UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) PATTI HAMMOND SHAW, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0538 (ESH) ) DISTRICT OF COLUMBIA, et al. , ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION Plaintiff Patti Hammond Shaw (“Shaw”), a transgender woman who has undergone sex reassignment surgery and had her sex legally cha nged to female, alleges that on three separate

occasions she has been arrested in the District of Columbia and subjected to treatment by the Metropolitan Police Department (“ MPD”) and the United States Marshals Service (“USMS”) in

violation of the Fourth and Fift h Amendments to the United States Constitution, the Federal Tort Claims Act, the D.C. Human Ri ghts Act, and D.C. tort law. (First Am. Compl., Sept. 17, 2012 [ECF No. 27] (“Compl.”).) She brings this acti on against the District of Columbia (“District”); MPD Chief of Police Cathy Lanier , in her official capacity; Lieutenant Merrender Quicksey, an MPD officer, in her individual capacity; the Un ited States; Benjamin E. Kates, Steve Conboy and Troy Musgrove, USMS Marshals, in their individual capacities (c ollectively the “USMS defendants”); and other unknown MPD and USMS employees. 1

1 Plaintiff voluntarily dismissed defendant Thomas O’Donnell. ( See Notice of Voluntary Dismissal, Nov. 5, 2012 [ECF No. 35].)2 Before the Court are three motions to dismiss: one filed jointly by the USMS defendants (“USMS Mot.”) [ECF No. 28]; one filed by Quicks ey (“Quicksey Mot.”) [ECF No. 41]; and one filed by Lanier (“Lanier Mot.”) [ECF No. 37]. For the reasons stated he rein, the Court will (1) grant the USMS defendants’ motion as to the cl aims against Conboy, but deny it as to the claims against Kates and Musgrove; (2) deny Quicks ey’s motion; and (3) grant Lanier’s motion.

BACKGROUND I. FACTS The following factual recitation is based on the allegations in plaintiff’s complaint and must, for purposes of these motions, be accepted as true. Plaintiff is now, and was at all times relevant to this case, a female whose legal name is Patti Hammond Shaw. 2 (Compl. ¶ 2.)

2 A person’s “biological status as either male or female” is known as his or her “sex.” American Psychological Association, Answers to Your Questions About Transgender People, Gender Identity, and Gender Expression at 1 (2011) (“APA Transgender Publication”), available at http://www.apa.org/topics/sexuality/transgender. pdf. A person’s sex is initially “assigned at birth,” based “primarily on physic al attributes such as chromosomes, hormone prevalence, and external and internal anatomy.” Id.3 Plaintiff is also a “transgender woman,” 3 who has “undergone sex reassignment surgery,” and “had her sex legally changed [from male] to female.” 4 ( Id. ¶ 2.) Since changing her sex to female, plainti ff has been arrested by the MPD on three occasions: June 18, 2009, December 10, 2009, and June 6, 2012. ( Id. ¶¶ 15, 44, 73.) In the District, the first time a pers on is arrested, he/she is assi gned a unique Police Department identification number (“PDID”), which is recorded in the MPD’s computerized record system. ( Id. ¶¶ 96-97.) When plaintiff was first arrestedby the MPD she was male, and neither the name

nor sex associated with her PDID number has ever been changed. ( Id. ¶¶ 98-100.)

After each of the three arrests that are the s ubject of plaintiff’s complaint, the MPD held her with the male detainees, first at the Sixth District police station (“6D”) 5 and then at the

3 The term “transgender” is “an umbrella te rm for persons whose gender identity, gender expression, or behavior doe s not conform to that typically asso ciated with the sex to which they were assigned at birth.” APA Transgender Pub lication at 1 (emphasis omitted). “Transsexual” is the clinical term used to de scribe a transgender person, like pl aintiff, whose “gender identity,” the “internal sense of being a male, female or so mething else” is different from the sex assigned at birth. Id. ; see also D.C. Code § 2-1401.02(12A) (“’Gender identity or expression’” means a gender-related identity, appearance, expression, or behavi or of an individual, regardless of the individual's assigned sex at birth.”) A transsexual person may decide to undergo “gender transition,” the term used to describe the “comple x process” of altering a person’s birth-assigned sex to match his or her gender identity,” whic h “may involve one or more of the following: adopting the appearance of the de sired sex through changes in cl othing and grooming, adopting a new name, changing sex designation on identity do cuments (if possible), using hormone therapy treatment, and/or undergoing medical procedures that modify their body to conform with their gender identity.” APA Publication at 3. 4 District law provides that “Upon receipt of a certified copy of anorder of the Court indicating that the sex of an individual bor n in the District has changed by su rgical procedure and that such individual's name has been change d, the certificate of birth of such individual shall be amended as prescribed by regulation.” D.C. Code § 7-217(d); see In re Taylor , 2003 WL 22382512 (D.C. Super. Ct. Mar. 17, 2003) (§ 7-217(d) gives a tr anssexual person the legal right to change sex on birth certificate af ter having sex changed by su rgical procedure). 5 On June 18, 2009, plaintiff presented herself for arrest at 6D having le arned that there was a warrant for her arrest. (Compl. ¶¶ 15-16.) On December 10, 2009, plaintiff was arrested at her home, taken to United Medical Center for “medi cal treatment,” the nature of which is not4 MPD’s Central Cellblock. (Compl. ¶¶ 17, 46, 74.) At 6D, plaintiff was held in a single cell in the male area, facing the men who were in the cell across from her. ( Id. ) Similarly, in the Central Cellblock plaintiff was he ld in a single cell in the men’s area, facing the male detainees

in the cell across from her. 6 At both locations, the male de tainees verbally and physically harassed her, as did one MPD officer. 7 ( Id. ¶¶ 19, 48, 52, 53, 76, 81, 82.) During December 2009 and June 2012, Quicksey was the manager of the Central Cellblock ( id. ¶¶ 5, 51), “the individual designated by the Commanding Officer to be responsible for managing all aspects of the station/holding facility area on a 24-hour ba sis.” MPD Standard Operating Procedures for Holding Facilities at 2 (May 30, 2003) (“MPD Hold ing Facilities Procedures”). The complaint

