The opinion of the court was delivered by: Judge Beryl A. Howell
The plaintiff in this case, Frederick Aldine Baird III, a Virginia resident, seeks return of a 20-gauge double barrel shotgun, 142 shotgun shells and other items seized from his car by a U.S. Capitol Police officer when the plaintiff was entering a U.S. House of Representatives parking lot to attend an evening reception. The plaintiff was arrested and charged with possession of an unregistered firearm and unlawful possession of ammunition. None of the seized items have been returned to the plaintiff. While conceding that the seizure was lawful,*fn1 the plaintiff now brings a Bivens claim against Capitol Police Officer Kevin Holton, who seized the shotgun and other items, alleging that the defendant's failure to return the seized items deprived the plaintiff of property without due process of law in violation of the Fifth Amendment. The plaintiff seeks monetary damages "not less than $100,000." The defendant has moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the defendant's motion to dismiss is granted.*fn2
On or about February 23, 2009, the plaintiff drove his truck into a House of Representatives parking lot to attend an evening reception in a House office building. Compl. ¶ 6. When he entered the lot, U.S. Capitol Police Officer Kevin Holton saw what he believed to be a gun bag in the backseat of the plaintiff's truck, and asked if he could inspect it. Id. The plaintiff consented to a search, which revealed an unloaded shotgun and ammunition. Id. According to the plaintiff, the previous day he had been lawfully hunting in Virginia and had left the shotgun, ammunition, and other items in his truck. Id. ¶¶ 5-6. The defendant, Officer Holton, seized "numerous items" from the plaintiff's truck, including the shotgun, and the plaintiff was arrested and charged under District of Columbia law for possession of an unregistered firearm and unlawful possession of ammunition.*fn3 Id. ¶¶ 6-7.
On September 21, 2009, the plaintiff pled guilty in the Superior Court of the District of Columbia to Attempted Possession of an Unregistered Firearm. Id. ¶ 8. The charge of unlawful possession of ammunition was dropped, and the court did not order the plaintiff to forfeit any of the seized property. Id. The following day, the plaintiff's attorney sent a letter to the defendant requesting the return of the seized property. Id. ¶ 9. The plaintiff alleges that he has yet to receive his seized property and that "no notice reasonably calculated to inform [him] of the reasons [the defendant] held the property and of the means by which [the plaintiff] could challenge [the defendant's] continued custody of the property has been received." Id. ¶¶ 10-11.
The plaintiff's one-count Complaint alleges that the defendant "deprived [the plaintiff] of property without due process of law by retaining, without notice and opportunity for a hearing, the property seized from him." Id. ¶ 15. Pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the plaintiff seeks at least $100,000 in damages for the defendant's alleged violation of the plaintiff's Fifth Amendment right not to be deprived of property without due process of law. Id. ¶¶ 14-16.
The defendant has moved to dismiss the Complaint, arguing, inter alia, that the Court should not recognize a Bivens remedy and that the defendant is protected by qualified immunity. Def.'s Mot. Dismiss, ECF No. 6, at 1. The Court agrees. Accordingly, the plaintiff's Complaint is dismissed.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); FED. R. CIV. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than "merely consistent with" a defendant's liability; "the plaintiff [must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949, 1940. The court must "assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged."
Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotations and citations omitted).
Citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the plaintiff argues that he is entitled to an award "not less than $100,000" because the defendant allegedly deprived him of property without due process of law in violation of the Fifth Amendment of the United States Constitution. Compl. ¶¶ 12-16. The Court concludes that there is not a Bivens remedy for the defendant's alleged misconduct because alternate procedural and remedial schemes allow for the return of the plaintiff's property. Moreover, even if the plaintiff could maintain a Bivens claim, this case must be dismissed because the defendant is entitled to qualified immunity.
A.The Plaintiff May Not Assert A Bivens Claim Against The Defendant
In Bivens, the Supreme Court recognized a cause of action for damages against federal officials alleged to have violated a citizen's constitutional rights. Bivens, 403 U.S. at 397. The Court has cautioned, however, that "in most instances . . . a Bivens remedy [is] unjustified." Wilkie v. Robbins, 551 U.S. 537, 550 (2007).A Bivens remedy is not appropriate when there are "special factors counseling hesitation in the absence of affirmative action by Congress that require the judiciary to decline to exercise its discretion in favor creating damages remedies against federal officials." Wilson v. Libby, 535 F.3d 697, 704-05 (D.C. Cir. 2008) (quoting Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) and Bivens, 403 U.S. at 396) (internal quotation marks omitted). One special factor is when "defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery ...