The opinion of the court was delivered by: Rosemary M. Collyer, United States District Judge
John E. Tibbs operates a construction supply depot in Washington, DC, Trading As J.E. Tibbs Home Improvement. He complains that agents of the District of Columbia physically entered his premises on July 22, 1999 and illegally searched the premises and seized some of his personal property and business equipment. He sues Mayor Anthony Williams, former Fire Chief Ronnie Few, the District of Columbia, the District of Columbia "Fire and EMS Fire Department," and Cecilia L. Hill, Trading As Capital City Towing. The complaint alleges violations of due process (count one),*fn1 unreasonable search and seizure in violation of the Fourth Amendment (count two), assault (count three), intentional infliction of mental distress (count four), tortious interference with business relationships (count five) and objective cruelty in violation of the Eighth Amendment (count seven).
Mr. Tibbs bases his suit on the Fourth, Fifth and Eighth Amendments to the United States Constitution, 28 U.S.C. § 1343, 42 U.S.C. § 1983, and federal question jurisdiction under 29 U.S.C. § 1331. He asserts pendent and ancillary jurisdiction over the non-federal claims (counts three, four and five) because all claims arose out of the same transaction.
The immediate complaint is the Second Amended Complaint filed in this action by Mr. Tibbs. See Tibbs v. Williams, Civ. Action No. 01-415 (EGS), Memorandum Opinion and Order (D.D.C. March 29, 2002) (dismissing the first amended complaint with leave to re-file) (Tibbs I). His prior complaint was dismissed for failure to allege that a policy or practice of the District of Columbia contributed to the alleged constitutional violations, as required by Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978); failure to identify actions by Mayor Williams or Chief Few that would support suit against them in their personal, as opposed to official, capacities; and failure to effect timely service of the complaint on Ms. Hill.
Motions to dismiss are disfavored and will not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Mr. Tibbs is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276. At this stage of the proceedings, the court accepts as true all of the complaint's factual allegations. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Does v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). However, the movant is entitled to judgment if there are no allegations in the complaint that, even if proven, would provide a basis for recovery. Haynesworth v. Miller, 820 F.2d 1245, 1254 (1987).
Before the true contours of this lawsuit can be examined, it is necessary to clear out some of the underbrush.
First, as already determined by Judge Sullivan, the District of Columbia "Fire and EMS Fire Department" is not a legal entity subject to suit, separate and apart from the District of Columbia. Therefore, it remains dismissed and is not a party to this suit. Tibbs I, No. 01-415, slip op. at 9, 12.
Second, despite the opportunity to amend the complaint for a second time to state with "clarity" whatever facts might support claims against Mayor Williams and Chief Few as individuals, Mr. Tibbs has failed to do so. The Second Amended Complaint contains no basis to make a personal claim against either official. Therefore, in accord with the reasons stated by Judge Sullivan, Mayor Williams and Chief Few will be dismissed with prejudice. Tibbs I, No. 01-415, slip op. at 8, 12.
Third, the claim that the District of Columbia violated Mr. Tibbs's Eighth Amendment rights must be dismissed as lacking in merit. The Eighth Amendment only applies to persons convicted of or entering a plea of guilty to a crime. Bell v. Wolfish, 441 U.S. 552, 536 n. 17 (1979) (Eighth Amendment comes into play only to evaluate punishment inflicted "follow[ing] a determination of guilt after trial or plea . . . .").
Fourth, Ms. Hill has not filed an answer to the complaint and is not participating, to date, in this lawsuit.*fn2 There is nothing in the complaint that identifies her or A-Capital City Towing as independent actors in this drama.
Thus, the case is really against the District of Columbia and raises two questions: 1) has Mr. Tibbs advanced a cognizable claim against the District of Columbia, and 2) were his claims properly reflected in his pre-suit notice to the Mayor? If the answers to these two questions are in the affirmative, then the Court must ...