specified, and then taken to 6D. ( Id. ¶¶ 44-46.) On June 26, 2012, pl aintiff was arrested and transported to 6D. ( Id. ¶ 73.) 6 In June 2012, there was anothe r transgender detainee in the Central Cellblock, who was also placed in a single cell facing the men. (Compl. ¶ 82.) 7 At 6D, for example, in June 2009, plaintiff “w as verbally assaulted by male detainees who asked to see her vagina, breasts, and buttocks” an d “while MPD officers were taking [her] out of her cell, they were simultaneously bringing ina male detainee who touched [her] on her buttocks.” (Compl. ¶ 19.) In December 2009, she “was repeatedly harassed by the men in the other cell. One man threatened th at if [she] did not show him her breasts, he would hit her in the face when they would later be together in the bullpen. Feeling scared, [she] showed the man her breasts and many of the men masturbated in front of her.” ( Id. ¶ 48.) And in June 2012, when she used the bathroom “male detainees in the st ation made noise and sa id ‘that’s a girl’ and began masturbating.” ( Id. ¶ 76.) After that incident, plaint iff told an MPD officer that “she wanted to be in the women’s area, bu t he said he wouldn’t move her.” ( Id. ¶ 76.) On this occasion she was also searched by three male MPD officers, who “made her pull down her bra, shirt, and pants, and bend over.” ( Id. ¶ 78.) At the Central Cellblock, in December 2009, “[t]he men in the cell near [her] harassed her and masturbated in front of her” (Compl. ¶ 52) and an MPD officer “exposed his genitalia to [her] and urinated in front of her.” ( Id. ¶ 53.) Plaintiff’s experience in June 2012 was similar. The “male detainees made sexual comments such as asking [plaintiff] to shake her buttocks” and “[w]hen she used the bathroom in her cell, the ma le detainees saw that she had female anatomy” and one of them “began masturbating and later threw some kind of thick liquid towards [her] which landed in her cell.” ( Id. ¶ 82.)5 alleges that he failed to train, s upervise or discipline MPD employ ees in the Central Cellblock in the proper treatment of female transge nder detainees. (Compl. ¶¶ 153, 156). Essentially, the MPD treated plaintiff as if she were a male, despite knowing that she was a transgender female, 8 and in apparent violation of its own policy, which provides that “[w]hen male and female prisoners are detained in the holdi ng facility for adults . . . the male and female prisoners shall be separated by sight and sound.” MPD Holding Facilities Procedures at 11. 9 The MPD’s General Order for “Handling Interacti ons with Transgender I ndividuals” was also in effect at the time of plaintiff’s arrests. See MPD General Order 501.02 (Oct. 16, 2007) (“MPD Transgender Order”). Its provi sions “supplement” existing orders unless “a dire ctive involving the same operation is clearly co ntradictory,” in which case the provisions “supersede and amend the contradictory language.” Id. at 10. It provides, in th e section headed “Processing and Housing of Transgender Arrestee s,” that “[w]henever practical, transgender arrestees shall be placed in a cell by him/herself, even when more than one transgender person is in custody at the same MPD facility at the same time.” 10 Id . at 7. It also provides that “[m]embers shall bring

8 In June 2009, upon her arrival at 6D, plainti ff informed unknown MPD employees that she was legally a female, and she presented identification that confirmed that fact. (Compl. ¶ 17.) In December 2009, the arresting officer identified her as a female. ( Id. ¶ 44.) In June 2012, unknown MPD employees “learned that [pla intiff] is a transgender woman.” ( Id. ¶ 74.) 9 The MPD defines “Holding Facility” as “a temporary confinement facility for which custodial authority of a prisoner is usua lly less than 48 hours, pending their release, arraignment, adjudication, or transfer to a nother facility.” MPD Holding Facilities Procedures at 1. The Central Cellblock [and] each cellblock in the District . . . [are] holding facilities.” ( Id. ) 10 In its entirety, the sec tion of the MPD Transgende r Order that sets forth “[t]he general rules for processing and housing transgender arrestees” states: a. Processing officers are required to search all prisoners they process, even if the prisoner has just been searched by the arresting and/or the transporting officer.6 b. Whenever practical, transgender ar restees shall be placed in a cell by him/herself, even when more than one transgender person is in custody at the same MPD facility at the same time. c. MPD personnel assigned to any hold ing facility must be cognizant of the gender identity or expressi on of all arrestees being pr ocessed so that accurate gender information can be recorded a nd inconsistencies pr operly noted and documented as follows: (1) When a member finds a record for an arrestee (e.g., LiveScan, CJIS, WACIIS, WALES, NCIC, or any other law enforcement database) that lists a different gender from what th e arrestee is currently presenting, the member shall immediately notify the Watch Commander and apprise him/her of the situation. (2) The Watch Commander shall ev aluate the documentary evidence available and, if practical, speak wi th the arrestee and determine the course of action to take with regard to housing the arrestee. (3) Information concerning conflicting gender information on the arrestee’s computer reco rds shall be clearly noted on the PD Form 163 and other arrest paperwork such as th e PD Form 252 (Supplemental Report). (4) In addition to conflicting gende r information being noted on the paperwork, members shall verbally bri ng this information to the attention of all personnel that they transfer custody of the arrestee to. Members transporting such an arrestee to another MPD facility shall advise the personnel at the receiving facility of the housing requirements and “ATRISK” status of the arrestee. (5) Members shall bring conflicting gende r information to the attention of the US Marshal’s Service when the arrestee is remanded to their custody. (6) In other situations involving the transfer of transgender or ambiguously gendered prisoners (e.g., processing by federal authorities or other police agencies), members shall ensure that all paperwork accompanying the prisoner adequately describes the gende r-related identity issues that are presented. (7) Restrictions on the wearing of appearance-related items must be consistent with restrictions on th e wearing of similar items for nontransgender individuals. Appearance-r elated items, including, but not limited to, prosthetics, clothes of th e presenting gender, wigs, or make-up7 conflicting gender information to the attention of the US Marshal’s Service when the arrestee is remanded to their custody.” (MPD Transgende r Order at 8.) When the MPD Transgender Order was adopted in 2007, Conboy was the U.S. Marshal for the Superior Court. From MPD custody, plaintiff was transferred to the USMS cellblock at Superior Court and to USMS custody. 11 ( Id. ¶¶ 21, 58, 86.) The USMS also knew that plaintiff was legally a female, 12 but treated her as if she were a male. Each time she was transferred to the USMS cellblock, she was searched by male USMS employees ( id. ¶¶ 23-26, 58-59, 87), even when female USMS employees were available. 13 The USMS Policy Directive on “Body Searches,” the purpose of which is to set forth the “proced ures necessary for conducting both reasonable and legal searches,” provides that an “[i]n-custody [s]earch” is conducted “upon acceptance of a prisoner at the USMS cellblock.” 14 USMS Policy Directive 99- 25, Body Searches at 3 (July 7, 1999) (“USMS Search Policy”). An “in-custody” search requires remova l of outer clothing for

should not be confiscated or removed from transgender individuals unless such items present a safety hazard or are needed for evidentiary reasons. MPD Transgender Order at 7-8. 11 As noted, see supra note10 , MPD employees are supposed to “bring conflicting gender information to the attention of the US Marshal’s Service when the arrestee is remanded to their custody.” (MPD Transgender Order at 8.) The compla int alleges in the altern ative either that the MPD failed to properly inform the USMS of plai ntiff’s transgender status upon the transfer of custody or that the MPD did inform the USMS , but the USMS ignored that information. (Compl. ¶¶ 28, 61, 62, 90.) 12 For example, in June 2009, during intake, when plaintiff was asked her name, she gave them her legal female name, and showed her le gal identification, but unknown USMS employees asked her to repeat herself, told her “she wa s wrong,” and answered for her that she was a man and that her “real” name was Melvin. (Compl. ¶ 22.) 13 In June 2009, there was a female USMS employee prepared to search plaintiff. (Compl. ¶ 23.) 14 The USMS Search Policy defines five types of searches: (1) a pat- down search; (2) an “incustody search”; (3) a “strip search”; (4) a “digital cavity search ”; and (5) a “search incident to a lawful arrest.” USMS Search Policy at 1.8 inspection and a visual inspection of the detainee. 15 Id. at 2-3. A “strip search” is also

authorized under certain circumstances. Id . at 3. It differs from an in-custody search in that it involves a “complete search of a prisoner’s attire and a visual in spection of the prisoner’s naked body, including body cavities,” but is similar in that it “ should not involve touching the skin

surface.” 16 Id. Generally, both types of searches are to be conducted “by a deputy of the same sex,” although “in extenuating circumstances, or when the need for security dictates, an incustody search may be conducted by a deputy of the same sex.” Id. at 5. As alleged, the searches of pl aintiff did not comply with the USMS search policy for “incustody” or “strip searches” as they were conducted by male USMS employees, in view of male detainees. In addition, during the searches, ma le USMS employees verbally harassed her ( id. ¶¶ 26, 59) 17 and intimately and inappropriately touched her. 18 ( Id . ¶¶ 25, 87.) In December 2009,

