The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
This case concerns allegations of police abuse stemming from an altercation between plaintiffs and defendants on October 20, 2002. Before the Court are defendant Officer James Jaffe's motion to dismiss, plaintiffs' response, and defendant's reply. Upon considering the pleadings and the entire record herein, the Court concludes that defendant is entitled to dismissal of the common-law tort claims, but not the constitutional claims under 42 U.S.C. § 1983.
Defendant urges the Court to dismiss the complaint sua sponte under Fed. R. Civ. P. 41(b), which provides for involuntary dismissal if a plaintiff "fail[s] to prosecute or to comply with these rules or any order of court." Defendant points to the fact that plaintiffs failed to meet their first two deadlines for service, as well as the fact that plaintiffs effected service two days after their most recent deadline. Courts may extend the service period even without a showing of good cause, see Fed. R. Civ. P. 4(m), and courts have used this discretion to excuse minor delays. See, e.g., Freeze-Dry Prods. v. Metro Park Warehouse, 159 F.R.D. 45 (D. Kan. 1994) (service one day late did not violate Fed. R. Civ. P. 4(m)). In Hobson v. Wilson, this Court denied a defendant's Rule 41(b) motion even in the face of plaintiff's "unusual indifference to the requirements of service," because defendant was not actually prejudiced by the delay. 556 F. Supp. 1157, 1185-86 (D.D.C. 1982), aff'd in relevant part, 737 F.2d 1, 45-46 (D.C. Cir. 1984). The Court in Hobson emphasized the fact that the defendant was situated professionally within a group of co-defendants. Id. Here, Officer Jaffe worked with his co-defendants. Moreover, there is no indication that the slight delay in service has prejudiced his ability to defend this action. Although the Court will not continue to countenance plaintiffs' persistent disregard for the Federal Rules and the Court's orders, since defendant in this instance was not prejudiced by plaintiffs' tardiness, the Court is unwilling to impose the extreme sanction of dismissal.*fn1
II. Intentional Tort Claims
In the District of Columbia, claims of libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest, and false imprisonment are subject to a one-year statute of limitations. D.C. Code § 12-301(4). The occurrences alleged in the complaint occurred on October 20, 2002, but plaintiffs did not file their complaint until October 20, 2005. Therefore, plaintiffs' defamation, assault, battery, false arrest, and false imprisonment claims are time-barred, as are plaintiffs' claims of false light. See Mittleman v. United States, 104 F.3d 410, 415 (D.C. Cir. 1997); Grunseth v. Marriott Corp., 872 F. Supp. 1069, 1074 (D.D.C. 1995) (finding false light to be "essentially a type of defamation" for purposes of the one-year statute of limitation), aff'd, 1996 U.S. App. LEXIS 3688 (D.C. Cir. Feb. 9, 1996).
Actions "for which a limitation is not otherwise specifically prescribed" are time-barred after three years. D.C. Code § 12-301(8). Residual tort claims, however, are subject to subsection 4's one-year limitation if they are sufficiently "intertwined" with subsection 4 claims. Mittleman, 104 F.3d at 415. To qualify for subsection 8's three-year limitation, a claim of intentional infliction of emotional distress ("IIED") must be "independent" in that it stems from conduct separate from the alleged subsection 4 wrongs. Hunter v. Dist. of Columbia, 943 F.2d 69, 72 (D.C. Cir. 1991); Saunders v. Nemati, 580 A.2d 660, 665 (D.C. 1990) (holding IIED claim based on verbal abuse to be independent of assault claim). Plaintiffs' IIED claim is listed last in their complaint, and it is supported only by reference to all of the preceding claims in the complaint. (Compl. ¶ 170.) Plaintiffs allege no independent basis for their IIED claim, so it merges with the subsection 4 torts and is time-barred.*fn2
The only remaining tort claim against Officer Jaffe is abuse of process, which generally falls within subsection 8. See Rothenberg v. Ralph D. Kaiser Co., 173 B.R. 4, 11 n.5 (Bankr. D.D.C. 1994). That plaintiff labels the claim "abuse of process" does not prevent the Court from finding that the claim actually alleges malicious prosecution. Morfessis v. Baum, 281 F.2d 938, 940 (D.C. Cir. 1960); Zandford v. NASD, 19 F. Supp. 2d 4, 8 (D.D.C. 1998). A crucial distinction between the two torts is whether the defendant has caused an act to issue with or without probable cause. Zandford, 19 F. Supp. 2d at 7 (citing 1 Am. Jur. 2d Abuse of Process § 3, at 412 (1994)). Because plaintiffs claim that defendants acted "without probable cause" (Compl. ¶¶ 14, 24, 33), their "abuse of process" claims against Officer Jaffe actually concern malicious prosecution. Therefore, plaintiffs' abuse of process claims are time-barred under D.C. Code § 12-301(4).
The Court must test the sufficiency of the remaining claims under Fed. R. Civ. P. 12(b)(6). The Court must assume the truth of all factual allegations in the complaint and afford the plaintiffs all reasonable inferences. E.g. Christopher v. Harbury, 536 U.S. 403, 406 (2005); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); United States v. Gaubert, 499 U.S. 315, 327 (1991). "A complaint should not be dismissed for failure to state a claim 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); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). On a motion to dismiss, a plaintiff need not have alleged facts to meet every element of a prima facie case. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114-15 (D.C. Cir. 2000); Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000); Atchinson v. Dist. of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996). Rather, plaintiff need only "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47 (construing Rule 12(b)(6) in accordance with Rule 8(a)(2)).
Despite this standard, plaintiffs' negligence claims cannot survive. In order to state a separate claim for negligence, a complaint "must specify a negligent act and characterize a breach of duty which might have given rise to liability. . . . [U]se of the terms 'carelessly and negligently,' without more, are conclusory and do not raise a cognizable claim of negligence." Dist. of Columbia v. Chinn, 839 A.2d 701, 708 (D.C. 2003); see Maddox v. Bano, 422 A.2d 763, 764-65 (D.C. 1980). Plaintiffs claim that Officer Jaffe's "negligent" acts include pulling plaintiffs to the ground; beating, threatening, restraining, arresting, and falsely imprisoning plaintiffs; and not permitting one plaintiff to use bathroom facilities. (Compl. ¶¶ 81, 125, 169.) In essence, plaintiffs point to the same intentional acts that underlie their other tort claims, but they append the word "negligently". This is insufficient under Sabir v. District of Columbia. 755 A.2d 449, 452-453 (D.C. 2000) (affirming directed verdict against plaintiff on claim of "negligently caus[ing] the assault and battery, arrest and detention of plaintiffs"). Because plaintiffs have failed to provide independent support for a claim of negligence against Officer Jaffe, the Court must dismiss the negligence counts.
Finally, plaintiffs allege that Officer Jaffe deprived them of their constitutional rights. In order to state a claim for relief under 42 U.S.C. § 1983, plaintiffs "must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Here, plaintiffs allege that Officer Jaffe was acting at all times as a state law enforcement officer, rather than as a private individual. Because the acts were ...