Opinion
Civil Action No. 02-0700 (RMC).
May 31, 2005
MEMORANDUM OPINION
Plaintiff, Phyllis Phillips, is the mother of a former federal inmate, Samuel Phillips, who was placed at the Hope Village Community Care Center ("Hope Village"), a "halfway house" between prison and full release in Washington, D.C. Plaintiff's amended complaint alleges that Mr. Phillips warned Hope Village that he had received a threat on his life, that this warning was ignored, that he was shot on the sidewalk in front of the house next door to Hope Village, and that he later died from his wounds. After the close of discovery, Hope Village and Joseph Wilmer, its Director (collectively, the Hope Village Defendants), moved for summary judgment, which Ms. Phillips opposes. Because the record shows that Ms. Phillips has no evidence to prove her case, the Court will grant the Hope Village Defendants' motion and dismiss the complaint.
I. BACKGROUND
The relevant facts are simple, although tragic. Mr. Phillips was convicted of a felony in the Superior Court of the District of Columbia. On February 5, 2001, the Federal Bureau of Prisons transferred him from the Federal Correctional Institution in Fairton, New Jersey, to Hope Village for purposes of parole preparation. Hope Village is "a privately-owned facility . . . and has contracted with the Bureau of Prisons to provide halfway house services to inmates of the District of Columbia." Am. Compl. ¶ 4. Ms. Phillips asserts that Mr. Phillips's life was threatened by the new boyfriend of Mr. Phillips's former girlfriend. What is known is that Mr. Phillips was on the sidewalk in front of the house next to Hope Village when he became the victim of a drive-by shooting on February 6, 2001, and he ultimately died from his wounds.
Statement of Material Undisputed Facts in Support of Defendants' Motion for Summary Judgment, Ex. 1 (Interrogatories) at 3, No. 2 ("Samuel Phillips . . . was talking with his girlfriend over the telephone when he was threaten[ed] by her new boyfriend.").
Ms. Phillips asserts that Sam Phillips reported the threat on his life to an unknown staff member at Hope Village and that Hope Village violated its duty of care when it failed to protect him. The Hope Village Defendants deny that they ever knew of any danger to Mr. Phillips and argue that they cannot be held responsible for the unforeseeable criminal acts of third parties. Ms. Phillips acknowledges that Sam Phillips did not report any threat to her. See Statement of Material Undisputed Facts in Support of Defendants' Motion for Summary Judgment ("Statement of Facts"), Ex. 1 (Interrogatories) at 3, No. 5 ("The decedent didn't communicate to me the threat."). She states that Sam Phillips reported the threat to his brother, Demetrius, but that Demetrius was killed before he could testify against the alleged drive-by shooter. Id., Ex. 2 (Phillips's Dep.) at 66-67.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is not a "disfavored procedural shortcut[;]" rather, it is a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). To determine whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).
Once the moving party shows that there is a lack of evidence to support the opponent's case, the burden shifts to the non-movant to show, through affidavits or otherwise, the existence of a material issue for trial. Bias v. Advantage Int'l, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990) . See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (citing FED. R. CIV. P. 56 (c)). Conclusory allegations by the non-movant are insufficient to withstand summary judgment. Exxon Corp. v. F.T.C., 663 F.2d 120, 127 (D.C. Cir. 1980) (citing Marks v. United Stated Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978)).
III. PROCEDURAL HISTORY
Some procedural history of the case is necessary to understand its resolution. Sam Phillips was shot on February 6, 2001. Ms. Phillips, who is represented by counsel, filed suit on April 12, 2002, naming the Federal Bureau of Prisons ("BOP") as the sole defendant. By motion dated August 7, 2002, BOP moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim on which relief could be granted. Ms. Phillips promptly filed a motion to amend the complaint and, on October 16, 2002, an Opposition to the motion to dismiss. When the motion to amend was granted, Ms. Phillips filed an amended complaint adding the Hope Village Defendants. After repeated extensions, the BOP filed its Reply on February 3, 2003.
