The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiffs Barbara Fox and Hamilton P. Fox, III brought this action against two Metropolitan Police Department officers in their individual capacities and the District of Columbia [Dkt. # 15]. They allege eight causes of action arising from a dispute between Mr. Fox and the officers that ultimately led to Mr. Fox's arrest for disorderly conduct and his release pursuant to a "post-and-forfeit" procedure whereby an arrestee simultaneously posts and forfeits collateral in return for his release from jail without prosecution. Five of the claims (Counts 4--8) are brought solely by Mr. Fox against the District of Columbia, challenging the constitutionality of the post-and-forfeit procedure under Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution of the United States.*fn1 Mr. Fox has also moved for class certification on those counts [Dkt. # 14]. The District of Columbia has moved to dismiss all claims against it for lack of standing and failure to state a claim [Dkt. # 19].*fn2 Because the Court finds that the complaint fails to state a claim that the post-and-forfeit policy violates plaintiff's due process rights either facially or as applied, and that the other claims against the District of Columbia have been conceded, the Court will grant the District of Columbia's motion to dismiss Counts 4 through 8.
Plaintiffs have also moved for leave to file a second amended complaint in this case, which retains Counts 1 through 3, but includes additional factual background and expands on the legal theories behind the claims against the District of Columbia. Because some of proposed amended counts merely restate legally deficient claims from the first amended complaint, the Court will deny leave to amend those claims on futility grounds. (Counts 5, 5A, 6, 6A, 7, and 8). The Court will grant leave to amend, though, with respect to the two new claims that were not raised in previous versions of the complaint, without prejudice to any responsive motions the defense may choose to file. (Counts 4A and 9).
The District has not moved to dismiss the individual counts, so Mr. and Mrs. Fox will have a full opportunity to pursue their claims against the arresting officers for alleged violations of their constitutional rights during the encounter on the street. But the challenge to the post-and-forfeit procedure fails, although not for lack of trying. Plaintiff has now provided the Court with three different versions of a prolix complaint -- each longer and more detailed than the one that came before. The matter has been briefed extensively, and the Court held a lengthy hearing. Yet plaintiff has yet to articulate just what it is that is wrong with offering someone charged with a minor offense the choice to contest the charge in court or to pay a small sum and go home.
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. Moreover, plaintiff was fully apprised of, but elected to forego, his right to seek to set aside the forfeiture and contest the arrest. Plaintiff 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, and none of that has anything to do with all of the other offenses for which post-and-forfeit is an available option. The gravamen of every one of the class claims -- as stated and as proposed to be restated -- is that there is something abhorrent, unlawful, and unconstitutional about the post-and-forfeit procedure itself. But with respect to that particular practice, plaintiff has simply failed to state a claim upon which relief can be granted.
The events leading to this case began when Mr. Fox was approached by a police officer from the Metropolitan Police Department ("MPD") while sitting in his idling car in a "no parking" zone waiting for his wife to come out of a nearby drug store. Am. Compl. ¶ 19. An Officer B.L. Squires pulled up behind the car and told Mr. Fox that he needed to move. Id. ¶¶ 23--26. Since he was "standing," and not "parking," Mr. Fox reasoned that he was in compliance with the signs governing the location, and he took issue with the officer's instructions. The officer was unmoved, Mr. Fox asked to speak to a supervisor, and ultimately, the officer would not permit the Foxes to leave the scene even after Mrs. Fox had returned to the car. Numerous other officers arrived, and according to the complaint, "Mr. Fox then made a remark to an arriving officer, within earshot of Officer Squires and other officers, that was derogatory of Officer Squires' intelligence and competence." See id. ¶¶ 24--33. It is not necessary to recite all of the details of the stand-off that ensued here. What matters for purposes of the instant motions is that Mr. Fox was ultimately issued a parking citation, placed under arrest, and transported to the police station, where he was placed in a holding cell. Id. ¶¶ 163-- 164. He was charged with the D.C. Code offense of "disorderly conduct -- loud and boisterous." D.C. Code § 22-1321(1); Am. Compl. ¶ 15.
Mr. Fox alleges that while he was in the holding cell, he witnessed a police officer ask another arrestee whether he was willing to post thirty five dollars to be released. Am. Compl. ¶ 167. When the man declined to pay, the officer allegedly told him, "OK, you're going to Central Cellblock" and he was hauled away. Id. ¶ 169.
A few hours after Mr. Fox was put in the holding cell, an officer brought in Mrs. Fox and asked her "whether she would pay Mr. Fox's $35.00 'post & forfeit' amount." Am. Compl. ¶ 173. Although Mrs. Fox responded "yes," she apparently left the jail without paying the money and, instead, Mr. Fox was given a "post-and-forfeit" form to sign and allowed to pay the thirty five dollars himself. Id. ¶¶ 179, 186, 196.
The form, which Mr. Fox read, stated the offense he was charge with and indicated that he was being offered the option to post-and-forfeit a collateral. Id. ¶ 180. The form read:
You are eligible to elect to forfeit collateral for this charge. If you elect to forfeit the collateral amount assigned to the charge, you are agreeing to waive your right to a hearing in court, and the case against you will be concluded without an admission of guilt. However, you will have an arrest record of all charges for which you forfeited collateral.
Forfeiture is final unless you (or your attorney) file a "Motion To Set Aside Forfeiture" within 90 days from the date of the forfeiture. You may wish to file this motion if you decide to contest the charge at a later date.
By signing this form, you are acknowledging that it is your choice to elect to forfeit the collateral amount set for this charge, and that by doing so, you are agreeing to waive your right to a hearing in court.
