UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DASKALEA, SUNDAY

v.

DC


98-7207a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Uncontradicted evidence at the  trial of this
case established the routine sexual abuse of  women inmates by prison
guards at the District of Columbia  Jail. The plaintiff, Sunday
Daskalea, suffered from a con- tinuing course of such abuse,
culminating in an evening  during which "correctional" officers forced
her to dance  naked on a table before more than a hundred chanting, 
jeering guards and inmates. The District asks us to relieve it  of all
responsibility for this conduct, contending that the facts  fail to
establish the "deliberate indifference" necessary to  sustain a
municipality's liability for the acts of its employees.  But
"deliberate indifference" is precisely how any reasonable  person
would describe the District's attitude toward its wom- en prisoners,
and we therefore uphold in full the jury's award  of $350,000 in
compensatory damages. We are unable, how- ever, to uphold the jury's
punitive damages award because  District of Columbia law bars the
imposition of such awards  against the District. And because Daskalea
sued co- defendant Margaret Moore solely in her official capacity as 
Director of the Department of Corrections, plaintiff must look  to the


I


This is not the first time the federal courts have reviewed  charges of
sexual abuse by D.C. correctional officers against  female inmates. In
1993, a class action was filed on behalf of  all women prisoners under
the care of the District of Colum- bia correctional system. See Women
Prisoners v. District of  Columbia, 877 F. Supp. 634 (D.D.C. 1994). In
that case, the 


district court found a pattern of rape and sexual assault-- coupled
with other forms of sexual harassment, inadequate or  nonexistent
staff training, and retaliation against women who  filed
complaints--that rose to a level of objective cruelty  sufficient to
violate the Eighth Amendment. See Women  Prisoners, 877 F. Supp. at
639-43, 664-67; see also Women  Prisoners v. District of Columbia, 93
F.3d 910, 929, 931 (D.C.  Cir. 1996). The court further found that the
inmates had  filed complaints and written letters to prison
administrators  to no avail, and that the harassment was obvious and
widely  known. It concluded that the District of Columbia had acted 
"with 'deliberate indifference' to the condition of sexual  harassment
which women prisoners at the [District's facili- ties] must endure,"
and that the District was therefore liable  under 42 U.S.C. s 1983 for
the violation of the inmates'  constitutional rights. See Women


On the basis of the foregoing, the Women Prisoners court  issued a
detailed order on December 13, 1994, requiring the  Department of
Corrections to "take all action necessary to  remedy and prevent"
sexual harassment of female inmates by  its employees. The court
specifically directed the Depart- ment to issue, distribute, and post
a sexual harassment policy  within sixty days, and to conduct
mandatory training on  sexual harassment for both employees and female
inmates.  See Women Prisoners, 877 F. Supp. at 679-81.


On May 15, 1995, the Department of Corrections issued a  policy in
response to the Women Prisoners order. The policy  forbade sexual
misconduct and harassment, as well as retalia- tion for the filing of
complaints regarding such behavior, and  directed the institution of
mandatory training. Although  some of the guards who testified at
Daskalea's trial remem-




__________

n 1 The District did not appeal the district court's finding of 
liability. See Women Prisoners, 93 F.3d at 928. Although it did 
appeal aspects of the court's remedial order, the District did not 
challenge the requirement, discussed below, that it promulgate a 
sexual harassment policy. This court ultimately overturned por- tions
of the remedy not relevant here and remanded for further  proceedings.
See id. at 931-32.


bered receiving the policy, others did not. No inmate testi- fied to
receiving the policy, and officers admitted that the  policy was never
posted. There was no evidence that the  training requirements were
implemented nor that any signifi- cant corrective intervention


Against this background, we now turn to a consideration of  the
specific facts of Daskalea's case.


A


Daskalea was arrested on drug charges and sent to the  D.C. Jail on
October 26, 1994--two months before the district  court issued its
decision and order in the Women Prisoners  litigation. She was
initially housed in South 1, the unit used  primarily for women
awaiting trial and for those in either  solitary confinement or
protective custody. From the begin- ning of her confinement, Daskalea
testified that she was  called "whore," "white bitch," "cracker," and
other epithets by  guards and inmates alike.2


In January 1995, Daskalea was moved to Southeast 1.  This unit housed
approximately eighty women who were  serving short-term sentences.
Upon arrival, she was met  with rumors that she was an undercover FBI
agent. She was  threatened by other inmates, including one who--in the
pres- ence of several guards who did not intervene--told her:  "Bitch,
you better sleep with one eye open." Daskalea's fears  of attack were
realized when she was subsequently assaulted  by two inmates.


The civilian employee in charge of the Jail's library, Ed- ward
Gardner, was well known for providing inmates with  cigarettes in
exchange for sex. It was also widely known that 




__________

n 2 This recitation of facts is taken from the testimony of plain-
tiff's witnesses, which stands largely unrebutted because the Dis-
trict did not offer any evidence of its own. Even if that were not 
the case, when reviewing a jury's verdict we must adopt the version 
of the facts most favorable to the party prevailing below. See 
Kirkland v. District of Columbia, 70 F.3d 629, 635 (D.C. Cir. 1995).


the rooms adjacent to the library were routinely used for sex  between
library staff and inmates. When Daskalea first  attempted to use the
library's research materials, Gardner  leered at her and rubbed his
genitals. She rebuffed his  advances, and thereafter had difficulty
obtaining any assis- tance from the library staff. Some time later, a
guard took  Daskalea out of her cell and brought her to the library.
The  guard led her to a room where a male inmate, notorious for 
engaging in sexual misconduct in the library, was waiting.  The inmate
then attacked her, attempting a sexual assault.


As time went on, the campaign of fear, harassment, and  violence
against Daskalea--on the part of both staff and  inmates--intensified.
Guards told her they would break her.  One day, when inmates were
supposed to be on lockdown, a  prisoner known as Bootsie came to
Daskalea's cell and spat  and cursed at her. Later that day a guard,
Sgt. Theresa  Noble, forcibly restrained Daskalea's hands while
Bootsie  attacked her. Plaintiff stopped sleeping at night for fear
she  would be raped or assaulted.


The testimony at trial disclosed a culture of routine accep- tance of
sexual encounters between staff and inmates on  Southeast 1. One cell,
known as Cell 73, was kept empty and  used for sex between prisoners
and guards. It was also used  by staff to sleep off
drunkenness--particularly by Officer  Yvonne Walker, the officer in
charge of the evening shift.  There was also testimony that one of the
inmates, Jacky  Newby, was threatened by a guard jealous of Newby's
sexual  relationship with evening-shift guard Quida Graham.


Daskalea repeatedly complained to the authorities about  sexual
harassment. She filed more than fifteen official Inter- nal Grievance
Procedure Forms and wrote letters directly to,  among others, the
Deputy Warden, Warden, and Director  Moore. She also wrote to the
judge in her criminal case, who  held a hearing at which Daskalea's
complaints of sexual  harassment were aired. Notwithstanding the
judge's written  recommendation that "defendant be moved from D.C.


J.A. at 484 (commitment order), she was not. Nor did prison 
authorities intervene in any other way to stop the abuse.


All of the above turned out to be a mere prelude to the  events of July
20, 1995. During the weeks preceding that  date--on at least three
occasions and perhaps as often as  weekly--Officer Walker, the head
guard on the evening shift,  organized a series of evenings during
which female inmates  stripped and danced provocatively to loud music.
Both fe- male and male guards were present and, according to the 
testimony at trial, some guards assaulted inmates who re- fused to


On the evening of July 20, the Jail's cell doors were kept  open
because the air conditioning system was malfunctioning.  Sometime that
evening, while plaintiff was sitting in her cell,  loud music began
and inmates started moving to the dining  area. Daskalea followed,
arriving late and standing at the  back of the crowd. There, at the
center of attention, was  Officer Walker, doing a handstand on one of
the dining tables  and gyrating her hips provocatively. Soon, at
Walker's insti- gation, three inmates climbed onto the table and began
 dancing, completely naked, while the crowd cheered. One of  the
dancing inmates performed a lewd act, and Officer Walk- er placed her
head between the inmate's legs to get a closer  look. By that point,
all of the inmates, numerous female  guards, and several male guards
and maintenance workers  were in attendance.


Then, someone called out Daskalea's name. Fearing what  might be
coming, plaintiff fled back to her cell, but was  unable to close the
door. A few minutes later, Officer Walker  bellowed out the command:
"Get Sunday down here!" The  crowd began chanting Daskalea's name, and
the dancing  stopped. Two inmates pulled plaintiff out of her cell,
one  taking each arm while a third followed behind preventing  escape.
The inmates dragged Daskalea to the center of the  crowd. Officer
Walker commanded her to dance, and when  Daskalea hesitated, Walker
visibly angered. Afraid, Daska- lea complied. She removed all of her
clothes except for her  underwear and attempted to dance to the music.


was in such a state of shock and fear that her legs trembled.  Guards
began shouting and clapping; some flashed money.  Officer Walker tried
to get Daskalea to remove her under- wear. An inmate began rubbing
baby oil all over Daskalea's  body. The inmate then began rubbing her
own body against  Daskalea's. Plaintiff lost control of her legs and
collapsed to  the ground. The other inmate lay on top of her.
Eventually,  the guards permitted Daskalea to take her clothes and
return  to her cell. Later that night, both guards and inmates 
approached her, communicating sexual interest. One guard  exposed
herself to Daskalea while telling her how much she  enjoyed the


During the next few days, word spread about the incident.  When inmate
Newby submitted a grievance complaining of  sexual harassment,
assault, and threats by correctional offi- cers, Lt. Edward Given
"counseled" Newby to mind her own  business. Subsequently, Daskalea
was summoned to the  office of a Mr. Lytle, who asked her about the
forced strip- tease. Although Daskalea expressed concern that guards 
would retaliate against her if she discussed it, Lytle assured  her
that they would not.


Just days later, however, an officer arrived at Daskalea's  cell and
demanded that she turn over all of her underwear as  "contraband."
Plaintiff's request to talk to Lytle was ig- nored. A lieutenant
appeared, told Daskalea she was going  to solitary, and when she
protested threatened to mace her.  She was then placed in solitary
confinement, without any of  her belongings and, at first, without a
mattress. A guard  who went back to Daskalea's cell to retrieve her
personal  items, including her legal papers, found another guard going
 through them. The second guard told the first that Daskalea  would
not be getting them back.


Daskalea's requests to call an attorney were refused. She  wrote a
letter to the Warden to report the forced stripping.  When she
subsequently saw the Warden, however, he  brushed her off and turned


The Warden appointed a committee, headed by Acting  Deputy Warden
Brenda Makins, to investigate the nude 


dancing incidents. When the Makins' Committee asked to  speak with
Daskalea in early August--at which time she was  being held in
solitary confinement--it was informed that she  had already been
discharged. The Committee concluded that  Daskalea had been forced to
dance for the assemblage (in- cluding both female and male guards)
against her will, and  that nude dancing had taken place on three
earlier dates the  same month. The Makins Report named fourteen guards
 who had "aided and abetted" the "sexual misconduct" and/or 
"assault." These included the lead guard, Officer Walker,  who was
also found to have attacked another prisoner while  the prisoner was
hand-cuffed and in the presence of other  guards. In addition, the
Committee concluded that eight  officers, ranging from corporals to
lieutenants, had been  negligent, and that the "misconduct/assault was
effected due  to," among other things, "poorly trained supervisors."
The  Committee further found that officers had tried to cover up  the
incidents by providing it with false information. At trial,  Director
Moore testified that she had never read the Makins  Report.


