The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Phyllis Phillips is the mother of a former federal inmate, Samuel Phillips, who was placed in a "halfway" house between prison and release in Washington, D.C. This "halfway" house was owned and operated by Hope Village, Inc. ("Hope Village"). The amended complaint alleges that Mr. Phillips warned Hope Village that he had received a threat on his life, that this warning was ignored, that he was shot on the sidewalk in front of the house next door to Hope Village, and that he later died from his wounds.
Ms. Phillips has sued the Federal Bureau of Prisons ("BOP"), Hope Village, and Joseph Wilmer, Director of Hope Village, advancing five separate claims: (a) negligence pursuant to the Federal Tort Claims Act ("FTCA"); (b) claims under 18 U.S.C. § 4003, including unlawful seizure under the Fourth Amendment and loss of life without due process of law under the Fifth Amendment; (c) breach of contract as a third-party beneficiary; (d) wrongful death; and (e) pain and suffering damages under the District of Columbia survivorship statute. See Pl.'s Mem. in Supp. of Mot. to Am. Compl. at 1. The BOP has filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the Court lacks jurisdiction over the claims and/or that Ms. Phillips has failed to state a claim upon which relief can be granted. Hope Village and Mr. Wilmer have filed a separate motion to dismiss under Rule 12(b)(6). For the following reasons, the Court grants both of these motions to dismiss in part and denies them in part.
The facts in this case are fairly simple, although tragic. Mr. Phillips was convicted of a felony in the Superior Court of the District of Columbia. On February 5, 2001, the BOP transferred him from the Federal Correctional Institution in Fairton, New Jersey, to Hope Village for purposes of parole preparation. Hope Village is "a privately-owned facility... and has contracted with the Bureau of Prisons to provide halfway house services to inmates of the District of Columbia." Compl. ¶ 4.
On February 6, 2001, Mr. Phillips informed the staff of Hope Village that he had received a threat on his life. Hope Village did not place him in protective custody or restrict his movements. In addition, it failed to notify the BOP that he had received such a threat. At approximately 12:47 p.m. on the same day that he told Hope Village about the threat, Mr. Phillips was shot in the abdomen by an unknown assailant on the sidewalk in front of a private residence next door to Hope Village. He was transported to D.C. General Hospital, where he died from his wounds.
Under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of proving by a preponderance of the evidence that the Court possesses jurisdiction over her claims. See Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 195 (D.D.C. 2002). In reviewing a motion to dismiss under this rule, the Court must accept the allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. These allegations, however, "'will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001) (quoting 5A CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE& PROCEDURE§ 1350). The Court may consider information outside the pleadings to determine its jurisdiction. See Lipsman v. Sec'y of Army, No. 02-151, 2003 U.S. Dist. LEXIS 4882, at *6-7 (D.D.C. Mar. 31, 2003).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) will be denied unless the plaintiff "can prove no set of facts in support of [her] claim which would entitle [her] to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Such a motion tests only whether the plaintiff has properly stated a claim, not whether she will ultimately prevail on the merits. A reviewing court "must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the non-movant's favor." Nwachukwu v. Karl, 223 F. Supp. 2d 60, 69 (D.D.C. 2002).
A. The BOP's Motion to Dismiss
The BOP first bases its motion to dismiss on the doctrine of sovereign immunity. It is well-settled that the United States – including the BOP – enjoys sovereign immunity from suit, except to the extent that it consents. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."). Waivers of immunity must be express and are strictly construed. See Thompson v. Kennickell, 797 F.2d 1015, 1024 (D.C. Cir. 1986).
In her amended complaint, Ms. Phillips avers that this lawsuit arises under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). That statute constitutes a limited waiver of sovereign immunity, rendering the United States liable to the same extent as a private party for certain torts committed by federal employees acting within the scope of their employment. The United States' liability under the FTCA, however, does not extend to the acts of independent contractors. See Cannon v. United States, 645 F.2d 1128 (D.C. Cir. 1981).
The BOP argues that Ms. Phillips's claims under the FTCA – negligence, wrongful death, and pain and suffering under the D.C. survivorship statute – should be dismissed because the FTCA does not apply to the facts in this case. It contends that Hope Village is an independent contractor and, therefore, does not fall within the definition of an "employee" under 28 U.S.C. § 2671.*fn2 Ms. Phillips acknowledges that she "has the burden of proving that the ...