                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
BARBARA FOX, et al.,                )
                                    )
                  Plaintiffs,       )
                                    )
      v.                            )                Civil Action No. 10-2118 (ABJ)
                                    )
DISTRICT OF COLUMBIA, et al.,       )
                                    )
                  Defendants.       )
____________________________________)


                                    MEMORANDUM OPINION

       In this case, plaintiff Hamilton P. Fox, III challenges the District of Columbia’s post and

forfeit procedure through which he obtained his release from jail after a disorderly conduct

arrest.1 Sec. Am. Compl. [Dkt. # 39] ¶ 6. On March 30, 2012, the Court granted the District of

Columbia’s motion to dismiss the counts against it related to that procedure: counts four through

eight of the first amended complaint. Order [Dkt. # 36]; see also Memorandum Opinion [Dkt. #

37] (“Mem. Op.”). In that same order, the Court also granted Fox’s motion for leave to file a

second amended complaint. That pleading added two new counts against the District, see Sec.

Am. Compl., and the District has moved to dismiss those counts as well. Def.’s Mot. to Dismiss

Sec. Am. Compl. [Dkt. # 42] (“Def.’s Mot.”).            In the meantime, Fox has moved for

reconsideration of the Court’s original ruling under Fed. R. Civ. P. 54(b).         Pl.’s Mot. for

Reconsideration [Dkt. # 60] (“Pl.’s Mot.”). Since Fox has seen fit to utilize both of these

briefing opportunities to reargue issues that the Court has already decided, the Court will address

both motions in a single opinion.

1       Defendants’ motions for judgment on the pleadings with respect to the claims brought
against the officers who effected that arrest will be addressed in a separate opinion.
       Specifically, Fox asks the Court to revisit the following issues:

           Exhaustion of state-law remedies, see Pl.’s Mem. in Opp. to Def.’s Mot. to Dismiss
           Sec. Am. Compl. [Dkt. # 46] (“Pl.’s Opp.”) at 20–26; Pl.’s Mot. at 5–6;

           Voluntariness of the post-and-forfeit procedure, see Pl.’s Opp. at 30–33, 37–41; Pl.’s
           Mot. at 6–10;

           Standing, see Pl.’s Opp. at 32–36; Pl.’s Mot. at 10–12;

           Substantive due process claims, see Pl.’s Mot. at 13–17; and

           Procedural due process claim, see Pl.’s Mot. at 17–18.
Each of these issues was presented to the Court before, considered, and rejected:

           Exhaustion of state-law remedies, see Pl.’s Opp. to Def.’s Mot. to Dismiss First Am.
           Compl. [Dkt. # 24] (“Pl.’s Opp. to First. Mot. to Dismiss”) at 36–37; see also Mem.
           Op. at 11–14;

           Voluntariness of the post-and-forfeit procedure, see Pl.’s Opp. to First. Mot. to
           Dismiss at 28, 34–35, see also Mem. Op. at 2–3, 18;

           Standing, see Pl.’s Opp. to Def.’s Mot. to Dismiss First Am. Compl. at 2–3; see also
           Mem. Op. at 10–14;

           Substantive due process claims, see Pl.’s Opp. to First. Mot. to Dismiss at 11–37; see
           also Mem. Op. at 15–20, 23–25; and

           Procedural due process claim, see Pl.’s Opp. to First. Mot. to Dismiss at 3–10, 37–44;
           see also Mem. Op. at 20–25.
       Since Fox has offered no new law or facts that would warrant reconsideration of the

rulings on these issues, the Court’s previous determinations will stand for the reasons set forth in

the March 2012 Memorandum Opinion. See Capitol Sprinkler Inspection, Inc. v. Guest Servs.,

Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (holding that district courts act within the scope of their

discretion in denying a Rule 54(b) motion to reconsider where the motion raises “no arguments

for reconsideration the court had not already rejected on the merits”); Estate ex rel. Gaither v.

