The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Paul Bame, Gregory Keltner, and Ivan Welander sue John F. Clark, the Acting Director of the United States Marshals Service, Steve Conboy, the U.S. Marshal for the Superior Court of the District of Columbia, and Todd Dillard, former U.S. Marshal for the Superior Court, on behalf of themselves and other men*fn1 who were allegedly strip searched after being arrested on September 27, 2002, during several large protests against the policies of the International Monetary Fund ("IMF"). Messrs. Clark and Conboy are sued only in their official capacities; Mr. Dillard is sued only in his individual capacity. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. In response, Plaintiffs drop their claims against Messrs. Clark and Conboy and withdraw Counts 3 and 4. What remains are claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation, 403 U.S. 388 (1971) and 42 U.S.C. § 1983 against Mr. Dillard and unnamed Doe defendants. Mr. Dillard moves for dismissal, arguing that the Bivens count is untimely, that he is not a State actor subject to suit under § 1983, and in either case he is entitled to qualified immunity. The Court finds that the allegations against Mr. Dillard are sufficient to withstand dismissal under Rule 12(b)(6) and will therefore deny Defendants' motion as to him.
Plaintiffs participated in protest demonstrations against the IMF and were arrested on September 27, 2002. First Am. Compl. ¶¶ 4-6, 17. Hundreds of other protestors were similarly arrested by the D.C. Metropolitan Police Department ("MPD"). Id. ¶ 18. Sometime during the evening of September 27, the arrestees were remanded to the custody of the U.S. Marshals Service ("USMS") and were held in cells at the D.C. Superior Courthouse for arraignment. Id. ¶ 19.
While in custody of the USMS, the arrestees were allegedly subjected to strip searches without individualized reasonable suspicion for doing so. Id. ¶ 21. It is asserted that these strip searches were "intimidating, humiliating, and subjected each class member to strong emotional distress." Id. ¶ 24. Ultimately, all arrestees were either released on bond after pleading guilty to a misdemeanor offense such as failure to obey a police officer or "incommoding," or were released without any charge being advanced. No arrestee was tried or convicted of any felony. Id. ¶ 27. Plaintiffs filed suit on September 15, 2005. They seek class certification, damages, and attorneys' fees and costs. Id., Prayer for Relief ¶¶ 1-3.
In resolving a Rule 12(b)(6) motion, the Court must treat the complaint's factual allegations - including mixed questions of law and fact - as true and draw all reasonable inferences in the plaintiff's favor. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). It is not necessary for the plaintiff to plead all elements of his prima facie case, see Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or to "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotations and citation omitted). The Court will not dismiss a complaint for failure to state a claim unless the defendant can show that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003); Gilven v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001).
In deciding a 12(b)(6) motion, the Court may typically consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).However, the Court may, in its discretion, consider matters outside the pleadings and thereby convert a Rule 12(b)(6) motion into a motion for summary judgment. See Fed. R. Civ. P. 12(b); Yates v. Dist. of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).
A. Claims Against Messrs. Clark and Conboy
The Amended Complaint names as defendants Messrs. Clark and Conboy in their official capacities, and alleges against them causes of action under 42 U.S.C. § 1983 for failure to train and for maintenance of an unlawful custom, policy, or practice. See Am. Compl. ¶¶49 - 58. Defendants move to dismiss the claims against Messrs. Clark and Conboy on a variety of grounds, including sovereign immunity. Def.'s Mem. of P. & A. in Supp. of Mot. to Dismiss or, in the Altern., for Summ. J. ("Def.'s Mem.") at 2-5. In response, Plaintiffs concede that they cannot state official-capacity claims against those Defendants. Pl.'s Mem. of P. & A. In Opp. to Def.'s Mot. to Dismiss or, in the Altern., for Summ. J. ("Pl.'s Mem.") at 1. Accordingly, the Court will grant Defendants' motion as to Messrs. Clark and Conboy, and the claims against them will be dismissed.
B. Timeliness of Bivens Claims
The only remaining named Defendant is former Marshal Dillard, who is sued (along with unnamed Doe defendants) in his individual capacity under both Bivens and 42 U.S.C. § 1983. Mr. Dillard first argues that the Bivens claim against him is subject to dismissal because it is barred by the statute of limitations.
The cause of action under Bivens against a federal employee who allegedly has violated a citizen's constitutional rights was established by the Supreme Court and is found in no statute. The Court made no explicit finding and gave no direction as to the appropriate statute of limitations. Therefore, the federal courts look to the law of the forum State, here the District of Columbia, for guidance. See, e.g., Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). Defendant urges the Court to adopt the one-year statute of limitations set forth at D.C. Code § 12-301(4) which applies to actions "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." Def.'s Mem. at 13. Plaintiffs argue that the statute of ...