UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________

)

KATINA COLBERT, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 13-531 (RMC)

)

DISTRICT OF COLUMBIA, et al., )

)

Defendants. )

_________________________________ )

OPINION

Plaintiff Jacqueline Colbert brought this suit in her individual capacity, as next 

friend of her intellectually disabled adult daughter Katina Colbert (K.C.), and as personal 

representative of the Estate of T.C., K.C.’s deceased infant child. While she allegedly is unable 

to consent to sexual activity, K.C. became pregnant while residing in a group home for disabled 

adults. The group home was operated by Total Care Services, under contract with the District of 

Columbia. With little or no prenatal care, K.C. gave birth to a daughter, T.C. T.C. had

significant medical problems and died when she was just over a year old. Based on an alleged 

violation of K.C.’s constitutional rights as well as numerous other grounds, Jacqueline Colbert 

seeks damages from Total Care and the District of Columbia.

On January 12, 2015, the Court dismissed, inter alia, Ms. Colbert’s claim under 

the Rehabilitation Act, 29 U.S.C. § 794(a), for failure to state a claim. Ms. Colbert now moves 

for reconsideration and reinstatement of the Rehabilitation Act claim. As explained below, the 

motion for reconsideration will be denied.

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I. FACTS

In September 2008, K.C. was 31 years old and living in an emergency shelter for 

the homeless in the District of Columbia. Am. Compl. [Dkt. 29] ¶ 87. She had three small 

children who were in the custody of D.C. Child and Family Services. Id. For reasons that are 

unexplained, K.C. was hospitalized and referred for a psychological assessment. Id. Dr. Tonya 

Lockwood, a licensed psychologist, conducted the assessment. Dr. Lockwood determined that 

K.C. had an IQ of 53; that she functioned “within the moderate range of mental retardation 

cognitively and adaptively;”1 that she needed “medical and psychiatric stabilization;” that she 

needed to be referred to a neurologist to “rule out . . . dementia;” that she suffered from 

“symptoms of Post Traumatic Stress Disorder;” and that she had “symptoms of depression as 

well as grief related to the loss of her children and her own mortality.” Surreply [Dkt. 51], Ex. 2 

(Lockwood Report) at 1, 8.2 Dr. Lockwood determined that K.C. was “unable to make 

independent decisions with regard[ ] to her finances, medical treatment, housing, habilitation, 

and life planning,” and recommended “emergency residential placement in a community 

residential facility with on-site medical support as well as 24-hour supervision.” Id. at 8. Soon 

thereafter, K.C. moved into a group home operated by Total Care, under contract with the 

District. It is unclear whether K.C. was voluntarily or involuntarily committed to the custody of 

the District of Columbia.

Due to K.C.’s “retardation and low developmental age,” Ms. Colbert alleges that 

K.C. was and is incapable of consenting to sexual activity. Id. ¶ 11. Even so, K.C. became 

1 Despite Dr. Lockwood’s finding that K.C. was “moderately” retarded, Ms. Colbert 

characterizes K.C.’s level of mental disability variously as “moderate,” “profound,” and 

“severe.” See Am. Compl. ¶¶ 9-10.

2 Plaintiff filed only pages 1, 8 and 9 of what appears to be a nine page report.

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pregnant and delivered T.C. on April 3, 2011. K.C. and Ms. Colbert shared joint legal custody of 

T.C., and Ms. Colbert was awarded sole physical custody.3

 Id. ¶¶ 3, 5, 21. T.C. was born with 

medical conditions that required surgery, hospitalization, and medical care; T.C. died on April 

18, 2012. Id. ¶¶ 17, 54.

Ms. Colbert, for herself, on behalf of K.C., and on behalf of the Estate of T.C., 

filed a fifteen count Amended Complaint. The Counts are asserted against both the District of 

Columbia and Total Care, unless otherwise noted:

Count I––Negligence;

Count II––Wrongful Birth;

Count III––Breach of Fiduciary Duty arising from special 

relationship;

Count IV––Negligent Infliction of Emotional Distress;

Count V–– Intentional Infliction of Emotional Distress;

Count VI––Wrongful Death;

Count VII––Survival Act;

Count VIII––Violation of D.C. Code § 44-504(a)(3) and (4) 

(negligence per se) (against Total Care);

Count IX––Violation of D.C. Code §§ 7-1301.02 et seq. and 7-

1305.14 (right to care of persons with intellectual disabilities);

Count X––Violation of D.C. Code §§ 7-1301.02 et seq. and 7-

1305.13 (right to adequate habilitation program) (against the 

District);

Count XI––Violation of the Fifth Amendment pursuant to 42 U.S.C. 

