Plaintiffs Blake Conyers, Lamar Ewing, and Kevin Flint, individually and on behalf of a class, bring claims under 42 U.S.C. § 1983 and a state law bailment claim against the defendant, the City of Chicago (the “City”). The plaintiffs allege that the City’s policies pertaining to the destruction of personal property items seized from arrestees violate the Fourth, Fifth, and Fourteenth Amendments, as well as Illinois law. The City has moved to dismiss the plaintiffs’ Third Amended Complaint (the “Complaint”) pursuant to Rule 12(b)(6). For the reasons stated below, the City’s motion is granted.
The City requires that its police officers remove and inventory all personal property in the possession of arrestees who are detained at a City police station. At the time of arrest, the City provides such arrestees with a Chicago Police Department (“CPD”) inventory receipt identifying the seized property and a written notice explaining how that property can be retrieved. Pursuant to CPD policy, if an arrestee is subsequently transferred to the Cook County Jail (the “Jail”), the City sends certain types of inventoried personal property with the arrestee to the Jail and retains all other types of inventoried personal property. Since September 14, 2007, the City’s policy has been to destroy any retained personal property of arrestees transferred to the Jail that is not claimed within 30 days of the inventory date.
Each of the plaintiffs had personal property items seized and ultimately destroyed as a result of the City’s policies. Conyers was arrested by City police officers on or about February 26, 2012, while in lawful possession of an earring, a bracelet, and two cell phones. This property was removed and inventoried by the City, retained by the City upon Conyers’ transfer to the Jail, and destroyed by City personnel because it was not claimed within 30 days. Ewing was arrested by City police officers on or about December 20, 2012, while in lawful possession of a wallet, a debit card, a library card, and two cell phones. This property was removed and inventoried by the City, retained by the City upon Ewing’s transfer to the Jail, and destroyed by City personnel because it was not claimed within 30 days. Flint was arrested by City police officers on or about January 1, 2013, while in lawful possession of a cell phone and a ring with a small stone. This property was removed and inventoried by the City, retained by the City upon Flint’s transfer to the Jail, and destroyed by City personnel because it was not claimed within 30 days. All three plaintiffs remained incarcerated in the Jail throughout the 30-day period following their respective arrests.
The written notice provided to each of the plaintiffs at the time of arrest (the “Notice”) included the following information:
Property Available for Return to Owner:
If your receipt is marked “Property Available for Return to Owner” you may get your property back by providing the receipt and a photo ID at ERPS. If you do not contact the CPD to get your property back within 30 days of the date on this receipt, it will be considered abandoned under Chicago Municipal Code Section 2-84-160, and the forfeiture process will begin under Illinois Law, 765 ILCS 1030/1, et seq.”
If you are in jail or incarcerated, and your receipt is marked “Property Available for Return to Owner, ” you may get money returned to you by sending copies of your receipt, your photo ID and the name of the facility where you are jailed or incarcerated to: Chicago Police Department Evidence and Recovered Property Section; 1011 S. Homan Avenue, Chicago, Illinois, 60624. If the property is money, a check will be sent to you at the facility where you are jailed or incarcerated.
Ex. 2 to Mem. in Support, Dkt. 61-1, at 4. Although the Notice provides a procedure for incarcerated individuals to claim property that is money, it does not specify a procedure for such individuals to claim non-money property. Plaintiffs Conyers and Ewing nevertheless attempted to retrieve their property while incarcerated before learning that it had been destroyed. Conyers “filed a grievance with the Cook County Jail, requested assistance from the jail’s social worker, and wrote a letter to [ERPS].” Complaint, Dkt. 59, ¶ 24. Ewing “prepared a form authorizing his cousin to [claim his] property” and had his cousin go to ERPS to attempt to retrieve the property before the 30-day period had elapsed. Id. ¶ 29; Response, Dkt. 65, at 8. Flint made no attempt to retrieve his property while incarcerated but eventually learned of its destruction upon his release.
The plaintiffs allege that the City’s policies pertaining to the destruction of retained personal property of arrestees transferred to the Jail deprive arrestees of rights secured by the Fourth, Fifth, and Fourteenth Amendments. The plaintiffs also allege that the City’s retention of arrestees’ personal property creates a constructive bailment under Illinois law, and that the City violates its obligations as bailee by destroying the property. The Court has jurisdiction over the plaintiffs’ § 1983 claims pursuant to 28 U.S.C. § 1343 and has supplemental jurisdiction over their state law claim pursuant to 28 U.S.C. § 1367. Pursuant to Rule 12(b)(6), the City has moved to dismiss the Complaint on the basis that it fails to state a claim under § 1983.
“To survive a motion to dismiss under Rule 12(b)(6), a complaint must ‘state a claim to relief that is plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although a court must accept all of the plaintiff’s factual allegations as true when reviewing a complaint, conclusory allegations merely restating the elements of a cause of action do not receive this presumption. Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
To state a claim against a municipal entity under § 1983, a plaintiff must sufficiently allege that a person acting under color of state law violated a right secured by the Constitution or laws of the United States, and that the violation was caused by a policy or custom of the defendant. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009). The City argues that the Complaint (1) fails to identify a cognizable § 1983 injury based on the Fourth Amendment, (2) does not assert a valid § 1983 claim based on the Fifth or Fourteenth Amendments because the plaintiffs have not exhausted state law remedies, (3) fails to identify a cognizable § 1983 injury based on the Fourteenth Amendment, and (4) does not contain sufficient factual content about the City’s policies to support Monell liability.
