United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2007 Decided February 1, 2008
No. 05-5320
HERBERT BROWN,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv02195)
Richard H. Frankel, appointed by the court, argued the
cause for amicus curiae in support of appellant. With him on
the briefs were Steven H. Goldblatt, Director, and Michael
Hass, Brendon DeMay, Christian D'Avignon-Aubut, and
Damon Elder, Student Counsel.
Herbert Brown, pro se, was on the brief for appellant.
Mary L. Wilson, Senior Assistant Attorney General,
Office of Attorney General for the District of Columbia,
argued the cause for appellees District of Columbia, et al.
With her on the brief were Linda Singer, Attorney General,
2
Todd S. Kim, Solicitor General, and Edward E. Schwab,
Deputy Solicitor General.
Eileen Dennis Gilbride argued the cause for appellee
Corrections Corporation of America. With her on the brief
was Daniel P. Struck.
Adele P. Kimmel was on the brief for amici curiae DC
Prisoners' Project of the Washington Lawyers' Committee for
Civil Rights and Urban Affairs in support of appellant.
Arthur B. Spitzer and Deborah M. Golden entered
appearances.
Before: GARLAND and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Herbert Brown, a prisoner,
claims that his custodians’ failure to provide adequate medical
care amounted to “cruel and unusual punishment” in violation
of the Eighth Amendment. He sued the District of Columbia
(“District”) and the Corrections Corporation of America
(“CCA”), along with former Attorney General John
Ashcroft,1 three high-ranking District officials including the
mayor, and several District and CCA employees in their
individual capacities.
The district court dismissed Brown’s complaint against
the District, CCA, and the District officials for failure to state
1
Because a panel of this court has summarily affirmed the district
court’s dismissal of Brown’s claim against the former Attorney
General, Brown v. District of Columbia, No. 05-5320 (D.C. Cir.
May 23, 2006), we do not discuss Brown’s claims against Ashcroft.
3
a claim. We affirm these dismissals in all respects but two.
We reverse the dismissal of Brown’s claim against the
District for the violation of his rights while in the District’s
prison in Lorton, Virginia. The district court also dismissed
Brown’s complaint against the District employees and the
CCA employees because Brown failed to serve them. We
reverse this dismissal, too. Our reasons follow.
I.
A.
Brown’s complaint alleges a spate of harms, which we
must take as true when reviewing the dismissal of his claims.2
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). From 1991
through 1997, Brown was incarcerated in the District’s
Occoquan Correctional Facility in Lorton, Virginia.3
Although Brown entered the prison in good health, over the
next five years his health deteriorated. He experienced severe
headaches, constipation, loss of appetite, yellowed eyes, and
pains in his chest, stomach, lower back, and penis. Several
medical personnel at the prison wrongly diagnosed Brown or
ignored his requests for treatment. Because of these failures,
Brown suffered an inflamed liver, jaundice, and a medley of
other maladies.
Finally, a Dr. Rafford diagnosed Brown with gallstones
and ordered his immediate transfer to D.C. General Hospital
for treatment. For the next sixty days prison officials failed to
2
Brown filed pro se in district court. On appeal he submitted a pro
se brief and also joined the brief of appointed amicus curiae. All
quotations from Brown’s filings are reproduced verbatim.
3
The record is devoid of any information regarding the nature of
Brown’s crime or the terms of his sentence, neither of which is
relevant to our disposition of his appeal.
4
make the transfer while Brown continued to complain of
intense pain. Not until Dr. Rafford saw Brown a second time,
made the same diagnosis, and again ordered his immediate
transfer did prison officials finally comply. At the hospital,
Brown underwent surgery that removed eighteen gallstones
blocking his urinary tract. After he returned to the Lorton
prison, Brown continued to complain of similar symptoms.
Over the next several months, the prison’s medical staff again
refused to treat him or wrongly diagnosed his condition. In
one instance, a medical assistant diagnosed food poisoning
and ordered Brown’s transfer to a hospital, but prison officials
again refused.
In 1997 the District transferred Brown to the Northeast
Ohio Correctional Center, a private prison owned and
operated by CCA in Youngstown, Ohio that houses inmates
for the Federal Bureau of Prisons. There, Brown’s experience
with inadequate medical care continued. In one instance, a
Dr. Mazzi prescribed diabetes medication for Brown without
ever examining him. After months of suffering from the
medication’s ill effects, Brown learned that he did not have
the disease. At both the Virginia and Ohio facilities, Brown
filed numerous grievances informing prison officials and the
District of his plight.
B.
In December 2004 Brown filed suit in the United States
District Court for the District of Columbia under 42 U.S.C.
§ 1983, which creates a cause of action against state and local
officials for violations of federal rights. The statute reads:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
5
subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to
the party injured.