§ 1983 (against the District);

3 Kelvin Martinez, an intellectually disabled man who lived in the same group home as K.C., 

claimed that he was T.C.’s father. However, paternity was never established because Mr. 

Martinez is indigent and he was unable to find a public source to pay for a paternity test. Reply 

[Dkt. 21] at 5.

3

 
Count XII––Violation of Title IX, 20 U.S.C. § 1681;

Count XIII––Violation of the Rehabilitation Act, 29 U.S.C. § 701;

Count XIV––Violation of the D.C. Consumer Protection Procedures 

Act, D.C. Code §§ 28-3901 et seq. (against Total Care); and

Count XV––Punitive Damages (against Total Care).

See Am. Compl. [Dkt. 29].

On Defendants’ motions to dismiss or for summary judgment, the Court 

dismissed the following claims:

(1) those portions of Count XI that allege endangerment (id. ¶¶ 105-

114), equal protection (id. ¶¶ 120-126), and deprivation of due 

process under an entitlement theory (id. ¶¶ 127-133);

(2) Count XII, alleging a violation of Title IX of the Education 

Amendments (id. ¶¶ 134-144); and

(3) Count XIII, alleging a violation of the Rehabilitation Act (id. 

¶¶ 145-153).

See Op. [Dkt. 52]; Order [Dkt. 53].4

 Ms. Colbert now moves for partial reconsideration and 

reinstatement of Count XIII. See Mot. for Partial Recons. [Dkt. 57]; Reply [Dkt. 61]; Reply 

[Dkt. 62]. Defendants oppose. See Total Care Opp’n [Dkt. 58] District Opp’n [Dkt. 60]. 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 54(b) governs the motion for reconsideration. 

Rule 54(b) provides that “any order or other decision, however designated, that adjudicates fewer 

than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at 

4 The Court also required the parties to meet and confer and file a joint proposed schedule for 

limited jurisdictional discovery regarding Jacqueline Colbert’s sole remaining federal claim––the 

Fifth Amendment substantive due process claim against the District of Columbia based on the 

theories of special relationship and deliberate indifference.

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any time before the entry of judgment adjudicating all the claims and all the parties’ rights and 

liabilities.” Fed. R. Civ. P. 54(b). Relief under Rule 54(b) is available “as justice requires.” DL 

v. Dist. of Columbia, 274 F.R.D. 320, 324 (D.D.C. 2011). To determine “what justice requires”

courts examine the relevant circumstances. Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 

2005). Relevant circumstances include whether the court has “‘patently misunderstood a party, 

has made a decision outside the adversarial issues presented to the Court by the parties, has made 

an error not of reasoning, but of apprehension, or where a controlling or significant change in the 

law or facts [has occurred] since the submission of the issue to the Court.’” Ficken v. Golden, 

696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 

2004)) (alterations in original). A court’s discretion under Rule 54(b) is “subject to the caveat 

that, where litigants have once battled for the court's decision, they should neither be required, 

nor without good reason permitted, to battle for it again.” Singh v. George Washington 

University, 383 F. Supp. 2d 99, 101 (D.D.C. 2005).

III. ANALYSIS

A. Motion for Reconsideration

The Court dismissed Count XIII, holding that Ms. Colbert had failed to state a 

disparate treatment claim under the Rehabilitation Act because she did not allege that Total Care 

treated K.C. differently than able-bodied individuals.5

 Ms. Colbert seeks reconsideration and 

5 The Court explained that the purpose of the Act is to “eliminate discrimination on the basis of 

disability and to ensure evenhanded treatment between the disabled and the able-bodied.” Op. 

[Dkt. 57] at 21 (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). Because Total 

Care’s sole purpose is to provide housing and residential services to the disabled, Ms. Colbert 

did not and could not allege that Total Care (under contract with the District) treated K.C. 

differently than able-bodied individuals because Total Care did not provide services to the ablebodied. Id.

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reinstatement of Count XIII because she intended to assert a claim for failure to accommodate, 

not a claim for disparate treatment, under the Act.