B


Daskalea was released from prison at the end of August  1995. On
October 30, 1996, she filed a lawsuit alleging  violations of her
civil rights under 42 U.S.C. s 1983. Her  second amended complaint
added common law claims of  negligent supervision and intentional
infliction of emotional  distress. The parties agreed to refer the
case to a magistrate  judge for all purposes pursuant to 28 U.S.C. s


At trial, the named defendants were the District of Colum- bia and
Director Moore. Daskalea testified on her own  behalf, along with
other inmates and six former or present  Department of Corrections
employees. Among the latter  were Brenda Makins, head of the
investigatory committee,  whose report was introduced into evidence.
Daskalea also  called as a witness defendant Moore, who, among other 
things, testified about the district court's findings and order  in
the Women Prisoners case; the order itself was entered 


into evidence. Defendants introduced no evidence. The jury  found them
liable on all counts and awarded $350,000 in  compensatory damages and
$5 million in punitive damages.  Defendants moved for judgment as a
matter of law or, in the  alternative, for a new trial or remittitur
on the ground that  the damages award was excessive. The court denied
the  motion.


In this court, defendants press most of the arguments they  advanced
below. In particular, they deny liability under  section 1983, deny
liability under the common law of the  District, assert immunity
against punitive damages, and con- tend that Director Moore cannot be
held personally liable  because she was sued solely in her official
capacity. We  consider each of these contentions below.


II


We begin with an examination of the issues raised by the  District
regarding the jury's finding of liability and award of  damages under
42 U.S.C. s 1983.


A


Section 1 of the Civil Rights Act of 1871, now codified at 42  U.S.C. s
1983, provides a cause of action for monetary dam- ages and injunctive
relief against "[e]very person who, under  color of [law] ... subjects
or causes to be subjected, any  person ... to the deprivation of any
rights, privileges, or  immunities secured by the Constitution...."
The District  does not dispute that the guards who assaulted and
torment- ed plaintiff violated her Eighth Amendment right to be free 
of "cruel and unusual punishments." U.S. Const. amend.  VIII; see
Hudson v. McMillian, 503 U.S. 1, 7-9 (1992)  (holding Eighth Amendment
is violated, even in the absence  of serious injury, when guard uses
force against prisoner  maliciously and sadistically to cause harm,
rather than in  good-faith effort to maintain discipline); Schwenk v.
Hart- ford, 204 F.3d 1187, 1196-97 (9th Cir. 2000) (holding guard's 
attempted rape of prisoner constituted Eighth Amendment 


violation). The only question is whether the District may be  held
liable for that violation.3


There is also no disagreement over the appropriate stan- dard for
determining whether the District may be held liable.  In Monell v.
Department of Social Services, 436 U.S. 658  (1978), the Supreme Court
ruled that a municipality is a  "person" who can be held liable under
section 1983, but only  when the municipality's "policy or custom ...
inflicts the  injury." Id. at 694. In subsequent cases, the Supreme
Court  and this court have held that a city's inaction, including its 
failure to train or supervise its employees adequately, consti- tutes
a "policy or custom" under Monell when it can be said  that the
failure amounts to " 'deliberate indifference' towards  the
constitutional rights of persons in its domain." City of  Canton v.
Harris, 489 U.S. 378, 388-89 & n.7 (1989) (recog- nizing municipal
liability under s 1983 for failure to train  adequately); see Rogala
v. District of Columbia, 161 F.3d 44,  56 (D.C. Cir. 1998)
(recognizing liability for failure to train or  supervise); Triplett
v. District of Columbia, 108 F.3d 1450,  1453 (D.C. Cir. 1997) (noting
that "inaction giving rise to or  endorsing a custom" can be basis of


The District has no objection to the manner in which the  jury was
charged on the question of municipal liability. Its  only contention
is that there was insufficient evidence upon  which to base a finding
of deliberate indifference, and that the  magistrate should therefore
have granted its motion for judg- ment as a matter of law under
Federal Rule of Civil Proce- dure 50(a). We review de novo a trial
court's ruling on such a  motion. See United States ex rel. Yesudian
v. Howard Univ.,  153 F.3d 731, 735 (D.C. Cir. 1998). Because granting
judg- ment as a matter of law "intrudes upon the rightful province  of
the jury, it is highly disfavored." Id. (quoting Boodoo v. 




__________

n 3 Although plaintiff's complaint also asserted violations of due 
process and equal protection under the Fifth Amendment, only the 
Eighth Amendment issue was submitted to the jury.


4 See also Atchinson v. District of Columbia, 73 F.3d 418, 419  (D.C.
Cir. 1996) (failure to train); Parker v. District of Columbia,  850
F.2d 708, 712 (D.C. Cir. 1988) (same).


Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994)). It "is warranted  only if
'no reasonable juror could reach the verdict rendered  in th[e] case.'
" Id. (quoting Anderson v. Group Hospitaliza- tion, Inc., 820 F.2d
465, 473 (D.C. Cir. 1987)).


We conclude that the jury had more than sufficient evi- dence upon
which to base its finding of deliberate indiffer- ence. Only seven
months prior to Daskalea's forced strip- tease, a federal district
court had found the District liable  under section 1983 for being
deliberately indifferent to the  repeated sexual abuse and harassment
of women prisoners by  D.C. correctional officers. The court noted a
failure to train  officers to prevent such misconduct, and ordered the
District  to take all steps necessary to prevent sexual harassment of 
female prisoners, including the institution of mandatory train- ing.
Given this history, the District and its policymakers  were on notice
that D.C. guards lacked basic respect for the  rights of female
inmates, and that absent substantial inter- vention, the pattern of
unconstitutional behavior would per- sist.


Notwithstanding the court's unequivocal findings and or- der, the
sexual abuse of women prisoners at Southeast 1  continued in an open
and notorious manner. The use of the  library for sexual trysts
between guards and inmates was well  known. Nude dancing incidents,
accompanied by blaring  music and raucous crowds, took place on a
regular basis.  There was no evidence that a training program or any
other  corrective measure was implemented. Daskalea repeatedly 
complained of sexual abuse, sending grievance forms and  letters to
everyone from correctional officers to the Deputy  Warden, Warden, and
Director of the Department. Given  the notice afforded by the Women
Prisoners order and  Daskalea's own letters, and the open and
notorious nature of  the continued abuse, a jury could reasonably have
concluded  that the District was deliberately indifferent to the
constitu- tional rights of its women prisoners. See Canton, 489 U.S.
at  390 n.10 (recognizing municipal liability where officers "so 
often violate constitutional rights that the need for further 
training must have been plainly obvious to the city policymak- ers");
Atchinson, 73 F.3d at 421 (same); see also Board of 


County Comm'rs v. Brown, 520 U.S. 397, 407-08 (1997)  (recognizing that
"the existence of a pattern of tortious  conduct by inadequately
trained employees may tend to show  that the lack of proper training
... is the 'moving force'  behind the plaintiff's injury"); id. at 407
(noting that "munici- pal decisionmakers['].... continued adherence to
an ap- proach that they know or should know has failed to prevent 
tortious conduct by employees may establish the conscious  disregard
for the consequences of their action--the 'deliber- ate
indifference'--necessary to trigger municipal liability").