District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (internal quotation marks and

citations omitted) (“In this Circuit, it is well-established that motions for reconsideration,

whatever their procedural basis, cannot be used as an opportunity to reargue facts and theories
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upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that

could have been advanced earlier.”).

       In support of his motion for reconsideration, Fox also advances two new arguments that

he could have included in his prior pleadings, but did not. He contends that:

           The post-and-forfeit procedure is void for vagueness, see Pl.’s Surreply to Def.’s
           Reply [Dkt. # 53] (“Pl.’s Surreply”) at 3, 7; see also Pl.’s Mot. at 18–20; and

           The procedure “is ultra vires to the extent it conflicts with D.C. Code 23-110,” Pl.’s
           Mot. at 14.
But prior to the submission of the instant motion, Fox had three opportunities to assert these

claims: his original complaint, the first amended complaint, and the second amended complaint.

He failed to include a count based on these grounds in any of those complaints, and he did not

raise these arguments in response to the motion to dismiss the first amended complaint, which

addressed the legality of the very same statute. A motion for reconsideration “is not a vehicle for

bringing before the Court theories or arguments that were not earlier advanced.” Graves v. U.S.,

967 F. Supp. 572, 573 (D.D.C. 1997). Nor is it an appropriate place to make a new claim that is

not in the complaint or to make a motion to amend the complaint. So these theories do not

supply grounds to reconsider the Court’s March 2012 order either, and the motion for

reconsideration will be denied.

       What are left to address, then, are the two newest counts against the District: that the

post-and-forfeit policy, on its face, constitutes an unreasonable seizure in violation of the Fourth

Amendment (Count 4A), and that it constitutes common law conversion because the District

“takes money” from arrestees (Count 9). Sec. Am. Compl. ¶¶ 243–52. The District has moved

to dismiss these counts on the grounds that they fail to state a claim under Fed. R. Civ. P.

12(b)(6). Def.’s Mem. in Supp. of Mot. to Dismiss [Dkt. # 42] (“Def.’s Mem.”) at 4; see also

Def.’s Reply in Supp. of Mot. to Dismiss [Dkt. # 49] (“Def.’s Reply”) at 4. Fox opposes the

                                                 3
District’s motion. Pl.’s Opp. at 1; see also Pl.’s Surreply at 1. Since Counts 4A and 9 fail to

state a claim under Fed. R. Civ. P. 12(b)(6), the Court will grant the District’s motion to dismiss.

                                    STANDARD OF REVIEW

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain 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) (internal quotation marks omitted); accord Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles

underlying its decision in Twombly: “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” 556 U.S. at 678. And

“[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.”

Id. at 679.

        A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

        When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant 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). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept



                                                   4
plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider

only “the facts alleged in the complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

                                         ANALYSIS2

       A. Count 4A: Fourth Amendment Facial Challenge

       Count 4A of Fox’s second amended complaint alleges that the post-and-forfeit procedure

violates the Fourth Amendment on its face: “The policy of charging arrestees money under the

‘post and forfeit’ procedure constitutes an unreasonable seizure under the Fourth Amendment

and so D.C. Code § 5-335.01 is unconstitutional.” Sec. Am. Compl. ¶ 246. The Fourth

Amendment provides that the “right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const.

Amend. IV.     To establish an unlawful seizure under the Fourth Amendment, Fox must

demonstrate that payment of collateral under the District’s post-and-forfeit procedure (1)

constitutes a seizure, and (2) that the seizure is unreasonable. Soldal v. Cook County, Ill., 506

U.S. 56, 61–71 (1992). Fox has failed to meet both requirements.

       A payment under the post-and-forfeit procedure does not constitute a seizure nor is it

unreasonable. “A ‘seizure’ of property . . . occurs when ‘there is some meaningful interference

with an individual’s possessory interests in that property.’” Id. at 61, quoting United States v.

