SETH v. DISTRICT OF COLUMBIA et al

Filing 36

MEMORANDUM OPINION regarding the plaintiff's 29 Motion to Alter or Amend Judgment and Motion for Leave to File Amended Complaint. Signed by Chief Judge Beryl A. Howell on May 8, 2019. (lcbah4)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARKELLE SETH,
Plaintiff,
Civil Action No. 18-1034 (BAH)
v.
Chief Judge Beryl A. Howell
DISTRICT OF COLUMBIA, et al.,
Defendants.

MEMORANDUM OPINION
The plaintiff, Markelle Seth, seeks to alter or amend the portion of this Court’s judgment
entered on September 28, 2018, see Seth v. District of Columbia, No. 18-cv-1034 (BAH), 2018
WL 4682023 (D.D.C. Sept. 28, 2018) (“2018 Decision”), that dismissed with prejudice his
complaint seeking to require the defendants, the District of Columbia, District of Columbia
Department on Disability Services (“DDS”), and Andrew Reese, in his official capacity as
Director of DDS (collectively, “defendants”) to “promptly accept physical and legal custody of”
Seth, Compl. at 48, ECF No. 1, based on four alleged violations of federal and local
antidiscrimination laws, including Title II of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973 (“RA”), 29
U.S.C. § 794; the District of Columbia Human Rights Act of 1997 (“DCHRA”), D.C. CODE
§ 2-1401.01 et seq.; and the Citizens with Intellectual Disabilities Civil Rights Restoration Act of
2015 (“CIDA”), D.C. CODE § 7-1301.01 et seq. As support for reconsideration, Seth asserts that
dismissal of his Complaint with prejudice was “clear error,” Pl.’s Mot. to Alter or Amend
Judgment & Mot. for Leave to File Am. Compl. (“Pl.’s Mot.”) at 2, ECF No. 29, particularly
since he now “possesses additional facts that further support his claims and that specifically
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address this Court’s concerns” with his original complaint, id. He therefore seeks leave to file an
Amended Complaint, a copy of which is attached to his motion. See Pl.’s Mot., Attachment 1,
Proposed Am. Compl. (“Proposed Am. Compl.”), ECF No. 29-1. For the reasons explained
below, Seth’s Motion to Alter or Amend the Judgment is denied, and his Motion for Leave to
File an Amended Complaint is therefore denied as moot.
I.

BACKGROUND
The 2018 Decision laid out this matter’s statutory framework and procedural history in

some detail, see 2018 Decision at *1–8, and thus only the essentials are recounted here.
A.

Competency Proceedings in the District of Columbia and the Eastern District
of North Carolina

Seth, a “resident of the District of Columbia with an intellectual disability,” id. at *3, was
arrested on October 16, 2014 and “charged in this Court with ‘one count of production of child
pornography for allegedly using his cell phone to videotape two children in his household
engaging in sexual behavior with him, in violation of 18 U.S.C. § 2251(a),” id. at *4 (quoting
Compl. ¶ 32). On October 23, 2014, Seth’s counsel requested an examination of Seth’s mental
competency pursuant to 18 U.S.C. § 4241(a), which motion was granted. Id. Over the next
several years, the parties followed the three-stage statutory process that the Insanity Defense
Reform Act of 1984 (“IDRA”), Pub. L. No. 98-473, 98 Stat. 2057, establishes to determine
whether an individual “is a long-term incompetent and sufficiently dangerous to require
indefinite institutionalization.” United States v. Weissberger, 951 F.2d 392, 395–96 (D.C. Cir.
1991) (citing 18 U.S.C. § 4241(d)); see also 2018 Decision at *2–3 (describing this statutory
framework).
Since December 22, 2016, following this Court’s adoption, “without objection” from
either Seth or the government, of a Magistrate Judge’s Report and Recommendation that Seth “is

