliberate indifference is determined by analyzing
whether the municipality knew or should have known of the
risk of constitutional violations, an objective standard.
Farmer, 511 U.S. at 841. Because the district court errone-
ously ruled that Baker had to prove subjective indifference by
the District of Columbia, it therefore improperly analyzed the
second prong.
The District of Columbia has not attempted to defend the
flawed rationale relied upon by the district court for dismiss-
ing the complaint. Rather, it contends that Ali v. Dist. of
Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002), establishes that the
District of Columbia is not liable for the actions of the
Virginia correctional officials. However, as the District of
Columbia notes, the complaint in Ali did not allege a policy on
the part of the District of Columbia of sending inmates to
Virginia prisons that routinely mistreat inmates. Id.
Baker alleged in his complaint that the District of Columbia
has a continuing, nondelegable responsibility for him as a
D.C. resident serving a D.C. sentence to ensure that his
Eighth Amendment rights are not violated where the Virginia
Department of Corrections is serving as an agent for the
District of Columbia and the Federal Bureau of Prisons. He
further alleged that the Virginia officials violated his Eighth
Amendment rights by not properly investigating his com-
plaints about ‘‘the malicious and sadistic treatment [he] was
[receiving] from the medical staff at the Greensville Correc-
tion CenterTTTT’’ Amended Complaint at 8. In opposing the
motion to dismiss, Baker argued that the violation of his
Eighth Amendment rights was ‘‘due to the TTT [District of
Columbia’s] inadequate policies, procedures, and practices’’,
cited D.C. Code § 24–1001, and stated that had the District of
Columbia contract monitor done its job competently the
District of Columbia would had to have known that the
Virginia Department of Corrections has contracted out its
medical services to a notoriously ‘‘incompetent’’ health care
9
provider and had nonetheless ‘‘deliberately’’ allowed this to
continue by not maintaining supervision.
In contending that these pleadings do not meet the stan-
dard of Ali, the District of Columbia maintains that they are
‘‘a really mixed bag in that one can read [them] in a directly
opposite manner’’ such that there is no claim that there was a
policy or custom under Monell. Appellee’s Br. at 16. How-
ever, if a complaint alleging municipal liability under § 1983
may be read in a way that can support a claim for relief,
thereby giving the defendant fair notice of the claim, that is
sufficient. See Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163 (1993); Any-
anwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998);
Atchinson, 73 F.3d at 421–23. Thus, the District of Columbia
has effectively conceded that Baker has stated a claim for
relief. With that concession, there are no grounds advanced
for supporting the dismissal of Baker’s complaint.
The disposition of Baker’s complaint is complicated, howev-
er, by the judgments of the district court in the Eastern
District. On appeal, the District of Columbia invokes the
defense of collateral estoppel in maintaining that, because of
the Virginia judgments in favor of the named Virginia defen-
dants, there is no basis for an award of damages against the
District of Columbia based on the alleged Eighth Amendment
violations. Understandably the District of Columbia first
invoked the defense of collateral estoppel on appeal as the
Virginia judgments were rendered after Baker’s complaint
had been dismissed and while his appeal was pending. But
just as understandably, Baker contends that if this court
remands because the district court failed to apply Monell
correctly, the issue of preclusion should be addressed in the
first instance by the district court because he has had no
opportunity for discovery or to move to amend his pleadings.
The court will generally remand issues of collateral estop-
pel to the district court when they are raised for the first time
on appeal. See, e.g., Fogg v. Ashcroft, 254 F.3d 103, 110–11
(D.C. Cir. 2001); Northwest Forest Res. Council v. Dombeck,
107 F.3d 897, 901 (D.C. Cir. 1997). The appropriateness of a
10
remand is stronger when an appeal is pending of the decision
that arguably warrants preclusive effect or where the record
is unclear. Martin v. Malhoyt, 830 F.2d 237, 265 (D.C. Cir.
1987). On the other hand, the court would not necessarily
remand in the context of a claim of res judicata ‘‘where there
is no prejudice to the plaintiff, no forfeiture [of the res
judicata issue] has yet occurred, the relevant facts stand
uncontroverted in the record before us, and denial would only
engender delay.’’ Stanton v. D.C. Court of Appeals, 127 F.3d
72, 77 (D.C. Cir. 1997). These principles are no less relevant
in the context of the ‘‘related’’ doctrine of collateral estoppel,
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979).
Although the Fourth Circuit has affirmed the Virginia district
court judgments, we conclude that a determination in the first
instance by this court of the applicability of collateral estoppel
to Baker’s claims against the District would be problematic.
See Dist. Props. Assocs. v. Dist. of Columbia, 743 F.2d 21, 29
(D.C. Cir. 1984); see also Blonder–Tongue Labs., Inc. v.
Univ. Of Ill. Found., 402 U.S. 313, 350 (1971); Fogg, 254 F.3d
at 111.
Resolution of the District of Columbia’s collateral estoppel
defense will require both an evaluation of the records of the
Virginia proceedings, which the parties have agreed to file in
the district court,2 and a comparison of those records with
Baker’s claims in the instant case in order to determine
whether any alleged Eighth Amendment violations survive
even though the named defendants were exonerated. Having
reviewed amicus’ brief, we note that some of the contentions
based on the records in the Virginia proceedings may not
need to be addressed in order to resolve Baker’s claims and
others may require further factual development. These mat-
ters can be clarified in further pleadings and arguments by
the parties in the district court.
Accordingly, because the district court erred by applying a
subjective standard to Baker’s Monell claim and resolution of
his claim against the District of Columbia may depend on
2 The records of the Virginia proceedings were not filed in this
court until after briefing and oral argument had been completed.
11
additional pleadings and discovery in light of the records of
the Virginia proceedings, we reverse and remand the case to
the district court. On remand the district court can address
the preclusive effect, if any, of the Virginia judgments, and
absent preclusion, determine whether Baker’s claim against
the District of Columbia may proceed.