                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

 DAVID JOHN LEYLAND,                            )
                                                )
                      Plaintiff,                )
                                                )
               v.                               )   Civil Case No. 10-2327 (RJL)
                                                )
 MILLER EDWARDS,                                )
                                                )
                      Defendant.                )
                                                )

                              MEMO
                                (July
                                           ru~PINION
                                            ,2011)[#5]

       Plaintiff David John Leyland ("plaintiff' or "Leyland") brought an action for

damages pursuant to Bivens v. Six Unknown Names Agents ofFederal Bureau of

Narcotics, 403 U.S. 388 (1971) and for injunctive relief against defendant Miller

Edwards ("defendant" or "Edwards"), contending that defendant violated the Fifth

Amendment's Due Process Clause when he declined to return plaintiffs property

previously seized by the United States Park Police. Defendant has moved to dismiss

plaintiffs complaint. After due consideration of the law and pleadings, defendant's

Motion to Dismiss is GRANTED.

                                   BACKGROUND

       On May 23, 2009, the U.S. Park Police arrested plaintiff and seized from him two

firearms, ammunition, and two holsters. Compl.      ~~   5-6. Plaintiff was subsequently

charged with possession of two unregistered firearms and with unlawful possession of

ammunition in the Superior Court for the District of Columbia. Id.      ~   5; see 2009 CDC


                                            1
012256 (Superior Court Electronic Docket). On October 26,2009, Leyland pleaded

guilty to two counts of possession of an unregistered firearm, and the charge of unlawful

possession of ammunition was dropped. Compi.          ~   7. Plaintiff was sentenced to six

months' unsupervised probation, which he completed on April 26, 2010. Id.           ~~   7,9.

       Because the Superior Court did not order any of the seized property to be

forfeited, Leyland's counsel wrote defendant on August 9,2010, requesting that his

property be returned. Id.   ~~   8, 10. To date, the property has not been returned. Id.      ~   11.

       On December 30,2010, plaintiff filed this lawsuit seeking damages under Bivens

and an injunction ordering his property be returned. Compi. at 3-4. On April 21, 2011,

defendant filed a motion to dismiss Leyland's complaint, or in the alternative, for

summary judgment. For the following reasons, defendant's motion is GRANTED.

                                   STANDARD OF REVIEW

       A court may dismiss a complaint or any portion of it for failure to state a claim

upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to

dismiss, however, the Court may only consider "the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint and matters of which [the

court] may take judicial notice." E.E.o.c. v. St. Francis Xavier Parochial Sch., 117 F.3d

621, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a complainant must "plead [ ]

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949

(2009). In evaluating a Rule 12(b)(6) motion, the Court construes the complaint "in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from

                                                 2
the facts alleged." Schuler v. United States, 617 F.2d 605,608 (D.C. Cir. 1979) (internal

quotation marks omitted). However, factual allegations, even though assumed to be true,

must still "be enough to raise a right to relief above the speculative level." Bell At!. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the Court "need not accept inferences

drawn by plaintiffl] if such inferences are unsupported by the facts set out in the

complaint. Nor must the court accept legal conclusions cast in the fonn of factual

allegations." Kowalv. MCICommc'ns Corp., 16 F.3d 1271,1276 (D.C. Cir. 1994).

                                   LEGAL ANALYSIS

   I.      Bivens Action

        An action for damages brought against federal officials in their individual capacity

pursuant to the U.S. Constitution is commonly referred to as a Bivens action. See Bivens,

403 U.S. at 397 (holding plaintiff may sue federal agents for money damages for

violation of his constitutional rights). However, "in most instances[, the Supreme Court

has] found a Bivens remedy unjustified." Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

Indeed, in the Supreme Court's "more recent decisions[, it has] responded cautiously to

suggestions that Bivens be extended into new contexts." Schweiker v. Chilicky, 487 U.S.