15 Specifically, during an “in-custody” search, the prisoner is to “r emove his or her outer clothing and shoes/socks until the search of both is comp lete,” while the marshal is supposed to “remove the contents from all the pockets found on the pr isoner’s clothing, as well as any jacket, coat, belt, eyeglasses or other clothing articles be longing to the prisoner,” “visually inspect behind each ear and look inside the prisoner’s ear canals, nostrils, and mouth,” a nd “inspect all property removed from the prisoner.” USMS Search Policy at 2-3. 16 In addition, a strip search is supposed to be c onducted (1) in a “private location that prevents all but designated personnel from viewing the prisoner,” (2) “always . .. by a deputy of the same sex, unless the person conducting the search is a physician, physician’ s assistant, or nurse,” (3) with a “witness of the same sex of the person being searched . . . present” or a deputy of the opposite sex positioned outside the room and out of the prisoner’s view “to corroborat[] the remarks made by individuals in the room a nd providing assistance in the event of an emergency.” USMS Search Policy at 3. In addition, a strip search is to be “done in a professional manner, causing the prisoner as little embarrassment as possible. Id . at 4. 17 For example, in June 2009, other USMS empl oyees made “comments about her breasts and gender, such as ‘those must be implants because hormones don’t make breasts stand up so perky like that,’ and ‘he’s the best I’ve ever see n.’” (Compl. ¶ 26.) In December 2009, defendant Musgrove, who was conducting the search, commen ted to plaintiff, “you need Jenny Craig, all those butt shots you got in your butt” and “here he goes again; what you done this time boy?” ( Id. ¶ 59.) 18 In June 2009, the USMS employee conducting the search “groped her breasts, buttocks, and9 the search was conducted by Musgrove, the USMS District Security Offi cer at the Superior Court. ( Id. ¶¶ 10, 58, 59.) Plaintiff was also held in a bullpen with male detainees ( id. ¶¶ 30, 64, 86), even after requesting to be moved. 19 While there, she was harassed by the male detainees ( id . ¶¶ 31, 65) 20 and subjected to other indignities. 21 ( Id. ¶ 34.) The USMS employees who were present did nothing to help stop the harassment, ev en when plaintiff complained. ( Id. ¶¶ 34, 65.) When the MPD’s Transgender Order was a dopted in 2007, Conboy was the U.S. Marshal for the Superior Court. ( Id. ¶ 9.) The complaint alleges that in response to that order he established policies of having “m ale USMS marshals search female transgender detainees” ( Id

. ¶¶ 126, 130, 134) and of “intentionally disregar ding gender information about transgender detainees communicated by employe es of the Metropolitan Police De partment to members of the United States Marshals Service upon remand of th e detainee to the custody of the United States Marshals Service” ( id . ¶¶ 9, 28, 39, 40, 61, 68, 69, 90), and that these policies remained in effect

between her legs repeatedly a nd excessively during the ‘searc h,’ which lasted about five minutes.” (Compl. ¶ 25.) In June 2012, the ma le USMS employee conduc ting the search “lifted up [her] blouse and looked at her breasts and areo la and searched in be tween her legs and in between her buttocks, feeling these areas with his hand for about a minute,” all the while exposing plaintiff to the view of other men in the cellblock. ( Id. ¶ 87.) He also “touched her breasts and asked ‘What is this, a bra?’” ( Id. ¶ 87.) During the entire search, plaintiff “was exposed to view by other men in the cellblock.” ( Id. ¶ 87.) 19 When plaintiff was put in the bullpen in June 2009, she requested that she be moved, but she was kept there from 8:00 a.m. until 4:00.p.m. (Compl. ¶ 32.) 20 For example, in June 2009, “[s]everal of the men in the holding cell touched [her] inappropriately, verbally harassed and propositioned her, threatened to punch her if she did not show her breasts to them, and shook their penise s at her.” (Compl. ¶ 31.) In December 2009, a man who had previously threatened her “told the other men in the bullpen, ‘that n*** got a pussy,’” and he “threatened to punc h [p]laintiff again if she did not show him and the other men her vagina.” ( Id. ¶ 65.) Out of concern for her safety, plainti ff complied. ( Id. ¶ 65.) 21 For example, in June 2009, plaintiff was forced to urinate into a cup in full view of the men in the holding cell, exposing her female genitalia. (Compl. ¶¶ 33, 43.)10 at the time of plaintiff’s arrests. In 2009, Kate s was the U.S. Marshal for the Superior Court. ( Id . ¶ 8.) The complaint alleges that he ma intained Conboy’s policies and failed to train, supervise or discipline USMS employees in the proper treatment of female transgender detainees. ( Id . ¶¶ 119, 123, 127, 140). II. PROCEDURAL HISTORY Based on her treatment following each arrest , plaintiff filed two separate complaints,

which were consolidated in the above-captioned case. ( See Memorandum Opinion and Order, Sept. 17, 2012 [ECF No. 26].) The operative complaint is the First Amended Complaint, which includes eleven separate claims, four of which are addressed by the motions to dismiss filed by the USMS defendants, Quicksey and Lanier. 22 Those claims are: (1) a Fourth Amendment

Bivens claim against Conboy, Kates, Musgrove a nd other unknown USMS employees based on the three searches that took place which plain tiff was in USMS custody (Count VI) (Compl. ¶¶ 122-134) (“Fourth Amendment Bivens Claim”); (2) a Fifth Amendment Bivens claim against Conboy, Kates, and other unknown USMS employees based on the conditions of confinement while she was in USMS custody (Count VIII) ( id . ¶¶ 137-147) (“Fifth Amendment Bivens Claim”); (3) a Fifth Amendment § 1983 claim against Quicksey and unknown MPD employees

22 The remaining claims are (1) claims agai nst the District and unknown MPD employees for common law torts (intentional infliction of emoti onal distress, negligent infliction of emotional distress, assault and battery, invasion of privacy and negligence) allegedly committed while plaintiff was in MPD custody in June 2012 (Counts I-IV, XI) (Compl. ¶¶ 101-115, 165-69) (“Common Law Tort Claims”); (2) a claim agains t the United States under the Federal Tort Claims Act (“FTCA”) based on the allegedly tortious conduct of USMS employees while plaintiff was in USMS custody in June 2009 and December 2009 (Count V) ( id . ¶¶ 116-121) (“FTCA Claim”); and (3) a § 1983 claim agai nst unknown MPD employees alleging that the June 2012 search of plaintiff while in MPD cust ody violated the Fourth Amendment (Count VII) ( id . ¶¶ 135-36) (“Fourth Amendment § 1983 Claim”). With respect to the remaining defendants, the District of Columbia has filed an answer (District Answ er, Oct. 7, 2012 [ECF No. 31]) and the United States has been granted leave to file its answer after the resolution of the USMS defendants’ motion to dismiss (M inute Order, Oct. 19, 2012).11 based on the conditions of confinement while plaintiff was in MPD Custody (Count IX) ( id . ¶¶ 148-156) (“Fifth Amendment § 1983 Claim”); and (4) a D.C. Human Rights Act claim against the District of Columbia, La nier, and unknown MPD employees, for discrimination on the basis of gender identity and expression (Count X) (i d. ¶¶ 157-64) (“D.C. Human Rights Act Claim”). ANALYSIS To survive a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal 556 U.S. 662, 678 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plainti ff pleads factual content that allows the court to

draw the reasonable inference that the defenda nt is liable for the misconduct alleged.” Id. Facial plausibility requires “more than a sheer possibi lity that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between po ssibility and plausibility of entitlement to relief.” Id. (internal quotations omitted).”

