ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Patti Hammond Shaw ("Shaw"), a transgender woman who has undergone sex reassignment surgery and had her sex legally changed to female, alleges that on three separate occasions she has been arrested in the District of Columbia and subjected to treatment by the Metropolitan Police Department ("MPD") and the United States Marshals Service ("USMS") in violation of the Fourth and Fifth Amendments to the United States Constitution, the Federal Tort Claims Act, the D.C. Human Rights Act, and D.C. tort law. (First Am. Compl., Sept. 17, 2012 [ECF No. 27] ("Compl.").) She brings this action against the District of Columbia ("District"); MPD Chief of Police Cathy Lanier, in her official capacity; Lieutenant Merrender Quicksey, an MPD officer, in her individual capacity; the United States; Benjamin E. Kates, Steve Conboy and Troy Musgrove, USMS Marshals, in their individual capacities (collectively the "USMS defendants"); and other unknown MPD and USMS employees.
Before the Court are three motions to dismiss: one filed jointly by the USMS defendants ("USMS Mot.") [ECF No. 28]; one filed by Quicksey ("Quicksey Mot.") [ECF No. 41]; and one filed by Lanier ("Lanier Mot.") [ECF No. 37]. For the reasons stated herein, the Court will (1) grant the USMS defendants' motion as to the claims against Conboy, but deny it as to the claims against Kates and Musgrove; (2) deny Quicksey's motion; and (3) grant Lanier's motion.
The following factual recitation is based on the allegations in plaintiff's complaint and must, for purposes of these motions, be accepted as true. Plaintiff is now, and was at all times relevant to this case, a female whose legal name is Patti Hammond Shaw. (Compl. § 2.) Plaintiff is also a "transgender woman, " who has "undergone sex reassignment surgery, " and "had her sex legally changed [from male] to female." ( Id. § 2.)
Since changing her sex to female, plaintiff has been arrested by the MPD on three occasions: June 18, 2009, December 10, 2009, and June 6, 2012. ( Id. §§ 15, 44, 73.) In the District, the first time a person is arrested, he/she is assigned a unique Police Department identification number ("PDID"), which is recorded in the MPD's computerized record system. ( Id. §§ 96-97.) When plaintiff was first arrested by the MPD she was male, and neither the name nor sex associated with her PDID number has ever been changed. ( Id. §§ 98-100.)
After each of the three arrests that are the subject of plaintiff's complaint, the MPD held her with the male detainees, first at the Sixth District police station ("6D") and then at the MPD's Central Cellblock. (Compl. §§ 17, 46, 74.) At 6D, plaintiff was held in a single cell in the male area, facing the men who were in the cell across from her. ( Id. ) Similarly, in the Central Cellblock plaintiff was held in a single cell in the men's area, facing the male detainees in the cell across from her. At both locations, the male detainees verbally and physically harassed her, as did one MPD officer. ( Id. §§ 19, 48, 52, 53, 76, 81, 82.) During December 2009 and June 2012, Quicksey was the manager of the Central Cellblock ( id. §§ 5, 51), "the individual designated by the Commanding Officer to be responsible for managing all aspects of the station/holding facility area on a 24-hour basis." MPD Standard Operating Procedures for Holding Facilities at 2 (May 30, 2003) ("MPD Holding Facilities Procedures"). The complaint alleges that he failed to train, supervise or discipline MPD employees in the Central Cellblock in the proper treatment of female transgender detainees. (Compl. §§ 153, 156).
Essentially, the MPD treated plaintiff as if she were a male, despite knowing that she was a transgender female,  and in apparent violation of its own policy, which provides that "[w]hen male and female prisoners are detained in the holding facility for adults... the male and female prisoners shall be separated by sight and sound." MPD Holding Facilities Procedures at 11. The MPD's General Order for "Handling Interactions with Transgender Individuals" was also in effect at the time of plaintiff's arrests. See MPD General Order 501.02 (Oct. 16, 2007) ("MPD Transgender Order"). Its provisions "supplement" existing orders unless "a directive involving the same operation is clearly contradictory, " in which case the provisions "supersede and amend the contradictory language." Id. at 10. It provides, in the section headed "Processing and Housing of Transgender Arrestees, " that "[w]henever practical, transgender arrestees shall be placed in a cell by him/herself, even when more than one transgender person is in custody at the same MPD facility at the same time." Id. at 7. It also provides that "[m]embers shall bring conflicting gender information to the attention of the U.S. Marshal's Service when the arrestee is remanded to their custody." (MPD Transgender Order at 8.) When the MPD Transgender Order was adopted in 2007, Conboy was the U.S. Marshal for the Superior Court.