The Rehabilitation Act, also known as the Rehab Act, provides that “[n]o 

otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability 

. . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination 

under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).

6

 

To state a claim under the Act, a plaintiff must allege that:

(1) she is disabled; (2) she is otherwise qualified, (3) she was 

excluded from, denied the benefit of, or subject to discrimination 

under a program or activity, and (4) the program or activity is carried 

out by a federal executive agency or with federal funds.

Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008). A defendant may 

assert as an affirmative defense to liability that accommodating the plaintiff’s disabilities would 

constitute an undue burden. Id. The Act does not “guarantee the handicapped equal results”

from receipt of federally-funded services. Alexander v. Choate, 469 U.S. 287, 304 (1985). 

Instead, it requires that federally funded programs make “reasonable accommodations” to enable 

“meaningful access” to services. Id. at 301; accord Wright v. Giuliani, 230 F.3d 543, 548 (2d 

Cir. 2000).

In her motion for reconsideration, Ms. Colbert clarifies that she did not intend to 

allege disparate treatment under the Rehab Act, but meant to allege a claim for failure to 

accommodate under the Act. See Mot. for Partial Recons. [Dkt. 57] at 2-6. The Supreme Court 

defined the scope of an accommodation claim in Southeastern Community College v. Davis, 442 

U.S. 397, 410 (1979). There, a hearing disabled student (Ms. Davis) sought admission to a 

6 The District and Total Care receive federal funding and thus they are covered by the Rehab 

Act. Am. Compl. ¶ 146

6

 
nursing school. Because her inability to understand spoken speech was an obstacle to full 

participation in the clinical program and she would not be able to function safely as a registered 

nurse even with full time supervision, the college denied her admission. Id. at 401-02. Ms. 

Davis sued, arguing that the college should accommodate her disability by modifying the 

program so that her hearing impairment would not bar her from participation. The Court held 

that the college was not required to admit Ms. Davis because the accommodations sought––such 

as full time personal supervision whenever Ms. Davis attended patients and the elimination of 

clinical classes––would have compromised the essential nature of the training program and that 

such a fundamental alteration in the nature of a program was more than the Rehab Act required. 

Davis, 442 U.S. at 409-10.

Any interpretation of the Rehab Act must be “responsive to two powerful but 

countervailing considerations––the need to give effect to the statutory objectives and the desire 

to keep [the Act] within manageable bounds.” Alexander, 469 U.S. at 299. With this in mind, 

the Davis court “struck a balance between the statutory rights of the handicapped to be integrated 

into society and the legitimate interests of [federally-funded programs] in preserving the integrity 

of their programs: while a [program] need not be required to make ‘fundamental; or ‘substantial’ 

modifications to accommodate the handicapped, it may be required to make ‘reasonable’ ones.” 

Alexander, 469 U.S. at 301 (interpreting Davis). 

In keeping with the scope of the Rehab Act, Alexander held that a recipient of 

federal funds does not have to alter the benefit provided to meet an individual’s particular needs. 

In that case, the State of Tennessee reduced Medicaid benefits from twenty in-patient hospital 

days per year to fourteen. Medicaid recipients with disabilities brought a class action against the 

State alleging that the reduction denied them “meaningful access” to Medicaid services. Id. at 

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302. The Supreme Court held that the Rehab Act does not require a State to alter the definition 

of the benefit being offered because the disabled may have greater medical needs:

To the extent respondents further suggest that their greater need for 

prolonged inpatient care means that, to provide meaningful access 

to Medicaid services, Tennessee must single out the handicapped for 

more than 14 days of coverage, the suggestion is simply unsound. 

At base, such a suggestion must rest on the notion that the benefit 

provided through state Medicaid programs is the amorphous 

objective of “adequate health care.” But Medicaid programs do not 

guarantee that each recipient will receive that level of health care 

precisely tailored to his or her particular needs. Instead, the benefit 

provided through Medicaid is a particular package of health care 

services.

Id. at 302-03 (emphasis in original).