The USMS defendants have filed a motion to dismiss the Fourth and Fifth Amendment

Bivens Claims against them on the ground of qualified immunity (all defenda nts) or insufficient allegations of personal involvement to state a claim (Conboy and Kates); 23 Quicksey has filed a motion to dismiss the Fifth Amendment § 1983 Claim against her on the ground of qualified

23 The motion filed by the USMS defendants also seeks dismissal of the Fourth and Fifth Amendment Bivens claims against the unknown USMS employ ees “for lack of personal service of process” within the 120-day time limit provided in Federal Ru le of Civil Procedure 4(m). (USMS Mem. at 20-21.) Dismissal of th e unknown USMS employee defendants is not warranted. First, “[u]ndersigne d counsel do not at this time re present [those employees].” (USMS Mem. at 1 n.1, 20-21.) Second, courts r ecognize an exception to Rule 4(m) for cases involving “John Doe” defendants when discovery will make known “the otherwise unavailable identity of the defendant.” Newdow v. Roberts , 603 F.3d 1002, 1010 (D.C. Cir. 2010).12 immunity; and Lanier has filed a motion to dismiss the D.C. Human Rights Act Claim against her on the ground that service was improper or, in the alternative, that it is redundant. Accordingly, the Court will now turn to the three pending motions to dismiss. I. QUALIFIED IMMUNITY Conboy, Kates, Musgrove, and Quicksey each seek to dismiss the constitutional claims against them on the ground that the doctrine of qualified immunity protects them from personal liability. “The doctrine of qua lified immunity protects government officials ‘from liability for civil damages insofar as their conduct does no t violate clearly established statutory or constitutional rights of which a re asonable person would have known.’” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)); see Jones v.

Horne , 634 F.3d 588 (D.C. Cir. 2011). As laid out by the Supreme Court, the two pertinent questions in determining whether qualified immun ity applies are (1) “whether a constitutional right would have been violated on the facts alleged,” and (2) “whether the right was clearly

established” at the tim e of the violation. Saucier v. Katz , 533 U.S. 194, 201 (2001). 24 “‘Clearly established’ for purposes of qualif ied immunity means that ‘the c ontours of the right must be sufficiently clear that a reasonable official w ould understand what he is doing violates that right.’” Brosseau v. Haugen , 543 U.S. 194, 198 (2004); see also Wilson v. Layne , 526 U.S. 603, 614-15 (1999). The inquiry as to whether a right is “clearly established” “must be undertaken in light of the specific context of the case , not as a broad ge neral proposition.” Anderson v. Creighton , 483 U.S. 635, 640 (1987); Wilson v. Layne , 526 U.S. 603, 615 (1999) (“the right allegedly violated must be defined at the appr opriate level of specific ity before a court can

24 The “sequence set forth” in Saucier , though “often appropriate,” is not “mandatory,” and courts may “exercise their sound discretion” in deciding which question to address first. Pearson , 555 U.S. at 236.13 determine if it was clearly established”); Ashcroft v. al–Kidd , 131 S. Ct. 2074, 2084 (2011) (what is “clearly established” is not to be defined at a “high level of generality”). However, “[t]his is not to say that an official ac tion is protected by qualified imm unity unless the very action in question has been previously held unlawful.” Wilson , 526 U.S. at 615. Officials can be on

notice that their conduct violates established law even in “novel factual circumstances,” and there is no requirement that previous cases be “fundamentally similar.” See Hope v. Pelzer , 536 U.S. 730, 741 (2002). A. Fourth Amendment Claim Plaintiff claims that she was subjected to thr ee unconstitutional sear ches in violation of

the Fourth Amendment while she was in US MS custody, and she seeks to hold the USMS defendants personally liable for those viol ations. (Compl. ¶¶ 123, 127, 131.) The USMS defendants claim they are entitled to qualified immunity because none of the searches violated a clearly established constitutional right. 25 (USMS Mem. at 15.) For purposes of this argument, the USMS defendants do not distinguish among th emselves or the particular searches, even though their potential liability rest s on different theories and th e facts of each search are not

identical. “The Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish , 441 U.S. 520, 558 (1979). “The test of reasonablen ess under the Fourth Amen dment is not capable of precise definition or mechanic al application. In each case it re quires a balancing of the need

25 Plaintiff’s claim against Conboy is based on the allegedly unconstitution al policies he created while he was the U.S. Marshal for the Superior Court; her claim against Kates is based on his alleged failure to train, supervise or disciplin e USMS employees in the proper treatment of female transgender detainees; and her claim ag ainst Musgrove is based on his conducting the December 2009 search.14 for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. at 559. The balancing inquiry set forth in Bell “remains the same regardless of how one characterizes the search.” See BNSF Ry. Co. v. Dep’t of Transp., 566 F.3d 200, 208 (D.C. Cir. 2003). In the particular context of a detention facility, the question of reasonableness requir es “balancing the significant and legitimate security interests of the institution ag ainst the privacy interest of the inmates.” Bell , 441 U.S. at 560. However, an “abusiv e” search is never reasonable. Id. (“on occasion a security guard may conduct the search in an abusive fashion . . . such an abuse cannot be condoned”). The USMS defendants argue that “[a]t the time of the searches in June 2009, December 2009, and June 2012, the state of the law was not clearly established as to the classification and searches of transgender female detainees.” (USMS Mot. at 12.) To support their argument, the USMS defendants rely primarily on the fact that the “D.C. Circuit has not reviewed the constitutional bounds of transgender arrestee s” and the absence of “any cases from any jurisdiction that address whether a male law en forcement officer may constitutionally search a transgendered woman who is listed as bei ng male in law enforcement records.” ( Id .) The flaw in this argument is that it fa ils to account for the fact that plaintiff is legally a female 26 and that the USMS employees knew it. Thus, contrary to what the USMS defendants argue, the searches of plaintiff were “cross-gender” searches. As the law on cross-gender searches is relevant, the absence of cases directly addressing the cons titutional bounds of searches of transgender arrestees is not dispositive.

