ROSEMARY M. COLLYER, District Judge.
D.Q., a foster child and ward of the District of Columbia, was killed when he was transported by van to Progressive Life Center's offices for an appointment, and he exited the van and stepped into oncoming traffic. Brett Cohen, as personal and legal representative of the Estate of D.Q., brought suit against: the District of Columbia ("District"); Progressive Life Center ("Progressive") (the contractor that arranged for placement with foster parents and provided regular counseling and medical care to D.Q.); Nile Express Transport, Inc. ("Nile") (the company that operated the van that transported D.Q.); and William Woods (the driver of the oncoming car). The District of Columbia and Progressive have moved for summary judgment, asserting that Plaintiff does not present a constitutional Due Process claim under 42 U.S.C. § 1983. As explained below, the evidence does not meet the threshold required to demonstrate that the District or Progressive acted with deliberate indifference that shocks the conscience. Accordingly, the Court will grant in part and deny in part the motions for summary judgment filed by the District and Progressive. The Due Process claim will be dismissed and the remaining local law claims will be remanded to Superior Court.
At the time of his death, D.Q. was an 11-year-old committed ward of the District
On September 1, 2000, CFSA placed D.Q. with Progressive to receive therapeutic foster care services. The District had contracted with Progressive to provide therapeutic services to foster children.
D.Q. had a history of mental health problems, including hyperactivity and impulsiveness. Ms. Smith observed that D.Q.'s behavior vacillated—he went through periods of stability and instability. Pl.'s Ex. 5 [Dkt. #109-4] ("Smith Dep.") at 35, 39-40. D.Q. sometimes talked to Ms. Smith about wanting to hurt himself. Smith Dep. at 65.
D.Q.'s instability led to hospitalization at the Psychiatric Institute of Washington three times—in 2002, 2004, and 2006. D.Q. was admitted to the Institute on May 2, 2006, for a 21 day in-patient mental examination after an "out of control episode" at his foster home when he threatened to kill his foster parent and grandmother. D.C.'s Ex. 1D [Dkt. #85] at D.C. Confidential 4627-4632. D.Q.'s then foster mother, Arnette Walker, indicated that D.Q. had been aggressive and threatened her.
During the 2006 stay at the Institute, Dr. Terry Jarrett diagnosed D.Q. with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and Parent-Child Relational Disorder. D.C.'s Ex. 1D
On July 10, 2006, eight days before his death, D.Q. was placed with Joseph and Kawana Gerald, new foster parents who lived in Upper Marlboro, Maryland. The very next day, July 11, Adrian Gayle, a social worker employed by Progressive, met with D.Q. and the Geralds. The Geralds told Mr. Gayle that they had not given D.Q. any of his medications, and that they did not believe that D.Q.'s prior foster parent had administered any medication. Pl.'s Ex. 15 [Dkt. #110-5] ("Gayle Dep.") at 48-51. Mr. Gayle observed that D.Q. appeared to be happy and stable. Gayle Dep. at 53. Further, Mrs. Gerald told Mr. Gayle that D.Q. was not showing any difficulty other than bedwetting. D.C.'s Ex. 1D [Dkt. #85-1] at D.C. Confidential 4919.
As a result of the July 11 meeting with D.Q.'s foster parents, Mr. Gayle promptly arranged for a psychiatric consultation for the purpose of reviewing D.Q.'s medications. Id. at 4917-19. Dr. Benjamin Adewale, a medical doctor who is board certified in psychology and neurology, conducted the evaluation on July 15. On that day, Dr. Adewale put D.Q. back on prescriptions for Concerta and Risperdal, but discontinued the prior prescription for Zoloft because he did not believe it was necessary for D.Q.'s treatment.
Although Ms. Smith continued in her role as psychotherapist to D.Q. in the months before his death, the two weekly appointments immediately before his death were cancelled. The July 4 appointment was cancelled due to the holiday and the July 11 appointment was cancelled due to D.Q.'s attendance at summer camp. D.C.'s Ex. 1D [Dkt. #85-1] at D.C. Confidential 4923, 4922.
