The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiff Elmer Hernandez brings this action against defendants District of Columbia, Washington Convention and Sports Authority ("WCSA"), and Officer Parmineler Singh ("Officer Singh"), both individually and in his official capacity, alleging various torts and violations of his civil rights. Defendants District of Columbia and Singh answered the complaint as to each count on August 18, 2011 [Dkt. # 17]. Defendant WCSA answered the complaint [Dkt. # 18] with respect to Count I (Assault and Battery), Count II (Negligence), and Count VI (Intentional Infliction of Emotional Distress), but moves this Court to dismiss Count III (Gross Negligence), Count IV (Violations of Plaintiff's Civil Rights), Count V (Abuse of Process), and Count VII (False Arrest and Imprisonment) pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. # 19]. For the reasons below, the Court will grant WSCA's motion to dismiss as to Count III and Count IV but will deny it with regard to Count V and Count VII.
Plaintiff, a resident of Virginia, attended a soccer match on June 19, 2010, at the Robert F. Kennedy Memorial Stadium ("RFK Stadium") in Washington, D.C. Am. Compl. at 2. Officer Singh is a police officer with the District of Columbia Metropolitan Police Department ("MPD") who, on the date in question, was off-duty and employed by WCSA to provide security at RFK Stadium. Am. Compl. ¶¶ 5--6. WCSA operates RKF Stadium and routinely employs off-duty MPD officers to provide security at various events. Id. ¶ 6. This action arises out of plaintiff's encounter with Officer Singh at RFK Stadium.
At some point during the match, a fight broke out between two members of plaintiff's family and other individuals in attendance. Id. at 2. Plaintiff attempted to break up the fight and sustained injuries when Officer Singh intervened and allegedly "used more force than was reasonably necessary to gain control of the situation." Id. According to plaintiff, Officer Singh "violently struck [him] from behind" without provocation. Id. ¶ 9. Plaintiff alleges that he "raised his hands and/or elbow to defend himself" but that Officer Singh "went on to continuously strike and hit [him], even after he fell to the ground." Id. ¶¶ 9--10.
After the altercation, plaintiff was placed under arrest for assaulting a police officer and subsequently transported to the George Washington University Hospital where he was treated for injuries to his forehead, cheek and jaw area; a nasal bone fracture; a nasal laceration; and other lacerations. Id. ¶¶ 10--11. Plaintiff was arraigned on the assault charge on June 21, 2010. Id. ¶ 13. However, the case was dismissed for want of prosecution on January 10, 2011. Id.
Plaintiff filed this lawsuit against the District of Columbia and Officer Singh in the Superior Court of the District of Columbia on May 20, 2011. Defendants subsequently removed the case to this Court on grounds of federal question jurisdiction [Dkt. # 1], and on July 18, 2011 plaintiff filed an amended complaint [Dkt. # 8] naming for the first time WCSA as a defendant. The amended complaint sets forth seven causes of action as to all defendants: Count I alleges assault and battery; Count II alleges negligence; Count III alleges gross negligence; Count IV alleges violations of plaintiff's civil rights under 42 U.S.C. § 1983 (2006), 18 U.S.C. §§ 241, 242, and 245 (2006), and D.C. Code § 4--176 (1981); Count V alleges abuse of process; Count VI alleges intentional infliction of emotional distress; and Count VII alleges false arrest and imprisonment. Before the Court is WCSA's motion to dismiss Count III, Count IV, Count V, and Count VII of the amended complaint.*fn1
A. Whether Rule 12(b)(6) or Rule 12(c) Applies
As a preliminary matter, the parties dispute whether WCSA's motion may be decided under Fed. R. Civ. P. 12(b)(6). Plaintiff asserts that a 12(b)(6) motion to dismiss must be filed before any responsive pleadings and points out that WCSA's answer "appears on the docket before th[e] 12(b)(6) motion." Pl. Opp. at 3. Despite the docket order, the Court notes that WCSA filed its answer and 12(b)(6) motion on the same day, and because the answer responds only to Counts I, II, and VI, the Court will consider dismissal of Counts III, IV, V, and VII under Rule 12(b)(6).*fn2
"To survive a [Rule 12(b)(6)] 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, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft, 129 S. Ct. at 1949. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950.
A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," id.
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or ...