26 The USMS defendants refer to plaintiff as “bio logically male, but ‘legally female,” but that terminology is meaningless. As set forth above, plaintiff’s assigned sex at birth was male, but she is now legally a female.15 With respect to the law on cross-gender se arches, the USMS defendants argue that the searches of plaintiff are akin to the cross- gender searches held to be reasonable in Michenfelder

v. Sumner , 860 F.2d 328, 334 (9th Cir. 1988), Grummett v. Rushen , 779 F.2d 491, 496 (9th Cir. 1985), Schmidt v. City of Bella Villa , 557 F.3d 564, 572-73 (8th Cir. 2009), and Farkarlun v. Hanning , 855 F. Supp. 2d 906, 924 (D. Minn. 2012). The USMS defendants are correct that cross-gender searches are not “per se” unconstitutional. See, e.g., Farkarlun , 855 F. Supp. 2d at 924. But they ignore the fact that in each case they cite, the “cross-gender” search that the court found to be reasonable was significa ntly less intrusive than the s earches of plaintiff in manner and scope. In particular, none of the approved cross-gender searches involved unnecessary and intimate physical contact in conjunc tion with verbal harassment. See Michenfelder , 860 F.2d at 332 (cross-gender searches not unreasonable if “visual only, i nvolving no touching”); Grummett , 779 F.2d at 494 (cross-gender strip searches not unreasonable because “[f]emale guards [are]. . . assigned [to positions that] require infrequentand casual observation, or observation at a distance”); id. (routine cross-gender pat-down searches which includes the groin area not

unreasonable because “searches do not involve intim ate contact with an inmate’s body” and the “guards have conducted themselves in a professional manner”); Schmidt , 557 F.3d at 572-73 (unzipping pants to allow photogr aph of female detainee’s ta ttoo by male officer was not unreasonable); Farkarlun , 855 F. Supp. 2d at 927-28 (visual stri p search was not unreasonable). In contrast, the cross-gender searches of plaintiff did i nvolve intimate physical contact. 27 In similar cases, courts have consistently he ld that, absent emergency circumstances, such a

27 The searches alleged in the complaint could be characterized as “strip searches,” although the “exact label” for an intrusion is not important. See Safford Unified Sch. Dist. #1 v. Redding , 557 U.S. 364, 374 (2009) (“[S]trip search is a fair wa y to speak of” a search in which a female is asked to strip down to her unde rwear and pull out her bra.”).16 search is unreasonable. For example, in Byrd v. Maricopa County Sheriff’s Dep’t , 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc), the Ninth Circ uit held that a cross- gender strip search of pretrial detainee’s genital area absent exigent circumstances a nd in the presence of onlookers

was unreasonable. Id. at 1142 (searching officer touched [the pretrial de tainee’s] inner and outer thighs, buttocks, and genital areawith her latex-gloved hand thr ough very thin boxer shorts,” and “moved his penis and scrotum in the process of conducting the search”). The court explained that the “scope of this intrusion totally thwarted a ny desire on [the detainee ’s] part to ‘shield [his] unclothed figure from [the] view of strangers . . . of the opposite sex . . . .” Id. (quoting York v. Story , 324 F.2d 450, 455 (9th Cir. 2011)). The USMS defendants try to distinguish Byrd as too recent to constitute a “clearly establ ished” right. But the court in Byrd was considering conduct that took place in 2009, and it conc luded, after an extens ive review of earlier cases, that the “litany of cases over the last thir ty years has a recurring theme: cros s-gender strip searches in the absence of an emergency violate an inmate’s ri ght under the Fourth Amendment to be free from

unreasonable searches.” Id. at 1146 (citing and discussing ca ses). Indeed, the USMS’s own regulations do not permit physical touching of any kind for either an “in-custody” or a “strip

search.” See USMS Search Policy at 2-3 (“A strip search (visual examination) should not involve touching the skin surface.”) In the end, the ultimate question for purpos es of qualified immunity is whether a

reasonable officer would have know n that the searches of plain tiff were unreasonable. Based on the alleged facts, which must at this stage be accepted as true, the Court concludes that a

reasonable officer would have know n that a cross-gender search of a female detainee by male USMS employees that included intimate physical contact, exposure of private body parts, and verbal harassment, all in front of male detainees and male USMS employees in the absence of an17 emergency, was unreasonable. All of the relevant f actors – “the scope of th e particular intrusion, the manner in which it is conducted, the justification for initiating it , and the place in which it is conducted” – support a finding of unreasonablene ss. And unlike the cross-gender searches

which other courts have found to be reasonable, the searches he re were not limited to distant visual observation or touching of outer garments only. In addition, cert ain aspects of these searches could be found to have been abusive gi ven their highly intrusive nature, the unnecessary verbal harassment, and the unauthorized physical c ontact. Nor, at least as alleged, were there any extenuating circumstances or security intere sts that might justify otherwise unreasonable

searches. Accordingly, the Court concludes that plai ntiff has alleged a violation of clearly established Fourth Amendment righ ts and, therefore, that the US MS defendants are not entitled

to have those claims dismissed on the ground of qualified immunity.

B. Fifth Amendment Claims

Plaintiff claims that her Fifth Amendment right to due process was violated by the

conditions of confinement while she was in USMS custody and in MPD custody. (Compl. ¶¶ 137-156). Specifically, she objects to the USMS’s decision to hold her in a bullpen with male detainees, have her urinate in a cup in front of male detainees, transport her while chained to male detainees, and have her searched by ma le USMS employees and the MPD’s decision to hold her in a single cell in the male area of the Central Cellblock. ( Id. ¶¶ 35, 36, 51, 52, 62, 66, 69, 84-86, 141, 142, 143, 145, 150, 152, 155.) Conboy, Kates and Quicksey all argue that they are entitled to qualified immunity because none of these actions vi olated a clearly established constitutional right. (USMS Mem. at 15; Quicksey Mem. at 3.)18 The Due Process Clause, rather than the proscriptions of the Eighth Amendment against cruel and unusual punishment, governs the validit y of the conditions and restrictions of confinement for detainees charged with crimes but not yet convicted. See Brogsdale v. Barry , 926 F.2d 1184, 1188 (D.C. Cir. 1991). However, becau se the due process rights of a pretrial detainee “are at least as great as the Eighth Amendment protections available to a convicted prisoner,” City of Revere v. Mass. Gen. Hosp ., 463 U.S. 239, 244 (1983); County of Sacramento

v. Lewis , 523 U.S. 833, 850 (1998); Hardy v. District of Columbia , 601 F. Supp. 2d 182, 190 (D.D.C. 2009), a pretrial detain ee’s rights are violated if she is “incarcerated under conditions posing a substantial risk of serious harm” and the detaining official’s “sta te of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan , 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter , 501 U.S. 294, 302-03 (1991)); see, e.g ., Hardy v. District of

Columbia , 601 F. Supp. 2d 182, 190 (D.D.C. 2009) (violation of constitutional rights of pretrial detainee if the officials “knowingl y disregarded a substantial risk of serious harm of which they were aware”). A serious risk of harm includes ha rm that could be inflicted by other detainees or guards. See, e.g. , Farmer , 511 U.S. at 834. To show deliberat e indifference, “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. The question of “[w]hether a prison official had the requisi te knowledge of a substantial risk is a question of fact . . . and a factfinde r may conclude that a pr ison official knew of a substantial risk from the very fact that the risk was obvious.” Id.