The accident that killed D.Q. occurred on July 18, 2006. On that day at around 1:00 p.m., Nile
Mr. Stultz had driven D.Q. approximately three times per week for the prior two years. D.C.'s Ex. 24 [Dkt. #97] (Stultz Dep.) at 32-33. Usually, D.Q. would get
When Mr. Stultz parked the van across Montana Avenue from the Progressive offices and before Mr. Stultz got out of the van, D.Q. stepped out and started across the street.
As a result, Plaintiff brought a six count complaint against the District, Progressive, Nile, and Mr. Woods as follows:
See 3d Am. Compl. [Dkt. #15]. With regard to the Due Process claim, the Complaint alleges:
Id. ¶ 74, 75, 77.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
On summary judgment, the nonmoving party has an obligation to point to evidence creating an issue of material fact; evidence laying dormant in the record is insufficient. Potter v. District of Columbia, 558 F.3d 542, 550 (D.C.Cir.2009). A district court is not obligated to "sift and sort through" relevant facts in order to ascertain whether material disputes of fact exist. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153 (D.C.Cir.1996).
Plaintiff seeks to hold the District and Progressive liable for D.Q.'s death under 42 U.S.C. § 1983, alleging violations of his constitutional right to Due Process. Section 1983 provides:
42 U.S.C. § 1983.
Plaintiff alleges that the District and Progressive violated the Due Process "clauses" of the U.S. Constitution by violating D.Q.'s right to "adequate supervision and protection" and "to adequate and appropriate medical and psychological care and treatment." See 3d Am. Compl. ¶¶ 74-75. Plaintiff refers to the Due Process clauses of the Fifth and Fourteenth Amendments. Because the District of Columbia is a political entity created by the federal government, it is subject to the Fifth Amendment and not the Fourteenth, which applies to the States. Propert v. District of Columbia, 948 F.2d 1327, 1330 n. 5 (D.C.Cir.1991) (citing Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954)); see Estate of Gaither v. District of Columbia, 655 F.Supp.2d 69, 86 n. 10 (D.D.C.2009) ("Individuals suing the District for constitutional due process violations must do so under the Fifth Amendment, and not the Fourteenth...."). The Fifth Amendment provides in pertinent part that no person "shall be deprived of life, liberty, or property, without due process of law...." U.S. Const. amend. V. The ultimate legal analysis is the same. Thus, cases analyzing the liability of States under the Due Process clause of the Fourteenth Amendment can be relied upon to analyze the District's liability under the Due Process clause of the Fifth Amendment.
Generally, the State does not have a general duty to protect individuals from harm caused by private actors. DeShaney v. Winnebago County Social Servs. Dep't, 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, the Supreme Court held that a child who was severely beaten by his father did not have a Due Process claim against the State social service agency which failed to remove him from his father's custody— even though agency personnel had reason to know of the physical abuse. Id. at 202-03, 109 S.Ct. 998. There are two exceptions to this general rule: (1) when a State holds an individual in custody, it owes a duty to protect that individual and (2) when a State creates or increases the danger to the individual, it owes a duty to protect the individual. Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992). A child in foster care is in custody for substantive Due Process purposes and a State (or the District) owes the child a constitutional duty of care. Smith v. District of Columbia, 413 F.3d 86, 95 (D.C.Cir.2005). "[W]hen the state places a child in state-regulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties. The failure to perform such duties can give rise, under sufficiently culpable circumstances, to liability under section 1983." Nicini, 212 F.3d at 808.
Plaintiff proceeds under the theory that the District owed D.Q. a duty to protect him from physical harm while he was in the custody of the District as a ward and foster child. Plaintiff also alleges that Progressive was a "state actor" that can be found liable under § 1983 because it owed D.Q. the same duty to protect him from physical harm.
In order to establish a substantive Due Process claim, a plaintiff must show that the state actor was deliberately indifferent to his constitutional rights and that such conduct shocks the conscience. Estate of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C.Cir.2006). This "stringent requirement exists to differentiate substantive due process, which is intended only to protect against arbitrary government action, from local tort law." Butera v. District of Columbia, 235 F.3d 637, 651 (D.C.Cir.2001). Negligence alone is insufficient to establish a claim under § 1983. Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also County of Sacramento, 523 U.S. at 849, 118 S.Ct. 1708 ("the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."). The Due Process clause "does not transform every tort committed by a state actor into a constitutional violation." DeShaney, 489 U.S. at 202, 109 S.Ct. 998.
