The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
This case arises from the death of an inmate, Derrick Davis, a District of Columbia ("District") prisoner who was killed by another inmate after both were transferred to the Northeast Ohio Correctional Center ("NOCC" or "Ohio facility") pursuant to a contract between the District and the Corrections Corporation of America ("CCA"). Plaintiff, Allison Scott, the mother of Mr. Davis' only child, sues the District, Margaret Moore, former Director of the District of Columbia Department of Corrections ("Department of Corrections"), and CCA in her individual capacity and as personal representative of Mr. Davis' estate. In her first amended complaint, plaintiff alleges the following causes of action: (1) COUNT I--Deprivation of Eighth Amendment right to be free from cruel and unusual punishment, actionable under 42 U.S.C. § 1983; (2) COUNT II--Wrongful Death, under Ohio Rev. Code Ann. § 2125.01, et seq.; (3) COUNT II [sic]--Survival Act, under D.C. Code § 12-101; (4) COUNT III--Negligent Supervision; and (5) COUNT IV--Negligent Infliction of Emotional Distress.
Before the court are defendants' motions to dismiss plaintiff's amended complaint. Upon consideration of the motions, plaintiff's oppositions thereto, and the record of this case, the court concludes that the motion of defendant Moore, should be granted in part, the motion of CCA should be granted in part, and the motion of the District should be denied.
Derrick Davis, a District prisoner, was killed by another inmate, Richard Johnson, while housed at NOCC, a private prison facility owned and operated by CCA. Compl. ¶¶ 2, 35. Mr. Davis and Mr. Johnson were housed at NOCC pursuant to an agreement between CCA and the Department of Corrections that was negotiated in late 1996 and formalized in July 1997 as a contract between CCA and the District. Id. ¶¶ 2, 16, 17, 33. The District entered into this agreement with CCA because the District's prison system was in crisis, with violence at "epidemic proportions." Id. ¶¶ 12-13 (quoting testimony of Margaret Moore). Under the contract, the Department of Corrections retained the right to inspect the Ohio facility to ensure that CCA maintained appropriate levels of care and discipline. Id. ¶ 18.
The contract provided that the District was to deliver to CCA's Ohio facility 1500 medium-security District prisoners; no maximum security prisoners were to be incarcerated at the Ohio facility. Id. ¶ 17, 19. The first prisoners that the Department of Corrections transferred to the Ohio facility were approximately 200 of the District's "most 'violent,' 'assaultive' and 'disruptive' prisoners . . . ." Id. ¶¶ 22-23. *fn1 Subsequently, the Department of Corrections transferred to the Ohio facility 843 additional District prisoners, who were selected because they "had a history of violent and assaultive behavior." Id. ¶ 24. The Department of Corrections also transferred to the Ohio facility 272 prisoners from the District's Maximum Security Facility. Id. ¶ 27. The Department of Corrections transferred these prisoners under the direction of defendant Margaret Moore, its former Director. Id. ¶¶ 23-24, 27.
Derrick Davis and his killer, Richard Johnson, were among the prisoners that the Department of Corrections transferred to NOCC. Id. ¶¶ 2, 33. At the time of his transfer, Richard Johnson was classified as a maximum-security prisoner. Id. ¶ 33. Mr. Johnson had been convicted of three murders, including one committed while incarcerated. Id. Mr. Johnson stabbed a corrections officer in 1995. Id. In July 1997, while incarcerated at NOCC, Mr. Johnson stabbed another inmate, and in November 1997, he assaulted a corrections officer. Id. Despite this history of violence, of which defendants were aware, Mr. Johnson was housed in the general population at NOCC. Id. ¶ 34. In February 1998, Mr. Johnson stabbed and killed Mr. Davis, a medium-security prisoner. Id. ¶ 35; see also id. at 8.
Plaintiff alleges that Mr. Davis' death resulted from defendants' "wrongful acts and omissions." Id. ¶ 1. Specifically, plaintiff alleges, inter alia, that defendants "failed to establish and maintain a classification system that protects inmates from violence from other inmates." Id. ¶ 32. The District delivered, and CCA accepted, maximum-security prisoners for incarceration at NOCC, a facility designed to hold only medium-security prisoners. Id. at 8. Defendants "fail[ed] to assure the complete and continuous separation of inmate Johnson from Mr. Davis and all other medium security prisoners . . . ." Id. Defendants "fail[ed] to assure" that the Ohio facility's staff was properly trained. Id. Defendants "fail[ed] to comply with the recognized standards of care applicable to the management and operation of a correctional facility . . . ." Id.
Defendants move to dismiss the case in part under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, and in part under Federal Rule of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction. In evaluating a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, a court must accept the allegations in the complaint as true. See, e.g., Croixland Properties Ltd. Partnership v. Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999). All reasonable inferences must be drawn in favor of the plaintiff, and a court should only dismiss a complaint for failure to state a claim "'if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see also Price v. Crestar Secs. Corp., 44 F. Supp. 2d 351, 353 (D.D.C. 1999). In ruling on a 12(b)(6) motion, a court "does not test whether the plaintiff will prevail on the merits, but instead whether the claimant has properly stated a claim." Price, 44 F. Supp. 2d at 353. If a court considers materials outside the pleadings in ruling upon a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must convert the motion to dismiss into a motion for summary judgment. Fed. R. Civ. P. 12(b); see also Haase v. Sessions, 835 F.2d 902, 905-06 (D.C. Cir. 1987).
