The opinion of the court was delivered by: John D. Bates United States District Judge
This matter is before the Court on the District of Columbia's Amended Motion to Dismiss or, in the Alternative, Motion for Summary Judgment.*fn1 For the reasons discussed below, the motion will be granted.
On May 5, 2005, Lennard Smith and other Metro Transit Police Department officers arrested plaintiff in or near the 3500 block of Jay Street in Northeast, Washington, D.C. Compl. ¶ 16. "At the time of [the] arrest, [Officer] Smith seized from plaintiff's vehicle, and from [p]laintiff's person, several items of property," id. ¶ 20, among which allegedly were the following:
(1) U.S. Currency; (2) Two Nextel Phones; (3) Money Orders (two at $500 ea.); (4) personal papers and effects; and (5) Jewelry, consisting of two gold diamond rings (valued at $15,000) and one gold bar-linked diamond chain (valued at $5,000).
Id. Officer Smith transported plaintiff from the scene of the arrest to the Greater Southeast Community Hospital, id. ¶ 17, and upon his discharge at 12:45 a.m., id., Metro Transit Police officers transported plaintiff to the Metropolitan Police Department's "Central Cellblock on Indiana Avenue, N.W. for processing and presentment in [the] Superior Court [of the District of Columbia]." Id. ¶ 18. "At no time on the date of his arrest was plaintiff ever taken to the MPD's 6th District for any reason." Id. ¶ 23 (emphasis in original).
After plaintiff's release from custody, he "went immediately to the Metro Transit Police Department to inquire about the return of the property (including the jewelry) which had been taken during the arrest." Compl. ¶ 21. Plaintiff was informed that his property could not be returned because it "may be used as evidence in the criminal case pending before the Grand Jury." Id.
When the criminal proceedings concluded, plaintiff filed a motion in the Superior Court for return of the property seized at the time of his arrest. Compl. ¶ 22. The presiding judge granted the motion on September 10, 2007, id., and, armed with the Superior Court's Order, plaintiff went to the Metro Transit Police Department's Property Office on September 20, 2007. Id. ¶ 23. Metro Transit Police "turned over . . . most of the items . . . but could not locate the Plaintiff's jewelry, money orders and miscellaneous other items." Id. (emphasis in original). In an October 2007 filing, the Transit Police "informed the [Superior] Court that: (1) Plaintiff's jewelry had been left in the custody of the Sixth District of the Metropolitan Police Department after his arrest; and (2) the jewelry had been 'destroyed' by the Sixth District Property Office on May 4, 2006." Id.
Plaintiff brings this action against the District of Columbia under 42 U.S.C. § 1983 for the alleged violation of his Fifth Amendment right to due process.*fn2 Compl. ¶¶ 32, 34 (Counts 4 and 5). In addition, plaintiff brings common law tort claims for negligence (Count 6), intentional infliction of emotional distress (Count 7), and conversion (Count 8).*fn3 Id. ¶¶ 37, 40, 43. He demands a declaratory judgment and an award of actual, compensatory, special, general and punitive damages. Id. at 13-14 (Request for Relief) (page numbers designated by the Court).
A. Plaintiff's Constitutional Claims Against the District of Columbia
The District of Columbia moves to dismiss plaintiff's Fifth Amendment claim on the ground that the complaint fails to state a claim upon which the Court may grant relief. See District of Columbia's Amended Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. ("Def.'s Mot.") at 5-6. Specifically, the District argues that plaintiff does not properly allege municipal liability under 42 U.S.C. § 1983 ("Section 1983").*fn4 Id.
The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. __, __, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A motion under Rule 12(b)(6) does not test a plaintiff's likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes the factual allegations of the complaint to be true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Phillip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2001). Although "detailed factual allegations" are not required to withstand a Rule 12(b)(6) motion, a plaintiff must offer "more than labels and conclusions" to provide "grounds" of "entitle[ment] to relief." Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1964-65. Thus, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (citations omitted).
"[A] municipality can be found liable under [Section] 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 694 (1978) (emphasis in original)). "Respondeat superior or vicarious liability will not attach under [Section] 1983." Id. The District of Columbia, then, is subject to liability under Section 1983 only "when an official policy or custom causes the complainant to suffer a deprivation of a constitutional right." Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986). The policy or custom itself must be the moving force behind the constitutional violation. Id. (citing Monell, 436 U.S. at 694); see also Pembauer v. City of Cincinnati, 475 U.S. 469, 483 (1986) ("[M]unicipal liability under § 1983 attaches where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy ...