The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff, Annette G. Barnes, brings this action individually and as the personal representative of the estate of her late husband, Kenneth Barnes, Jr. against the District of Columbia ("the District"), and Gayle Turner, Administrator of the District's Youth Service Administration ("YSA"),*fn1 alleging violations of the decedent's constitutional rights under 42 U.S.C. § 1983 and District of Columbia common law. The defendants move for judgment on the pleadings, or for summary judgment, arguing that Barnes pled no protected constitutional interest and her common law claims are barred by the public duty doctrine. Because Barnes has pled no constitutionally protected interest and because the defendants owed no special duty of care to either Barnes or the decedent, the motion for judgment on the pleadings will be granted.*fn2
On September 24, 2001, James Davon Hill shot and killed Barnes' husband during an armed robbery attempt at the decedent's store, Boutique U. (Am. Compl. ¶¶ 17, 18.) Hill, a ward of the District and a three-time escapee from a group home controlled by the YSA, had escaped from a group home a fourth time two months prior to the robbery attempt. (Id. ¶ 19.) Barnes alleges that the defendants deprived the decedent of his constitutional interests in life and property by "neglecting to properly supervise a convicted criminal who was known to flee from group homes." (Id. ¶¶ 30-31.) Barnes also brings a survival claim seeking recovery for her husband's wrongful death and for the defendants' negligent hiring, negligent supervision, and negligent infliction of emotional distress. (Id. ¶ 1.) The defendants move for judgment on the pleadings claiming that Barnes has pled no constitutionally protected property or liberty interest in support of her constitutional claims and that her negligence claims are barred by the public duty doctrine.
"After the pleadings are closed . . ., any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The motion will be granted where the moving party demonstrates that "no material fact is in dispute," and that the party is "entitled to judgment as a matter of law." Peters v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (internal quotations omitted). In reviewing motions for judgment on the pleadings, courts "accept as true the allegations in the opponent's pleadings" and "accord the benefit of all reasonable inferences to the non-moving party." Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987); see Peters, 966 F.2d at 1485 (in a motion under Rule 12(c), the court "view[s] the facts presented in the pleading and the inferences to be drawn therefrom in the light most favorable to the nonmoving party"). "A court may not consider matters outside the pleadings and is 'limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record.'" Johnson v. Dist. of Columbia, Civil Action No. 03-2548 (GK), 2006 WL 2521241, at *2 (D.D.C. Aug. 30, 2006) (quoting Robinson v. Dist. of Columbia, 403 F. Supp. 2d 39, 47 (D.D.C. 2005)).
The Fifth Amendment provides that "[n]o person shall . . . be deprived of . . . property, without due process of law." U.S. Const. amend. V. While a governmental benefit may constitute a protected property interest, see, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Matthews v. Eldridge, 424 U.S. 319 (1976), not every governmental benefit enjoyed by an individual represents a constitutional interest protected by the Due Process Clause. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). To have a constitutional interest in a governmental benefit, "a person must have more than an abstract need or desire" and "more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). "A person's interest in a benefit is a 'property' interest for due process purposes if there are . . . rules or mutually explicit understandings that support his claim of entitlement to the benefit . . . ." Perry v. Sindermann, 408 U.S. 593, 601 (1972). These entitlements are created by sources independent of the constitution, such as state law. Castle Rock, 545 U.S. at 756. "[T]he 'independent source' underlying a property interest in a particular benefit must be clear enough to provide a citizen with 'an objectively reasonable expectation that he is entitled to' that benefit." Johnson v. Dist. of Columbia, Civ. Action No. 03-2548 (GK), 2006 WL 2521241, at *4 (D.D.C. Aug. 30, 2006). Additionally, "a benefit is not a protected entitlement if government officials may grant or deny it in their discretion." Castle Rock, 545 U.S. at 756. "Unless the Government's provision of a particular benefit is mandatory, therefore, an individual cannot claim a constitutionally-protected interest in it." Johnson, 2006 WL 2521241, at *5.