42 U.S.C. § 1983. Brown claimed that the District, CCA, and
several individuals denied him adequate medical care in
violation of the Eighth Amendment. The individual
4
defendants he sought to hold personally liable include three
District officials (Odie Washington, Director of the D.C.
Department of Corrections; Elwood York, Director of
External Confinement in the D.C. Department of Corrections;
and Anthony Williams, former mayor of the District of
Columbia); six doctors at the Lorton prison (Taylor, Marzban,
K. R. Sorem, Ferry, Park, and Easted); and nine employees5 at
CCA’s Ohio prison (Mazzi, Willis Gibson, A. Warfield, R.
Adams, M. Perryman, A. Sims, J. Bass, B. Goodrich, and J.
Cerimele). He served the District and defendants Williams,
Washington, and York, but failed to serve the remaining
individuals. Although CCA accepted service, it never
appeared in district court. The District, along with defendants
Williams, Washington, and York, filed a motion to dismiss.
On August 1, 2005 the district court dismissed Brown’s
action in its entirety. Brown v. District of Columbia, No. 04-
2195 (D.D.C. Aug. 2, 2005). The court concluded that
Brown failed to state a claim against either the District or
CCA because his treatment at the hands of various prison
doctors did not violate the Eighth Amendment: “Although
4
We use the defendants’ names as Brown used them in his
complaint.
5
CCA disputes whether these individuals are employees, but we
need not reach this issue.
6
there may have been delays in rendering treatment,
displeasure as to the quality of treatment, or disagreement
about the course of treatment, the plaintiff’s complaint makes
clear that indeed he received treatment. Negligence does not
rise to the level of deliberate indifference to a prisoner’s
serious medical needs.” Id. at *5. The court also reasoned
that even if Brown had stated an Eighth Amendment
violation, he failed to make allegations which, if true, would
hold the District liable. His claim against the District, at best,
was based on a theory of respondeat superior, insufficient
under well-established precedent. Id. at *6-7. In addition, the
court dismissed the claims against defendants Williams,
Washington, and York because Brown failed to allege that
these public officials were personally involved in the
decisions adversely affecting Brown’s rights. Id. at *7.
Finally, the court dismissed sua sponte the claims against the
CCA and District employees because Brown did not serve
them. Id. at *4.
Brown appeals the decision in all respects. The district
court exercised jurisdiction over this case pursuant to 28
U.S.C. § 1331, and we have jurisdiction under 28 U.S.C.
§ 1291. Our review is de novo. Browning v. Clinton, 292
F.3d 235, 242 (D.C. Cir. 2002) (dismissal for failure to state a
claim); Second Amendment Found. v. U.S. Conference of
Mayors, 274 F.3d 521, 523 (D.C. Cir. 2001) (dismissal for
lack of personal jurisdiction). “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”
Erickson, 127 S. Ct. at 2200. Moreover, “[a] document filed
pro se is to be liberally construed . . . and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Id.
(internal quotation marks and citations omitted).
7
II.
Brown argues that the district court erred in dismissing
his claims against the District for alleged failures of medical
care. We agree.
A.
A municipality is a “person” subject to suit under 42
U.S.C. § 1983, although its liability is limited. Monell v.
Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). To
determine whether a plaintiff can hold a municipality liable
under § 1983, we must answer two questions. “First, the
court must determine whether the complaint states a claim for
a predicate constitutional violation. Second, if so, then the
court must determine whether the complaint states a claim
that a custom or policy of the municipality caused the
violation.” 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)).
Brown’s complaint alleges a violation of the Eighth
Amendment’s prohibition against “cruel and unusual
punishments.” U.S. CONST. amend. VIII. The Supreme
Court has placed within the ambit of this prohibition
“punishments . . . which involve the unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03
(1976). When a prisoner claims that his custodian has
violated the Eighth Amendment by failing to provide
adequate medical care, he “must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Id. at 106. One example of such
“deliberate indifference” is a prison doctor or official who
“intentionally den[ies] or delay[s] access to medical care or
intentionally interfere[s] with the treatment once prescribed.”
8
Id. at 105. A claim of negligence is insufficient. Id. at 105-
06.
The court must next determine whether the plaintiff has
alleged facts sufficient to hold the municipality liable. Under
Monell, “a local government may not be sued under § 1983
for an injury inflicted by its employees or agents. Instead, it
is when execution of a government’s policy or custom . . .
inflicts the injury that the government as an entity is
responsible under § 1983.” 436 U.S. at 694. We have found
a number of ways a municipality can adopt a policy or custom
that might create liability, see Baker, 326 F.3d at 1306;
Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir.
2004), only one of which is relevant to Brown’s allegations:
“the failure of the government to respond to a need . . . 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 (quoting City of Canton
v. Harris, 489 U.S. 378, 390 (1989)). As Baker explains,
“deliberate indifference is determined by analyzing whether
the municipality knew or should have known of the risk of
constitutional violations.” Id. at 1307.
