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Proctor v. District of Columbia

United States District Court, District of Columbia

May 2, 2018

SHANEL PROCTOR, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN UNITED STATES DISTRICT JUDGE

         Plaintiffs Shanel Proctor and Charlaine Braxton, two homeless residents of the District of Columbia, are suing the District under 42 U.S.C. § 1983 and the Fourth Amendment. They seek an injunction ordering the District not to destroy the unattended personal belongings of homeless residents without first storing them for 60 days so they can be reclaimed. They seek to represent a proposed class consisting of all homeless persons who reside in public spaces that are subject to District, rather than federal, government oversight and have been or will be subject to encampment clearings by the District. Now before me are Plaintiffs' Motions for a Preliminary Injunction and for Class Certification. Because the Plaintiffs have not made the showing required to justify either a preliminary injunction or class certification, both of which are exceptional measures, the Plaintiffs' motions will be denied.

         I. BACKGROUND

         The basic facts of this case are undisputed. The District of Columbia has adopted a Protocol for the Disposition of Property Found on Public Space and Outreach to Displaced Persons. Compl. Ex. 2. By following this Protocol, the District provides homeless individuals an opportunity to prevent their property from being destroyed if they wish to keep it. See, e.g., id. at Exs. 3, 4; Defs.' Opp. to Mot. Prelim. Inj. Ex. 1 (Horen Decl.) ¶¶ 10, 14, 22, 54-55, 61-63. That said, the Protocol does not specifically address the proper treatment of property that appears to be abandoned. Id. ¶¶ 52-53. As a result, the District destroyed Plaintiffs' personal property and the personal property of other homeless individuals upon finding it unattended-and, according to the District, apparently abandoned-in public spaces. Compl. Decls. of Charlaine Braxton (Braxton Decl.) and Shanel Proctor (Proctor Decl.); id. at Exs. 3-10.

         A. The District of Columbia's Protocol

         The Protocol applies to property left in public spaces maintained by the District “when the property left in the public space presents a security, health, or safety risk, interferes with community use of public space, or becomes a significant community nuisance.” Compl. Ex. 2, 3. The Protocol establishes a detailed procedure for standard disposition of this property, providing District employees a guide to follow before, during, and after cleanup of a public space where homeless individuals have an encampment. Id. at 4-7. In doing so, the Protocol has three main purposes. Horen Decl. ¶ 5. First, it seeks to address immediate and persistent public health and safety concerns, including concern about homeless people's exposure to the elements, the risk of fires caused by cooking and heating inside tents, the spread of disease caused by improper disposal of human waste and by vermin attracted to garbage and food waste, and the use of closed tents as sites for drug use and prostitution. Id. ¶¶ 5-6. Second, it seeks to “enroll residents in safer, healthier living arrangements through an array of housing, mental health, and other services.” Id. ¶ 5. Third, it seeks to ensure that public spaces are clean and accessible to the public. Id.

         Before cleaning an encampment, the Protocol directs District employees to post conspicuous signs throughout the immediate vicinity identifying the area to be cleaned, stating the date and time of the cleanup, warning that items left in the area at the time of the cleanup will be subject to removal and disposal, and providing the contact information of homeless support agencies. Compl. Ex. 2, 4. An initial notice is posted 14 days before cleanup, and a final notice is posted at least 48 hours before cleanup. Id. at 4-5. In addition to posting signs, the Protocol directs that “outreach workers will make every effort to share this information verbally with anyone at the site to ensure those who are unable to read or have difficulty comprehending the information are made aware of the impending cleanup action.” Id. at 5. Outreach workers are also directed to offer relevant services to homeless individuals affected by a cleanup, including temporary shelter or permanent housing placements when these can be arranged. Id.

         On the day of a scheduled cleanup, the Protocol directs Department of Human Services (DHS) employees to arrive an hour early “to confirm everyone who is interested in packing belongings has the opportunity to do so” and to provide encampment residents with containers or bags for storing their belongings, including two 40-gallon storage boxes or bins. Id. at 6. Residents may designate for storage whatever fits in the two boxes, with limited exceptions for items that pose public health or safety hazards. Id. And the Protocol directs DHS not to discard certain categories of items, including important documents, fully assembled and operational bicycles, and functional tents. Id. The Protocol also directs DHS to inventory all belongings that it takes into storage.

         After an encampment cleanup, the Protocol gives homeless individuals 60 days to reclaim their property by calling DHS at a number provided on the notice signs. Id. at 6-7. The Protocol instructs DHS to store the property during this time, to make it available for pickup, and to provide delivery options for individuals who are moving into permanent housing. Id. at 7. After 60 days, the Protocol permits DHS to discard any property that remains unclaimed. Id.

         B. The District of Columbia's Practice

         The District of Columbia's actual conduct of encampment cleanups appears to be informed by the Protocol's orientation toward assisting homeless people while maintaining clean public spaces. The parties do not dispute that the District posts notice before conducting a cleanup, as the Protocol directs. There does appear to be some tension between the Protocol's instruction that the notice should include a warning that “any items not removed by the cleanup deadline are subject to removal and disposal” and the sign's actual warning that items not removed by the cleanup time “are subject to removal and disposal” unless the items are personal belongings packed in containers provided for storage or are personal belongings in plain sight of obvious value. Compare Id. at 4 with Horen Decl. ¶ 12. But in addition to posting notice, outreach workers visit the site several times in the weeks before a cleanup to determine who lives there, to explain what will happen, and to explain that tents and other belongings may be preserved by moving them or by packing them for temporary storage by the District. Horen Decl. ¶ 14. Outreach workers have ready access to interpretive services if needed. Id. ¶ 18.