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incapable of being restored to competency in the foreseeable future,” Seth has been in the
custody of the Attorney General at FMC Butner, in North Carolina. See 2018 Decision at *5
(quoting Order (Dec. 22, 2016) at 1–2, United States v. Seth, No. 14-mj-608 (D.D.C. Dec. 22,
2016), ECF No. 77). On April 11, 2017, FMC Butner psychologist Dr. Kristina Lloyd concluded
that Seth was “suffering from a mental disease or defect as the result of which his release to the
community would create a substantial risk for bodily injury to another person or serious damage
to the property of another.” Id. (internal quotation marks and citation omitted). Three days later,
the Complex Warden at FMC Butner executed a “certificate of dangerousness” pursuant to 18
U.S.C. § 4246, citing Dr. Lloyd’s conclusions, and stating that “suitable arrangements for State
custody are not available.” Id. (internal quotation marks and citation omitted). This certificate
was filed, on April 28, 2017, in the District Court for the Eastern District of North Carolina, the
district where FMC Butner is located. Id.
On May 24, 2018, a competency hearing was held in the Eastern District of North
Carolina, after which the Court entered an order finding “by clear and convincing evidence” that
Seth was “presently suffering from a mental disease or defect as a result of which his release
would create a substantial risk of bodily injury to another person or serious damage to the
property of another,” id. at *6 (quoting E.D.N.C. Commitment Order (“E.D.N.C. Commitment
Order”) at 1, United States v. Seth, No. 17-hc-2090 (E.D.N.C. May 25, 2018), ECF No. 32), and
that state placement was not available in the District of Columbia, id. (internal quotation marks
and citation omitted). Seth was therefore committed to the custody and care of the Attorney
General, pursuant to 18 U.S.C. § 4246. Id. (internal quotation marks and citation omitted).
Although Seth is committed to the custody of the Attorney General, the IDRA provides
that a person “shall” be released “to the appropriate official of the State in which the person is

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domiciled or was tried if such State will assume responsibility for his custody, care, and
treatment.” 18 U.S.C. § 4246(d). The Attorney General “shall make all reasonable efforts to
cause such a State to assume responsibility,” id., and must hospitalize the person for treatment in
a suitable facility until the State assumes responsibility or the person may be released without
creating a substantial risk of bodily injury to another person or serious damage to property of
another, whichever occurs first. Id. § 4246(d)(1)–(2). The Attorney General must “continue
periodically to exert all reasonable efforts to cause such a State to assume such responsibility for
the person’s custody, care, and treatment.” Id. § 4246(d).
“[A]t any time during [the] person’s commitment,” his counsel or legal guardian may
“file with the court that ordered the commitment a motion for a hearing to determine whether the
person should be discharged” from the facility, so long as no motion is filed within 180 days of a
court determination that the person should continue to be committed.” Id. § 4247(h). For the
period of almost one year since Seth has been committed at FMC Butner, no such motion has
been filed.
B.

Efforts for Seth’s Placement in D.C. Community-Based Program

While Seth’s federal competency and civil commitment proceedings were ongoing, his
counsel made efforts to have him placed in a community-based program within the District of
Columbia. 2018 Decision at *6–7. Beginning in March 2015, DDS and its then-Director Laura
Nuss indicated that Seth was eligible for DDS services and DDS made plans to move for civil
commitment of Seth. See id. at *6.
Prior to Seth’s competency hearing in this Court in May 2016, id. at *5, defendant Reese
replaced Nuss as the Director of DDS, and requested that a new risk assessment of Seth be
prepared, id. at *7. DDS’s expert, Dr. Matthew Mason, subsequently found, on February 24,
2017, that Seth could be safely supported in a highly structured, closely supervised
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community-based program, id., which conclusion was endorsed, on June 18, 2017, by Dr.
Stephen Hart, an expert retained by Seth, id. Between these two reports, however, FMC
Butner’s expert Dr. Lloyd concluded that Seth’s release to the community would create a
substantial risk for bodily injury to another person or serious damage to the property of another,
prompting the Complex Warden of FMC Butner to file a certificate of dangerousness, resulting
in a judicial order finding, by clear and convincing evidence, that Seth’s release would create a
substantial risk of bodily injury to another person or serious damage to the property of another.
Id. Since that judicial order, which relies in part on a finding that suitable state arrangements are
not available, DDS has not attempted to take responsibility for Seth’s care. This local agency
inaction has led to this lawsuit.
C.