Plaintiff claims that the conditions of he r confinement while in USMS and MPD custody exposed her to a substantial risk of serious harm, that USMS and MPD employees “knew that such harm was likely to occur based on a report fr om the D.C. Office of the Inspector General, an MPD General Order [the MPD Transgender Or der], MPD Standard Operating Procedure [the19 MPD Transgender Order], and complaints or re ports from previous detainees and advocacy groups” (Compl. ¶¶ 20, 35, 40, 48, 52, 65, 69, 77, 85), a nd that the employees “intentionally, deliberately, or recklessly disregarded that risk.” ( Id. ¶¶ 141-43, 143, 145, 151-56.) She

concludes that these actions refl ected a “deliberate indifference to [her] safety and dignity” in violation of her Fifth Amendment right to due process. ( Id. ¶¶ 143, 145, 150-56; see also id . ¶¶ 20, 35, 36, 40, 48, 52, 65, 66, 69, 77, 85, 139, 141, 142.) Defendants argue that they are entitled to qualified immunity because plaintiff’s due process right not to be held in the alleged conditions of confinem ent is not clearly established. Specifically, defendants rely on the absence of any cases specifically holding that a female transgender detainee has the right not to be held with male detainees or otherwise treated as if she were male. They also point to the conclusionby a district court in Arizona that a transgender immigration detainee “does not have a clearly established constitutional right to be housed in a women’s detention facility or in a single-occupanc y cell in a men’s detention facility or to be

released from detention ba sed solely on her status as a transgender woman.” See GuzmanMartinez v. Corrections Corp. of America , 2012 WL 2873835, at *9 (July 13, 2012). Defendants’ arguments again miss the significanc e of the fact that plaintiff is legally a female and that defendants are alleged to have known that. Thus, the absence of transgender cases is not itself dispositiv e. Nor is the decision in Guzman-Martinezcontrolling, because the transgender detainee plaintiff in th at case was not legally female. See id. at *2 (“Plaintiff describes herself as a transgender woman, who wa s born biologically male, but self-identifies as female. She has undergone surgical alterations to her breasts, buttocks, hi ps, and legs to appear more feminine and, at the time she was detain ed, was taking hormones and estrogen to prepare for gender reassignment surgery. She does not cl aim to be biologically female presently.”)20 Rather, as with the Fourth Amendment claim, plai ntiff’s “clearly established” rights include the same rights as any other female detainee. Accordingly, the cases involvi ng the sexual harassment of fe male prisoners are not, as defendants suggest, “irrelevant.” And those cases establish that a female detainee has the right not to be sexually harassed, verbally orphysically, by other detainees or guards. See Women Prisoners of the District of Columb ia Dep't of Corrections v. D.C. , 877 F. Supp. 634, 664–67 (D.D.C. 1994) (sexual assault, co ercion and harassment of the so rt alleged by plaintiff violate contemporary standards of decency and can cau se severe physical and psychological harm); see also Farmer v. Brennan , 511 U.S. at 834 (1994) (unsolicited sexual touching, harassment, and coercion are “simply not part of th e penalty that criminal offenders pay for their offenses against society” (internal quotations omitted)); Hudson v. McMillian , 503 U.S. at 6–7 (where no legitimate law enforcement or pe nological purpose can be inferre d from the defendant's alleged conduct, the harassment itself may also be sufficient evidence of a malicious and sadistic state of mind”). Moreover, at least in this Circuit, “the threshold for establ ishing a constitutional violation is clearly lower fo r the pretrial detainees.” See Brogsdale , 926 F.2d at 1187 n.4

. 28 Considering the allegations in the complaint, applicable MPD policies, and existing caselaw, the

Court concludes that a reasonable officer would know that treating a female detainee as plaintiff was treated ( i.e. holding her with male detainees and othe rwise treating her as if she were male)

28 In Brogsdale , the D.C. Circuit observed that under the Supreme Court’s decision in Youngberg v. Romeo , 457 U.S. 307 (1982), a pretrial detainee has “a constitutional entitlement” to a “‘reasonably safe’ prison environment,” noting that in Youngberg , the Court considered a due process challenge to the conditi ons under which Pennsylvania c onfined the profoundly retarded in state institutions and held that due process required the state to provide for the basic material needs of its wards, as well as ‘reasonable sa fety for all residents and personnel within the institution.’” Brogdsdale , 926 F.2d at 1190 (quoting Youngberg , 457 U.S. at 324).21 exposed her to a substantia l risk of serious harm, 29 and, therefore, would know that those actions

violated her constitu tional rights. None of the defendants’ other arguments alte r this conclusion. For example, Quicksey argues that she is entitled to qualified immunity “based on the fact that MPD personnel followed [the MPD Transgender Order] which requires th at ‘whenever practical, transgender arrestees shall be placed in a cell by him/herself, evenwhen more than one tr ansgender person is in custody at the same MPD facility at the same time.’” (Quicksey Mot. at 5 (quoting MPD Transgender Order at 7).) Howe ver, as plaintiff points out, th e MPD employees also failed to comply with the requirement in the MPD Holding Facilities Procedures that male and female detainees be separated by sight and sound, even though there does not appear to be any direct conflict between these two policies. Conboy and Kates argue that “reports, regula tions, and professional guidelines are not independent sources of constitutional rights and certainly do not articulate clearly established constitutional rights.” (USMS Mot. at 15 (citing Davis v. Scherer , 468 U.S. 183, 194 & n.12 (1982) (“Official sued for const itutional violations do not lose th eir qualified immunity merely because their conduct violates some statutory or administrative provision ”). Plaintiff does not dispute that this is the law, butpoints out that her citation to out side sources is not “to establish ‘independent sources of constitutional rights,’ but rather to provide factual grounding to support the inference that the risk to transgender de tainees was obvious, well-documented, and known to [d]efendants.” (Pl. Opp. to USMS Mot. at 19 (quoting USMS Mot. at 15).) Plaintiff notes, correctly, that the Supreme Court and this Circuit have recognized that “regulations and reports

29 Quicksey’s suggestion that pl aintiff was not incarcerated und er conditions posing a serious risk of harm because she was “in a cell alone” (Quicksey Reply at 4) is contrary to the allegations in the complaint.22 may provide a defendant with notice that . . . conduct is unconstitutional.” Hope , 536 U.S. at 741; Estate of Gaither v. District of Columbia , 833 F. Supp. 2d 110, 124 n.7 (D.C. 2011). 30 Finally, Conboy and Kates also argue that the USMS employees cannot have known that more action was necessary to protect transgende r detainees based upon reports and orders from the District of Columbia govern ment. (USMS Reply at 8 (citing Wormley v. United States , 601 F. Supp. 2d 27, 41-42 (D.D.C. 2009) (rejecting argum ent that BOP director should have known to provide more training based on past overdetentions by District of Columbia Department of Corrections officials).) However, given the close intera ction and overlappi ng responsibilities between the MPD and the USMS for post-arrestdetentions, plaintiff’s contention is not implausible. Accordingly, the Court concludes that plai ntiff has alleged a violation of clearly established Fifth Amendment rights based on the conditions of her confinement while in USMS and MPD custody and, therefore, that neither Kate s, Conboy, or Quicksey is entitled to have those claims dismissed on the ground of qualified immunity. 31

30 Given plaintiff’s response, there is no need to address defendants’ alternative argument that if these reports could be a source of constitutional rights, “the broadly worded provisions in the reports and orders Plaintiff relies upon imposedno mandatory duty for a transgender female detainee to be housed with female detainees or singly, or to have contact only with female detention officers.” (USMS Mot. at 15.) 31 Having reached this conclusion, it is not necessary to address plaintiff’s alternative theory of due process liability – that pl aintiff’s treatment amounted to unconstitutional “punishment.” See Bell v. Wolfish , 441 U.S. 520, 535, 538-39 (1979) (“[i]n ev aluating the constitutionality of conditions or restrictions of pretrial detention that impli cate only the protection against deprivation of liberty without due process of law . . . the pr oper inquiry is whether those conditions amount to punishment of the detainee” because “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law”). Moreover, although this theory of liability was raised during the briefing of the motions to dismiss, it was not included in the complaint.23 II. SUPERVISORY LIABILITY As an alternative ground for dismissal, C onboy and Kates each argue that the allegations of the complaint are insufficient to state a claim because they fail to alle ge that either had “personal involvement” in the a lleged constitutional violatio ns. (USMS Mot. at 18.) To state an individual capacity claim agai nst a government official for damages under

