                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

BURUDI FAISON,                                )
                                              )
                       Plaintiff,             )
                                              )
       v.                                     )       Civil Action No. 11-0916 (EGS)
                                              )
DISTRICT OF COLUMBIA, et al.,                 )
                                              )
                       Defendants.            )


                                    MEMORANDUM OPINION


       This matter is before the Court on the District of Columbia’s motion to dismiss the

complaint. For the reasons stated below, the motion will be granted.

                                        I. BACKGROUND
       Plaintiff alleges that Metropolitan Police Department officers took personal property

from him at the time of his arrest on February 14, 1999, and that the property has not been

returned. See Am. Compl. [Dkt. #15] at 3 (page numbers designated by ECF). He has described

the circumstances as follows:

               ON FEBRUARY 14, 1999, THE PETITIONER WAS
               ARRESTED BY THE D.C. POLICE METROPOLITAN POLICE
               DEPARTMENT AFTER A TRAFFIC STOP. PETITIONER
               WAS CHARGED WITH POSSESSION OF COCAINE WITH
               INTENT TO DISTRIBUTE AND POSSESSION OF A [sic]
               UNREGISTERED FIREARM. AT PETITIONER[’]S TIME OF
               ARREST HE WAS IN POSSESSION OF $2511.00 DOLLARS
               OF U.S. CURRENCY AND DRIVING A 1993 CROWN
               VICTORIA AUTOMOBILE. BOTH WERE TAKEN AND
               HELD BY THE D.C. POLICE DEPARTMENT.
Motion for Return of Property, United States v. Faison, No. 99-cr-0079 (D.D.C. filed Apr. 14,

2010) (emphasis in original). Review of the docket of the criminal case indicates that, on June

25, 1999, plaintiff pled guilty to one count of carrying a firearm during a trafficking offense in

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violation of 18 U.S.C. § 924(c)(1), and, on September 7, 2009, the court imposed a 60-month

sentence followed by a three-year term of supervised release.

       It appears that the Metropolitan Police Department deemed plaintiff’s property subject to

administrative forfeiture proceedings, and that “the car and cash were declared forfeited to the

District of Columbia government in 1999.” United States Government’s Supplemental

Memorandum Responding to Court’s Order to Determine Whereabouts or Disposition of

Property Seized From Defendant Faison in 1999 ¶ 6, United States v. Faison, No. 99-cr-0079

(D.D.C. filed Aug. 27, 2010). “Thus, the whereabouts of the car and cash in 2010 [could not] be

specifically determined.” Id. 1



                                        II. DISCUSSION
       According to plaintiff, the District of Columbia’s “continued retention of this property

has been a denial of plaintiff[’]s 14th Amendment rights. The property should be returned or

compensation for the value thereof” should be awarded. Am. Compl. at 1 (emphasis removed).

Because the District of Columbia is subject to the Fifth Amendment to the United States

Constitution but not to the Fourteenth, see Bolling v. Sharpe, 347 U.S. 497, 498 (1954), the

Court construes the complaint as one bringing a claim under 42 U.S.C. § 1983 against the

District for an alleged violation of his right to due process under the Fifth Amendment. The

District of Columbia moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of

Civil Procedure on the ground that the pleading fails to state a constitutional claim upon which

relief can be granted. 2 See Def.’s Mem. at 4-5.


1
       Plaintiff’s motion for return of property was denied without prejudice by Minute Order
dated October 5, 2010.
2
       The Court declines to address the District of Columbia’s argument that the complaint is
time-barred under the three-year statute of limitations. See Def.’s Mem. at 3-4. For the reasons
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                                  A. Dismissal Under Rule 12(b)(6)
        A plaintiff need only provide a “short and plain statement of [his] claim showing that

[he] is entitled to relief,” Fed. R. Civ. P. 8(a)(2), that “give[s] the defendant fair notice of what

the . . . claim is and the grounds upon which it rests,” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation

marks omitted). A complaint may be dismissed for failure to state a claim upon which relief can

be granted. Fed. R. Civ. P. 12(b)(6). In considering such a motion, the “complaint is construed

liberally in the plaintiff[’s] favor, and [the Court grants the plaintiff] the benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994).