Procedural History

Seth filed his original civil complaint in this action on May 1, 2018, after the Complex
Warden of FMC Butner issued a certificate of dangerousness but before the Eastern District of
North Carolina held a competency hearing. The defendants moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6) on June 14, 2018, see Defs.’ Mot. to Dismiss, ECF No. 19,
which motion was fully briefed as of July 26, 2018. Seth did not move for leave to amend his
complaint at any point prior to issuance of the September 28, 2018 Decision granting the
defendants’ motion to dismiss.
The complaint was dismissed with prejudice as to all counts. See Order (Sept. 28, 2018)
at 1, ECF No. 27. The federal and state antidiscrimination claims were dismissed because Seth
failed to establish that he was discriminated against based on his disability, let alone based solely
on his disability. 2018 Decision at *12–13 (ADA and RA claims); id. at *15 (DCHRA claim).
Although Seth made much of DDS’s apparent change of position regarding accepting
responsibility for his care, he offered nothing to suggest that DDS, an organization whose
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purpose is to provide services for individuals with disabilities, changed its position as a result of
Seth’s disability rather than as a result of other factors, inter alia, a change in leadership at DDS,
possible budgetary strains, and, most significantly, certification by the warden at FMC Butner
and a holding by the Eastern District of North Carolina, based on clear and convincing evidence,
that Seth posed a substantial risk of causing bodily injury to another person or serious damage to
the property of another if released into the community. See id. at *12. Likewise, Seth’s
unjustified isolation claim failed because he could not offer sufficient indications that community
placement was appropriate or could be reasonably accommodated, in light of the dangerousness
finding in the Eastern District of North Carolina—a finding that may only issue if suitable
arrangements for state custody or care are unavailable. See id. at *13–14. “In the absence of
suitable arrangements in the District, the [unjustified isolation] test is not satisfied.” Id. at *14.
Notably, the Court pointed out that Seth has not challenged the dangerousness finding in the
Eastern District of North Carolina by filing a motion for discharge under 18 U.S.C. § 4247(h)
and has not challenged his continuing custodial status by initiating a habeas proceeding under 18
U.S.C. § 4247(g). See id. at *14 n.12 (“[A]lthough Seth has failed to state a claim under the
antidiscrimination laws, alternative avenues for relief remain open.”). Moreover, the Court noted
that although Seth’s unjustified isolation claim relied in part on United States v. Ecker, 489 F.
Supp. 2d 130 (D. Mass. 2007), in which the court “direct[ed] the government to provide a
detailed report within six months . . . identifying all reasonable efforts exerted to cause the [state]
to assume custody,” of a defendant committed to the care of the Attorney General, id. at 137
“[s]uch relief is not available in [Seth’s] antidiscrimination case” as Seth sued only local
government parties. 2018 Decision at *14 n.12.

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Seth’s CIDA claim was dismissed with prejudice because the CIDA does not create a
private right of action in federal court for individuals, such as Seth, who have not been
determined intellectually disabled through the process set out by the CIDA, which process entails
a discretionary decision on the part of the District to file a commitment petition in the Superior
Court of the District of Columbia. See id. at *15–17. Once again, the Court pointed out that
Seth had not pursued his CIDA claim by challenging the District’s inaction in the Superior Court
of the District of Columbia. See id. at *17 n.15 (“[W]hile Seth does not have a federal right of
action to enforce his rights under the CIDA, such an action may be available in the Superior
Court of the District of Columbia.” (citing D.C. CODE § 7-1305.13(a)).
D.