Bivens , a plaintiff “must plead that each Governme nt-official defendant, through the official’s own individual actions, has vi olated the Constitution.” Id. ; see also Simpkins v. District of

Columbia , 108 F.3d 366, 369 (D.C. Cir. 1997) (plaintiff mustallege that official “was personally involved in the illegal conduct”). “Government officials may not be held liable for the

unconstitutional conduct of their su bordinates under a theory of respondeat superior .” Iqbal , 556 U.S. at 676. The absence of vicarious liability does not mean, however, that an official who does not directly participate in the constitutional violation can never be personally liable. Rather, in addition to “direct participation” in a cons titutional violation, a government official may be held liable in damages for constitutional wrongs resulting from the “establishment of unconstitutional policies” (“Policymaking Liability”) or from the “failure to supervise or train subordinates adequately” (“Supervis ory and Training Liability”). Haynesworth , 820 F.2d 1245, 1259, 1263 (D.C. Cir. 1987), rev’d on other grounds , Hartman v. Moore , 547 U.S. 250 (2006). Policymaking Liability : To state a claim against a gove rnment official for personal liability in damages “for constitutional infr ingements resulting from the establishment of unconstitutional policies,” a plaintiff must plausi bly allege (1) “that the official against whom liability is asserted has the power - vested either formally or as a practical matter - to formulate policy”; (2) that the official “h as exercised that policymaking authority to generate improper practices”; and (3) that there is a “causal connection between the policy established and the24 wrong committed.” 32 Haynesworth , 820 F.2d at 1263-64; see also Weise v. Jenkins , 796 F. Supp. 2d 188, 197 (D.D.C. 2011) (“[T]o establish a claim for policymaking liability under

Bivens , a plaintiff must show that the offici al (1) established a policy (2) that was unconstitutional and (3) caused the plaintiff to be injured.”). Supervisory and Training Liability : Alternatively, to state a claim against a government official for damages based on a failure to superv ise or train, “[t]he party seeking to impose liability must demonstrate that the official ha d an obligation to superv ise or train the wrongdoer in the manner alleged, that the duty was breached, and that this breach was a proximate cause of the injury.” 33 Haynesworth , 820 F.2d at 1260. “[M]ore than mere negligence [is required] to forge the ‘affirmative link’ required “between the constitutional infringement and the supervisor's conduct.” Id. at 1261. Rather, “[t]he duty to su pervise is triggered by proof that, absent effective supervision, harm was not mere ly foreseeable, but was highly likely, given the

circumstances of the case.” Id. ; see Elkins v. District of Columbia , 690 F.2d 554, 566 (D.C. Cir. 2012); see also Int’l Action Ctr. v. United States , 365 F.3d 20, 28 (D.C. Cir. 2004) (liability will attach where the supervisor “know[s] about th e conduct and facilitate [s] it, approve[s] it, condone[s] it, or turn[s] a blind eye fo r fear of what they might see”). 34 Failure to train liability

32 The promulgation of unconstitutional policie s may also lead to municipal liability. See Haynesworth , 820 F.2d at 1264 n.145. 33 In Haynesworth , the Court explained that holding an official liable in damages for constitutional wrongs engendered by his failure to supervise or tr ain subordinates adequately “is not premised on the notion of vicarious liability; rather, it is bottomed on the principle that in some contexts failure of an official to safeguard against constitutional transgressions by those under his control constitute s an actionable wrong under Bivens and Section 1983.” Haynesworth , 820 F.2d at 1259-60. 34 “Our decision does not shift the level of culpability requi red to establish the underlying violation; that must turn on the nature of th e constitutional provision allegedly infringed. Nor does it affect the showing essentia l to municipal liability for in adequate supervision, since the25 “is triggered only when a supervis or fails to provide more stringe nt training in the wake of a history of past transgressions by the agency or provides training ‘so clearly deficient that some deprivation of rights will inevitably result absent a dditional instruction.’” Elkins , 690 F.3d at 566 (quoting Int'l Action Ctr ., 365 F.3d at 27); see also Barham v. Ramsey , 434 F.3d 565, 578 (D.C. Cir. 2006) (“Merely being [the alleged wrongdoer’s] supervisor wa s not enough to attach liability to [the Chief of Police].” As previously noted, plaintiff’s Fourth a nd Fifth Amendment claims against both Conboy and Kates are predicated on their service as U. S. Marshals for the S uperior Court, with responsibility “for settin g policies regarding the detention of individuals in the United States

Marshals Service cellblo ck and the training, discipline and di rect supervision of Unknown U.S. Marshals Service Employees.” (Compl. ¶ 8.) However, their situations are not identical. Plaintiff seeks to hold Conboy liable based on polic ies he allegedly created while he was the Superior Court Marshal, even though he ceased to hold the position in 2008, before any of the incidents giving rise to the complaint occurred, whereas she seeks to hold Kates liable for the June 2009 and December 2009 incidents, which o ccurred while he was the Superior Court Marshal, based on an alleged failure to train, discipline or supervise. ( Id. ¶¶ 123, 127, 138, 140, 143, 144, 145). 35 Accordingly, the Court will address each defendant separately.

problem of determining whether a governmental en tity should be charged with responsibility for the acts of its employees is c onceptually distinct from the que stion whether the wrongs of one municipal worker should be imputed to another.” Haynesworth , 820 F.2d at 1262. 35 Plaintiff’s claims against Quicksey are also based an alleged failure to train, supervise or discipline – in er case, the unknown MPD employees who made the decisions to hold plaintiff in a single cell in the Central Ce llblock. (Compl. ¶¶ 51, 84, 153, 156.) Quicksey, however, does not argue that the claims agains t her should be dismissed on the ground that there are insufficient allegations of her personal involvement.26 A. Conboy Conboy is alleged to have “created” two unconstitutional policies when he was the Superior Court Marshal. The first policy, “a polic y of having male U.S. Marshals search female transgender detainees” ( id. ¶¶ 126, 130, 134) is alleged to have “caused the unconstitutional cross-gender search[es]” in violati on of the Fourth Amendment. ( Id. ¶¶ 126, 130, 134.) The second policy, “an official policy, custom, or practice of intentiona lly disregarding gender information about transgender detainees communi cated by employees of the Metropolitan Police Department to members of the United States Marshals Service upon remand of the detainee to the custody of the United States,” 36 is alleged to have caused th e Fifth Amendment violations. ( Id. ¶¶ 28, 39, 61, 68, 90, 139.) Conboy has moved to dismiss on the ground thatthe complaint fails to allege two of the elements necessary to state a cl aim for policymaking liability under Haynesworth : (1) the existence of an unconstitutional policy; and (2) that Conboy was pers onally involved in the creation of any policy with respect to the treatment of transgender detainees. (USMS Mot. at 19; USMS Reply at 8-10.) The Court agrees with the USMS that the complaint’s “conclusory allegations” are insufficient “to establish Conboy’s personal invol vement in formulating a policy of ‘ignoring’ gender information presented by MP D employees and a policy of having male U.S. Marshals search female transgender detainees.” (USMS Reply at 10.) Plaintiff cannot simply allege that the official she seeks to hold liable created a unwritten or de facto policy that led to her constitutional injuries absent an y factual basis for that allegation. See, e.g ., Weise v. Jenkins , 796 F. Supp. 2d 188, 200 (D.D.C. 2011) (“Altho ugh Defendants undoubtedly had the formal