Jacobsen, 466 U.S. 109, 113 (1984). Further, a “seizure” is not unreasonable if it occurs with

the non-coercive, voluntary consent of the owner. See Schneckloth v. Bustamonte, 412 U.S. 218,


2     The relevant facts of this case are detailed in the Court’s March 2012 Memorandum
Opinion.
                                               5
233 (1973) (“[I]f under all the circumstances it has appeared that the consent was not given

voluntarily – that it was coerced by threats or force, or granted only in submission to a claim of

lawful authority – then we have found the consent invalid and the search unreasonable.”). Here,

the Court has already determined that the post-and-forfeit payment is voluntary:

               The fundamental flaw at the heart of plaintiff’s case is that while his
               papers are generously seasoned with strong language connoting
               wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the
               allegations all turn upon the city’s alleged policy of “making” arrestees
               pay money, there simply was no coercion, taking, or deprivation inherent
               in the voluntary exchange that was offered and accepted in this case.
Mem. Op. at 2–3. The Court added that “the payment was a bargained for exchange whereby

both parties obtain a benefit: the arrestee gains both his release and complete finality.” Mem.

Op. at 18. Moreover, the reasonableness of the procedure is bolstered by the fact that the statute

also provides the arrestee with ninety days to reconsider the decision to pay the collateral and ask

for his money back. See D.C. Code § 5-335.01(d)(6). So the District does not meaningfully or

unreasonably interfere with arrestees’ possessory interests in property when it accepts their

voluntarily tendered collateral.

       Fox’s Fourth Amendment facial challenge is further undermined by the Court’s prior

determination that “the city has asserted legitimate interests” in the post-and-forfeit procedure,

Mem. Op. at 18. Illinois v. McArthur, 531 U.S. 326, 330 (2001) (“When faced with special law

enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court

has found that certain general, or individual, circumstances may render a warrantless search or

seizure reasonable.”).    Thus, the Court agrees with the District’s assertion that the city’s

legitimate interests coupled with the voluntariness of the payment demonstrate that the post-and-

forfeit procedure is not an unreasonable seizure in violation of the Fourth Amendment. See

Def.’s Mem. at 7.


                                                 6
        None of the arguments that Fox makes in his pleadings alters the Court’s analysis of

whether the post-and-forfeit procedure violates the Fourth Amendment.               In his opposition

memorandum, Fox argues that “the essence” of his post-and-forfeit claim is that (1) “he paid the

‘post and forfeit’ fee as a result of an unfair, invalid and non-judicial process of obtaining the

collateral,” (2) “the payment was not voluntary,” and (3) “it was an illegal burden on his Fourth

Amendment right to release.”3 Pl.’s Opp. at 2. Fox’s reliance on Sullivan v. Murphy, 478 F.2d

938, 975 (D.C. Cir. 1973) to support these assertions is misplaced.

        Sullivan involved a class action on behalf of individuals who had been arrested and

charged with disorderly conduct and other similar offenses in connection with the mass anti-war

demonstrations in the District around May Day 1971. 478 F.2d at 942. The arrests at issue in

Sullivan were not made pursuant to the “ordinary procedures, which are calculated to guard

against an arrest without probable cause, even in the case of a massive civil disturbance.” Id. at

967. Rather, at the time of the arrests, the police had suspended the requirement that “the

arresting officer [ ] establish probable cause for detention by preparing a simplified field arrest

form and photograph.” Id. at 959. Based on the police’s failure to abide by their ordinary

procedures, the Sullivan plaintiffs argued that they were “arrested and prosecuted without

probable cause in violation of the Fourth Amendment; [and] that forfeitures of collateral were

obtained [from them] . . . contrary to the Fifth Amendment.” Id. at 943, n.4. Among other

remedies, the plaintiffs sought the return of their forfeited collateral. Id. at 943.