Finally, the jury had additional, direct evidence from which  it could
have concluded that the District's policymakers were  indifferent to
the plight of women in the Jail, and specifically  to the plight of
Sunday Daskalea. Margaret Moore, Director  of the Department of
Corrections, testified at the trial. Not- withstanding the notoriety
of the incident, Moore conceded  that she had not read the Makins
Report and had not  familiarized herself with the events at issue.
Moreover,  notwithstanding the findings of the report, Moore
pronounced  herself unaware of the multiple nude dancing incidents
that  preceded Daskalea's humiliation, and she took no action to 
protect Daskalea from the subsequent harassment and soli- tary
confinement that a jury reasonably could have regarded  as retaliation


The District's principal defense to section 1983 liability is  that,
because the abuses in this case were committed by  female guards,
while those in Women Prisoners were commit- ted by males, Women
Prisoners did not sufficiently put it on  notice of the kind of
constitutional violations that Daskalea  would suffer. We reject this
argument as cutting the notice  issue much too finely. Moreover, its
premise is factually  inaccurate: several of the incidents in this
case did involve  male-on-female harassment. To take but three
examples:  the librarian who demanded sexual favors of Daskalea was a 
male; the guard who brought her to the library to be  attacked by a
male prisoner was a male; and the group of  guards and other employees
who were "entertained" by Das- kalea's forced striptease included


The District also attempts to turn the very court order that  required
it to issue a harassment policy into a defense against  liability for
its guards' harassment. Because the Department  of Corrections
eventually did issue such a policy, the District  argues, it is clear
that sexual harassment was against District  "policy" and hence may
not be the subject of a section 1983  action. This argument has two
flaws. First, the policy upon  which the District relies was not
issued until well after many  of the events of which Daskalea
complains. Second, a "pa- per" policy cannot insulate a municipality
from liability where  there is evidence, as there was here, that the
municipality was  deliberately indifferent to the policy's violation.
See Ware v.  Jackson County, 150 F.3d 873, 882 (8th Cir. 1998) ("[T]he
 existence of written policies of a defendant are of no moment  in the
face of evidence that such policies are neither followed  nor
enforced."). That evidence included not only the contin- ued blatant
violation of the policy, but also the fact that the  policy was never
posted, that some guards did not recall  receiving it, that inmates
never received it, and that there  was no evidence of the training
that was supposed to accom- pany it. Indeed, the Department
purportedly had a "policy"  against sexual harassment even before the
court order in  Women Prisoners--a policy that court found to have


The District makes one further attempt at legal jujitsu-- trying to
turn Daskalea's evidence against her by arguing  that the very fact
that guards sought to conceal the July 20  incident is proof that the
abuse was only undertaken "by a  small group of rogue employees,
acting surreptitiously." Re- ply Br. at 16. In Triplett v. District of
Columbia, we did note  that "[c]over-up efforts at relatively low
levels in the hierar- chy not only reduce the likelihood that
policymakers will  learn of the covert practice, but suggest a belief
by the  subordinates that their behavior violates established policy."
 108 F.3d 1450, 1453 (D.C. Cir. 1997). But here the miscon- duct can
hardly be described as that of a few "rogues." The  District's own
investigative committee charged fourteen  guards with "aiding and
abetting" sexual misconduct and/or  assault, and charged several


lieutenants--with negligence. Moreover, whatever the par- ticipants did
to cover up the July 20 incident, the series of  bacchanalian nights
that preceded it was open and notorious,  and the jury could
reasonably have concluded that if such  behavior were not known to
prison policymakers, it was only  because of their deliberate
indifference to conditions at the  Jail. Accordingly, we affirm the
jury's verdict against the  District under 42 U.S.C. s 1983. 5


B


The District urges that even if we affirm the jury's finding  of
liability, we should grant a new trial with respect to the  amount of
the compensatory damages award. We review  trial courts' rulings on
motions for new trial only for an abuse  of discretion. See Langevine
v. District of Columbia, 106  F.3d 1018, 1023 (D.C. Cir. 1997). A jury
award must stand  unless it is "beyond all reason" or "so great as to
shock the  conscience." Williams v. Steuart Motor Co., 494 F.2d 1074, 
1085 (D.C. Cir. 1974). "Courts may not set aside a jury  verdict
merely deemed generous; rather, the verdict must be  so unreasonably
high as to result in a miscarriage of justice."  Langevine, 106 F.3d
at 1024 (citing Barry v. Edmunds, 116  U.S. 550, 565 (1886)). And
remittitur of a jury verdict is  appropriate only if the verdict "is
so inordinately large as  obviously to exceed the maximum limit of a
reasonable range  within which the jury may properly operate." Id. at
1024  (internal quotation omitted); see Carter v. District of Colum-
bia, 795 F.2d 116, 135 n.13 (D.C. Cir. 1986).


The District argues that there was insufficient evidence to  justify a
compensatory award of $350,000 because Daskalea 




__________

n 5 The District also contends that proof of its adherence to the 
harassment policy is demonstrated by the fact that employees were 
disciplined for its violation. But while there was some evidence  that
discipline followed the July 20 incident, too late to be of any 
comfort to Daskalea, the only person identified as having been 
terminated was Brenda Makins--the author of the investigative  report
that found serious wrongdoing at the Jail--allegedly because  she had
lied about her home address.