In the meantime, this case was reassigned to the undersigned by the Calendar Committee on January 2, 2003. On January 27, 2003, the Hope Village Defendants filed a motion to dismiss the amended complaint. Ms. Phillips responded on February 3, 2003, and the Hope Village Defendants filed their reply on February 11, 2003. By memorandum opinion issued on April 29, 2003, the Court granted these motions in part and denied them in part. Thereafter, Hope Village filed an answer to the complaint. The BOP, as was its wont throughout this litigation, asked for an extension of time to answer. It then filed a renewed motion to dismiss on June 16, 2003, which Ms. Phillips opposed. The Court issued a second memorandum opinion on February 12, 2004, in which it granted dismissal to the BOP.
In March 2004, Ms. Phillips moved to transfer the case, which no longer had a federal defendant, to the Superior Court of the District of Columbia. This motion was opposed by the Hope Village Defendants and was ultimately denied on September 1, 2004, by the Court.
A scheduling conference was held on November 5, 2004, at which time the Court adopted the parties' proposed discovery and briefing schedule. Discovery closed on January 21, 2005. The parties had until February 21, 2005 to file dispositive motions, and responses were due March 8, 2005. A post-discovery status conference was held in court on January 28, 2005.
The Hope Village Defendants filed the instant motion for summary judgment on February 21, 2005, and Ms. Phillips filed her opposition on March 14, 2005. The Hope Village Defendants filed their reply on March 15, 2005.
The Court dockets all of its civil cases on the electronic case filing ("ECF") system. Ms. Phillips's opposition to Defendants' motion for summary judgment was incorrectly entered several times as a "Motion for Summary Judgment by Phillis Phillips," see Dkt. Nos. 55, 56, 57, 58, 59, all of which are marked on the docket sheet as "entered in error." These motions were subsequently terminated and Ms. Phillips re-filed her brief as a "Memorandum in Opposition to Motion re Summary Judgment" [Dkt. No. 60] on March 15, 2005.
V. ANALYSIS
The Court has belabored the procedural history of this case to put the parties' current arguments in context and to demonstrate that the case, while aged, has moved at a swift pace once the preliminary matters were resolved. Now, the Hope Village Defendants argue that they are entitled to summary judgment because Ms. Phillips has failed to identify any evidence that they were warned of a threat against Sam Phillips; has failed to identify an expert to testify to the applicable duty of care; has failed to dispute the Hope Village Defendants' positions with facts and citations to the record; and has failed to abide by the Local Rules and orders of the Court. Ms. Phillips offers a series of arguments why summary judgment should not be granted:
• "In fact, the decedent did communicate his fears to his brother who unfortunate[ly] was shot and killed prior to his testi[mony] in the trial of the man arrest[ed] in connection with . . . his brother's shooting." Opp'n. at 2.
• "In addition, the decedent communicated the threat to his life to Hope Village. However, the staff member that [sic] received the threat ha[s] been discharged from Hope Village, and due to discovery being close[d] Hope Village [is] not turning over any information concerning th[is] staff member [or] any documentation concerning this incident." Id.
• "Closure of discovery prior to counsel obtaining any meaningful discovery from the defendant has handcuff[ed] plaintiff pursuing relevant discoverable information." Id. at 2-3.
• "Plaintiff attempted to file a motion for an extension of time to conduct discovery [but it] was not accepted by the electronic filing system of the court, which resulted in counsel['s] oral motion for an extension of time to conduct discovery being denied by the court." Id. at 3.
• "Defendant's argument [that Sam Phillips's death was the result of an unforeseeable criminal act of a third party] ignores established case law, including a recent decision of the Supreme Court." Id.
• "Defendant's attempt to apply the law pertaining to for[e]seeability ignores relevant law demonstrating that [when] . . . a person is incarcerated the state has a duty to protect." Id.
