The opinion of the court was delivered by: John D. Bates United States District Judge
This case arises from the unfortunate death of Kellen Anthony White, who was shot and killed by United States Capitol Police ("USCP") Officers Richard Greenwell and Matthew Shelfo. White's parents, Leroy and Thomasine White ("plaintiffs"), now seek leave to file a second amended complaint in which they request damages under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1985(3), and the Federal Tort Claims Act ("FTCA"). Plaintiffs assert claims under these theories against the USCP, USCP Chief Morse, USCP Officers Greenwell and Shelfo, several unidentified USCP officers, the United States, the District of Columbia Metropolitan Police Department ("MPD"), MPD Chief Lanier, and several unidentified MPD officers. The federal defendants "do not object to the proposed Bivens claims against [USCP] Officers Greenwell and Shelfo, or the proposed tort claims against the United States." Defs.' Partial Opp'n to Pls.' Second Mot. for Leave to Amend. Compl. ("Defs.' Mot.") [Docket Entry 12] at 1. However, they do object to plaintiffs' "proposed Bivens and 1985(3) claims against proposed defendant Morse and the USCP, and the proposed 1985(3) claims against the other Federal Defendants." Id. at 2. For the reasons detailed below, the Court will grant in part and deny in part plaintiffs' motion for leave to file a second amended complaint.
On July 15, 2009, around 5:15 p.m., Kellen Anthony White was driving in the 400 block of Second Street Northeast in the District of Columbia. Second Am. Compl. [Docket Entry 10] ¶ 22. Plaintiffs allege that an officer attempted to stop White due to a problem with his vehicle's tags. Id. ¶ 23. According to plaintiffs, White complied with the stop. Id. ¶ 24. As he drove away from the stop, however, White was "immediately chased by several USCP officers, including Defendants Greenwell [and] Shelfo." Id. ¶ 21. When White's "vehicle came to rest, . . . White exited the vehicle through the driver's side front window [and] Defendants Greenwell, Shelfo, and Unidentified Officers shot and killed [him], in a hail of approximately twelve or more bullets." Id. ¶ 22. White was taken to Washington Hospital Center where he died at approximately 6:00 p.m. Id. ¶ 31.
In their proposed second amended complaint, plaintiffs seek damages through the following counts: (I) under Bivens, from USCP Officers Greenwell and Shelfo and several unidentified officers for their alleged use of excessive force; (II) under Bivens, from the USCP, USCP Chief Morse, USCP Officers Greenwell and Shelfo ("all named USCP defendants"), and several unidentified officers for unreasonable seizure of White; (III) under both Bivens and § 1985(3), from all named USCP defendants and several unidentified officers for conspiring to deprive White of his constitutional rights by shooting him and falsely claiming that he was armed; (IV) under both Bivens and § 1985(3) from all named USCP defendants and several unidentified officers for conspiring to engage in a pattern and practice of racial discrimination;
(V) under § 1985(3), from all named USCP defendants, the MPD, MPD Chief Lanier, and several unidentified officers, for defamation by falsely claiming White brandished a gun; (VI) under the FTCA, from the United States, for White's pain, suffering, and medical expenses; (VII) under the FTCA, from the United States, for White's wrongful death; and (VIII) under the FTCA, from the United States, for the assault and battery of White.
Again, defendants "do not object to the proposed Bivens claims against [USCP] Officers Greenwell and Shelfo, or the proposed tort claims against the United States." Defs.' Mot. 1. Accordingly, there are no objections to Counts I and II as against USCP officers Greenwell and Shelfo, and Counts VI, VII, and VIII against the United States. The USCP and USCP Chief Morse, however, contend that there is no subject matter jurisdiction for the claims against them (Counts II--V) because they are barred by sovereign immunity. Additionally, USCP Officers Greenwell and Shelfo object to the § 1985(3) conspiracy claims against them (Counts III--V) as futile because they do not allege sufficient facts to state a claim of conspiracy.*fn1
Federal Rule of Civil Procedure 15(a)(2) instructs courts to "freely give" leave to amend a complaint "when justice so requires." "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). A court may, however, "deny a motion to amend on grounds of futility where the proposed pleading would not survive a motion to dismiss." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004); see also Foman, 371 U.S. at 182. The Court therefore must assess whether plaintiffs' claims in their proposed second amended complaint would survive a motion to dismiss for lack of subject-matter jurisdiction or for failure to state a claim.
Under Fed. R. Civ. P. 12(b)(1), "the plaintiff bears the burden of establishing that the court has jurisdiction." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). A court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, (1993); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the allegations set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
With respect to a motion to dismiss for failure to state a claim, all that the Federal Rules of Civil Procedure require of a complaint is that it 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. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56. "To 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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.
The notice pleading rules are not meant to impose a great burden on a plaintiff. See Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. See Leatherman, 507 U.S. at 164; Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal, 16 F.3d at 1276. Nor need the court accept "a legal conclusion couched as a factual allegation," or a "naked assertion [of unlawful misconduct] devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted).
Because defendants "do not object to the proposed Bivens claims against [USCP] Officers Greenwell and Shelfo, or the proposed tort claims against the United States," Defs.' Mot. 1, the only issues remaining before the Court are 1) whether sovereign immunity precludes this Court from exercising subject-matter jurisdiction over plaintiffs' claims against the USCP and USCP Chief Morse and 2) whether plaintiffs have plead ...