"suffered no physical injury," because her damages evidence  was
limited to her own testimony, and because she did not  establish a
"causal link" between the unlawful acts and the  harm she suffered. We
disagree.


First, it is well established that "mental and emotional  distress" are
"compensable under s 1983," even in the ab- sence of physical injury.
Carey v. Piphus, 435 U.S. 247, 264  (1978); see Gray v. Spillman, 925
F.2d 90, 94 (4th Cir. 1991)  (noting that "even in the absence of
physical injury," plaintiff  may prove actual damages under s 1983
"based on injuries  such as 'personal humiliation' and 'mental anguish
and suffer- ing' ") (quoting Memphis Community Sch. Dist. v. Stachura,
 477 U.S. 299, 307 (1986)). Moreover, Daskalea plainly did  suffer
"physical" injury through sexual assault. If what the  District means
is that she did not suffer permanent injury  from such attacks, we
emphatically disagree with the proposi- tion that a person may not
recover damages for a constitu- tional violation unless she suffers
lasting physical harm.


Second, no expert testimony was required to bolster that of  Daskalea
and her witnesses, or to show the causal link  between her treatment
in prison and her injuries. See Price  v. City of Charlotte, 93 F.3d
1241, 1251 (4th Cir. 1996) ("A  survey of the case law reveals that a
plaintiff's testimony,  standing alone, may support a claim of
emotional distress  precipitated by a constitutional violation.")
(collecting cases).  The unrebutted evidence showed that she was
subjected to  continuing sexual abuse and harassment, was denied
library  assistance because she refused to have sex with the
librarian,  was set up by correctional officers to be assaulted, was 
attacked with the assistance of correctional officers, was  forced to
perform a striptease for guards and inmates, and  thereafter was
confined in isolation without underwear or a  mattress. Daskalea
testified that, as a result, she felt con- stant stress, anxiety, and
dread of imminent sexual attack.  She had to sleep during the day for
fear of what the guards  might do at night. After her release, she
suffered from  insomnia and eating disorders, and spent months
emotionally  and psychologically debilitated, withdrawn, and
depressed.  These injuries are hardly surprising or unexpected in


the abuse Daskalea suffered, and it does not take an expert to  confirm
the jury's common sense with respect to both their  existence and
cause.


Finally, we have no basis for questioning the amount of the  jury's
award. The jury's valuation of Daskalea's damages  "was neither beyond
all reason nor so great as to shock the  conscience." Langevine, 106
F.3d at 1024 (affirming award of  $200,000 under s 1983 for, inter
alia, pain, suffering, humilia- tion, and emotional distress, despite
only minor physical  injury arising from single incident). Indeed, a
"court must be  especially hesitant to disturb a jury's determination
of dam- ages in cases involving intangible and non-economic injuries."
 Id. The magistrate's denial of the District's motion for a new  trial
is therefore affirmed.6


III


In addition to finding the District liable for violating section  1983,
the jury found it liable on Daskalea's pendent claim for  negligent
supervision under the common law. The damages  verdict did not
distinguish between the grounds for liability,  and Daskalea concedes
that both theories represented at- tempts to impose liability for the
same predicate acts. The  District challenges this ground for
liability as well.


Under District of Columbia law, prison authorities have "a  duty to
exercise reasonable care under the circumstances in  the protection
and safekeeping of prisoners," Toy v. District  of Columbia, 549 A.2d
1, 6 (D.C. 1988), including the duty "to  use reasonable care in
supervising and controlling" their  employees, Morgan v. District of
Columbia, 449 A.2d 1102, 




__________

n 6 The District contends that a new trial should also be granted 
because the magistrate judge wrongly denied it an opportunity to 
cross-examine Daskalea as to whether some of the stress she  suffered
was actually caused by her alleged post-release activities  as an
informant. We review such a claim only for abuse of  discretion. See
United States v. White, 116 F.3d 903, 919 (D.C. Cir.  1997). The
magistrate found the District's proposed cross- examination to be both
irrelevant and prejudicial, and we perceive  no error.


1108 & n.3 (D.C. 1982), rev'd on other grounds, 468 A.2d 1306  (1983)
(en banc).7 The District may be held liable for dam- ages caused by
its negligence in carrying out that duty. See  Finkelstein v. District
of Columbia, 593 A.2d 591, 594-95  (D.C. 1991) (holding District
liable for negligence in death of  prisoner). That the District
negligently supervised its em- ployees in this case is an a fortiori
conclusion from the  finding, discussed in Part II.A. above, that the
District dis- played deliberate indifference with respect to the
treatment  of women prisoners by correctional officers.


The District's only real challenge to liability for negligent 
supervision is its claim that proof of the standard of care  requires
expert testimony, which Daskalea did not offer.  That, however, is not
the law of the District of Columbia. To  the contrary, the rule is
that "[p]roof of a deviation from the  applicable standard of care
need not include expert testimony  where the alleged negligent act is
'within the realm of com- mon knowledge and everyday experience.' "
Toy, 549 A.2d at  6 (quoting District of Columbia v. White, 442 A.2d
159, 164  (D.C. 1982)). Expert testimony is required only "where the 
subject presented is 'so distinctly related to some science, 
profession, or occupation as to be beyond the ken of the  average
layperson.' " Id. (quoting District of Columbia v.  Peters, 527 A.2d


It is true that in cases involving assaults on prisoners by  fellow
prisoners, the District of Columbia Court of Appeals  has held expert
testimony necessary to establish the standard  of care for "secur[ing]
the safety of an inmate," because a  "reasonably prudent juror cannot
be expected to appreciate  the ramifications of prison security."
District of Columbia v.  Carmichael, 577 A.2d 312, 314 (D.C. 1990)
(quoting Hughes,  425 A.2d at 1303); cf. Toy, 549 A.2d at 9 (holding
expert  testimony necessary to establish standard of care for adminis-
tration of cardiopulmonary resuscitation). But it does not 




__________

n 7 See Finkelstein v. District of Columbia, 593 A.2d 591, 594  (D.C.
1991); District of Columbia v. Mitchell, 533 A.2d 629, 639  (D.C.
1987); Hughes v. District of Columbia, 425 A.2d 1299, 1302  (D.C.


take an expert to establish that the District was negligent in 
permitting the kind of persistent, open and notorious conduct  at
issue here. Surely a juror could reasonably conclude that  the
District had been negligent (at best) when it failed to  notice, let
alone stop, a continuing series of evening stripteas- es, accompanied
by blaring music and guard-on-inmate vio- lence. See Morgan, 449 A.2d
at 1106, 1109 (stating that  expert testimony is not required to
establish "standard of  care for control and supervision of police
officers" because  "[d]iscipline of police officers ... is not a
matter which  laymen are incapable of intelligently evaluating without
the  assistance of expert testimony") (internal quotation omitted).