For example, in DeAnzona v. City and County of Denver, 222 F.3d 1229 (10th Cir.2000), the parents of a child who drowned while attending a city/county-sponsored summer day camp brought suit against the City and County of Denver alleging a Due Process violation under § 1983. Id. at 1233. The evidence showed that the plaintiffs' five-year-old son was playing cards with a counselor and other children; then, the counselor watched the boy walk twenty-five yards toward the lake edge where two other counselors were supervising children who were fishing; the counselor turned her back to the boy before he actually reached the other counselors; he was found drowned in the lake the next morning. Id. Plaintiffs alleged that the camp director failed to train the counselors adequately; failed to define the counselor's jobs clearly; failed to provide cell phones to the counselors; failed to require that children attending the camp be able to swim; failed to erect a barricade around the lake; failed to have a system to identify the children's location at the camp at any time; and failed to have a system to differentiate campers from non-campers. Finding that the camp director's failure to do these things did not rise to the level of deliberate indifference, the court of appeals determined that the district court erred by denying summary judgment to the City and County of Denver. Id. at 1235. The "[l]ack of diligence in watching a child walk twenty-five yards is not reckless disregard... Not paying enough attention to a child and thus allowing the child to wander away and drown is terribly tragic, and possibly even negligent. However, mere negligence does not shock the conscience." Id. at 1236.
It is not clear whether the deliberate indifference standard is subjective or objective in the foster care context, that is, whether deliberate indifference is shown when an official fails to act in light of a risk that the official actually knows about or in light of a risk that the official should have known about. In the prison context,
For example, in White v. Chambliss, 112 F.3d 731 (4th Cir.1997), the court applied the subjective standard and dismissed a Due Process claim brought on behalf of a child who was killed by abusive foster parents. The evidence did not show that the department of social services knew or suspected that the foster parents were abusive. "A claim of deliberate indifference, unlike one of negligence, implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice. There is simply no evidence that the [social service agency] defendants were on notice of any problem at the time the placement decision was made." Id. at 737.
In Nicini, the Third Circuit found that it was not necessary to decide whether the subjective or objective standard applies to a claim for deliberate indifference because the plaintiff did not point to sufficient evidence to show deliberate indifference under either standard. There, the State of New Jersey placed a runaway teen with a foster family, and the foster father sexually assaulted the teen. 212 F.3d at 801-04. While New Jersey had a duty to protect the teen, the court found that it had not violated the teen's right to substantive Due Process. Assuming arguendo that the deliberate indifference standard in the foster care context is objective, the court found that the case worker who investigated the foster family and recommended the youth's placement did not act with deliberate indifference in the face of a risk of which he should have been aware. Sixteen years before, the foster father had been convicted in New York of corrupting the morals of a minor and distributing controlled substances to minors. Id. at 804. When the caseworker investigated the family before the teen was placed, he did not discover this information. In accordance with New Jersey policy, the caseworker conducted a "perpetrator" check in the New Jersey Division of Youth and Family Services central data base; the check revealed no criminal information regarding the family. Id. at 812. The caseworker did not conduct a national police search, and the court found that this failure did not constitute deliberate indifference. There was no information before the caseworker that would indicate that the teen faced a substantial risk of serious harm and thus there was no evidence that
Like the court in Nicini, this Court need not decide whether the subjective or objective standard applies to deliberate indifference in the foster care context. Drawing all justifiable inferences in the favor of Plaintiff and accepting the Plaintiff's evidence as true, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505, Plaintiff has failed to establish that the District and Progressive knew or should have known that D.Q. was at substantial risk of harm, and that they failed to act in the face of such a risk. Plaintiff alleges deliberate indifference with regard to two categories of conduct: (1) alleged deficiencies in the psychiatric care of D.Q. and the management of his medications and (2) alleged deficiencies in transportation and parking. Like the allegations in DeAnzona, White, and Nicini, these allegations at most may state a claim in negligence.
