ROSEMARY M. COLLYER, District Judge.
Katina Colbert (KC) is an intellectually disabled woman who is unable to care for herself. While living in a group home managed by Total Care Services, Inc., a contractor for the District of Columbia, KC became pregnant and gave birth to a baby girl with severe medical problems. The infant, TC, spent most of her short life in the hospital and died when she was just over a year old. KC's mother, Jacqueline Colbert, sues the District and its contractor, alleging constitutional violations and various torts. The District moves to dismiss or for summary judgment. As explained below, the motion will be granted in part and denied in part, without prejudice.
Jacqueline Colbert, mother of KC and grandmother of TC, brought this suit individually, as next friend of KC, and as personal representative of the Estate of TC against Total Care Services, Inc. (Total Care) and the District of Columbia (collectively, Defendants). Ms. Colbert alleges that in the fall of 2008 at the direction and request of the District, KC was hospitalized and underwent a psychological assessment, which revealed that KC needed care and supervision twenty-four hours a day, seven days a week. Compl. [Dkt. 1] ¶¶ 7-8. As a result, KC began residing in a group home operated by Total Care, under contract with the District.
Ms. Colbert alleges that despite the fact that the Defendants knew of KC's "prior history of sexual abuse, neglect, her medical conditions, her intellectual disabilities, the medications she was taking, her medical and psychological status, her lack of ability to consistently take her medication, her fertility as well as her past and current sexual activity, " id. ¶ 9, they failed to provide appropriate supervision and care to protect KC from foreseeable harm, id. ¶¶ 11-12. Defendants allegedly "allowed... and encouraged [KC] to have unprotected, nonconsensual sexual intercourse with various men for extended periods in 2010, " id. ¶ 10, including but not limited to "other residents of the facility and men she was meeting on a one time/casual basis, " id. ¶ 22(c). KC became pregnant and prematurely delivered TC, a baby girl, on April 3, 2011. Id. ¶ 10. KC was provided little or no prenatal care. Id. ¶ 13.
Because KC was unable to care for her child, Ms. Colbert was awarded sole physical custody of TC. Id. ¶ 15. TC was born with significant health problems requiring multiple surgeries and necessitating extended hospitalization; she died from medical complications on April 18, 2012, at the age of 12 months and 9 days. Id. ¶¶ 10, 14, 17. It is unclear where KC currently lives. Compare Compl. ¶ 6 ("Total Care Services is a licensed provider of services to mentally retarded adults for [the District of Columbia], including a range of services provided to Colbert from 2008 through the present.") with id. ¶ 3 ("Colbert is intellectually disabled and is under the care and supervision of the District of Columbia at a facility operated by Innovative Life Solutions.")
The Complaint contains twelve Counts, asserted against both Defendants, unless otherwise noted:
Count II-Negligent Hiring and Retention (against Total Care);
Count III-Wrongful Birth;
Count IV-Breach of Fiduciary Duty arising from special relationship;
Count V-Negligence Per Se Due to Violation of D.C. Code § 44-504(a)(3) and (4) (against Total Care);
Count VI-Violation of the Fifth Amendment pursuant to 42 U.S.C. § 1983 (against the District);
Count VII-Violation of D.C. Code §§ 7-1301.02 et seq. and 7-1305.14;
Count VIII-Violation of D.C. Code §§ 7-1301.02 et seq. and 7-1305.13 (against the District);
Count IX-Negligent Infliction of Emotional Distress;
Count X-Intentional Infliction of Emotional Distress;
Count XI-Punitive Damages;
Count XII-Wrongful Death; and
Count XIII-Survival Act.
Id. ¶¶ 18-93. Total Care filed an Answer to the Complaint, but the District of Columbia filed a motion to dismiss or for summary judgment. See Mot. to Dismiss or for Summ. J. [Dkt. 9] (Mot.); Reply [Dkt. 15]. Ms. Colbert opposes. See Opp'n [Dkt. 12].
II. LEGAL STANDARDS AND JURISDICTION
A. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has stated properly a claim. In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted).
A complaint must "give a 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) (internal citations omitted). Although a complaint does not need detailed factual allegations, it must include "more than labels and conclusions" and the facts alleged "must be enough to raise a right to relief above the speculative level." Id. "[A] complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must treat the complaint's factual allegations as true, "even if doubtful in fact, " Twombly, 550 U.S. at 555, but a court need not accept as true legal conclusions set forth in a complaint, Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
B. Motion for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
The Court has federal question jurisdiction under 28 U.S.C. § 1331 because Count VI alleges a violation of K.C.'s rights under the Fifth Amendment of the U.S. Constitution,  pursuant to 42 U.S.C. § 1983. See Compl. ¶ 1. All other Counts assert violations of D.C. law. In its discretion, a federal court may exercise supplemental ...