The opinion of the court was delivered by: J. Daniel Breen United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
The Plaintiffs, Willie Hester by his next friend and mother Joyce Hester and Joyce Hester, have sued the Defendants Shelby County, City of Memphis, Memphis Police Officers Kenneth Lowe, Brody Wiggins, Benny Washington, P. Hutchison, and Shelby County Sheriff Mark Luttrell, alleging that they violated Willie Hester's constitutional right to due process by using excessive force and by not providing him proper medical care. The Plaintiffs also brought claims under state law and for punitive damages. Before the Court is the motion to dismiss of Defendants City of Memphis, Lowe, Wiggins, and Washington*fn1 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(6). The Plaintiffs have responded and this motion is now appropriate for disposition. For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED in part.
The Plaintiffs have alleged the following in their complaint. Willie Hester Jr. is an adult resident of Memphis and has been diagnosed with various mental illnesses. (Compl. ¶ 1). On July 4, 2005, Hester was walking with a friend when Officer Lowe approached him and noticed he "had a handgun in his belt." (Compl. ¶ 13). Lowe ordered Hester to "lie down on the ground," but he did not comply, prompting Lowe to call for back-up. (Id.). During the ensuing standoff, Hester at some point, pointed the gun at his own head before returning it to his waistband. (Compl. ¶ 14). Immediately before he was shot, Hester acted agitated with his hands raised "in the air," but he was not holding the gun. (Compl. ¶ 16). Defendants Lowe, Wiggins, and Washington then shot Hester a total of twenty-one times. (Id.).
Rule 12(b)(6) permits dismissal of a lawsuit for failure to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). The Rule requires the Court to "construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief." Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). "The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957). However, "[t]o avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all the material elements of the claim." Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).
Defendants Lowe, Wiggins, and Washington contend that the suit against them in their official capacities should be dismissed because it is in essence the same as a suit against their employer, the City of Memphis. The police officers further contend that the Plaintiffs fail to allege any claims against them in their individual capacity. Specifically, these Defendants argue that the complaint is deficient in providing them notice of any possible allegations against them individually. They therefore assert that a dismissal of the claims against them in their official capacity would result in their complete dismissal from this lawsuit.
Defendant City of Memphis claims that the Plaintiffs' complaint fails to state a claim against it because it does not sufficiently allege a policy or custom of the City which contributed to Hester's injuries. The City argues that the Plaintiffs' allegations as to policy and custom are merely conclusory and therefore insufficient. The municipal Defendant also seeks dismissal of the Plaintiffs' claims for outrageous conduct and punitive damages.
In their response*fn2 , the Plaintiffs state as follows:
1. The Complaint does state a claim for all acts alleged against all parties pursuant to 42 U.S.C. § 1983, and the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.
2. The Complaint does state a claim against the governmental entities for the acts of the individual Defendants under state law as stated in the Complaint. (Pls.' Consolidated Resp. to Defs.' Mot. to Dismiss ¶¶ 1-2). The Court notes, however, that the Plaintiffs have not addressed the contention of Lowe, Wiggins, and Washington that there are no individual capacity claims against them in the complaint. See supra at 3 n.1.