Plaintiff claims that Progressive and the District are liable because they failed to ensure that D.Q. consistently took his medications, speculating that if he had been taking his medication he would not have run impulsively into the street. Plaintiff further alleges that the District and Progressive should have had policies and procedures in place regarding the administration of medications. D.Q. did not take his medications for approximately two weeks preceding his July 15, 2006, visit with the psychiatrist, Dr. Adewale. Dr. Adewale examined D.Q. just three days before D.Q. died; Dr. Adewale did not find D.Q. to be dangerous to himself or others, and he noted that D.Q. had sufficient medication still in his system such that he had suffered no ill effects from being off the medication.
The parties dispute whether D.Q. actually had sufficient medication in his system at the time of his death. Plaintiff claims that the toxicology report is not conclusive on this point and that while certain medications were still in his system, others were not, or at least not enough to be effective. The District contends that D.Q. had medication in his system in a medically effective amount. This factual dispute is not material to the question before the Court. Even presuming that the lack of medication was the proximate cause of D.Q.'s death, the critical question is whether the District and Progressive's acts, or failures to act, constituted deliberate indifference that shocks the conscience. In DeAnzona, the court noted that the failure to watch the child actually reach the counselors by the lake may have been negligent, but was not deliberately indifferent. DeAnzona, 222 F.3d at 1236. Similarly here, the failure to ensure that others administered medications to D.Q. consistently before the accident may have been negligent, but it simply does not constitute deliberate indifference that "shocks the
Moreover, there is no evidence that D.Q. was experiencing any particular emotional or behavioral problem in the weeks immediately before his death that should have put the District or Progressive on notice that D.Q. was at risk of serious harm. See Nicini, 212 F.3d at 815 (plaintiff failed to point to anything that should have put the caseworker on notice that the teen faced a serious risk of abuse by his foster father). The social worker assigned to D.Q.'s case, Mr. Gayle, indicated that D.Q. appeared to be happy and stable when he saw him on July 11, a week before the accident. Mrs. Gerald, D.Q.'s foster mother from about July 10, 2010 until his death on July 18, did not report any problems to Mr. Gayle other than bedwetting. Mr. Stultz had driven D.Q. to appointments approximately three times per week for the past two years without incident. Mr. Stultz did not see anything unusual about D.Q.'s behavior on the day of the accident; he testified that D.Q. seemed happy to be attending summer day camp. Further, when Mrs. Gerald told Mr. Gayle that she had not been giving D.Q. his medication, Mr. Gayle did not sit idly by; he immediately arranged for Dr. Adewale to evaluate D.Q. Dr. Adewale evaluated D.Q. just four days before the accident and he did not find D.Q. to be a danger to himself or others. He opined that D.Q. had sufficient medication in his system on July 15 such that he had not suffered negative effects. Dr. Adewale placed D.Q. back on prescribed medications that very day. The record as a whole reveals great attention to D.Q. and his needs. Plaintiff has failed to point to evidence sufficient to show that the District or Progressive acted, or failed to act, with deliberate indifference that shocks the conscience.
Plaintiff also points out that D.Q. did not see his psychotherapist, Ms. Smith, for almost three weeks before his death. This is not evidence constituting deliberate indifference. D.Q.'s appointment on July 4 was cancelled due to the July 4 holiday, and his appointment on July 11 was cancelled because D.Q. was busy at camp. No reasonable jury could find that the District or Progressive knew or should have known that missing two appointments with his psychotherapist would cause D.Q. to step in front of an oncoming car.
Plaintiff further argues that the District and Progressive should have known of the danger that D.Q. would jump out of a car into traffic based on three incidents that occurred when D.Q. was seven years old. In November of 2001, D.Q. ran out of a psychotherapy session and continued to run around the Progressive office building. D.C.'s SUMF ¶ 150. Two months later, in January of 2002, D.Q. ran around his elementary school, failing to respond to instructions by his teachers and counselors. Id. ¶ 170. The next month, D.Q. jumped out of a moving car after allegedly being hit by his foster mother. Id. ¶¶ 189, 192, 201. These events occurred more than four years before the accident resulting in D.Q.'s death, and Plaintiff does not allege any more recent incidents of this kind. Mr. Stultz, in fact, had transported D.Q. regularly for the past two years without incident. Given the passage of time without any evidence of similar behavior, the District and Progressive's failure to take action to prevent eleven-year-old D.Q. from exiting the van and crossing the street on the day of his death could not have been deliberately indifferent. No reasonable juror could find that they knew or should have known that there was a substantial risk that D.Q. would step into traffic.
Not only has Plaintiff failed to demonstrate a Due Process violation, he also has failed to point to any custom or policy that caused the alleged constitutional violation. To impose liability on the District under 42 U.S.C. § 1983, a plaintiff must show not only a violation of his rights under the Constitution, but also that the District's custom or policy caused the violation. Feirson v. District of Columbia, 506 F.3d 1063, 1066 (D.C.Cir.2007); Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). A single incident is insufficient to impose liability against the District. Monell, 436 U.S. at 694, 98 S.Ct. 2018. With regard to a claim of failure to train, a city can be liable under § 1983 only where the failure to train reflects a deliberate or conscious choice by a municipality, i.e. a custom or policy. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
Plaintiff likens this case to Smith v. District of Columbia, 413 F.3d 86 (D.C.Cir.2005), where a grandmother sued the District for a Due Process violation related to the murder of her grandson while he was in the District's custody. The D.C. Circuit affirmed the district court's denial of judgment as a matter of law on the issue of deliberate indifference. The plaintiff's grandson was a teen who had been adjudicated a "delinquent youth" and placed in an "independent living program" where troubled youths live in program-provided apartments with certain restrictions on their activities and supervision by staff. 413 F.3d at 89. The District had contracted with a private company to provide the independent living program, and the jury found that the District had acted with deliberate indifference where the evidence showed that the District had no standards whatsoever for selecting and monitoring such contractors, no tracking of site safety, and no staffing standards. Id. at 92. Further, the District had taken no noteworthy steps in response to two prior violent assaults on youths in this particular independent living program. The Circuit explained:
Id. at 100. Plaintiff contends that the District's lack of policies to monitor the management of medication and transportation of foster children constitutes a deliberately indifferent custom or policy.
The facts of this case are nothing like those presented in Smith. While the District's foster care system may have lacked sufficient standards before LaShawn and the implementation of the MFO, in 2003, an Implementation Plan was adopted to bring the District into full compliance with the MFO. See LaShawn, 701 F.Supp.2d at 88-89. The MFO directed the District to take a number of actions, including hiring, training, monitoring, and supervising employees and contractors such as Progressive. The MFO was incorporated into the contract between the District and Progressive. D.C.'s Ex. 3 [Dkt. #87] at DRDR000342. The District's program monitor oversaw Progressive and visited Progressive at least once per month. See, e.g., D.C.'s Ex. 5 [Dkt. #89-4] at DC Confidential 1290-96 (minutes of June 28, 2006, meeting at Progressive attended by CFSA Program Monitor). CFSA distributed "performance scorecards to its private contractors to monitor the care providers' expected outcomes and benchmarks derived from the 2003 LaShawn Implementation Plan." D.C.'s SUMF [Dkt. # 72] ¶ 711. In performing its duties under its contract with the District, Progressive prepared an individual treatment plan for D.Q., setting short and long term goals for improvement of his clinical, social, and educational status. D.C.'s Ex. 1A [Dkt. # 82] at DC Confidential 3046-3052. As part of this plan, Progressive provided a psychotherapist, Ms. Smith, and a psychiatrist, Dr. Adewale, to D.Q. D.Q. was regularly seen and evaluated by these professionals. When the social worker, Mr. Gayle, learned that D.Q. had not been on his medications, he promptly arranged for Dr. Adewale to evaluate D.Q. and adjust his medications. These circumstances stand in stark contrast to the District's complete failure to set standards and to monitor the independent living provider in the Smith case.