B.
Applying the Monell analysis, we conclude that Brown’s
allegations state a claim that the District violated his Eighth
Amendment rights at the Lorton prison. Although the task of
discerning what constitutes a “serious medical need” under
Estelle may prove vexing at the margins, Brown’s claim gives
us no pause. His jeremiad reaches a climax in recounting his
experience with gallstones. The intense and often relentless
pain that accompanies this condition, and the complications
that can follow, easily push Brown’s claim into the category
of serious medical needs. See, e.g., Toombs v. Bell, 798 F.2d
9
297, 298 (8th Cir. 1986) (holding that alleged gallstones
constituted a serious medical need). In fact, the government
concedes this point. Brief for the District of Columbia at 13
(“Brown’s allegation . . . is adequate to state a serious medical
need”).
Furthermore, Brown claims that prison officials
demonstrated “deliberate indifference” to his condition.
Although Dr. Rafford diagnosed Brown with gallstones and
“ordered [him] to be immediately transfered to the D.C.
General Hospital for treatment,” Compl. ¶ 17, he “was never
transfered . . . and continued to report to the infirmary with
complaints of Pain and stomach sickness for an additional
(60) sixty days,” id. ¶ 21. Brown also alleges that “the
defendants subjected [him] to an Unnecessary and wanton
infliction of pain out of delibrate indifference . . . to his
serious medical needs.” Id. ¶ 38. The government’s attempt
to style Brown’s claim as mere griping about the quality or
course of treatment misstates the gravamen of the allegation.
After Dr. Rafford notified prison officials of Brown’s need for
immediate hospitalization, they failed to transfer him for sixty
days while he continued to suffer from gallstones. Presented
with these claims, we do not hesitate to conclude that Brown
alleges an Eighth Amendment violation.
Brown also avers facts sufficient to hold the District
liable under Monell because he alleges that the District failed
to act even though it “knew or should have known of the risk
of constitutional violations.” Baker, 326 F.3d at 1307.
Brown claims that he filed numerous grievances, Compl.
¶¶ 36, 42, and that “the District of Columbia sat idly by while
the plaintiffs serious medical needs were ignored after
10
plaintiff had informed them of his medical needs,” id. ¶ 38.6
As this court interpreted Monell in Baker, 326 F.3d at 1306,
these allegations are sufficient to state a claim that a custom
or policy of the municipality caused the underlying
constitutional violation.
Brown should have the chance to prove the case he has
sufficiently pled. We therefore reverse the district court’s
dismissal of Brown’s claim against the District for the alleged
Eighth Amendment violations that occurred while he was
incarcerated at the Lorton facility.7 We also affirm the district
court’s dismissal of Brown’s claim that the District is liable
for the alleged harms committed by CCA because, as we
explain in Section IV, his claim against CCA is barred by res
judicata.
6
Aside from his general claim that “all grievances [have] been
exhausted,” Compl. ¶ 42, Brown does not expressly state that he
informed District officials of his condition during the sixty days
after Dr. Rafford first ordered his transfer to the hospital and before
prison officials complied with the order. However, construing the
plaintiff’s complaint liberally as we are required to do on a motion
to dismiss and mindful of the Court’s instruction to hold a pro se
complaint to “less stringent standards,” Erickson, 127 S. Ct. at
2200, we conclude that Brown pleads sufficient knowledge by the
District as required by Baker. 326 F.3d at 1307.
7
The complaint alleges several instances in which the District
failed to provide Brown medical care at the Lorton facility, which
Brown may or may not have intended as separate claims. The
district court did not identify distinct claims and neither do we. On
remand the court may consider whether Brown raises one or more
claims separate from the gallstones claim and then determine in
each instance whether Brown states a claim for relief.
11
III.
Brown also claims that Washington, York, and former
Mayor Williams are personally liable for the Eighth
Amendment violations that occurred from 1995-1997 while
he was at the Lorton facility and before he was transfered
sometime in 1997 to the CCA facility in Youngstown, Ohio.
We affirm the district court’s dismissal of these claims.
We take judicial notice of the fact that Williams did not
begin his first term of office as mayor until 1999 and
Washington received his appointment as Director of the D.C.
Department of Corrections that same year, see Res. 13-138,
Dir. of the Dep’t of Corr. Odie Washington Confirmation
Resolution of 1999, 46 D.C. Reg. 5517 (June 8, 1999), and
accordingly affirm dismissal of the claims against them. See
FED. R. EVID. 201. Brown also fails to state a claim against
York. Under the theory of supervisory liability that Brown
asserts, the plaintiff must allege that the official “was
responsible for supervising the wrongdoer.” Haynesworth v.