        In reaching its decision, the court emphasized that



3       As the Court has stated, Fox has not presented any new facts or law to support his motion
for reconsideration. Therefore, the Court will not address Fox’s arguments regarding whether
the post-and-forfeit procedure was voluntary, whether the procedure burdened his right to be
released from the station without paying the collateral, or any other issues that it has already
ruled on.
                                                   7
               What [was] challenged [in Sullivan was] the action of the police – the
               combination of arrest, detention, requirement of bond as a condition of
               release. . . . Plaintiffs’ case [was not] a disguised attack on the general
               procedure of having appropriate police officers designated as deputy
               clerks of Superior Court to accept stationhouse collateral – a salutary
               procedure that gives an option for earlier release than is provided by even
               reasonably prompt arraignment before a judicial officer.
Id. at 975. Based on this statement of the case, the court held that arrests that were made during

that period without a contemporaneous photograph and field arrest form executed by the

arresting officer were “presumptively invalid” but the District could rebut that presumption by

demonstrating that the particular arrest was based upon probable cause. Id. at 967. If the District

failed to rebut the presumption of invalidity, the plaintiffs would be entitled to relief under the

Fourth and Fifth Amendments including a refund of the forfeited collateral. Id. at 975.

       Fox asserts that “the fact pattern [in this case] is the same [as Sullivan]: large, discrete

groups of individuals were arrested and charged with disorderly conduct in the absence of

probable cause or actual wrongdoing. In both situations, ‘the arrests were the product of a

common course of conduct by the police.’” Pl.’s Opp. at 27–28, quoting Sullivan, 478 F.2d at

967. But Fox was not part of a large group of individuals arrested en masse in a period of days.

And the major flaw with Fox’s argument is that Count 4A – which is the count we are supposed

to be talking about at this point – does not seek to impose municipal liability as the Sullivan




                                                8
plaintiffs did based on the conduct of the police or the validity of the underlying arrest.4 Rather,

it is a facial challenge to the post-and-forfeit procedure under the Fourth Amendment.5

       Indeed, in the March 20, 2012 motions hearing, the Court specifically asked Fox’s

attorney whether Count 4A was meant to assert a 42 U.S.C. § 1983 municipal liability claim. Tr.

of Mot. Hr’g at 51 (“Tr.”). The Court explained that to state such a claim, Fox would “have to

allege a violation of [the] constitution, and then . . . [allege that this violation] was pursuant to

some sort of custom or practice or policy.” Id. In response, Fox’s attorney stated that “[t]he

Fourth Amendment claim is that pursuant to this statute, the post and forfeit procedure statute,

when the [D]istrict arrests people for collateral offenses, they take money from them . . . and




4       As the Court noted the last time this case was before it, “[p]laintiff makes extensive
references to evidence adduced in another case which might be marshaled in support of
allegations that the District remains deliberately indifferent to a pattern of disorderly conduct
arrests made without probable cause, but there is no count in either the first or the second
amended complaint that actually seeks to impose municipal liability for that sort of
unconstitutional deprivation of liberty.” Mem. Op. at 3 (although the Court was referring to
Fox’s reliance on Huthnance v. District of Columbia, 793 F. Supp. 2d 183 (D.D.C. 2011), these
statements apply equally to his reliance on Sullivan).

5       Fox also relies on Huthnance v. District of Columbia, 793 F. Supp. 2d 183, 198 (D.D.C.
2011) to support his allegation that the post-and-forfeit procedure violates the Fourth
Amendment. Pl.’s Opp. at 28. But the Court has already determined that Huthnance does not
apply to this case: “Some individuals may claim that the District should be liable for
unconstitutional arrests caused by its alleged indifference to an alleged ongoing practice of
arresting people on charges of disorderly conduct without probable cause, just as Ms. Huthnance
did. See Huthnance v. District of Columbia, 793 F. Supp. 2d 183 (D.D.C. 2011). But that is not
this case.” Mem. Op. at 25.
                                                 9
that’s illegal seizure.” Id. at 52.6 Since, Count 4A is an attack on the facial validity of the post-

and-forfeit procedure under the Fourth Amendment, whether the arrests were supported by

probable cause is not relevant to the Court’s analysis. To succeed on this facial challenge, Fox

must demonstrate that there would be no instance under which the challenged policy would be

lawful and constitutional. See Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 449 (2008) (stating that in a facial challenge, the plaintiff must demonstrate that there would

be no instance under which the challenged policy would be lawful and constitutional).

