MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge.

Melanie Griffin brings suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680, alleging that the United States negligently allowed her husband Randy Wood to escape from custody and commit suicide.() This matter comes before the Court on the United States' Motion To Dismiss (Doc. #11) filed April 6, 2000, and the Motion To Amend Complaint (Doc. #19) which plaintiff filed May 17, 2000. Because defendant has not filed a responsive pleading, see Fed.R.Civ.P. 7(a); Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368, 370 (10th Cir. 1989) (motion to dismiss is not a responsive pleading), plaintiff is entitled to amend her complaint once as a matter of course. See Fed.R.Civ.P. 15(a); Glenn, 868 F.2d at 370. Accordingly, the Court will sustain plaintiff's motion to amend her complaint.

Defendant urges the Court to dismiss the amended complaint on two grounds. First, it contends that the Court lacks subject matter jurisdiction because plaintiff has failed to exhaust administrative remedies. Second, it asserts that plaintiff has failed to state a claim upon which relief may be granted because the United States did not owe a duty under Kansas law to prevent Wood from committing suicide after he escaped from custody.() For reasons stated below, the Court finds that defendant's motion to dismiss should be overruled.

• Exhaustion Of Administrative Remedies

• Legal Standard

The Court may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 281 (D.Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see also Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson Co. Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D.Kan. 1993).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of either facial attacks on the complaint or factual attacks on the accuracy of those allegations. See Holt v. U.S., 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citing Ohio Nat'l Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir. 1990)). Defendant's motion falls within the latter category because it introduces evidence outside the complaint. The Tenth Circuit has set forth the following standard:

[A] party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Holt, 46 F.3d at 1003 (citations omitted).

• Analysis

Defendant asserts that the Court lacks subject matter jurisdiction because plaintiff has failed to exhaust administrative remedies. Sovereign immunity generally proscribes suits against the United States unless the government has expressly waived its immunity. See National Commodity Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245-46 (10th Cir. 1989). The FTCA provides a limited waiver of sovereign immunity for tort claims against the United States. See, e.g., Bradley v. U.S., 951 F.2d 268, 270 (10th Cir. 1991); Three-M Enter., Inc. v. U.S., 548 F.2d 293, 294 (10th Cir. 1977). Because the FTCA constitutes a waiver of the government's sovereign immunity, the Court must strictly construe its notice requirements. See Cizek v. U.S., 953 F.2d 1232, 1233 (10th Cir. 1992) (citing Three-M, 548 F.2d at 295); see also Bradley, 951 F.2d at 270. Section 2675(a) of the FTCA requires a claimant to present her claim to the appropriate federal agency before bringing suit against the United States. See Cizek, 953 F.2d at 1233. The FTCA does not define the term "claim." See, e.g., Kanar v. U.S., 118 F.3d 527, 528 (7th Cir. 1997); Warren v. U.S. Dep't of Int. Bureau of Land Mgmt., 724 F.2d 776, 778 n. 4 (9th Cir. 1984).() The Tenth Circuit has stated that in order to comply with Section 2675(a), claimants must file an administrative claim which contains "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Cizek, 953 F.2d at 1233 (quoting Warren, 724 F.2d at 780); see also Bradley, 951 F.2d at 270. The requirements are jurisdictional and cannot be waived. See Cizek, 953 F.2d at 1233 (citing Three-M, 548 F.2d at 294); Bradley, 951 F.2d at 270. Defendant argues that plaintiff brings claims in this suit which she did not raise in her administrative claim. In her amended complaint, plaintiff asserts that

on or about March 17, 1998, Randy Wood deceased was in custody of [the Marshals] . . . and was without proper restraints, without proper surveillance, without proper medical care, and without proper custodian techniques and therefore was allowed to break free from the custody of [the Marshals] and allowed to commit suicide by subsequently jumping from the fourth floor. . . .

Plaintiff's Amended Complaint, at ¶ 4. Plaintiff alleges that defendant "had been advised that Wood was at risk for suicide and that defendant was negligent in (1) failing to provide proper security; (2) failing to provide proper medical care; (3) failing to "put in place measures to prevent [him] from committing suicide;" and (4) failing to properly restrain him. Id. at ¶ 6. Plaintiff states that she warned defendant of Wood's suicide threats and propensities. Id. at ¶ 7. Specifically, she contends that she told people at the Shawnee County Jail, the Marshals and United States Attorney's offices that Wood was "going crazy," "needed medication" and "needs help." Id. Plaintiff further states that she advised those offices that Wood would not "go back" if his bond was revoked. Plaintiff contends this statement referred "to him committing suicide rather than going back to prison." Id. Plaintiff further alleges that defendant failed to obtain a psychiatrist for Wood while he was in custody despite a request by Wood's Federal Parole Officer and notification of Wood's condition to his federal appointed attorney. Id. at ¶ 8.