In Modderno v. King, 82 F.3d 1059 (D.C. Cir. 1996), the D.C. Circuit applied 

Alexander to a claim of discrimination on the basis of a mental disability because the plaintiff’s 

health insurance provided less coverage for mental illnesses than for physical illnesses. The 

Circuit held that such limits on mental health care were not discriminatory because they were 

neutrally applied, despite the possibility that those with mental illness may require more care. Id. 

at 1062. “Perhaps mentally disabled individuals are more vulnerable to discrimination than the 

physically disabled. If so, then Congress might wish to enact a statute affording the mentally 

disabled special protection. But the Rehabilitation Act is simply not such a statute.” Id. While 

the Rehab Act requires reasonable accommodations to ensure access to existing programs, the 

Act does not require that a recipient of federal funds provide additional or different substantive 

benefits. Wright, 230 F.3d at 548. “The disabilities statutes7 do not require that substantively 

different services be provided to the disabled, no matter how great their need for the services 

7 The “disabilities statutes” referred to are the Rehab Act and the Americans with Disabilities 

Act, 42 U.S.C. § 12131.

8

 
may be. They require only that covered entities make ‘reasonable accommodations’ to enable 

‘meaningful access’ to such services as may be provided, whether such services are adequate or 

not.” Id.; see also Lincoln Cercpac v. Health and Hospitals Corp., 147 F.3d 165, 168 (2d Cir.

1998) (Rehab Act claim brought by disabled children who were transferred from one 

rehabilitation center to another with fewer services was properly dismissed; the Rehab Act does 

not “guarantee any particular level of medical care for disabled persons” nor does it “assure 

maintenance of service previously provided.”).

In support of her Rehab Act claim, Ms. Colbert asserts:

148. Because of her mental disabilities, [K.C] was vulnerable to 

sexual assault and nonconsensual sex and pregnancy.

149. Defendants knew that in order for [K.C.] to enjoy the benefits 

and services of her residential program, she required 

accommodation for her disability through 24-hour supervision and 

adequate birth control.

150. Defendants failed to reasonably accommodate [K.C.’s] 

disability, failed to provide adequate supervision and failed to 

provide adequate birth control. Defendants exacerbated the harm 

to [K.C.] by facilitating and encouraging her to have sexual conduct 

with residents, District contractors and other strangers.

Am. Compl. [Dkt. 29] ¶¶ 148-150 (emphasis added).

8 The Amended Complaint does not allege 

that K.C. was denied meaningful access to residential care services. In fact, Ms. Colbert 

concedes that K.C. resided at a Total Care facility and received a “range of services.” Id. ¶¶ 3, 7, 

12. Instead, the Amended Complaint asserts that the services provided were not adequate to 

8 The Amended Complaint often repeats the allegations that Defendants failed to provide K.C. 

with birth control and 24 hour supervision. See Am. Compl. ¶ 29(a) (Defendants failed to 

provide birth control); ¶ 29(b) (Defendants failed to provide 24-hour supervision; ¶ 58 

(Defendants should have known that the failure to provide birth control and 24 hour supervision 

would cause severe emotional distress); ¶ 116 (Defendants failed to attend to K.C.’s needs by 

failing to provide birth control, 24-hour supervision, and protection from nonconsensual sex).

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meet K.C.’s individualized needs for 24-hour supervision and birth control. See id. ¶ 150. But 

the Rehab Act does not guarantee that K.C. receive a level of care precisely tailored to her 

particular needs. See Alexander, 469 U.S. at 302-03. The Rehab Act requires reasonable 

accommodations to assure access to existing programs; it does not require that additional or

different substantive benefits be provided. See Wright, 230 F.3d at 548. Ms. Colbert alleges no 

denial of service to K.C. She argues that the services provided were deficient. The deficiency in 

services related to K.C.’s individualized needs is not “the sort of harm the Rehabilitation Act was 

intended to redress.” Modderno, 82 F.3d at 1061.

In sum, Ms. Colbert failed to state a claim under the Rehabilitation Act. She has 

not demonstrated that the Court patently misunderstood a party, made a decision outside the 

adversarial issues presented, or made an error of apprehension. See Ficken, 696 F. Supp. 2d at 

35 (quoting Cobell, 224 F.R.D. at 272). Further, there has been no controlling or significant 

change in the law or facts. See id. Accordingly, Ms. Colbert’s motion for reconsideration will 

be denied.