The Court would be inclined to leniency if trouble with entering a request for an extension of discovery on ECF interfered with Ms. Phillips's opportunity to prepare her case adequately. Here, however, by her own admissions, Ms. Phillips has no proof that anyone reported to Hope Village or to Mr. Wilmer specifically that a threat had been made against Sam Phillips. She also failed to identify her expert on a timely basis, according to the schedule adopted by the court and to which the parties agreed. In these circumstances, additional discovery would not correct these flaws.
The fundamental question to be addressed is whether Defendants had prior notice that Sam Phillips had been threatened. They deny any prior notice. Ms. Phillips asserts that there was such notice but it is clear that she has no direct knowledge and cannot prove her allegations. Sam Phillips did not tell his mother that he had been threatened. Statement of Facts, Ex. 1, No. 5. At her deposition she testified:
Q. And by the way, how did Sam know that Ayo [his former girlfriend] was going to be coming up to Hope Village?
A. Because he had talked to her that night. That night when Demetrius [his brother] had hooked him up on the phone.
Q. Oh, okay. So when we're talking about — when we're speaking about a threat against Sam, we're talking about him telling Demetrius "Ayo said she's coming up here"?
A. Yeah.
Q. Anything else?
A. No. Other than just she was coming up there, but that's why Sam went to whoever, whatever staff he talked to. He told them the same night, the same night that he fear[ed] for his life.
Q. How do you know that?
A. Dina even told me that the person['s] name that he told it to, but I forgot the name.
Q. Let me ask you a question. Do you have specific knowledge — and I'm not talking about —
The record does not reveal the identity of Dina.
A. No, no.
Q. You don't know specifically that he told somebody that, do you?
A. No.
Statement of Facts, Ex. 2 (Phillips Depo.) at 66-67. Ms. Phillips does not address this testimony in her opposition and does not explain how she can proceed when her own admissions and testimony demonstrate that there is no evidence that the Hope Village Defendants knew about a threat against Sam Phillips's life.
Blaming ECF, the close of discovery, and the alleged failure of Hope Village to produce, after discovery closed, information about a former employee who cannot be identified by name are all unsuccessful defenses in the face of Ms. Phillips's own statements. Also unsuccessful is her argument that the Hope Village Defendants make a "false assumption that if decedent didn't warn his mother or identifiable staff it cannot be held liable and no reasonable jury could conclude that it is responsible for his death." Opp'n. at 5. This argument misconstrues the law. In the District of Columbia, a defendant cannot be liable for damages caused by the unforeseeable criminal acts of third persons. Clement v. Peoples Drug Store, Inc., 634 A.2d 425 (D.C. 1993); Lacy v. District of Columbia, 424 A.2d 317, 323 (D.C. 1980). See also Cebula v. Bush, 778 F. Supp. 567, 569 (D.D.C. 1991). When third-party criminal conduct forms the basis for a civil claim, there must be a heightened showing of foreseeability. Lacy, 424 A.2d at 323 ("[T]he law requires that the foreseeability of the risk be more precisely shown."). Thus, the Hope Village Defendants cannot be held liable for Sam Phillips's death unless his mother can prove that the drive-by shooting was foreseeable. Isolated criminal acts or assaults are by their very nature usually unforeseeable. See Ellis v. Safeway Stores, Inc., 410 A.2d 1381, 1382 (D.C. 1979) (holding that defendants were not liable to a customer for an assault that took place outside of their store where the assailant was unknown and the events transpired too rapidly to warn). Without some evidence that the Hope Village Defendants were warned about a threat against Sam Phillips and negligently failed to protect him — which has heretofore been the exact thesis of this litigation — Ms. Phillips has no basis in law to impose liability upon them.