Ex. 3 to Pl.'s Mot. to Certify Class [Dkt. # 14-3].*fn3 The back of the form stated: "IF YOU ARE ELIGIBLE FOR ONE OR MORE OF THESE EARLY RELEASE OPTIONS, AND YOU DO NOT ELECT ONE, YOU WILL NOT BE RELEASED BEFORE YOU ARE PRESENTED TO COURT ON YOUR CHARGES." Ex. 4 to Pl.'s Mot. to Certify Class [Dkt. # 14-4]. Although the form also described "release on bond" and "citation release," Mr. Fox was not offered either of these options. Id.; Am. Compl. ¶ 189.
Mr. Fox signed the form and paid the thirty five dollars. Am. Compl. ¶ 185. He alleges that he finished the administrative procedures incident to arrest no more than fifteen minutes later, and was released from jail about four hours after that. Id. ¶¶ 186--87, 199. He alleges that in total, he spent approximately nine hours in jail. Id. ¶¶ 164, 199. After his release from jail, Mr. Fox did not exercise his statutory right to seek to have the forfeiture set aside and contest the charges by filing a motion in Superior Court.
Mr. and Mrs. Fox filed the first amended complaint ("complaint") in this action on April 18, 2011. Counts 1, 2, and 3 are filed against the officers in their individual capacities and are not at issue here.*fn4 Am. Compl. ¶¶ 49--60. Counts 4 through 8 are filed as class action claims against the District of Columbia under 42 U.S.C. section 1983 and seek compensatory and consequential damages as well as injunctive relief.*fn5 Id. ¶¶ 231--63. At the March 20, 2012 motion hearing in this case, plaintiff orally conceded Count 4, which alleges that the post-and-forfeit process adds delay to plaintiffs' release once the right to release attaches, in violation of their Fourth Amendment rights. Id. ¶¶ 231--36; Rough Tr. (Mar. 20, 2012) ("Tr.") at 26. Counts 5 and 6 allege that the post-and-forfeit policy constitutes deliberate indifference to plaintiff's Fifth Amendment due process rights on its face and as applied, respectively. Id. ¶¶ 237--52. Counts 7 and 8 allege that the post-and-forfeit policy constitutes deliberate indifference to plaintiffs' Sixth Amendment right to counsel and Eight Amendment bail rights, respectively. Id. ¶¶ 253--63. Defendant District of Columbia has moved to dismiss the counts against it [Dkt. # 19].
Plaintiffs have also moved for leave to file a second amended complaint [Dkt. # 27, 30], which defendant District of Columbia opposes [Dkt. # 29]. Plaintiffs do not seek to change Counts 1, 2, or 3. Rather, the proposed second amended complaint contains additional factual background, adds two new claims (Counts 4 and 9), and restates some of the claims from the previous version of the complaint (Counts 5, 5A, 6, 6A, 7, and 8). Proposed Amended Count 4 alleges that the post-and-forfeit policy constitutes an unreasonable seizure, in violation of the Fourth Amendment of the Constitution. Proposed Second Am. Compl. ¶¶ 243--48. Proposed Amended Count 9 alleges that the District's use of the post-and-forfeit policy constitutes common law conversion. Id. ¶¶ 301--304. Proposed Amended Counts 5, 5A, 6, and 6A re-allege the facial and as applied substantive and procedural due process claims. Id. ¶¶ 249--87. And Proposed Amended Counts 7 and 8 re-allege the Sixth and Eighth Amendment claims. Id. ¶¶ 288--300.
The D.C. Code expressly grants the MPD the authority to tender an offer to any arrestee charged with certain misdemeanors to "obtain a full and final resolution of the criminal charge" by agreeing to simultaneously post and forfeit an amount as collateral. D.C. Official Code § 5-335.01(a). This is referred to as "the post-and-forfeit procedure." In essence, the option to post and forfeit is analogous to the option to pay a fine in order to resolve the charge and be released from jail quickly. Posting and forfeiting is not an admission of guilt, and it does not result in a criminal conviction. While the process does not eradicate the record of the original arrest, the statute provides that "[t]he fact that a person resolved a charge using the post-and-forfeit procedure may not be relied upon by any court . . . or agency of the District of Columbia in any subsequent criminal, civil, or administrative proceeding or administrative action to impose any sanction, penalty, enhanced sentence, or civil disability." § 5-335.01(b).*fn6
The collateral amount for each charge is set by the Superior Court of the District of Columbia and, if not forfeited, serves as a security upon release to ensure the arrestee's appearance at trial. Id. The statute requires that the MPD provide written notice to the arrestee at the time the offer is tendered. Id. § 5-335.01(d). The notice must include, in relevant part, the identity of the crime to be resolved, and the amount of collateral to be posted and forfeited. Id. § 5-335.01(d)(1). The notice must also state that the arrestee has the right to choose whether to accept the post-and-forfeit offer or to proceed with the criminal case and a potential adjudication on the merits, and that forfeiture becomes final ninety days after the arrestee signs the notice.*fn7 Id. §§ 5-335.01(d)(2), (6). During that ninety days, the arrestee or the Office of the Attorney General may file a motion with the Superior Court of the District of Columbia to set aside the forfeiture and proceed with the criminal case. Id. § 5-335.01(d)(6).*fn8
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). 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 plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
A. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). Because "subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
B. Failure to State a Claim
"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, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Iqbal, 129 S. Ct. at 1949. "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. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' 'that the pleader is entitled to relief.'" Id. at 1950, quoting Fed. R. Civ. P. 8(a)(2). A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. at 1949, quoting Twombly, 550 U.S. at 555, and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. In ruling upon a ...