        A complaint survives a motion under Rule 12(b)(6) only if it “contain[s] sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible “when the plaintiff pleads factual

content that allows the [C]ourt to draw [a] reasonable inference that the defendant is liable for

the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “[A] complaint [alleging]

facts that are merely consistent with a defendant’s liability . . . stops short of the line between

possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted) (citing

Twombly, 550 U.S. at 557). Although a pro se complaint “must be held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson, 551 U.S. at 94 (internal quotation

marks and citation omitted), it too, “must plead ‘factual matter’ that permits the court to infer

‘more than the mere possibility of misconduct,’” Atherton v. District of Columbia Office of the

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 678-79).


stated below, whether or not the complaint was timely filed, it fails to state a constitutional claim
upon which relief can be granted.
                                                    3
    B. Plaintiff Fails to State a Viable Constitutional Claim Against the District of Columbia
        “[A] municipality can be found liable under [Section] 1983 only where the municipality

itself causes the constitutional violation at issue.” City of Canton, Ohio v. Harris, 489 U.S. 378,

385 (1989) (citing Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 694

(1978) (emphasis in original)). The District of Columbia, as a municipality, see D.C. Code § 1-

102, is subject to liability under Section 1983 only “when an official policy or custom causes the

[plaintiff] to suffer a deprivation of a constitutional right.” Carter v. District of Columbia, 795

F.2d 116, 122 (D.C. Cir. 1986). That policy or custom must itself be the moving force behind

the alleged constitutional violation. Id. (citing Monell, 436 U.S. at 694); see also Pembauer v.

City of Cincinnati, 475 U.S. 469, 483 (1986) (“[M]unicipal liability under § 1983 attaches where

– and only where – a deliberate choice to follow a course of action is made from among various

alternatives by the official or officials responsible for establishing final policy with respect to the

subject matter in question.”); Oklahoma City v. Tuttle, 471 U.S. 808, 817 (1985) (requiring a

plaintiff to show a course deliberately pursued by the city establishing an affirmative link

between the city’s policy and the alleged constitutional violation).

       In assessing a Section 1983 claim, the Court first asks whether the complaint articulates a

predicate constitutional violation. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.

Cir. 2000). To satisfy this prong of the analysis, the complaint need only establish that plaintiff

suffered some constitutional harm. See id. For purposes of this discussion, the Court presumes

without deciding that the alleged forfeiture of plaintiff’s car and cash would be deemed a

constitutional violation. Next, the Court asks whether the complaint states a “claim that a

custom or policy of the municipality caused the violation.” Id. The law is clear that the Court

must determine whether a plaintiff has alleged this “affirmative link” between the policy and the

injury; the municipal policy must be alleged to be the “moving force” behind the violation. Id.

                                                   4
       There is no heightened pleading standard in a case alleging municipal liability for a civil

rights violation. See Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination

Unit, 507 U.S. 163, 164 (1993). “Nevertheless, [a] Complaint must ‘include some factual basis

for the allegation of a municipal policy or custom.’” Hinson ex rel. N.H. v. Merritt Educ. Ctr.,

521 F. Supp. 2d 22, 29 (D.D.C. 2007) (quoting Atchinson v. District of Columbia, 73 F.3d 418,

422 (D.C. Cir. 1996)); Smith v. District of Columbia, 674 F. Supp. 2d 209, 214 n.2 (D.D.C.

2009) (finding that sufficiency of plaintiff’s allegations of liability under Monell “must be

assessed under the standard set by the Supreme Court in Twombly and Iqbal).

       Regardless of the circumstances under which plaintiff’s car and cash were taken, his

complaint sets forth no factual allegations regarding the existence and enforcement of a

municipal policy, custom or practice that directly caused a violation of his Fifth Amendment

right to due process. This pleading defect is fatal. See, e.g., Collington v, District of Columbia,

828 F. Supp. 2d 210, 215 (D.D.C. 2011). Accordingly, the District’s motion to dismiss will be

granted. An Order accompanies this Memorandum Opinion.




                       Signed:        EMMET G. SULLIVAN
                                      United States District Judge

                       Dated:         November 30, 2012




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