Barnes alleges that her husband had a constitutionally protected property interest in, and therefore a legitimate claim of entitlement to, "the supervision of group home residents within the juvenile system and the retrieval of absconders from group homes." (Pl.'s Opp'n to Defs.' Mot. for J. on the Pleadings ("Opp'n") at 5.) Barnes identifies as the source for this entitlement a consent decree entered into by the defendants in Jerry M. v. Dist. of Columbia, 571 A.2d 178 (D.C. 1990) ("Jerry M. Consent Decree").*fn3 (Opp'n at 5-6.) Barnes argues that "[b]y entering into the Consent Decree, Defendants affirmatively assumed control of those juveniles committed to the juvenile justice system who would be housed and cared for in group homes and thus, became liable for the supervision of the juveniles residing in the group homes and absconding therefrom." (Id. at 6.)
However, no legitimate claim of entitlement arises from the Jerry M. Consent Decree. The decree does not call for the mandatory policing Barnes describes. See Johnson, 2006 WL 2521241, at *4 ("[T]he Jerry M. Consent Decree does not impose on the District a duty either to prevent abscondences from juvenile group homes or to arrest any individual who may escape."); Turner v. Dist. of Columbia,*fn4 No. Civ. A. 04-0048 (RMC), 2006 WL 566121, at *9 (D.D.C. Mar. 7, 2006) ("[T]he Jerry M. Consent Decree imposes no type of mandatory action that could give rise to a constitutionally-protected property interest."). Rather, even with the Jerry M. Consent Decree, the decision of whether and how to deal with a juvenile's escape from a group home is entirely discretionary. See Johnson, 2006 WL 2521241, at *5 ("[I]ndividuals do not have a property interest in police protection generally, or even in the detention or arrest of a particular individual, because the 'well-established tradition of police discretion' allows officers to decide whether and when to make an arrest." (quoting Castle Rock, 545 U.S. at 760-61)). As Barnes has pled no constitutionally-protected property interest, her claims premised upon a deprivation of property fail.
Barnes alleges that "Kenneth's right to life is clearly encompassed in the protected right of liberty within [the] Fifth Amendment." (Opp'n at 8.) The defendants argue that because Barnes' complaint alleges a failure to act on the part of defendants, instead of an affirmative act, Barnes' claim cannot prevail. "[N]othing in the language of the Due Process Clause itself requires the State to protect life, liberty, and property of its citizens." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). "[A] State's failure to protect an individual against private violence . . . does not constitute a violation of the Due Process Clause." Id. at 197. However, the state endangerment theory "imposes upon the State affirmative duties of care and protection with respect to particular individuals . . . where the state creates a dangerous situation or renders citizens more vulnerable to danger." Butera v. Dist. of Columbia, 235 F.3d 637, 648-49 (D.C. Cir. 2001). Where this theory is applied, "an individual can assert a substantive due process right to protection by the District of Columbia from third-party violence when District of Columbia officials affirmatively act to increase or create the danger that ultimately results in the individual's harm." Id. at 651.
The state endangerment theory applies only where an affirmative act by a state or state actor increases or creates danger that harms an individual and where that conduct is so egregious as to shock the conscience. See id. at 650, 651; see also Briscoe v. Potter, 355 F. Supp. 2d 30, 43 (D.D.C. 2004) ("[W]hether Defendants can be held liable under the theory of State Endangerment requires a two-part analysis, which raises the following questions: (1) has there been an affirmative act by Defendants to create or increase the danger that resulted in harm to Plaintiffs and, if so, (2) does that act shock the conscience?"). An affirmative state act that shocks the conscience would involve "'deliberate decisions of government officials to deprive a person of life, liberty or property.'" Fraternal Order of Police Dep't of Corr. Labor Comm. v. Dist. of Columbia, 375 F.3d 1141, 1146 (D.C. Cir. 2004) (emphasis in original) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)); see County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (holding that an action that shocks the conscience is "something more than negligence but less than intentional conduct, such as recklessness or gross negligence" (internal ...