1. Fourth Amendment
A complaint states a Fourth Amendment violation if the defendant’s alleged conduct constitutes an unreasonable seizure. Bielanski v. Cnty. of Kane, 550 F.3d 632, 637 (7th Cir. 2008). Since “a seizure occurs upon the initial act of dispossession, ” Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 660 (7th Cir. 2012), the Fourth Amendment is not implicated when a plaintiff’s challenge concerns recovery of property that was lawfully seized and then retained by the defendant. See Lee v. City of Chi., 330 F.3d 456, 466 (7th Cir. 2003) (“Once an individual has been meaningfully dispossessed, the seizure of the property is complete, and once justified by probable cause, that seizure is reasonable. The amendment then cannot be invoked by the dispossessed owner to regain his property.”); Waldon v. Wilkins, 400 F. App’x 75, 80 (7th Cir. 2010) (citing Lee, 330 F.3d at 466) (rejecting a Fourth Amendment claim where the plaintiffs “ha[d] not alleged anything unreasonable about the seizure itself”). In this case, the plaintiffs do not challenge the City’s policy of removing and inventorying arrestees’ personal property; they challenge only the City’s policies pertaining to the retention of inventoried property. See Response, Dkt. 65, at 2, 4. Accordingly, since the plaintiffs have not alleged that the City’s seizure of arrestees’ property is unreasonable, they have not stated a cognizable § 1983 injury based on the Fourth Amendment.
2. Fifth Amendment
The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. A plaintiff cannot bring an as-applied Takings Clause challenge in federal court until he has pursued all state law remedies that are available and adequate. See Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95 (1985); Peters v. Vill. of Clifton, 498 F.3d 727, 731-32 (7th Cir. 2007). A plaintiff may, however, raise a facial challenge based on the Takings Clause without first exhausting state law remedies. See San Remo Hotel, L.P. v. City & Cnty. of S.F., 545 U.S. 323, 345-46 (2005) (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992)); Peters, 498 F.3d at 732. That is because “facial takings challenges . . . by their nature request relief distinct from the provision of ‘just compensation.’” San Remo, 545 U.S. at 345; see also Ezell v. City of Chi., 651 F.3d 684, 698 (7th Cir. 2011) (“In a facial challenge like this one, the claimed constitutional violation inheres in the terms of the statute, not its application. . . . The remedy is necessarily directed at the statute itself and must be injunctive and declaratory; a successful facial attack means the statute is wholly invalid and cannot be applied to anyone.”). A plaintiff has presented a facial takings challenge to a municipal policy or ordinance if he argues that the relevant policy or ordinance “did not substantially advance a legitimate state interest regardless of how it was applied.” Sorrentino v. Godinez, 777 F.3d 410, 414 (7th Cir. 2015) (citing San Remo, 545 U.S. at 345, and Yee, 503 U.S. at 534).
In this case, the plaintiffs contend that their Fifth Amendment-based § 1983 claim makes only a facial challenge and may proceed on that basis. Response, Dkt. 65, at 13-14. But it is clear that the plaintiffs do not advance a facial takings challenge. The Complaint asserts that Municipal Code § 2-84-160 provides for the disposal of property “not claimed within 30 days after seizure, ” Complaint, Dkt. 59, ¶ 18, and that the City’s policy “has been to destroy the personal property of any arrestee that remained in the custody of the City 30 days after the arrestee had been transferred to the [Jail], ” id. ¶ 14. Although the plaintiffs make the conclusory claim that the City’s policy violates the Takings Clause (among other constitutional provisions), see Id. ¶¶ 7, 14; Response, Dkt. 65, at 13-14, the Complaint makes no mention of “just compensation” or “public use.” Instead, the Complaint presents detailed information about the notice given to arrestees and alleges that the City failed to provide adequate notice that it would destroy unclaimed property after 30 days. Complaint, Dkt. 59, ¶¶ 15-17. Specifically, the plaintiffs allege that the City failed to comply with the notice requirements set forth under Illinois law and failed to satisfy due process standards. Id. ¶ 20.
The gravamen of the Complaint, then, is not that the City destroyed the plaintiffs’ property without providing just compensation; it is that that City destroyed their property without providing adequate notice. Indeed, if the Complaint’s two references to the Fifth Amendment were removed, one reading the Complaint would have no idea that the allegations were intended to support such a claim. Accordingly, the Court does not read the Complaint to assert a facial takings challenge. To the extent that the Complaint alleges that the notice provided by the City was constitutionally inadequate, it raises not a takings claim but a due process claim. That claim is discussed further below.