In her administrative claim, plaintiff alleged the following:

[Randy Wood] was allowed to break free from the custody of [the Marshals] and escape without proper restraints, without proper surveillance and without proper custodian techniques and jump from the 4th floor of the United States Courthouse through an opening to the first floor. . . .That the United States Marshall's service had been advised that deceased was not going to return to jail voluntarily, that he more probably than not, [stet] would be very difficult to control under the circumstances of the revocation which he received at the time of the hearing. That [the Marshals] . . . were not only negligent but reckless in the manner in which they held claimant's deceased in custody and in allowing him to escape custody and jump to his death. . . .

Claim for Damage, Injury, or Death, attached as Exhibit A to United States' Reply. The administrative claim does not specifically state that plaintiff had advised defendant that Wood had a propensity for suicide and needed medical care.

Circuit courts have established differing standards regarding the extent to which a plaintiff must articulate theories of relief in an administrative claim. The Seventh Circuit requires that the administrative claim must narrate facts from which a legally trained reader would infer plaintiff's cause of action. See Murray v. U.S., 73 F.3d 1448, 1453 (7th Cir. 1996). The Eleventh and Fifth Circuits, on the other hand, require only that the administrative claim contain sufficient facts to enable the agency to begin its own investigation of the alleged events. See Burchfield v. U.S., 168 F.3d 1252, 1255-56 (11th Cir. 1999); Frantz v. U.S., 29 F.3d 222, 224 (5th Cir. 1994).() Under this standard, plaintiff may sue on alternate theories of relief if the government's investigation of the facts alleged in the administrative claim should have revealed the possibility of such claims. See Burchfield, 168 F.3d at 1255; Frantz, 29 F.3d at 224. The Tenth Circuit has not squarely decided the issue, but it has repeatedly stated that the FTCA requires a claimant to file with the appropriate federal agency "a written statement sufficiently describing the injury to enable the agency to begin its own investigation." See Czek, 953 F.2d at 1233 (affirming dismissal for lack of jurisdiction because plaintiff failed to claim damages in sum certain on administrative claim) (quoting Warren, 724 F.2d at 780); Bradley, 951 F.2d at 270 (deciding issue of when plaintiff's claim accrued for statute of limitations purposes). This statement is consistent with the more lenient standard set forth by the Eleventh and Fifth Circuits. Accordingly, the Court finds that plaintiff may assert any claims for relief which should have been revealed by the government's investigation of the facts alleged in her administrative claim. See also Figueroa v. U.S., 64 F. Supp.2d 1125, 1143 (D.Utah 1999) (finding administrative claim sufficient if it alleges facts sufficient to enable government to throughly investigate potential liability and conduct settlement negotiations (following Fifth Circuit decision in Frantz)).

Defendant complains that the administrative claim does not mention Wood's alleged need for medical care, any alleged negligence on any day other than March 17, 1998, or any alleged negligence at any place other than the courthouse in Topeka, Kansas. See United States' Reply, at 6-7. While this may be true, it does not necessarily defeat plaintiff's claims in this suit. The essence of the facts alleged in the administrative claim is that defendant was negligent with respect to the manner in which it held Wood in custody. The administrative claim also alleges that defendant "had been advised that [Wood] was not going to return to jail voluntarily, that he more probably than not, would be very difficult to control under the circumstances of the revocation which he received at the time of the hearing." Claim for Damage, Injury, or Death, attached as Exhibit A to United States' Reply. On this record, the Court cannot conclude that a reasonable investigation of these allegations would not have revealed plaintiff's claims in this case. Accordingly, the Court will overrule defendant's motion to dismiss for failure to exhaust administrative remedies.

• Failure To State A Claim Legal Standard

In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must assume as true all well pleaded facts in plaintiff's complaint and view them in a light most favorable to plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); see also Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The Court must make all reasonable inferences in favor of plaintiff. See Zinermon, 494 U.S. at 118; see also Fed.R.Civ.P. 8(a); Lafoy v. HMO Colorado, 988 F.2d 97, 98 (10th Cir. 1993). The Court, however, need not accept as true those allegations that are conclusory in nature, i.e. those which state legal conclusions rather than factual assertions. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The issue in reviewing the sufficiency of plaintiff's complaint is not whether she will prevail, but whether she is entitled to offer evidence to support her claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of her theory of recovery that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Jacobs, Visconsi Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1115 (10th Cir. 1991). Although plaintiff need not precisely state each element of her claim, she must plead minimal factual allegations on those material elements that must be proved. See Hall, 935 F.2d at 1110.