In ruling upon a motion to dismiss brought under Rule 12(b)(1), a court must construe the allegations in the Complaint in the light most favorable to the plaintiff. See, e.g., Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Additionally, a court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case. See, e.g., Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Haase, 835 F.2d at 906; Hohri, 782 F.2d at 241; Transamerica Leasing, Inc. v. La Republica de Venezuela, 21 F. Supp. 2d 47, 55 (D.D.C. 1998); Bayvue Apts. Joint Venture v. Ocwen Fed'l Bank, 971 F. Supp. 129, 132 n.5 (D.D.C. 1997).
In opposing defendants' motions to dismiss, plaintiff presented the court with materials outside the pleadings. The court has excluded all such materials from its consideration of whether or not plaintiff has stated a claim upon which relief may be granted. Thus, the court will not convert the present motions to motions for summary judgment. The court finds it unnecessary to consider materials outside the pleadings in determining whether it has jurisdiction to hear this case.
A. District of Columbia's Motion to Dismiss
The District asserts that plaintiff's claims against it should be dismissed because when Mr. Davis was transferred to NOCC, he no longer was in the custody of the Department of Corrections, but rather was in the custody of the Attorney General. The District bases its argument on D.C. Code § 24-425, which states as follows:
All prisoners convicted in the District of Columbia for any offense . . . shall be committed, for their terms of imprisonment . . . to the custody of the Attorney General of the United States or [her] authorized representative, who shall designate the places of confinements where the sentences of all such persons shall be served. The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the District of Columbia government, the federal government, or otherwise, or whether within or without the District of Columbia. The Attorney General is also authorized to order the transfer of any such person from one institution to another if, in his judgment, it shall be for the well-being of the prisoner, or to relieve overcrowding or unhealthful conditions in the institution where such prisoner is confined, or for other reasons.
It is undisputed that the Attorney General has the authority conferred upon her by this statute. See, e.g.,Cannon v. United States, 645 F.2d 1128, 1141 & n.53 (D.C. Cir. 1981). Legal custody of a District prisoner "remains in the Attorney General even though the prisoner is assigned to an institution over which the Department of Justice has no control." Frazier v. United States, 339 F.2d 745, 746 (D.C. Cir. 1964); see also Milhouse v. Levi, 548 F.2d 357, 360-61 (D.C. Cir. 1976) (quoting Frazier, 339 F.2d at 746); McCall v. Swain, 510 F.2d 167, 179 n.32 (D.C. Cir. 1975) (same). This does not, however, lead ineluctably to the conclusion that the District is not responsible for its conduct toward prisoners convicted of crimes in the District and assigned by the Attorney General to a District prison.
First, "[i]t is well established that legal custody is not co-extensive with physical control over the day-to-day supervision of the prisoner . . . ." Cannon, 645 F.2d at 1141 n.53. In Cannon, the plaintiff, a federal prisoner held in a District reformatory, filed suit against the United States for injuries sustained allegedly due to the prison guards' failure to protect the plaintiff from his fellow inmates. See 645 F.2d at 1130-31. The Court of Appeals for this Circuit rejected plaintiff's claim, concluding "that Cannon sued the wrong government here; it is the District of Columbia, his immediate jailer, from whom he should have sought redress for his injuries allegedly suffered as a result of his jailers' negligence while a prisoner at Lorton." 645 F.2d at 1142. The Court of Appeals noted that the Supreme Court held long ago "that in actions bottomed on negligence, the federal government could not be considered responsible for the negligence of local prison officials if it lacks physical control over their activities." Id. at 1141 n.53 (discussing Randolph v. Donaldson, 13 U.S. 76 (1815)). Thus, it does not follow that because Mr. Davis was in the legal custody of the Attorney General, the District may not be sued for its own actions and inactions with respect to Mr. Davis.
Second, the District's attempt to imply that the Attorney General, as a factual matter, had anything to do with Mr. Davis' transfer to NOCC, is rejected. As stated above, in reviewing a motion to dismiss for failure to state a claim upon which relief may be granted, the court accepts as true all facts alleged in the complaint, and draws in plaintiff's favor all reasonable factual inferences therefrom. The Complaint alleges that it was the District, not the Attorney General, that orchestrated the transfer to NOCC of District prisoners, including Mr. Davis and Richard Johnson. Plaintiff seeks to hold the District responsible for the actions that it took under its own authority with respect to the prisoners in its control; the Attorney General's unexercised authority over those prisoners is irrelevant.
Third, section 24-425 states that prisoners are committed "to the custody of the Attorney General . . . or [her] authorized representative." D.C. Code § 24-425. In a recent decision, the District of Columbia Court of Appeals, in applying D.C. Code § 24-425, stated that "[t]he District of Columbia Department of Corrections is the authorized representative of the Attorney General." Harmon v. United States, 718 A.2d 114, 117 (D.C. 1998). If the Department of Corrections was also acting as the authorized ...