Nor did Daskalea's jury have to rely only upon its common  sense. As we
have noted, the Department's own investigat- ing committee concluded
that eight officers, ranging from  corporals to lieutenants, had been
negligent, and that the  "misconduct/assault was effected due to,"
among other things,  "poorly trained supervisors." Moreover, Patricia
Jackson,  Deputy Warden at the time of the events in question,
testified  that she agreed with the committee that the supervision had
 been inadequate, that officers were negligent, and that the  Jail was
grossly negligent in protecting women from sexual  misconduct.


The District also attacks the amount of damages awarded  for negligent
supervision, noting that the District of Columbia  Code bars local law
claims against the District unless, within  six months after the
injury, the potential claimant gives notice  in writing of the
"circumstances." D.C. Code s 12-309; see  Gross v. District of
Columbia, 734 A.2d 1077, 1081 (D.C.  1999). Because Daskalea did not
send the required notice  until November 21, 1995, the District
contends she cannot  recover for any injuries suffered before May 21
of that year.  We need not resolve the merits of this contention,
however,  as it has no bearing on the result in this case. The
six-month  notice requirement of the D.C. Code does not apply to 
plaintiff's claim under section 1983, see Brown v. United  States, 742
F.2d 1498, 1509 (D.C. Cir. 1984) (en banc), and 


that cause of action therefore provides an independent basis  for the
full amount of the damages award. 8


IV


In addition to compensatory damages, the jury awarded  Daskalea $5
million in punitive damages for her D.C. common  law claims. In this
Part, we consider the permissibility of  that award.


Daskalea did not seek punitive damages under 42 U.S.C.  s 1983,
conceding that she was not eligible for them in light  of the Supreme
Court's decision in City of Newport v. Fact  Concerts, Inc., 453 U.S.
247 (1981). See Daskalea Br. at 19.  In Fact Concerts, the Court
considered whether punitive  damages may be awarded against
municipalities under section  1983. It began by noting that
municipalities had long been  held immune from punitive damages under
the law of the  "vast majority" of the states. 453 U.S. at 259-60. It
then  surveyed the rationales for that result, declaring that "puni-
tive damages imposed on a municipality are in effect a  windfall to a
fully compensated plaintiff[,] are likely accompa- nied by an increase
in taxes or a reduction of public services  for the citizens footing
the bill," and punish only the "blame- less or unknowing taxpayers"
rather than the true wrong- doer, the offending government official.
Id. at 267. Finding  the same principles applicable to suits brought
under section  1983, the Supreme Court concluded that "a municipality
is  immune from punitive damages" under that statute as well.  Id. at
271. In a footnote, the Court preserved a potential  exception: "It is
perhaps possible to imagine an extreme  situation where the taxpayers
are directly responsible for  perpetrating an outrageous abuse of
constitutional rights."  Id. at 267 n.29


The District contends that it is immune from punitive  damages for the
common law tort of negligent supervision, 




__________

n 8 For the same reason, we need not address Daskalea's com- mon law
claim of intentional infliction of emotional distress, which  involves
the same predicate acts and produces no difference in the  damages
award.


just as it is for a violation of section 1983. As the District  points
out, the D.C. Court of Appeals has never permitted  such an award. In
Smith v. District of Columbia, 336 A.2d  831 (D.C. 1975), a case
decided before Fact Concerts, the  Court of Appeals rejected a claim
against the District for  punitive damages resulting from false arrest
and assault.  The court noted that "[t]he clear weight of authority in
the  states is that as a general rule there can be no recovery of 
punitive damages against a municipality absent a statute  expressly
authorizing it." 336 A.2d at 832. It then proceed- ed to quote six
paragraphs from a Florida Supreme Court  opinion explaining the
rationales for such immunity--ratio- nales similar to those later
surveyed by the U.S. Supreme  Court in Fact Concerts. See 336 A.2d at
832 (quoting Fisher  v. City of Miami, 172 So. 2d 455, 457 (Fla.
1965)).9 On the  basis of the Florida court's rationales, the D.C.
Court of  Appeals concluded: "Absent extraordinary circumstances not 
present here, we agree with the weight of authority and  conclude the
District of Columbia is not liable for punitive  damages." Id. at


The District argues that notwithstanding the Court of  Appeals'
caveat--"absent extraordinary circumstances not  present
here"--punitive damages are never available against  the District for
wrongs committed by its employees. That  argument is not without
support. The Florida opinion upon  which Smith rested held
municipalities wholly immune in the  absence of a legislative
authorization. See Fisher, 172 So. 2d  at 457. And in a subsequent en
banc opinion, the D.C. Court  of Appeals stated, this time without
qualification, albeit in  dictum, that: "punitive damages may not be
awarded against  the District of Columbia." Finkelstein v. District of
Colum- bia, 593 A.2d 591, 599 (D.C. 1991) (en banc) (citing Smith, 336
 A.2d at 832). The following year, the court again rejected a  claim
for punitive damages against the District, citing Fact  Concerts as




__________

n 9 Fact Concerts cited both Smith and Fisher as examples of 
"[j]udicial disinclination to award punitive damages against a munic-
ipality." 453 U.S. at 260 & n.21.


municipalities [are] immune from punitive damages." Ramos  v. District
of Columbia Dep't of Consumer and Regulatory  Affairs, 601 A.2d 1069,
1074 n.9 (D.C. 1992).