Analysis

Defendant contends that Kansas tort law does not recognize a cause of action for failure to prevent Wood from injuring himself after he escaped from custody. See United States' Reply, at 10. Under the FTCA, "the United States is liable in tort claims in the same manner and to the same extent as a private individual under like circumstances, 28 U.S.C. § 2674, in accordance with the law of the place where the act or omission occurred, 28 U.S.C. § 1346(b)." Ayala v. U.S., 49 F.3d 607, 610 (10th Cir. 1995) (citing Franklin v. U.S., 992 F.2d 1492, 1495 (10th Cir. 1993) (quotations omitted)). To bring an actionable claim for negligence under Kansas law, plaintiff must show (1) that defendant owed a duty of care, (2) that defendant breached that duty, and (3) that defendant's breach injured plaintiff. See Gilger v. Lee Constr., Inc., 249 Kan. 307, 322, 820 P.2d 390, 400 (1991). The existence of a duty is a question of law. See Burney v. Kansas Dep't of Soc. and Rehab. Servs., 931 P.2d 26, 29 (Kan.App. 1997) (citing Nero v. Kansas State Univ., 253 Kan. 567, 571, 861 P.2d 768, 772 (1993)). If a duty exists, breach and causation are questions for the fact finder. See Melvin v. U.S., 963 F. Supp. 1052, 1059 (D.Kan. 1997) (citing Calwell v. Hassan, 253 Kan. 567, 571, 925 P.2d 422, 428 (1996)).

It appears that Kansas courts have not decided whether persons who exercise custody over others have a duty to protect them from injuring themselves. The Kansas Supreme Court has recognized that a custodial relationship is a special relationship which gives rise to a duty of care to third persons. See, e.g., Cansler v. State of Kansas, 234 Kan. 554, 560-65, 675 P.2d 57, 63-66 (1984) (state had duty to exercise reasonable care to prevent inmates from harming others); P.W. v. Kansas Dep't of Soc. and Rehab. Servs., 255 Kan. 827, 832, 877 P.2d 430, 434 (1994) (special relationships include persons with custody of another). In so ruling, the Kansas Supreme Court has cited the rules set forth in Restatement (Second) of Torts §§ 314A, 316-320 (1965). See Cansler, 234 Kan. 554 at 564, 675 P.2d at 66; P.W., 255 Kan. at 832, 877 P.2d at 434. Section 314A(4) provides that

[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a . . . duty [to protect the individual in custody against unreasonable risk of physical harm and to give the individual first aid after it knows or has reason to know that the individual is ill or injured].

Comment C explains that the "[t]he duty to protect the other against unreasonable risk of harm extends to risks arising out of the actor's own conduct. . . ." Restatement (Second) of Torts (1965), § 314A, Comment C. In light of the Kansas Supreme Court's reliance on the Restatement in cases involving tort duties arising out of special relationships, the Court finds that Kansas courts would follow Comment C to Section 314A and recognize that a person with custody over another individual has a duty to take reasonable steps to prevent the individual from injuring himself. See, e.g., Myers v. County of Lake, Ind., 30 F.3d 847, 850 (7th Cir. 1994) (Indiana law requires institutions to use reasonable care to prevent their wards from committing suicide); Lee v. Corregedore, 925 P.2d 324, 331 (Hawaii 1996) (recognizing reasonable duty of care to prevent suicide on part of defendant who had actual custody of suicidal person (following Restatement § 314A)).

At this stage in the proceedings, the Court must accept as true plaintiff's allegation that defendant knew of Wood's suicidal tendencies. On such facts, the Court finds that Kansas law would impose a duty on defendant to take reasonable steps to protect Wood from unreasonable risks of harm arising out of his own conduct. Defendant argues that it did not owe a duty to Wood because he injured himself after he "broke free" from the custody. See United States' Reply, at 10. Apparently, defendant contends that any duty it owed as a result of its custody over Wood ended at the precise moment he "broke free" and that his jump from the fourth floor constitutes a separate independent act as to which no duty was owed. Construing the alleged facts in the light most favorable to plaintiff, however, the Court cannot conclude that Wood's injury is sufficiently distinct and separate from any duty which defendant owed as a result of its custody over Wood. Plaintiff alleges that Wood broke free while he was in the custody at the courthouse and then committed suicide by jumping from the fourth floor. The factual record is unclear with respect to the proximity of time and location of Wood's escape from custody. If Wood broke free from custody and a substantial time lapsed before he jumped from the fourth floor, defendant's position might be well taken. If Wood broke free only moments before he jumped, however, or if his act of jumping was part of the escape, it would appear that the defendant owed a duty to take reasonable steps to protect him from hurting himself. Thus the Court will overrule defendant's motion to dismiss for failure to state a claim.

IT IS THEREFORE ORDERED that the United States' Motion To Dismiss (Doc. #11) filed April 6, 2000 be and hereby is SUSTAINED in part and OVERRULED in part. The Court dismisses plaintiff's claims against the United States Marshals Service and her claim under 42 U.S.C. § 1983 against the United States. The FTCA claim against the United States remains in the case.

IT IS FURTHER ORDERED that the Motion to Amend Complaint (Doc. #19) which plaintiff filed May 17, 2000 be and hereby is SUSTAINED. Upon entry of this order, Plaintiff's Amended Complaint (attached to plaintiff's Motion to Amend Complaint (Doc. #19)) is deemed filed and served.