412,421 (1988). There are two instances, however, where it is clearly inappropriate to

award money damages for a Bivens claim. Bivens, 403 U.S. at 396. First, when there are

"special factors" counseling against creating a Bivens remedy, and second, where there is

a congressional declaration prohibiting recovery of monetary damages or remitting

recovery to another equally effective remedy. Id. In a motion to dismiss a Bivens claim,

the defendant bears the burden to prove the existence of one of these two instances. See

                                              3
Carlson v. Green, 446 U.S. 14, 18-19 (1980). Unfortunately for Leyland, the defendant

has done so here by relying on the "special factor" of a comprehensive procedural and

remedial scheme for individuals seeking the return of seized property: Superior Court

Rule of Criminal Procedure 41 (g). I

       Rule 41 (g) provides that a person aggrieved "by the deprivation of property may

move the Court for the return of property." Indeed, the proper remedy for seeking the

return of such property is to simply file a motion under Rule 41 (g). 2 See Perez-Colon v.

Camacho, 206 F. App'x 1, 2006 WL 3361778, at *1 (1st Cir. 2006); United States v.

Sims, 376 F.3d 705,708 (7th Cir. 2004); United States v. Chambers, 192 F.3d 374,376

(3d Cir. 1999).3 Although concise, Rule 41(g) is a comprehensive scheme that provides a

straightforward and adequate remedy-and one which avoids any constitutional

deprivation. 4 How so?


I Our Circuit Court previously has held other comprehensive procedural and remedial
schemes to constitute a "special factor" precluding Bivens remedies. See Wilson v. Libby,
535 F.3d 697 (D.C. Cir. 2008) (holding the Privacy Act to constitute a "special factor"
precluding a Bivens remedy); Spagnola v. Mathis, 859 F .2d 223 (D.C. Cir. 1988) (en
banc) (recognizing the Civil Service Reform Act as a "special factor" precluding a Bivens
remedy).
2 A motion under Rule 41 (g) can be filed with the Superior Court after the criminal case
has ended. See Wilson v. United States, 424 A.2d 130, 132 (D.C. 1980).
3 We may look to federal law analyzing Federal Rule 4l(g) because the D.C. Superior
Court generally conducts its business according to the Federal Rules of Criminal
Procedure, which are enacted by Congress, see D.C. Code § 11-946, and Superior Court
Rule 4l(g) substantially conforms to Federal Rule 41(g). See Superior Court Rule of
Criminal Procedure 41 (g) cmt. (stating that Superior Court Rule 41 (g) "substantially
conforms to paragraph (e) of the Federal Rule [41]"); United States v. Barnhardt, 555 F.
Supp. 2d 184, 186 n.2 (D.D.C. May 27,2008) (noting that Federal Rule 41(e) is now
Federal Rule 41(g)).
4 Plaintiff failed to pursue a remedy under Rule 41 (g). Had Plaintiff initiated this
remedy, he could have avoided any alleged injury.
                                             4
        Although Rule 41 (g) does not provide damages as a remedy, "[ a] remedial statute

need not provide full relief to the plaintiff to qualify as a 'special factor.'" Wilson v.

Libby, 535 F.3d 697, 705-06 (D.C. Cir. 2008) (holding that "the availability of Bivens

remedies does not tum on the completeness of the available statutory relief'). As the

Supreme Court itself has noted: "[t]he absence of statutory relief for a constitutional

violation ... does not by any means necessarily imply that courts should award money

damages against the officers responsible for the violation." Schweiker v. Chilicky,487

U.S. 412, 421-22 (1988). Put simply, "[t]here is no 'automatic entitlement' to a Bivens

remedy regardless of 'what other means there may be to vindicate a protected interest.'"

Wilson, 535 F.3d at 706 (quoting Wilkie, 551 U.S. at 550).

        Consequently, Leyland's claim is barred due to Rule 41(g) providing an adequate,

comprehensive procedural and remedial scheme. Accordingly, defendant's motion to

dismiss must be GRANTED.

   IL      Qualified Immunity

        Even if Leyland's Bivens claim was not barred due to "special factors," defendant

still has qualified immunity, shielding him from this lawsuit. Indeed, qualified immunity

shields public officials "from undue interference with their duties and from potentially

disabling threats ofliability," Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). In short, it

is designed to dispose of "insubstantial lawsuits" on a motion to dismiss, thereby

avoiding unnecessary litigation, id. at 808. Not surprisingly, the Supreme Court has

"repeatedly stressed the importance of resolving immunity questions at the earliest

possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

                                               5
      Here, the defendant clearly enjoys qualified immunity because he correctly

concluded that an unregistered firearm is contraband, see United States v. Moore, 104

F.3d 377, 389 (D.C. Cir. 1997); Guishard v. United States, 669 A.2d 1306, 1311 (D.C.

