UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DONOVAN DAVIS, JR., Plaintiff, v. Case No. 19-cv-3327 (CRC) EPHRAIM WERNICK, Defendant. MEMORANDUM OPINION Federal inmate Donovan Davis, Jr., proceeding pro se, has sued former Assistant United States Attorney Eprhaim Wernick for allegedly ordering the destruction of a laptop computer belonging to Davis following the conclusion of Davis’s criminal fraud prosecution. Davis alleges that Wernick’s actions deprived him of property in violation of the Due Process Clause of the Fifth Amendment and related Constitutional provisions. He seeks monetary damages. Wernick moves to dismiss the complaint, arguing that Davis has stated neither a recognized Bivens action nor, in the alternative, a viable tort claim. The Court agrees and will grant the motion. I. Background The Court draws the following background from Mr. Davis’s November 2019 complaint unless otherwise noted. Mr. Wernick presumably contests many of the allegations. A jury convicted Davis of federal fraud offenses in 2015 and he is currently serving a lengthy prison sentence. See Davis v. Federal Bureau of Investigation, No. 18-cv-0086, 2019 WL 2870729, at *1 (D.D.C. July 3, 2019) (Cooper, J.); Compl. at 1. Davis alleges that in 2008 he relinquished a personal laptop to the United States Secret Service. Compl. at 2. That laptop purportedly contained “trade secrets, personal images, and intellectual property” as well as “data [which] showed that” former AUSA Wernick “and others conspired to deceive a federal district court” during the course of Davis’s prosecution. Compl. at 2, 4. In the ensuing years, the laptop remained in the custody of the Secret Service and was never searched or returned to Davis. Compl. at 3. Davis maintains that the Secret Service was instructed not to dispose of the laptop while the direct appeals of his conviction were still pending. Compl. at 4. Wernick nevertheless ordered the destruction of the laptop in 2017, according to Davis, “in order to conceal Mr. Wernick’s participation in obstructing justice.” Compl. at 4. Davis contends that Wernick’s direction to destroy the laptop constituted a deprivation of property without due process of law in violation of the Fifth Amendment of the United States Constitution. Compl. at 5–6. 1 Davis requests “actual, compensatory, and consequential damages” and claims that the “cost of recovering and reproducing the destroyed property exceeds $100,000.” Compl. at 6–7. Wernick moves to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. II. Legal Standards In order to survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In 1 The complaint’s section labeled “Constitutional Duty of Care Claim Against Ephraim Wernick” alleges that “Mr. Wernick had a duty to ensure Mr. Davis’s property was returned without damage” which was violated when the laptop was destroyed. Compl. at 7. ...
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