36 This policy is also described as “a written or de facto policy of in tentionally disregarding gender information about transge nder detainees.” (Compl. ¶ 9.)27 power to formulate a national policy, Plaintiffs must establish that Defendants actually exercised that power to generate improper practices.”). Everything that happene d to plaintiff happened after Conboy was no longer the Superior Court Marshal, thus her treatment while in custody, while it might support an inference that these policies existed, does not support the allegation that Conboy created such policie s during his tenure. Nor does th e complaint allege that any other transgender detainee expe rienced treatment similar to plaintiff’s while Conboy was Superior Court Marshal. Fina lly, although the MPD issued the MPD Transgender Order while Conboy was the Superior Court Marshal, that alone is not sufficient to support an inference that Conboy created the alleged policies in response th ereto. Accordingly, the claims against Conboy will be dismissed on the ground that the complaint fails to plausibly allege th at he created either a policy of having male USMS employees search female transgender deta inees or a policy of ignoring a detainee’s tr ansgender status.

B. Kates Kates is alleged to have failed to train, supervise or discipline subordinate USMS employees in the appropriate treatment of female transgender detainees. (Compl. ¶¶ 27, 38.) His motion to dismiss contends that the allegations of the complaint are insufficient to state a claim because neither his “ultimate authority” nor th e allegations that “foc us on his training and supervision” are sufficient to “render [him] pers onally liable for the alleged wrongful acts of individual USMS employees.” 37 (USMS Mot. at 18.) There is no question that Kates cannot be

37 The complaint relies on two dis tinct theories of liability to support the claims against Kates: policymaking liability for the F ourth Amendment claim and supervisory and training liability for the Fifth Amendment claim. ( See Compl. ¶¶ 126, 130, 140, 143-45.) However, the USMS defendants’ motion to dismiss appears to assume that the only claims against Kates are based on a theory of supervisory and training liabilit y, which he challenges without distinguishing between the Fourth and Fifth Amendment violati ons. Accordingly, for purposes of this motion,28 held liable for the actions of subordinates ba sed solely on his position as the Superior Court Marshal (his “ultimate authority”), bu t that is not what plaintiff alleges. 38 ( See Compl. ¶¶ 27-28.) As for his alleged failure to train, supervise ordiscipline, he argues that the allegations are insufficient to establish that he had an obligati on to train or supervise in the manner plaintiff alleges – on not treating female transge nder detainees as if they are male. 39 (USMS Reply at 9.) Relying on Elkins , Kates asserts that the complaint (1 ) fails to allege “any history of constitutional transgressions by USMS” and thus “‘no pattern of constitutional violations to put [the official] on notice th at training was required’” (USMS Reply at 9 (quoting Elkins , 690 F.3d at 566); and (2) fails to allege “tra ining that is so clearly deficien t . . . that some deprivation of constitutional rights will inevitably result.” ( Id .) Plaintiff appears to concede the first point, but not the s econd. As she points out, the complaint alleges that Kates engaged in no training or supervision as to the treatment of female the only issue before the Court is whether the complaint fails to state a claim against Kates for supervisory and training liability. 38 The citation to Akers v. Watts , does not help defendants’ argument because the court in Akers dismissed defendants against whom there were no allegations of either policymaking liability or supervisory or training liabilit y. 740 F. Supp. 2d 83, 93 (D.D.C. 2010). 39 Specifically, plaintiff claims that Kates is liable for failing to adequately train “on the need to individually evaluate female transgender pretrial detainees to determine whether the inmate should be placed in a cell alone or with wome n, instead of with men” (Compl. ¶¶ 38, 67, 140), “about the likelihood of harm fr om placing a transgender woman in a bullpen with men” ( id. ¶ 69), “on the need to allow female transgender pr etrial detainees the same privacy accorded to other female detainees” and not require someone lik e plaintiff to expose he r genitalia and urinate in a cup in front of men ( id. ¶¶ 36, 143), “on the need to have female U.S. Marshals Service employees search female transgender pretrial detainees” ( id. ¶ 144), and “on the need to have gender-appropriate searches of transgender detainees.” ( Id. ¶ 145). In addition, plaintiff claims Kates is liable for failing to adequately superv ise and discipline USMS employees who “placed transgender women at risk for harm by placing them in a bullpen with men”( id. ¶¶ 38, 67, 69, 140), “required female transgender detain ees to urinate in front of men” ( id. ¶¶ 36, 143), were male and “searched female transgender detainees” ( id. ¶ 144), “who decided or ordered male [USMS] employees to conduct searches of female transg ender detainees” ( id. ¶ 144), or “physically and sexually abused detainees during searches.” ( Id. ¶ 145.)29 transgender detainees despite know ing the harm that was “likely to occur” if plaintiff were treated as if she were male. (P l. Opp. to USMS Mot. at 22-2 3.) The question is not whether plaintiff’s claim against Kates will ultimately succeed, but only whethe r these allegations are sufficient to adequately allege an obligation to tr ain or supervise as to the appropriate treatment of female transgender detainees. Kates focuses on “plaintiff’s citation to a Management Alert Report issued by the D.C. Office of the Inspec tor General issued on April 4, 2008,” arguing that there is no basis to infer from that report any aw areness of the type of problem that ultimately occurred. However, that report is not the only basi s for plaintiff’s allegati on that harm was likely and that Kates knew it. ( See id. at 22-23 (citing ¶ 35 (allegations that harms was likely to occur based on numerous complaints and reports)).) These reports, along with the “obviousness” of the risk of harm when a female detainee, transg ender or not, is treated as plaintiff was, are sufficient to allege an obligation to train or supervise and allow the claims against Kates to proceed. III. CLAIMS AGAINST CHIEF OF POLICE LANIER Lanier argues that the claims against he r under the D.C. Human Rights Act should be dismissed for lack of proper service or because they are duplicative of the claims against the District. (Lanier Mot. at 1.) Th e Court agrees that La nier has not been prope rly served as Lanier was not named as a defendant prior to the filing of the First Amended Complaint. Thus, service of process must satisfy Federal Rule of Civil Procedure 4, not Superior Court Civil Rule 5. Accordingly, the claims against Lanier will be dismissed without prejudice. 40

40 Plaintiff may seek additional time to prope rly serve Lanier, but th e Court doubts that her presence in the case is necessary. The sole clai m against Lanier is agai nst her in her official capacity and is limited to seeking injunctive relief. ( See Compl. ¶¶ 163-64; Prayer for Relief (plaintiff seeks an injunction to correct the PDID database to reflect plai ntiff’s legal name and30 CONCLUSION Accordingly, and for the reasons stated above, the USMS defendants’ motion to dismiss will be granted as to the claims against Conboy, but denied as to the claims against Kates and Musgrove; Quicksey’s motion to dismiss will be denied; and Lanier’s motion to dismiss will be granted. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: May 13, 2013

sex)). This relief can be achieved without naming Lanier as a defendant b ecause the District is already a named and proper ly served defendant.