Ms. Phillips cites DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200 (1989) to argue that the government has a stricter obligation to protect those it has incarcerated. However, DeShaney is inapplicable to the instant case. The Hope Village Defendants are private parties who perform pursuant to a contract with the Bureau of Prisons; they are not government actors. Notably, were they government actors, they would have been dismissed with the BOP.
In addition, Ms. Phillips's claim must fail because she has failed to identify an expert witness who can testify to the duty of care owed by the Hope Village Defendants to Sam Phillips. Expert testimony is necessary to "establish the standard of care when the ultimate issue involves a subject that is `distinctly related to some science, profession or occupation as to be beyond the ken of the average person.'" Griggs v. WMATA, No. 99-1552, 2002 WL 31174533, at *3 (D.D.C. Sept. 30, 2002) (citing Dist. of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C. 1987); Hill v. Metro. African Methodist Episcopal Church, 779 A.2d 906, 910 (D.C. 2001)). The inability to establish the standard of care by expert testimony, when needed, is fatal to a lawsuit. See Toy v. District of Columbia, 549 A.2d 1, 9 (D.C. 1988).
The D.C. Court of Appeals has already found that the environment in a correctional facility is foreign to most persons and requires expert testimony to set the standard of care in a negligence action.
The question of whether prison officials acted reasonably to secure the safety of an inmate is not one within the realm of the everyday experiences of a lay person. The reasonably prudent juror cannot be expected to appreciate the ramifications of prison security as well as the parallel considerations involving the safekeeping of prisoners, and therefore, whether, under given circumstances, reasonable care was exercised. Thus, expert testimony or supporting evidence is necessary to establish that standard.Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C. 1981). While the relevant setting in this case is not a prison, the rationale of Hughes nonetheless applies here with emphasis. Hope Village provides a specific kind of "halfway" incarceration with its own specific rules and freedoms intended to prepare an offender to return to the regular world. The appropriate level of care in such a fluid situation would not be known to a lay person and a jury could not weigh alleged negligence without a standard against which to measure it. For this separate reason, just as in Hughes, Ms. Phillips's complaint must be dismissed.
Ms. Phillips resists this conclusion. She states that she has obtained the services of, and consulted with, an expert witness "throughout this case." Opp'n. at 5. She argues that she "would have name[d] [her expert] as a witness but for the fact that discovery was closed prior [to] name[ing] him as a witness or obtaining any information from Hope Village so that he would review any documentation concerning this incident which has damaged plaintiff['s] case." Id. Ms. Phillips agreed on October 19, 2004, in the parties' Local Rule 16.3 Report (the Meet and Confer Statement), that she would designate her expert on or before January 7, 2005. She failed to do so. This failure would be more egregious, not less, if she actually had retained an expert but just did not name him. Furthermore, while Ms. Phillips attempts to blame Hope Village for not providing information, she fails to prove that she asked for discovery of documents or posed any interrogatories before discovery closed.
There is some uncertainty about the timing of Ms. Phillips's retention of an expert. In her response to the Hope Village Defendants' interrogatories, executed in January 2005, Ms. Phillips attested that "[n]o decision has been made as to expert witnesses at this time." See Reply at 7.
Deadlines in this case seem to have come as a constant surprise to Ms. Phillips' counsel. He agreed to a schedule for discovery and attended the Scheduling Conference on November 5, 2004, but failed to conduct timely discovery. He failed to identify her expert witness by January 7, 2005. In addition, he filed his Opposition on March 14, 2005, instead of March 8, when it was due.
V. CONCLUSION
Ms. Phillips has no evidence to demonstrate that it was foreseeable to the Hope Village Defendants that someone would attempt to harm Sam Phillips. Her argument that she does not need to prove that the Hope Village Defendants were warned that Sam Phillips had been threatened misconstrues D.C. law. In addition, she has failed to identify an expert witness who can testify to the standard of care applicable to a halfway house. For these reasons, her complaint will be dismissed and judgment will be entered for Defendants. A separate order accompanies this memorandum opinion.