       Since Fox has not demonstrated that the District meaningfully and unreasonably

interferes with an arrestee’s possessory interests when it accepts “a small sum of money from an

arrestee who, given the choice to pay or go forward with his case, decides to pay,” Mem. Op. at

20, the Court finds that the post-and-forfeit policy does not on its face violate the Fourth

Amendment rights of Fox and his proposed class. As the circuit court stated in Sullivan, the

post-and-forfeit procedure is “a salutary procedure that gives an option for earlier release than is

provided by even reasonably prompt arraignment before a judicial officer.” 478 F.2d at 975.

       B. Count 9: Conversion Claim

       Count 9 of the second amended complaint also fails to state a claim. In the District of

Columbia, conversion “has generally been defined as any unlawful exercise of ownership,

dominion or control over the personal property of another in denial or repudiation of his rights



6       In his opposition memorandum, Fox asserts that his Fourth Amendment claim is based on
Section 1983 and that he has pled facts to support a municipal liability claim under Section 1983,
which applies to the District under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Pl.’s
Opp. at 15, 41–42, n.17, citing Sec. Am. Compl. ¶ 67 (alleging that the District, through its
police, has a “long history of making arrests for disorderly conduct that are not supported by
probable cause”), ¶¶ 164–67 (alleging that the District knew about and acquiesced to these
practices). Although the second amended complaint includes some language that may support a
Monell claim, it includes no count that seeks to impose municipal liability based on Section
1983.
                                                 10
thereto.” Chase Manhattan Bank v. Burden, 489 A.2d 494, 495 (D.C. 1985) (internal quotation

marks and citations omitted). Count 9 asserts that “[t]he District is liable in conversion for

taking money from arrestees pursuant to the ‘post and forfeit’ procedure. The District through its

[sic] agents, participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3)

over the personal property of Mr. Fox and the putative class members, (4) in denial or

repudiation of their [sic] person’s rights thereto.” Sec. Am. Compl. ¶¶ 249–50. This “formulaic

recitation of the elements of [the] cause of action,” is insufficient to state a claim for conversion.

See Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555.

       In his opposition to the motion to dismiss, Fox dedicates barely two pages to his

conversion claim. He fails to directly address the District’s legal arguments, and he does not

point to any factual allegations in the second amended complaint that would establish the

elements of conversion. Instead, he repeats, word for word, the arguments he made on behalf of

his Fourth Amendment “seizure” claim. Pl.’s Opp. at 45. So it appears that even in Fox’s view,

the Court’s rulings on voluntariness would dispose of this claim, and it finds here as well that

Fox’s arguments are unpersuasive, and the cases he cites are inapposite. See supra at 6–10.

Since Count 9 is based on the theory that the post-and-forfeit procedure itself constitutes an

unlawful deprivation of property – and it does not raise a challenge to the action of the police or

the circumstances of Fox’s arrest – the Court’s analysis of Court 4A applies equally to this count.

Therefore, the Court will dismiss Count 9 because Fox has failed to plead sufficient facts to state

a conversion claim.




                                                 11
                                       CONCLUSION

       Accordingly, the Court will deny Fox’s motion for reconsideration because it reasserts

arguments the Court has previously considered and rejected, or raises new arguments that should

have been, but were not, raised in his prior pleadings. The Court will also grant the District’s

motion to dismiss under Fed. R. Civ. P. 12(b)(6) because Fox has failed to state a claim in

Counts 4A and 9 of the second amended complaint. Separate orders will issue.




                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: February 15, 2013




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