United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Davida Whittaker brings suit against Defendants Court
Services and Offender Supervision Agency for the District of
Columbia (“CSOSA”) and the United States for
actions related to the probation supervision of Clayton
Morris. Mr. Morris had previously been convicted of charges
relating to domestic violence against Plaintiff. Plaintiff
brings claims against Defendants for negligence, negligent
supervision and training, negligent infliction of emotional
distress, gross negligence, and vicarious liability.
Defendants have moved to dismiss Plaintiff's Complaint on
multiple grounds. First, Defendants move to dismiss
Plaintiff's Complaint on jurisdictional grounds, arguing
that this Court does not have jurisdiction over
Plaintiff's claims under either diversity jurisdiction or
under federal question jurisdiction pursuant to the Federal
Tort Claims Act (“FTCA”). Second, Defendants
argue that Plaintiff's negligence-related claims should
be dismissed as Plaintiff has failed to identify a duty owed
to her by CSOSA. Finally, Defendants request dismissal of
Plaintiff's claim for the negligent infliction of
emotional distress as Plaintiff has not alleged that she was
in the zone of danger.
consideration of the pleadings, the relevant legal authorities,
and the record for purposes of this motion, the Court GRANTS
IN PART AND DENIES IN PART Defendants' Motion to Dismiss.
The Court concludes that diversity jurisdiction is not proper
as Defendants are not citizens of a state or foreign country.
The Court further concludes that CSOSA is not a proper
Defendant under the FTCA and that punitive damages are
precluded under the FTCA. Accordingly, the Court DISMISSES
Defendant CSOSA from this lawsuit and DISMISSES
Plaintiff's claims for punitive damages. The Court
otherwise DENIES WITHOUT PREJUDICE Defendants' Motion.
Additional factual development is required before the Court
can more fully address some of Defendants' arguments.
claims arise out of events related to CSOSA's probation
supervision of Mr. Morris. Plaintiff was the complaining
witness in a 2016 domestic violence criminal case in the
Superior Court of the District of Columbia brought by the
government against Mr. Morris. Compl., ECF No. 1, ¶ 23.
Plaintiff was also the complaining witness in a second 2016
domestic violence criminal case in D.C. Superior Court based
on Mr. Morris's failure to abide by the conditions of his
release in the first domestic violence case and additional
threats against Plaintiff while the first case was pending.
September 26, 2016, Mr. Morris pled guilty to various charges
from both his first and second domestic violence criminal
cases. He was sentenced to 180 days in jail, with 90 days
suspended, and two years probation, with the sentences to run
concurrently. Id. at ¶ 25. CSOSA was in charge
of supervising Mr. Morris's probation and was allegedly
aware of his history of domestic violence against Plaintiff.
Id. at ¶ 26. As a condition of his probation,
Mr. Morris was ordered to stay away from and have no contact
with Plaintiff. Id. at ¶ 27.
Mr. Morris's release from jail, Plaintiff alleges that on
February 16, 2017, Mr. Morris contacted Plaintiff by calling
her work landline number several times in violation of the
terms of his probation. Id. at ¶ 29. Plaintiff
alleges that she promptly informed CSOSA of this violation.
Id. Plaintiff states that she emailed Mr.
Morris's case manager at CSOSA, explaining that Mr.
Morris had contacted her. Plaintiff's email signature
contained her work cell phone number. Id. at ¶
30. CSOSA staff informed Plaintiff that the issue would be
alleges that, on February 21, 2017, CSOSA held a visit with
Mr. Morris to discuss Plaintiff's allegations.
Id. at ¶ 31. During the meeting, CSOSA staff
inspected Mr. Morris's phone to determine if he had
called Plaintiff's work landline number. In inspecting
the phone, Plaintiff alleges that CSOSA staff placed a call
to her work landline number using Mr. Morris's phone.
Plaintiff alleges that CSOSA staff quickly hung up and did
not notify her that CSOSA staff, rather than Mr. Morris, had
placed the call. Id.
that day, Plaintiff called CSOSA to notify them that she had
again been contacted by Mr. Morris. Id. at ¶
33. Plaintiff alleges that she was informed that CSOSA staff
member Daisy Diallo had actually made the call. Id.
Plaintiff contacted the prosecutors who had handled Mr.
Morris's underlying criminal cases to alert them to the
issues she was having with CSOSA. Id. at ¶ 34.
Plaintiff alleges that CSOSA staff members then apologized
and acknowledged their mistake. Id.
during the February 21, 2017 meeting between CSOSA and Mr.