The Court notes as well that if the plaintiffs were actually making a facial takings challenge to the City’s policy, the Court would be required to address whether the plaintiffs have standing to make such a challenge. Constitutional standing requires that the plaintiff have sustained, or face, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). In the context of a facial challenge, standing requires an injury arising from the enactment of a law or policy rather than its application; a facial takings challenge is premised on the effect of the law or policy on a plaintiff’s property by virtue of its enactment or continuing existence. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 & n.10 (1997) (“Such facial challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an uphill battle, since it is difficult to demonstrate that mere enactment of a piece of legislation deprived [the owner] of economically viable use of [his] property.” (alterations in original) (citations and internal quotation marks omitted); see also, e.g., Guggenheim v. City of Goleta, 638 F.3d 1111, 1119 (9th Cir. 2010) (en banc) (“[I]n the takings context, the basis of a facial challenge is that the very enactment of the statute has reduced the value of the property or has effected a transfer of a property interest. This is a single harm, measurable and compensable when the statute is passed.” (quoting Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993)) (internal quotation marks omitted)). Often, for example, such claims are asserted in cases involving laws governing the use of property, where the plaintiffs have a basis to allege that enactment of an ordinance or regulation deprives them of some or all of the value of their property, without regard to whether, or how, the governmental restriction was actually applied to them. Yee v. City of Escondido, 503 U.S. 519 (1992), the case on which the plaintiffs untenably rely for their argument that the Complaint states a facial takings challenge, was such a case. See also, e.g., Daniels v. Area Plan Comm’n of Allen Cnty., 306 F.3d 445, 467 (7th Cir. 2002). But here, the mere enactment, or existence, of the City’s ordinance did nothing to injure the plaintiffs; it is only the application of the ordinance to their property that effected any “taking” of that property. The plaintiffs suffered no injury at all from the existence of the City’s policy until that policy was applied to them and resulted in the destruction of their property. As the Court concludes that the plaintiffs have not actually asserted a facial takings claim, however, it is unnecessary to definitively resolve this jurisdictional question.
3. Fourteenth Amendment
Due process requires both adequate procedures for reclaiming seized property and adequate notice of those procedures. See Gates v. City of Chi., 623 F.3d 389, 394, 405 (7th Cir. 2010). The purpose of adequate notice is to ensure that the owner of the property can pursue available remedies for its return. See Id. at 398 (citing City of West Covina v. Perkins, 525 U.S. 234 (1999)). Where the procedures for reclaiming seized property “are established by published, generally available state statutes and case law, no individualized notice of those procedures is required.” Id. (citing West Covina, 525 U.S. at 241). Where, however, the procedures “are not available in documents that are published and generally available, ” individualized notice of the procedures is required. Id. at 400 (citing West Covina, 525 U.S. at 242). In addition, any individualized notice provided-whether required or not-cannot be misleading. See Id. at 401 (vacating summary judgment for the City on the plaintiffs’ due process claim and stating that the City cannot mislead arrestees about the procedures for reclaiming property).
In this case, the premise of the plaintiffs’ due process claim is that the Notice is misleading because it does not clearly indicate that owners of seized property only have 30 days to claim their property before it will be destroyed. The Notice states that property not claimed within 30 days of the inventory date “will be considered abandoned under Chicago Municipal Code Section 2-84-160, and the forfeiture process will begin under Illinois Law, 765 ILCS 1030/1, et seq.” Complaint, Dkt. 59, ¶ 17. The ordinance referenced in the Notice provides that property seized by the CPD will be destroyed, auctioned, or re-appropriated for City use if it is not claimed within 30 days of (1) “the final disposition of the court proceedings . . . in connection with which [the] property was seized, ” or (2) the date of seizure, if there are no such court proceedings. Chi. Mun. Code § 2-84-160. The statute referenced in the Notice is the Law Enforcement Disposition of Property Act (“LEDPA”), which provides, inter alia, that owners of property covered by LEDPA have six months to recover their property. See 765 ILCS §§ 1030/3, 1030/5.
The plaintiffs concede that Municipal Code § 2-84-160 establishes that the type of property at issue will be disposed of if not claimed within 30 days of seizure. But they argue that the Notice is nevertheless misleading because the reference to the ordinance is immediately followed by a reference to “the forfeiture process . . . under [LEDPA], ” which makes the sentence as a whole suggest that the City does not in fact dispose of arrestees’ unclaimed personal effects after 30 days, but instead begins at that point to institute forfeiture proceedings based on the procedures outlined in LEDPA (regardless of whether or not LEDPA itself actually applies). Since LEDPA provides for a six-month recovery period, the plaintiffs argue, the Notice could mislead arrestees into believing that they have more than 30 days in which to seek to recover their property.
The Court agrees that the phrasing of the Notice could reasonably suggest to arrestees who consult the text of LEDPA and Municipal Code § 2-84-160 that they have more than 30 days to recover their property. To the extent that the City’s actual policy is to dispose of property not claimed within 30 days, then, the plaintiffs have adequately alleged that the Notice is constitutionally deficient. Cf. Gates, 623 F.3d at 401 (“[T]he City may not mislead arrestees about the necessary procedures for the return of their [property] . . ...