1995); Thompson v. United States, 567 A.2d 907,908 (D.C. 1989), and that an individual

has no right to its return, see Wright v. United States, 610 F.2d 930,939 (D.C. Cir. 1979)

(citing United States v. Wilson, 540 F.2d 1100, 1101 (D.C. Cir. 1976)); Boggs v. Rubin,

161 F.3d 37, 40 (D.C. Cir. 1998); United States v. Farrell, 606 F.2d 1341, 1343 (D.C.

Cir. 1979).

       Moreover, if and when a defendant seeks the return of his property, the proper

recourse is for him to move the court under Rule 41 (g)-not demand the property's

return from the Park Police property office. 5 Therefore, based on the existing caselaw at


5 No caselaw existing at the time ofplaintiffs request required defendant specifically to
notify plaintiff of this procedure. Plaintiff cites Ford v. Turner, 531 A.2d 233 (D.C.
1987), as support for his contention that defendant's actions violated clearly established
law at the time of the refusal. Although the case involved unregistered firearms, Ford is
easily distinguishable from the instant action. In Ford, after Marie Owens was found
stabbed to death in her apartment, the police searched the apartment and removed seven
unregistered firearms that had no apparent connection with the homicide. 531 A.2d at
234. The police provided no notice of the removal to Camille G. Ford, Owens' sister and
personal representative of Owens' estate. Id. Ford filed a lawsuit challenging the
Government's actions, contending she was not provided notice of the seizure, and
challenging the notice procedures themselves, as established by D.C. statute. Id. at 239.
In Ford, the Government conceded it failed to provide Ford with notice of the seizure and
the reasons for the seizure. Id. at 238. With respect to Ford's challenge of the existing
statutory notice procedures, the Court noted there were multiple provisions in the D.C.
Code pertaining to procedures by which to challenge a seizure. Id. at 237. Because the
provisions varied based on the reasons for the seizure and Ford had no notice of the
reason why the firearms were seized, the Court held she could not possibly know which
provision of the D.C. Code the Government was relying on, and therefore, the notice was
inadequate. Id. Here, Plaintiff had notice of the seizure and the reasons for the seizure-
in fact, Plaintiff was prosecuted in a criminal proceeding for possessing the unregistered
                                             6
that time, an objectively reasonable official would not have conceived, let alone

understood, that denying Leyland his property could somehow violate his constitutional

rights. His conduct is, therefore, immunized.

   III.      Injunctive Relief

          Finally, Leyland sues defendant in his individual capacity seeking injunctive

relief. Injunctive relief, however, is not available against a defendant sued in his

individual capacity. Hatjil/ v. Gonzales, 519 F. Supp. 2d 13,26 (D.D.C. 2007) (holding

that injunctive relief "can only be provided by the government through government

employees acting in their official capacities because deprivation of a constitutional right

can only be remedied by the government"); see Cnty. Bd. ofArlington, Va. v. Us. Dep't

of Transp. , 705 F. Supp. 2d 25,29 (D.D.C. Apr. 15,2010).6 Therefore, plaintiff has

failed to state a claim against defendant for which relief can be granted, and the equitable

claim against defendant in his personal capacity must also be dismissed.




firearms. Further, the criminal proceeding in which Plaintiff was being prosecuted is
governed by the Superior Court's Rules of Criminal Procedure, and Rule 41(g) outlines
the procedure by which seized items may be returned. Therefore, the facts of Ford vary
significantly from the facts at issue here.
6 Injunctive relief is regularly available in actions against the government or individuals
acting in their official capacities. See Bivens, 403 U.S. at 397; Corr. Servo Corp. V.
Malesko, 534 U.S. 61, 74 (2001); Anderson V. Reilly, 691 F. Supp. 2d 89, 92 (D.D.C.
Mar. 5, 2010).
                                               7
                                  CONCLUSION

      For the foregoing reasons, defendant's Motion to Dismiss, ECF No.5, is

GRANTED. An appropriate order will accompany this memorandum opinion.




                                             RICHARD J. E N
                                             United States District Judge




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