The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Ladesha Morton, on her behalf and on behalf of her four children, brings this action against the District of Columbia Housing Authority ("Housing Authority"), its Executive Director, Michael Kelly, and one of its employees, Lorry Bonds, alleging that the defendants violated their rights under the Rehabilitation Act, 29 U.S.C. § 794 (2006), the Fair Housing Act, 42 U.S.C. §§ 3601-3610 (2006), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12134 (2006), by failing to provide them a "heat controlled and rodent-free apartment." Amended Complaint ("Am. Compl.") ¶ 20. The plaintiffs also seek findings of liability against the defendants for the alleged commission of several violations of District of Columbia regulations and for the common law torts of negligence, intentional infliction of emotional distress, and breach of warranty of habitability, along with an award of punitive damages. See id. ¶¶ 23-73. The defendants now move to dismiss the plaintiffs' claims for failure to plead or offer proof that the requisite statutory notice of their injuries was provided to the Housing Authority, Memorandum of Points and Authorities ("Defs.' Mem.") at 3;*fn1 for failure to allege facts sufficient to establish claims of intentional infliction of emotional distress against the defendants, id. at 6-9; and based on governmental immunity from liability for punitive damages, id. at 9-10.*fn2 For the following reasons, the Court will grant in part and deny in part the defendants' motion.
The following facts are alleged in the complaint. Ladesha Morton and her four children are District of Columbia residents who lived in an apartment (the "Apartment") "owned and operated" by the Housing Authority's public housing program. Am. Compl. ¶¶ 9, 11. Ms. Morton's son, D.G., suffers from multiple physical and developmental disabilities, which require him to avoid excess heat (which may cause him to experience seizures) and to rely on a gastric feeding tube to acquire nutrition. Id. ¶ 10.
The plaintiffs moved into the Apartment in March of 2003. Id. ¶ 11. The Apartment did not have an individual thermostat, which prevented the plaintiffs from controlling the temperature in the Apartment. Id. ¶ 12. Due to Ms. Morton's inability to regulate the heat in the Apartment, plaintiff D.G. began to experience seizure-like symptoms caused by the excessive heat. Id. Ms. Morton requested a transfer to a unit with adequate temperature control, but her request was denied by the Housing Authority in July 2005. Id.
In addition to inadequate temperature control, the Apartment was infested with rodents and vermin that would "gnaw and eat D.G.'s feeding tubes . . . depriving him of nutrition," and in 2005 and 2006, Ms. Morton made several complaints to Housing Authority officials regarding this problem. Id. ¶ 13. On May 16, 2007, Ms. Morton requested an emergency transfer because of the rodent infestation and her inability to control the heat, which was causing D.G.'s seizures. Id.
On July 5, 2007, the Housing Authority-through defendant Bonds-sent Ms. Morton a letter stating that it would review her request for a transfer to another apartment. Id. ¶ 14. On September 14, 2007, when no action had been taken, Ms. Morton filed a grievance with the Housing Authority property manager, reiterating her need for an immediate transfer. Id. ¶ 15. Nearly two weeks later, on September 26, 2007, Ms. Morton contacted Channel 7 News, which promptly aired the plaintiffs' story on its evening broadcast. Id. ¶ 16. The next day, the Housing Authority conducted an "emergency extermination" of the Apartment, during which thirteen rodents were "captured." Id. ¶ 17. And the next day, on September 27, 2007, the Housing Authority approved Ms. Morton's May 16, 2007 request for an emergency transfer and relocated the Mortons to a new apartment. Id. ¶ 18. The plaintiffs then filed this lawsuit on June 13, 2008.
The defendants seek dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) "tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim" upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), which accomplishes the dual objectives of "giv[ing] the defendant[s] fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). "Although detailed factual allegations are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the grounds of entitlement to relief, [the] plaintiff[s] must furnish more than labels and conclusions or a formulaic recitation of the elements of a cause of action." Hinson ex rel N.H. v. Merritt Educational Ctr., 521 F. Supp. 2d 22, 27 (D.D.C. 2007) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555). Or, as the Supreme Court more recently stated in the Rule 12(b)(6) context, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). And, a claim is facially plausible "when the plaintiff[s] plead factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). Moreover, under Rule 12(b)(6), the Court "must treat the complaint's factual allegations as true [and] must grant [the] plaintiff[s] the benefit of all reasonable inferences [that can be derived] from the facts alleged." Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks and citation omitted). Finally, in resolving a Rule 12(b)(6) motion, the Court may consider only the factual allegations set forth in the complaint, any documents attached as exhibits with the complaint (or incorporated into the complaint), and matters subject to judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). The Court's focus is therefore restricted to the facts as alleged by the plaintiffs, which must be sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
The plaintiffs have pled various federal and state law claims in their complaint. The defendants now move to dismiss the complaint on the basis of the plaintiffs' failure to provide the requisite statutory notice to the Housing Authority as required by District of Columbia law, Defs.' Mem. at 3, failure to plead facts sufficient to support their intentional infliction of emotional distress claim, id. at 6-9, and governmental immunity from being subjected to an award of punitive damages, id. at 9-10, or in the alternative, the defendants assert that "punitive damages are not available against District of Columbia officials, absent extraordinary circumstances," id. at 10. The Court will address each argument in turn.
A. Claims Subject to the Notice Requirement of D.C. Code § 6-205(a) (2010)
The plaintiffs dispute that the six-month statutory notice requirement of D.C. Code § 6- 205(a) bars this action for a number of reasons, including: (1) the statutory bar does not apply to federal claims; (2) compliance with the notice requirement is an affirmative defense and need not be pled in the complaint; and (3) that the defendants' tortious behavior was an ongoing and continuous tort that did not cease until September 2007 and because the complaint was served on the Executive Director of the Housing Authority on January 31, 2008, well within the six-month period mandated by the statute, their claims are timely. Pls.' Opp'n at 4-5.
The District of Columbia has imposed the following requirement on when lawsuits may be brought ...