The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
On July 15, 2004, Terence Anthony Powers committed suicide in a holding cell at the Metropolitan Police Department's Third Precinct Headquarters only hours after he was arrested for possession of cocaine with intent to distribute and driving with a suspended license. Mr. Powers's mother, Plaintiff Patricia Powers-Bunce, has sued the District of Columbia and several individual Metropolitan Police Department ("MPD") and United States Secret Service ("USSS") officers seeking to hold them legally accountable for her son's suicide. Defendants have moved to dismiss on the grounds that Complaint fails to state any cognizable claim and that the Court lacks jurisdiction over Plaintiff's tort claims. The Court will grant the motions to dismiss in part and deny them in part, and will order Plaintiff to provide a more definite statement of her constitutional claims against the individual officers.
The following facts are taken from Plaintiff's Complaint. Sometime in the early morning hours of July 15, 2004, Officers Michael Burdyn and B. Giles of the USSS allegedly saw a car fail to stop at a red light at the intersection of Massachusetts Avenue and Dupont Circle in the Northwest quadrant of Washington, D.C. Compl. ¶ 10. That vehicle was being driven by Terence Anthony Powers. Id. Officers Brudyn and Giles followed Mr. Powers for approximately 17 blocks before pulling him over for the red-light infraction. Id. ¶ 12. When the Officers checked Mr. Powers's drivers license on the Washington Area Law Enforcement System ("WALES"), they learned that the license was suspended. Id. ¶ 13. According to "uncorroborated information" contained in a report of the incident, Officers Brudyn and Giles observed Mr. Powers reach behind the passenger seat of his vehicle and retrieve something that he then placed inside a cigarette box. Id. ¶ 14. The Officers searched the vehicle and discovered a cigarette box containing five plastic bags filled with a white powder that allegedly field tested positive for cocaine, although lab reports confirming the test have not been provided to Plaintiff. Id. ¶ 14. Officers Brudyn and Giles arrested Mr. Powers for possession of cocaine with intent to distribute and for driving with a suspended license. Id. ¶ 15. The precise time of the stop and arrest is unknown because the Officers failed to prepare a traffic violation citation. Id. at ¶ 11.
At approximately 1:30 a.m. on July 15, "the USSS Uniform Division" took Mr. Powers to the MPD's Third Precinct station at 16th and U Streets Northwest, Washington, D.C., id. ¶ 16, although Mr. Powers was "never formally processed by either the USSS or the MPD," id. ¶ 18. After arriving at the Third Precinct station, Mr. Powers was interrogated by officers of the USSS and/or the MPD. Id. ¶ 19. At approximately 2:00 a.m., Mr. Powers was placed alone in a cell that was isolated from "the general detainees" and "partially blocked from view." Id. ¶ 17. Before being placed in the cell, Mr. Powers "expressed concern about facing possible jail time." Id. ¶ 17. The Complaint alleges that he was not permitted to make a phone call "or make any other contact." Id.
According to a police report, officers checked on Mr. Powers in his cell at or around 2:30 a.m. Id. ¶ 20. No one checked on Mr. Powers again until 4:16 a.m., at which time Mr. Powers was found hanging from the bars of the cell by a pair of tube socks tied in a knot. Id. ¶ 22. The failure to check on Mr. Powers for a two-hour period allegedly violated MPD's general orders, policies, and procedures. Id. ¶ 21. At the time he was discovered hanging, Mr. Powers exhibited no signs of life; medics were summoned and confirmed that Mr. Powers appeared to be deceased. Id. ¶¶ 22-23. Mr. Powers was transported to the Office of the Medical Examiner where he was pronounced dead at 8:35 a.m. Id. ¶ 23. The Medical Examiner determined the cause of death to be suicide by hanging. Id. ¶ 24.
In addition to neck injuries caused by hanging, the Medical Examiner documented contusions on Mr. Powers's lateral chest, back, thighs, and shins. Id. ¶ 25. "An independent medical examiner found that some of the bruising to Mr. Powers's back, buttocks and legs was consistent with inflicted blows and excessive force used upon him by police officer night sticks." Id. ¶ 26. There is no indication or evidence that Mr. Powers was combative during the arrest and confinement that ended with his suicide. Id. ¶ 25. There is no videotape of Mr. Powers's confinement at the Third Precinct station, which allegedly violated MPD's general orders, policies, and procedures. Id. ¶ 30.
Based on the foregoing allegations, Plaintiff filed suit in D.C. Superior Court on July 14, 2006. Defendants removed the case to this Court on September 13, 2006. The Complaint asserts six causes of action against Chief Charles Ramsey, Commander Larry McCoy, Sergeant R.W. Gamble, and the Third District Watch Commander of the MPD (the "individual District Defendants"); Director Mark Sullivan, Officer Michael Burdyn, Officer B. Giles, and "Chief of the Uniformed Division" of the USSS (the "Federal Defendants") (collectively, the "individual Defendants"); and the District of Columbia. The first cause of action is titled "Violation of Civil Rights" and alleges violations of the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. The remaining causes of action are generic tort claims based on statute and the common law. Specifically, Plaintiff asserts claims for intentional infliction of emotional distress (Count II), gross negligence (Count III), "Survival Action" (Count IV), wrongful death (Count V), and "Direct Liability to the District of Columbia for Failure to Train and Supervise" (Count VI).
The Complaint is vague about which Defendants are subject to which causes of action. As best as the Court can discern, the "Violation of Civil Rights," "Survival Action," and wrongful death causes of action are asserted against all Defendants in both their personal and official capacities; the infliction of emotional distress and gross negligence claims are asserted against Officers Burdyn and Giles in their personal and official capacities and against the District of Columbia as their employer; and the "failure to train and supervise" cause of action is asserted only against the District of Columbia. Plaintiff seeks $20 million in damages.
Defendants have moved to dismiss the Complaint in its entirety. They argue that the constitutional claims and certain tort claims are subject to dismissal under Rule 12(b)(6). In addition, the Federal Defendants argue that the Court lacks jurisdiction over the tort claims against them because Plaintiff failed to comply with the exhaustion requirements of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq. Similarly, the District of Columbia argues that the tort claims against it must be dismissed because Plaintiff failed to provide adequate notice of her claims under D.C. Code § 12-309. The motions have been fully briefed and are now ripe for decision.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. "[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). The court must treat the complaint's factual allegations - including mixed questions of law and fact - as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). The court need not, however, accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).In deciding a Rule 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).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 under Rule 56. See Fed. R. Civ. P. 12(b); Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); see Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).
Although the Complaint does not mention the laws under which Plaintiff advances her constitutional claims, the Court will assume that the claims against the individual District Defendants are brought under 42 U.S.C. § 1983, the claims against the Federal Defendants are brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the claims against the District of Columbia are brought under Monell v. N.Y. City Dep't of Social Servs., 436 U.S. 658 (1978). It is elementary that in order to state a claim under § 1983, Bivens, and Monell, a plaintiff must allege that the defendant violated a right protected by the Constitution. Here, the Complaint contends that Defendants violated Mr. Powers's Fifth, Eighth, and Fourteenth Amendment rights. Compl. ¶ 28. The question under Rule 12(b)(6) is whether the facts alleged, if shown to be true, would establish that Defendants violated rights guaranteed by those Amendments.
1. Eighth and Fourteenth Amendment Claims
The Eighth Amendment prohibits the government from inflicting "cruel and unusual punishment" on prison inmates, which includes "[a] prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate." Farmer v. Brennan, 511 U.S. 825, 828 (1994). Under well-settled law, the Amendment's prohibition applies only to persons who are subject to "punishment" by the government, which the Supreme Court has defined to mean persons against whom the government "has secured a formal adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979) (internal quotation marks omitted). Thus, the Eighth Amendment does not apply to pretrial detainees like Mr. Powers who have not been adjudicated guilty of any crime and are therefore not subject to "punishment." See id.
Plaintiff is incorrect that Eighth Amendment rights have been extended to pretrial detainees under the Fourteenth Amendment. See Pl.'s Opp. to District Defs.' Mot. to Dismiss ("Pl.'s Opp. to D.C.") at 9. Rather, courts have held that pretrial detainees have an independent due-process right under the Fifth and Fourteenth Amendments to be free from prison officials' "deliberate indifference" to their substantial medical needs. See O.K. v. Bush, 344 F. Supp. 2d 44, 61 n.23 (D.D.C. 2004) ("The standard of care for a pre-trial detainee who has not yet been convicted . . . is governed by the Due Process Clause of the Fifth and Fourteenth Amendments rather than by the Eighth Amendment."); see also Barber v. City of Salem, 953 F.2d 232, 235 (6th Cir. 1992) ("[A] pretrial detainee does not enjoy protection of the Eighth Amendment"). Courts have consistently held that this right belonging to pretrial detainees is "at least as great as" the analogous Eighth Amendment right and, therefore, generally treat the two claims as analytically identical. See Barber, 953 F.2d at 235 ("[T]he Eighth Amendment rights of prisoners are analogous to pretrial detainees' due process right under the Fourteenth Amendment."); accord Payne v. Churchich, 161 F.3d 1030, 1040 (7th Cir. 1999). Notwithstanding the similarity of these rights, it is clear that the right belonging to pretrial detainees arises under the Fifth or Fourteenth Amendment, not the Eighth Amendment. As a result, the Court must dismiss Count I of the Complaint to the extent that it is based on alleged violations of the Eighth Amendment because Mr. Powers, as a pretrial detainee, had no Eighth Amendment rights that could have been violated.
Similarly, Plaintiff has failed to assert a valid claim under the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment reads in pertinent part: "No State shall . . . deprive any person of life, liberty, or property without due process of law . . . ." Thus, by its terms, the Fourteenth Amendment applies only to the States; it does not apply to the Federal Government or the District of Columbia. See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543 n.21 (1987) ("The Fourteenth Amendment applies to actions by a State. The claimed association in this case is between the [defendant] and the Federal Government. Therefore, the Fourteenth Amendment does not apply."); Bolling v. Sharpe, 347 U.S. 497, 498 (1954) (holding that the Fourteenth Amendment does not apply to the District of Columbia). Because Plaintiff has sued only the District of Columbia, employees of the District ...