We need not go as far as the District urges to resolve this  case. Even
if the D.C. Court of Appeals would permit  punitive damages in some
not-yet-presented category of "ex- traordinary" cases, we are unable
to conclude that this case  would fit within that category. That is
not, in any way, to  minimize the offensiveness of the District's
conduct here.  But this is not a case that falls within the exception
noted in  Fact Concerts, where a jurisdiction's taxpayers are directly
 responsible for perpetrating the policies that caused the 
plaintiff's injuries. Nor is this a case where a municipality or  its
policymakers have intentionally adopted the unconstitu- tional policy
that caused the damages in question.10 Rather,  this is a case where
the charge against the District is "delib- erate indifference," and
the D.C. Court of Appeals has given  no hint that it would permit an
award of punitive damages in  such a case--if it would permit such an
award at all. Because  our role in deciding a pendent District of
Columbia claim is  only to ascertain what District law is, "not what
it ought to  be," Women Prisoners, 93 F.3d at 922 (quoting Klaxon Co.
v.  Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)), we are  unable
to do for Daskalea what the D.C. Court of Appeals has  never done for


V


The other named defendant in this case, Margaret Moore,  served at all
relevant times as the Director of the D.C.  Department of Corrections.
The jury returned a general 




__________

n 10 Cf. Kolstad v. American Dental Ass'n, 119 S.Ct. 2118, 2125- 26
(1999) (noting that "[t]he justification of exemplary damages lies  in
the evil intent of the defendant") (internal quotation omitted); 
Rieser v. District of Columbia, 563 F.2d 462, 481-82 (D.C. Cir.  1977)
(declining to find "extraordinary circumstances" justifying  punitive
damages against District, notwithstanding parole officers'  breach of
duty leading to murder of plaintiff's daughter), vacated  then
reinstated in relevant part by en banc court, 580 F.2d 647  (D.C. Cir.


verdict finding "defendants" liable on all counts. Moore and  the
District contend that Moore was sued solely in her official  capacity,
and hence cannot be held personally liable for the  damages award.
Daskalea contends that she sued Moore in  her individual (personal)
capacity, and that Moore therefore is  liable not only for the
$350,000 in compensatory damages, but  also--because she is not an
immune municipality--for $5  million in punitive damages. See
generally Kentucky v. Gra- ham, 473 U.S. 159, 165-66 (1985) (holding
that a government  official may be held personally liable only if sued
in an  individual rather than official capacity); Atchinson v.
District  of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (same); Esk-
ridge v. Jackson, 401 A.2d 986, 989 n.7 (D.C. 1979) (same  under D.C.
law); Keith v. Washington, 401 A.2d 468, 470-71  (D.C. 1979) (same).
The magistrate judge agreed with Das- kalea and held Moore personally
liable for the entire amount  of both awards.


Neither the complaint nor any other pleading filed by  plaintiff
indicates whether Moore was charged in her official  or her individual
capacity. In some circuits, that would be  the end of the matter, as
they require a plaintiff who seeks  personal liability to plead
specifically that the suit is brought  against the defendant in her
individual capacity.11 Although  it has not definitively resolved the
issue, see Hafer v. Melo,  502 U.S. 21, 24 n.* (1991), the Supreme
Court has typically  looked instead to the "course of proceedings" to
determine  the nature of an action. See Graham, 473 U.S. at 167 n.14; 
Brandon v. Holt, 469 U.S. 464, 469 (1985). Following the  Supreme
Court's lead, this circuit has joined those of its  sisters that
employ the "course of proceedings" approach.  See Atchinson, 73 F.3d
at 425.12 Like the Supreme Court, 




__________

n 11 See Soper ex rel. Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 
1999) ("Generally, plaintiffs must designate in which capacity they 
are suing defendants; if not, by operation of law, defendants are 
deemed sued in their official capacities."); see also Hafer v. Melo, 
502 U.S. 21, 24 n.* (1991) (citing Wells v. Brown, 891 F.2d 591, 592 
(6th Cir. 1989); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989)).


12 See Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (examin- ing
"the nature of the plaintiff's claims, the relief sought, and the 


however, we remind litigants that "it is obviously preferable  for the
plaintiff to be specific in the first instance to avoid any 
ambiguity." Hafer, 502 U.S. at 24 n.* (internal quotation  omitted).


We conclude that the course of proceedings in this case  neither put
Moore on notice that she was being sued in her  individual capacity,
nor evidenced her understanding that her  personal liability was at
stake. As noted, the complaint itself  did not give her such a
warning, stating only that "Defendant  Moore is the Director of the
D.C. Department of Corrections  and is responsible for the overall
operation of that Depart- ment and each institution of which it is
comprised, including  the D.C. Jail." Nor did the complaint seek to
hold the  defendants jointly and severally liable, a formulation that 
might have given some indication of an intention to sue Moore  in her
personal capacity. See Atchinson, 73 F.3d at 425.  Indeed, at several
points the complaint refers to "defendant's  failure" in the
possessive singular, suggesting that plaintiff  viewed Moore and the
District as interchangeable. See  Compl. p p 21, 23, 25, 27.


Daskalea contends that the fact that Moore was named at  all indicates
an intention to hold her personally liable, because  naming Moore
would have added nothing to the available  damages if she had been
named only in her official capacity.  Although the latter point is
true, it does not prove the former.  Complaints often include
surplusage. Indeed, it is not un- common for civil rights complaints
to name both the munici- pality and an officer charged in his or her
official capacity.  On occasion this may be due to a misunderstanding
of the law  of section 1983, but it also may be done in an effort to




__________

n course of proceedings"); Jackson v. Georgia Dep't of Transp., 16 
F.3d 1573, 1575 (11th Cir. 1994); Frank v. Relin, 1 F.3d 1317, 1326 
(2d Cir. 1993); see also Hafer, 502 U.S. at 24 n.* (citing Houston v. 
Reich, 932 F.2d 883, 885 (10th Cir. 1991); Melo v. Hafer, 912 F.2d 
628, 635-36 (3rd Cir. 1990); Conner v. Reinhard, 847 F.2d 384, 394 
n.8 (7th Cir. 1988); Lundgren v. McDaniel, 814 F.2d 600, 603-604 
(11th Cir. 1987)).