From MPD custody, plaintiff was transferred to the USMS cellblock at Superior Court and to USMS custody. ( Id. §§ 21, 58, 86.) The USMS also knew that plaintiff was legally a female,  but treated her as if she were a male. Each time she was transferred to the USMS cellblock, she was searched by male USMS employees ( id. §§ 23-26, 58-59, 87), even when female USMS employees were available. The USMS Policy Directive on "Body Searches, " the purpose of which is to set forth the "procedures necessary for conducting both reasonable and legal searches, " provides that an "[i]n-custody [s]earch" is conducted "upon acceptance of a prisoner at the USMS cellblock." USMS Policy Directive 99-25, Body Searches at 3 (July 7, 1999) ("USMS Search Policy"). An "in-custody" search requires removal of outer clothing for inspection and a visual inspection of the detainee. Id. at 2-3. A "strip search" is also authorized under certain circumstances. Id. at 3. It differs from an in-custody search in that it involves a "complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities, " but is similar in that it " should not involve touching the skin surface." Id. Generally, both types of searches are to be conducted "by a deputy of the same sex, " although "in extenuating circumstances, or when the need for security dictates, an in-custody search may be conducted by a deputy of the same sex." Id. at 5.
As alleged, the searches of plaintiff did not comply with the USMS search policy for "in-custody" or "strip searches" as they were conducted by male USMS employees, in view of male detainees. In addition, during the searches, male USMS employees verbally harassed her ( id. §§ 26, 59) and intimately and inappropriately touched her. ( Id. §§ 25, 87.) In December 2009, the search was conducted by Musgrove, the USMS District Security Officer at the Superior Court. ( Id. §§ 10, 58, 59.)
Plaintiff was also held in a bullpen with male detainees ( id. §§ 30, 64, 86), even after requesting to be moved. While there, she was harassed by the male detainees ( id. §§ 31, 65) and subjected to other indignities. ( Id. § 34.) The USMS employees who were present did nothing to help stop the harassment, even when plaintiff complained. ( Id. §§ 34, 65.)
When the MPD's Transgender Order was adopted in 2007, Conboy was the U.S. Marshal for the Superior Court. ( Id. § 9.) The complaint alleges that in response to that order he established policies of having "male USMS marshals search female transgender detainees" ( Id. §§ 126, 130, 134) and of "intentionally disregarding gender information about transgender detainees communicated by employees of the Metropolitan Police Department to members of the United States Marshals Service upon remand of the detainee to the custody of the United States Marshals Service" ( id. §§ 9, 28, 39, 40, 61, 68, 69, 90), and that these policies remained in effect at the time of plaintiff's arrests. In 2009, Kates was the U.S. Marshal for the Superior Court. ( Id. § 8.) The complaint alleges that he maintained Conboy's policies and failed to train, supervise or discipline USMS employees in the proper treatment of female transgender detainees. ( Id. §§ 119, 123, 127, 140).
II. PROCEDURAL HISTORY
Based on her treatment following each arrest, plaintiff filed two separate complaints, which were consolidated in the above-captioned case. ( See Memorandum Opinion and Order, Sept. 17, 2012 [ECF No. 26].) The operative complaint is the First Amended Complaint, which includes eleven separate claims, four of which are addressed by the motions to dismiss filed by the USMS defendants, Quicksey and Lanier. Those claims are: (1) a Fourth Amendment Bivens claim against Conboy, Kates, Musgrove and other unknown USMS employees based on the three searches that took place which plaintiff was in USMS custody (Count VI) (Compl. §§ 122-134) ("Fourth Amendment Bivens Claim"); (2) a Fifth Amendment Bivens claim against Conboy, Kates, and other unknown USMS employees based on the conditions of confinement while she was in USMS custody (Count VIII) ( id. §§ 137-147) ("Fifth Amendment Bivens Claim"); (3) a Fifth Amendment § 1983 claim against Quicksey and unknown MPD employees based on the conditions of confinement while plaintiff was in MPD Custody (Count IX) ( id. §§ ...