B. Motion to Amend

As an alternative to reconsideration, Ms. Colbert seeks to amend the complaint.9

 

See Mot. for Partial Recons. [Dkt. 57] at 8-9. Leave to amend should be granted “when justice so 

requires.” Fed. R. Civ. P. 15(a). However, denial of leave to amend based on futility is warranted 

if the proposed claim would not survive a motion to dismiss. Foman v Davis, 371 U.S. 178, 181-

82 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). Ms. Colbert has 

utterly failed to show that justice requires amendment. Her motion does not indicate what she 

9 Ms. Colbert already has filed three versions of the complaint. See Compl. [Dkt.1]; Am. Compl. 

[Dkt. 27]; Am. Compl [Dkt. 29] (corrected amended complaint). 

10

 
would allege that would save her Rehab Act claim, and she did not file a proposed second amended 

complaint. See LCvR 15.1 (a motion for leave to file an amended pleading “shall be accompanied 

by an original of the proposed pleading as amended”). Accordingly, the motion to amend will be 

denied.

C. Count XI, Claim for Violation of K.C.’s Right to Due Process

In her motion for reconsideration Ms. Colbert emphasizes that she alleges a Fifth 

Amendment due process claim under numerous theories, one of which is that Defendants 

interfered with K.C.’s fundamental right to sexual reproductive health care, including birth 

control. See Mot. for Partial Recons. [Dkt. 57] at 9-10; Reply [Dkt. 62] at 4. Ms. Colbert points 

to Count XI of the Amended Complaint, which alleges: (1) Defendants violated K.C.’s Fifth 

Amendment rights under numerous theories, including that the District has a policy that “there 

were to be no restrictions or safeguards imposed by the District, any residential provider such as 

Total Care, or any family member on any sexual activities of intellectually disabled individuals, 

including [K.C.]” without regard to the individual’s capacity to consent to sex, see Am. Compl. 

¶ 96; and (2) the policy “deprived [K.C.] of her liberty interest in having health care decisions––

such as birth control––made pursuant to the Health Care Decisions Act, D.C. Code § 21-2210, 

after a determination of her best interests,” see id. ¶ 97. The Court dismissed the theories of 

endangerment (id. ¶¶ 105-114), equal protection (id. ¶¶ 120-126), and entitlement (id. ¶¶ 127-

133), but the other theories remain. See Op. [Dkt. 52]. Further, even though Ms. Colbert has 

asserted a violation of due process, the Court has determined that she has stated a constitutional 

claim only if K.C. was involuntarily in the custody of the District:

[T]he District had an affirmative constitutional duty of care only if

K.C. was involuntarily in the custody of the District. See Estate of 

Phillips v. District of Columbia, 455 F.3d 397, 406 (D.C. Cir. 2006)

(quoting DeShaney, 489 U.S. at 200-02) (“‘[W]hen the State by the 

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affirmative exercise of its power so restrains an individual’s liberty 

that it renders him unable to care for himself, and at the same time 

fails to provide for his basic human needs,’ such as in the custodial 

context if the state restrains a person from acting on his own behalf, 

a ‘special relationship’ exists which gives rise to an affirmative duty 

to protect that person.”). Again, discovery is needed to determine 

whether K.C. was voluntarily or involuntarily in the District’s 

custody at the time she became pregnant and gave birth. If she was 

voluntarily in the District’s custody, Ms. Colbert has failed to state 

a constitutional claim.

Op. [52] at 14 (emphasis in original); see also id. at 9-13. The Court ordered the parties to meet 

and confer and file a joint proposed schedule for limited jurisdictional discovery, see id. at 22; 

Order [Dkt. 53] at 1-2, but they did not do so due to Plaintiff’s motion for partial reconsideration. 

They will again be ordered to submit such a schedule.

IV. CONCLUSION

For the reasons set forth above, Plaintiff’s motion for reconsideration or to amend

[Dkt. 57] will be denied. The parties will be required to meet and confer and file a joint 

proposed schedule for limited jurisdictional discovery regarding Ms. Colbert’s sole remaining 

federal claim––the Fifth Amendment substantive due process claim against the District of 

Columbia based on the theories of special relationship and deliberate indifference. Limited 

discovery will be permitted to determine whether K.C. was voluntarily or involuntarily 

committed to the custody of the District of Columbia in 2010-2011 and to determine whether a 

D.C. custom or policy was the moving force behind the alleged substantive due process 

violation. A memorializing Order accompanies this Opinion.

Date: June 25, 2015 /s/ 

ROSEMARY M. COLLYER

United States District Judge

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