"personalize" the otherwise faceless municipal entity being  sued.13


Once the complaint was filed, attorneys for the District  repeatedly
expressed their understanding that Moore had  been sued solely in her
official capacity. District counsel  expressed that understanding in
their answer to the com- plaint. See J.A. at 511 (stating that Moore
had been "sued  solely in her official capacity"). They did so again
in their  trial brief, specifically noting that because plaintiff "has
sued  only the District and the Director of the Department of 
Corrections in her official capacity, plaintiff's claim is gov- erned
by the standards set forth in Monell." J.A. at 43. And  they did so
yet again, with great clarity, on four occasions  during the trial.14
Not once, prior to rebuttal argument, did  Daskalea's attorney dispute
opposing counsel's characteriza- tion of the nature of the case. To
the contrary, plaintiff's own  trial brief, which addressed only one
claim, mentioned only a  single defendant--the District of Columbia.
See Pl. Trial Br.  at 1 (Jan. 12, 1998).


Moreover, both Moore and her counsel plainly acted on the 
understanding that she had been sued solely in an official  capacity.
Moore did not hire separate counsel, but relied 




__________

n 13 The fact that the complaint sought punitive damages did not  put
Moore on notice that she was being sued in her individual  capacity.
Although we hold in Part IV that such damages are  unavailable against
the District (or against Moore if sued in an  official capacity),
Daskalea prosecuted the case on the understand- ing that punitive
damages would be available against the District if  she succeeded on a
negligent supervision theory.


14 Those four occasions were: (1) before jury selection, see Tr.  at
8-9 (Court: "So it is only Margaret Moore?" D.C. Counsel: "In  her
official capacity."); (2) when Moore testified, see J.A. at 216  ("Ms.
Moore is also named as a defendant in her official capacity.");  (3)
when moving for directed verdict at the close of plaintiff's 
evidence, see J.A. at 359 ("Margaret Moore's sued solely in her 
official capacity."); and (4) in closing argument, see Trial Tr. at
902  ("She is sued in this case in official capacity, which means that
she's  sued just because she's the head of the Department of Correc-


instead upon the District of Columbia Office of Corporation  Counsel,
which represented the District in the case. Al- though joint
representation would not necessarily have been  unusual even if Moore
had been sued individually, it would  have raised potential conflicts
that would have had to have  been addressed. See Atchinson, 73 F.3d at
427 ("[N]aming  the officials in their individual capacities ... may
make  continued joint representation problematic, if not impossible. 
A municipality and officials named individually may have  mutually
exclusive defenses.").


Corporation Counsel certainly defended the case as if  Moore had
nothing personally at risk. A government official  sued under section
1983 has available to her the defense of  qualified immunity, a
defense unavailable in an official- capacity suit. See Graham, 473
U.S. at 166-167; Atchinson,  73 F.3d at 425. Corporation Counsel did
not offer that  defense on Moore's behalf, notwithstanding that it
surely  would have been at least colorable had she been sued individ-
ually. Nor did Corporation Counsel (or plaintiff's counsel, for  that
matter) seek to introduce evidence of Moore's personal  finances,
despite the fact that punitive damages awards are  supposed to be
based on a defendant's "personal financial  resources." Fact Concerts,
453 U.S. at 269; see also Jona- than Woodner Co. v. Breeden, 665 A.2d
929, 940 (D.C. 1995).  Other than assuming complete incompetence (as
well as gross  malpractice) on the part of Moore's attorneys, the only
expla- nation for these lapses must have been their perception that 
Moore had been sued in her official capacity alone.


As against all of this, Daskalea draws our attention to a  pretrial
deposition at which counsel focused on the specifics of  Moore's
involvement, as well as to a pretrial conference at  which her lawyer
told lawyers for the District that "we're  coming dead at your
directors," and that "your Director was  negligent." These events did
not, however, serve to put  Director Moore on notice that plaintiff
was seeking to hold  her individually liable: Moore's personal
involvement, even  her personal negligence, was equally relevant to
proving the  District's own deliberate indifference and negligent


Finally, Daskalea calls our attention to her counsel's closing 
rebuttal argument, during which he told the jury: "Margaret  Moore is
an actor here. Margaret Moore is responsible for  this. Margaret Moore
isn't some figurehead...." Even if  this were enough to make Moore's
personal stake clear, it was  simply too late to do so in a rebuttal
argument--the last piece  of advocacy prior to the jury's
deliberations. By that time it  was too late for Moore to hire
separate counsel, to proffer a  defense of qualified immunity, or to
introduce evidence that  her personal assets did not approach $5
million. Indeed, by  that time it was too late for Moore's counsel to
respond in any  way at all. Such notice can hardly be characterized as
fair.  See Atchinson, 73 F.3d at 427-28 (affirming denial, due to 
concern for prejudice, of plaintiff's motion to amend complaint  to
name official in individual capacity shortly before trial). 
Accordingly, we reverse the award of damages against Moore  in her


VI


Sexual assault, forced naked dancing, and the other indigni- ties borne
by Sunday Daskalea at the District of Columbia  Jail are "simply not
part of the penalty that criminal offend- ers pay for their offenses
against society." Farmer v. Bren- nan, 511 U.S. 825, 834 (1994)
(internal quotation omitted); see  Women Prisoners, 93 F.3d at 929. To
the contrary, "when  the State takes a person into its custody and
holds [her] there  against [her] will, the Constitution imposes upon
it a corre- sponding duty to assume some responsibility for [her]
safety  and general well-being." DeShaney v. Winnebago County  Dep't
of Soc. Servs., 489 U.S. 189, 199-200 (1989). Because  the evidence at
trial established that the District of Columbia  wholly failed to live
up to that responsibility, we affirm in full  the jury's award of
$350,000 in compensatory damages. At  the same time, however, District
law requires us to reverse  the award of punitive damages, and
plaintiff's failure to sue  co-defendant Moore in her individual
capacity means that the  District alone is responsible for payment.