Further, contrary to Plaintiff's assertion, there was not a complete lack of policies regarding transportation of foster children. Nile contracted to provide Medicaid transportation services for District patient. D.C.'s Ex. 21 [Dkt. # 96]at DRD000353-360. Under the contract, Nile was required to "satisfy all requirements of the Social Security Act, as amended, and be in full compliance with the standards prescribed by Federal and State standards." Id. at DRD000354. Further, Nile was required to comply with D.C.Code § 12-238, which prohibits Medicaid providers from employing anyone who is not a licensed healthcare professional who has undergone a criminal background check and which prohibits the employment of individuals who have been convicted of certain offenses. Id. at DRD000355. The contract also requires compliance with 42 U.S.C. § 31306 and 42 C.F.R. § 382, which require employers of commercial drivers to conduct "pre-employment, reasonable suspicion, and post-accident testing for controlled substances." Id. Nile was required to submit to the District licensure and certification documentation regarding its staff. Id. at DRD000355-356. Again, these facts contrast with Smith where the District completely failed to set standards when it should have known about the risk of violence to the youths in the contractor's
Each of Plaintiff's remaining claims assert violations of D.C. law. The Court does not have diversity jurisdiction over this matter because there are litigants from the District on opposing sides of the controversy. See 28 U.S.C. § 1332(a)(1); Prakash v. American Univ., 727 F.2d 1174, 1178 n. 25 (D.C.Cir.1984). Even though Plaintiff is a resident of Maryland, D.Q. was a resident of the District of Columbia and Plaintiff brings this action as the personal representative of D.Q.'s Estate. The legal representative of the estate of a decedent is deemed to be a citizen only of the same state as the decedent. See 28 U.S.C. § 1332(c)(2). Because Plaintiff is deemed to be a citizen of the District and the District is a defendant, there is no diversity in this matter.
Accordingly, the Court maintains only supplemental jurisdiction over the local law claims in this case. See 28 U.S.C. § 1367(c). After dismissing all federal law claims over which it has original jurisdiction, a district court may decline supplemental jurisdiction under § 1367(c). 28 U.S.C. § 1367(c)(3); Shekoyan v. Sibley Int'l, 409 F.3d 414, 423 (D.C.Cir.2005). The decision whether to exercise supplemental jurisdiction after dismissing every claim over which the court had original jurisdiction is "purely discretionary." Carlsbad Tech., Inc. v. HIF Bio, Inc., ___ U.S. ___, 129 S.Ct. 1862, 1866, 173 L.Ed.2d 843 (2009). In exercising such discretion, district courts consider judicial economy, convenience, comity, and fairness. Shekoyan, 409 F.3d at 424. In the usual case, these factors point toward declining jurisdiction. Id. (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). In Shekoyan, the D.C. Circuit held that even where the litigation proceeded for four years before the federal claims were dismissed, the district court did not abuse its discretion in declining supplemental jurisdiction. Id. at 424. The Supreme Court has instructed that "[c]ertainly, if the federal claims [supporting supplemental jurisdiction] are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
Because the Court will dismiss the only claim under federal law, the Court will decline to exercise supplemental jurisdiction over Plaintiff's remaining local law claims. Those local law claims will be remanded to Superior Court.