Morris, Plaintiff alleges that CSOSA showed Mr. Morris a copy
of Plaintiff's email, which contained her work cellphone
number. Id. at ¶ 32. Plaintiff alleges that,
following the meeting, Mr. Morris made calls to her work
cellphone number, a number which she had previously not
shared with him. Id. at ¶ 35. In these calls,
Plaintiff alleges that Mr. Morris threatened her with great
bodily harm and death in addition to threatening her
February 21, 2017, Plaintiff again contacted CSOSA to inform
them that Mr. Morris had made new threats against her.
Plaintiff alleges that CSOSA staff informed her that there
was an active warrant for the arrest of Mr. Morris for this
behavior. Id. at ¶ 36. However, Plaintiff
alleges that at the time CSOSA made this assurance, the
arrest warrant was not actually active. Plaintiff further
alleges that CSOSA had the wrong phone number for Mr. Morris
which hindered attempts to contact him. Id.
February 23, 2017, Plaintiff met with CSOSA staff.
Id. at ¶ 37. During this meeting, Plaintiff
alleges that CSOSA informed her that CSOSA staff member Ms.
Diallo had shown Mr. Morris a copy of Plaintiff's email
and had possibly disclosed other information to Mr. Morris.
Id. Later that day, Plaintiff alerted a supervisor
at CSOSA and the prosecutors from the underlying cases about
these issues. Id. at ¶ 38. Plaintiff alleges
that, based on this information, a representative of the
United States Attorney's Office for the District of
Columbia contacted the judge from Mr. Morris's two
criminal domestic violence cases to arrange an emergency
“show cause” hearing addressing the situation.
February 23, 2017, Plaintiff alleges that police attempted to
execute the arrest warrant for Mr. Morris relating to his
threats to and contact with Plaintiff. Id. at ¶
40. Plaintiff alleges that police were not able to serve the
arrest warrant on Mr. Morris because CSOSA had failed to
obtain the apartment number where Mr. Morris resided. Lacking
an apartment number, police were unable to serve Mr. Morris
with the arrest warrant. Id.
further alleges that CSOSA staff were unable to provide an
absolute confirmation that Mr. Morris was wearing his GPS
monitor. Id. However, Mr. Morris's GPS data did
show that he had spent time at a metro stop one block away
from Plaintiff's residence. Id. at ¶ 41.
Plaintiff contends that CSOSA staff could not confirm whether
or not they had disclosed her new address or other
information to Mr. Morris and recommended that Plaintiff move
residences to protect herself. Id. at ¶ 42.
Plaintiff states that she did in fact move to a new address
following her conversations with CSOSA. Id. at
judge from Mr. Morris's two domestic violence criminal
cases conducted an emergency show cause hearing on March 2,
2017 regarding Mr. Morris's threats to and contact with
Plaintiff. Id. at ¶ 43. Following the hearing,
CSOSA staff emailed Plaintiff informing her that Mr.
Morris's probation had been revoked for violating the
conditions of his release and that he would serve the
remaining 90 days of his sentence in jail. Id. at
on these events Plaintiff brings five claims against
Defendants CSOSA and the United States. In Count 1, Plaintiff
brings a claim of negligence; in Count 2, Plaintiff brings a
claim of negligent supervision and training; in Count 3,
Plaintiff brings a claim of negligent infliction of emotional
distress; in Count 4, Plaintiff brings a claim of gross
negligence; and in Count 5, Plaintiff brings a claim of
12(b)(1) Motion to Dismiss Standard
move to dismiss Plaintiff's Complaint under Rule 12(b)(1)
for lack of subject matter jurisdiction. A court must dismiss
a case pursuant to Rule of 12(b)(1) when it lacks
subject-matter jurisdiction. In determining whether there is
jurisdiction, “the court may consider the complaint
supplemented by undisputed facts evidenced in the record, or
the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Coal.
for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003) (quoting Herbert v. Nat'l Acad. of
Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)) (internal
quotation marks omitted). “At the motion to dismiss
stage, counseled complaints, as well as pro se complaints,
are to be construed with sufficient liberality to afford all
possible inferences favorable to the pleader on allegations
of fact.” Settles v. U.S. Parole Comm'n,
429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the
favorable inferences that a plaintiff receives on a motion to
dismiss, still that “[p]laintiff bears the burden of
proving subject matter jurisdiction by a preponderance of the
evidence.” Am. Farm Bureau v. E PA, 121
F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must
accept as true all factual allegations contained in the
complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1), [a] plaintiff['s] factual allegations in the
complaint ... will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for
failure to state a claim.” Wright v. Foreign Serv.
Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007)
(internal citations and quotation marks omitted).
12(b)(6) Motion to Dismiss Standard
the Court does have jurisdiction, Defendants argue that many
of Plaintiff's claims should be dismissed under Federal
Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), a
party may move to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint
[does not] suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint must contain
sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility 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, 556 U.S. at 678.