         During a cleanup, District employees sort hazardous waste, items that can be put into a trash truck, and items in plain sight that should be stored, such as important documents, medication, glasses, bicycles, and electronics. Id. at 39-40. In some cases, District employees may open a purse, backpack, suitcase, or other container that appears likely to contain a wallet or identification. Id. at 40. Even so, the District will sometimes discard documents, functional tents, and other items that the Protocol says should not be discarded, if DHS staff determine that the property is clearly abandoned or at least can be considered abandoned. See Id. ¶¶ 52-53 (describing designation and treatment of property deemed to be abandoned); but see Mot. Prelim. Inj., Decl. of Victor D. Ban (Ban Decl.) Ex. 8 (unattended tent was discarded but two unattended bags and some electronics were stored); id. Ex. 10 (abandoned tents were inspected for valuables, medication found among abandoned property was returned to its owner, and a Metro card found in an abandoned tent was stored); Supplemental Decl. of Victor D. Ban (Supplemental Decl.) Ex. 13 (abandoned tent was searched for personal documents and belongings); id. Ex. 28 (unattended medications were stored); id. Ex. 29 (unattended papers were stored).

         Tents and other property are generally found to be abandoned on one of three grounds: (1) the property appears to be uncared for and has been deteriorating throughout the notice period, and outreach staff and other residents do not know who owns the property; (2) “despite two weeks of notice, opportunity, and outreach, including information from outreach or other residents that the owner knew about the upcoming cleanup, the owner chose not to be there or otherwise communicate to others his or her desire to have his or her belongings stored”; or (3) the owner leaves the cleanup site without the property after the cleanup team arrives. Horen Decl. ¶ 52; Ban Decl. Ex. 4 (a couple's items were discarded when they walked away from their property at the start of a cleanup); cf. Id. Ex. 7 (a woman's tent and other property were discarded after she walked away from an encampment before a cleanup started).

         In practice, the determination that property is abandoned appears to involve a fact-specific, individualized analysis. See, e.g., Supplemental Decl. Ex. 16 (unattended property was discarded after “[i]t was observed that the resident had moved the belongings that he wanted and left a collection of items and trash”); id. Ex. 18 (unattended wheelchair that was discarded had dry-rotted wheels and unattended tent that was destroyed contained no valuables and smelled of decayed food and human waste); id. Ex. 20 (unattended property that was discarded was so waterlogged it was almost impossible to move without a backhoe, the owner was personally notified of the cleanup the night before, and two new blankets were left on the site for the resident); id. Ex. 21 (unattended items that were discarded were wet and in many cases dripping from recent rains).

         The District also considers extenuating circumstances in determining whether property is abandoned. Horen Decl. ¶ 53. For example, if the District learns that the property owner has been detained or hospitalized, the property is reviewed for storage rather than considered abandoned and discarded. Id. ¶ 50; cf. Supplemental Decl. Ex. 15 (the District tried to return an unattended identification card, walker, and glucometer to a woman they learned had been “admitted to a program”). If the District learns that the property owner lacks the mental capacity to understand, DHS considers alternatives to disposal of the property. Horen Decl. ¶ 51. The determination that property is or may be deemed to be abandoned is made in consultation with District outreach workers, third-party outreach providers, and encampment residents, who often know the individuals who own the property in question. Id. ¶¶ 46-49; see also Id. ¶ 59 (unattended items discarded when District outreach workers were unable to make contact with owner and other encampment residents said they had not seen the owner in a while); Ban Decl. Ex 9 (unattended items discarded as abandoned after camper explained that “she told her neighbors about the clean up and they left their items there any way [sic]”).

         After a cleanup, the District logs and stores property for up to 60 days at the Adams Day Drop-In Center in Northeast Washington, D.C. Horen Decl. ¶ 29. The District provides free transportation for people to retrieve their property and makes reasonable arrangements to deliver property upon request. Id. That said, it is common for people to abandon their property, sometimes because they have been provided new blankets and other items by the District or other outreach providers, sometimes because they have moved to a different part of town, and sometimes because they have resolved their situations, obtained housing, and begun moving on from homelessness. Id. ¶¶ 17, 30, 88.

         After the District government destroyed property belonging to Ms. Proctor and Ms. Braxton, they brought this case. They allege that the District has a pattern and practice of summarily destroying the unattended property of homeless individuals that violates the Fourth Amendment and is actionable under 42 U.S.C. § 1983. Now before me are two motions filed by the Plaintiffs. One seeks a preliminary injunction ordering the District not to destroy the unattended personal belongings of homeless residents without first storing them for 60 days so they can be reclaimed, except if such property poses a public health or safety risk. Mot. Prelim. Inj., Proposed Order. The other seeks to have the Plaintiffs certified under Federal Rule of Civil Procedure 23(a) and 23(b)(2) as representatives of a class consisting of “all homeless persons who reside in public spaces that are subject to District, rather than federal, government oversight and have been or will be subject to encampment ...


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