Miller, 820 F.2d 1245, 1262 (D.C. Cir. 1987). Brown only
avers, however, that York supervised the care of prisoners
“housed in contract facilities.” Compl. ¶ 4. The prison in
Lorton, Virginia was not a contract facility and therefore we
affirm dismissal of the claim against York.
IV.
Brown also argues on appeal that the district court erred
when it dismissed his claim against CCA for alleged
violations that occurred while he was a prisoner at the
Northeast Ohio Correctional Facility. These allegations
resemble those he makes against the District for failure to
provide medical care. We affirm the district court’s dismissal
12
of this claim, although we do so on the ground of res judicata,
an argument CCA makes for the first time on appeal.
CCA argues that Brown is attempting to re-litigate an
issue on appeal already decided by a federal court in Brown v.
CCA, No. 03-822 (N.D. Ohio 2003). Before we address
CCA’s argument, we must first decide whether CCA, which
did not appear before the district court in this matter even
though it was properly served, can raise the affirmative
defense of res judicata for the first time on appeal. Typically
a defendant must plead the defense in the answer to the
complaint. Poulin v. Bowen, 817 F.2d 865, 869 (D.C. Cir.
1987). But in Stanton v. District of Columbia Court of
Appeals, 127 F.3d 72 (D.C. Cir. 1997), this court said that
because res judicata protects not only the interests of a
particular party but the interests of the court, we may consider
it for the first time on appeal where the defendant has not
forfeited the defense, the relevant facts are uncontroverted,
and a failure to consider it would only cause delay. Id. at 77.
These factors are all present here. In Stanton, the
defendant retained the right to argue res judicata because the
district court ruled on a dispositive motion before the
defendant had answered the complaint, leaving him free to
assert the defense on remand. Id. Likewise, CCA has not
forfeited the right to raise the defense here. Although CCA
risked entry of a default judgment on account of its absence, it
did not thereby forfeit the right to answer Brown’s complaint
and raise the defense if the district court’s dismissal in its
favor was later reversed. Moreover, the relevant facts are
uncontroverted. Neither Brown nor the appointed amicus
curiae identifies any factual disputes that arise in connection
with Brown’s earlier lawsuit. Finally, not to consider the
defense now would only engender delay because CCA would
be free to raise it on remand.
13
Therefore, we properly consider the res judicata defense
for the first time on appeal and hold that it bars Brown’s
claims against CCA. In the previous case, Brown brought the
identical claim against CCA that he brings now: Dr. Mazzi
prescribed diabetic medication for Brown when in fact Brown
did not have diabetes. Brown v. CCA, No. 03-822, at *1
(N.D. Ohio 2003). The court dismissed that case because the
governing statute of limitations barred the action. Id. at *2.
Brown does not dispute that res judicata would bar his claim
against CCA for the actions of Dr. Mazzi. But Brown argues
that he has raised a separate claim against CCA that its
medical staff acted with deliberate indifference in failing to
diagnose his hepatitis while he was incarcerated at the CCA
facility. We find no such claim. Nowhere in his complaint or
other pleadings does Brown allege that medical personnel
working at CCA, other than Dr. Mazzi, refused to diagnose
him or otherwise showed deliberate indifference to his serious
medical need. Brown’s claim against CCA for the conduct of
Dr. Mazzi is barred by res judicata and Brown otherwise fails
to state a claim for relief against CCA.
V.
Finally, Brown contends that the district court erred in
dismissing for lack of proper service his claims against the six
District and nine CCA employees, all of whom Brown sued in
their individual capacities. We agree.
Rule 4(m) of the Federal Rules of Civil Procedure
requires the court to give the plaintiff notice prior to dismissal
for lack of service:
If service of the summons and complaint is not
made upon a defendant within 120 days after
14
the filing of the complaint, the court, upon
motion or on its own initiative after notice to
the plaintiff, shall dismiss the action without
prejudice as to that defendant or direct that
service be effected within a specific time;
provided that if the plaintiff shows good cause
for the failure, the court shall extend the time
for service for an appropriate period.
FED. R. CIV. P. 4(m) (emphasis added). Interpreting a
predecessor of Rule 4(m), this court held that a district court
errs when it dismisses a suit for failure to effect service and
the plaintiff is “neither actually nor constructively on notice
as to the impending sua sponte dismissal.” Smith-Bey v.
Cripe, 852 F.2d 592, 593 (D.C. Cir. 1988). This rule is
especially important to a plaintiff who is pro se and
incarcerated because of his limited ability to ensure proper
service. Id. at 594. The record, however, gives no indication
that Brown received the requisite notice.
VI.
We affirm the dismissal of the claims against CCA, the
District for alleged violations committed by CCA, and the
high-ranking District officials. We reverse the dismissal of
the claims against the District for alleged violations at the
Lorton facility and the dismissal of the claims against the nine
CCA and six District employees for failure to serve, and
remand to the district court for further proceedings consistent
with this opinion.
So ordered.