For the foregoing reasons, the Court will grant in part and deny in part the District's motion for summary judgment [Dkt. #72] and Progressive's motion for summary judgment [Dkt. # 78] as follows: Count V of the Third Amended Complaint alleging a constitutional Due Process violation pursuant 42 U.S.C. § 1983 will be dismissed; summary judgment will be denied without prejudice regarding the remaining local law claims. Plaintiff's motion for partial summary judgment [Dkt. # 79] will be denied as moot. The case
D.Q., a foster child and ward of the District of Columbia, was killed when he was transported by van to Progressive Life Center for an appointment, he exited the van, and stepped into oncoming traffic. Brett Cohen, as personal and legal representative of the Estate of D.Q., brought suit against: the District of Columbia ("District"); Progressive Life Center ("Progressive") (the contractor that arranged for placement with foster parents and provided regular counseling and medical care to D.Q.); Nile Express Transport, Inc. (the company that operated the van that transported D.Q.); and William Woods (the driver of the oncoming car). The District of Columbia and Progressive moved for summary judgment. Because the evidence did not meet the threshold required to demonstrate that the District or Progressive acted with deliberate indifference that shocks the conscience, see Estate of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C.Cir.2006),
A Rule 59(e) motion is discretionary and need riot be granted unless the district court finds that there is an "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Fox v. Am. Airlines Inc., 389 F.3d 1291, 1296 (D.C.Cir.2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir. 1996)). A Rule 59(e) motion is not "simply an opportunity to reargue facts and theories upon which a court has already ruled." New York v. United States, 880 F.Supp. 37, 38 (D.D.C.1995). Nor is it an avenue for a "losing party ... to raise new issues that could have been raised previously." Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir.1993). A motion to reconsider is not "a vehicle for presenting theories or arguments that could have been advanced earlier." Smith v. Hope Village, Inc., 481 F.Supp.2d 172, 183-84 (D.D.C.2007); see also Green v. Whiteco Indus., 17 F.3d 199, 202 n. 5 (7th Cir.1994) ("[M]otions for reconsideration ... cannot... be employed as a vehicle to introduce evidence that could have been adduced during the pendency of the summary judgment motion."). "Rule 59 was not intended to allow a second bite at the apple." Oceana, Inc. v. Evans, 389 F.Supp.2d 4, 8 (D.D.C.2005).
Plaintiff does not allege any change in law nor does he point to new evidence.
Mem. Op. at 15-16. Similarly, Plaintiff again argues that the District and Progressive should have known of the danger that D.Q. would jump out of a car into traffic based on three incidents that occurred four years earlier when D.Q. was seven years old. The Court rejected that argument, explaining that "[g]iven the passage of time without any evidence of similar behavior, the District and Progressive's failure to take action to prevent eleven-year-old D.Q. from exiting the van and crossing the street on the day of his death could not have been deliberately indifferent. No reasonable juror could find that they knew or should have known that there was a substantial risk that D.Q. would step into traffic." Id. at 17.
Plaintiff also attempts to introduce evidence of subsequent remedial measures, evidence that he failed to present in opposition to the motions for summary judgment. In support of his claim that the District lacked sufficient policies regarding the transportation of foster children, Plaintiff points to an email prepared by the District more than two months after the accident that refers to the development of new transportation policies.
Fed.R.Evid. 407. Here, Plaintiff improperly seeks to rely on a subsequent remedial measure to prove culpable conduct.
In addition, Plaintiff argues that the lack of transportation policies regarding dropping off children at Progressive constituted deliberate indifference and that the Court should have relied on the reports and opinions of its transportation expert, Richard Garrity, and its social services expert, Anthony Veronico. Plaintiff contends:
Pl.'s Mot. for Recons. at 15. Mr. Garrity stated that "[p]eriodic monitoring of transportation contractors is common practice in human services or community transportation. While not mandated, ongoing oversight of transportation carriers is common industry practice." Id. at 22. It is true that the Court did not adopt the views of Plaintiff's experts. Instead, the Court evaluated the entire record presented by the parties, as it is required to do to evaluate a motion for summary judgment. Furthermore, the expert reports presented by Plaintiff are unsworn and unverified and thus are inadmissible. See Nnadili v. Chevron U.S.A., Inc., 435 F.Supp.2d 93, 104 (D.D.C.2006) (citing Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir.1989)). In light of the entire record, the Court found that Plaintiff had not mustered sufficient evidence to show a genuine issue regarding deliberate indifference, finding that "no reasonable juror could find that the District knew or should have known of a substantial risk to D.Q.'s safety because the van parked across the street or because there was no attendant accompanying the driver. Due Process does not require the District to set standards, oversee, and monitor every single detail of a contractor's performance (such as where the contractor parks) without some notice that such is necessary to keep its charges safe." Mem. Op. at 21.
Pl.'s Mot. for Recons. [Dkt. # 132], Ex. A (Email dated Sept. 29, 2006).