Plaintiff’s Motion to Amend or Alter the Judgment and for Leave to Amend
the Complaint

Rather than pursuing any alternative avenue of relief available to him in the Eastern
District of North Carolina or in the Superior Court of the District of Columbia, Seth has returned
once again to this Court, with the same claims, hoping for a different result.1 Specifically, Seth
moves to vacate the portion of the September 28, 2018 judgment dismissing his claims with
prejudice, contending that dismissal with prejudice was clear error and that such dismissal is
only permitted when there is no set of facts that he could possibly adduce to meet the pleading
standards, whereas Seth now “possesses significant evidence . . . that reinforce[s] his claims.”
Pl.’s Mem. at 7–8. The defendants counter that “dismissal with prejudice was appropriate and
leave to amend should be denied because there are no factual allegations consistent with those

1

The plaintiff, failing to acknowledge or, apparently, to pursue these alternative avenues for relief, accuses
the Court of leaving Seth “in a hopeless ‘catch 22’ situation in which he has no meaningful avenue for relief,” Pl.’s
Mem. in Supp. of Mot. to Alter or Amend Judgment & Mot. for Leave to File Am. Compl. (“Pl’s Mem.”) at 4, ECF
No. 29, and “in cruel and hopeless limbo,” id. at 16. In light of the plaintiff’s allegations that “he is experiencing
significant harm from [his] placement,” id. at 2, counsel would be well advised to consider carefully the full range of
options available. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, No. 18-5116, 2019 WL
1907230, at *6 (D.C. Cir. Apr. 30, 2019) (“[Plaintiff’s] failure to pursue these alternatives causes [his] cries of
unfairness to ring hollow.”).

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previously pled that could cure the deficiencies in the original Complaint.” Defs.’ Opp’n to Pl.’s
Mot. to Alter or Amend Judgment & Mot. for Leave to File Am. Compl. (“Defs.’ Opp’n”) at 1,
ECF No. 31. Further, the defendants assert that leave to amend should be denied because
granting that relief now would be both unduly prejudicial and futile, as the Proposed Amended
Complaint fails to cure the deficiencies warranting dismissal in the first place. Id. at 6. For the
reasons explained below, Seth’s motion is denied.
II.

LEGAL STANDARD
Rule 59(e) allows a party to file “[a] motion to alter or amend a judgment.” FED. R. CIV.

P. 59(e). “A Rule 59(e) motion is discretionary and need not be granted unless the district court
finds that there is an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d
755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).
As the D.C. Circuit recently stressed, “the reconsideration or amendment of a judgment is
nonetheless an extraordinary measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217
(D.C. Cir. 2018). A Rule 59(e) motion “may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to the entry of judgment,” id.
(quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)), and “is ‘not a vehicle to
present a new legal theory that was available prior to judgment,’” id. (quoting Patton Boggs LLP
v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012)). Thus, “Rule 59(e) is not available to a
party who ‘could have easily avoided the outcome, but instead elected not to act until after a final
order had been entered.’” Id. at 220 (quoting Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir.
2004)).

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When a Rule 59(e) motion seeks review of dismissal of a complaint, and is accompanied
by a proposed amended complaint that purports to cure the deficiency prompting the original
dismissal, the proper procedure requires the plaintiff first to “satisfy Rule 59(e)’s more stringent
standard,” Firestone, 76 F.3d at 1208, before Federal Rule of Civil Procedure “15(a)’s liberal
standard for granting leave to amend governs,” id.; see also Osborn v. Visa Inc., 797 F.3d 1057,
1062 (D.C. Cir. 2015) (noting that “[a]s a technical matter, the District Court lack[s] authority to
rule on the merits of the Rule 15(a) motion [if] it did not modify its final judgment dismissing
[the case]”). At the same time, the D.C. Circuit has instructed that “the Rule 59(e) motion
should be granted” “if the dismissal of the complaint with prejudice was erroneous[,] that is, the
Rule 59(e) motion should be granted unless ‘the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.’” Brink v. Cont'l Ins. Co., 787 F.3d
1120, 1128 (D.C. Cir. 2015) (quoting Firestone, 76 F.3d at 1209).
III.

DISCUSSION
In urging reconsideration under Rule 59(e), Seth argues that dismissal of his complaint

with prejudice was erroneous for two reasons. First, he complains that the reasons for dismissing
with prejudice were not adequately explained in the 2018 Decision. Pl.’s Mem. at 7–9. Second,
he argues that he now possesses “significant evidence” supporting his claims, id. at 8, illustrating
that he is able to allege “other facts consistent with the challenged pleading,” id. at 5 (quoting
Firestone, 76 F.3d at 1209), which facts cure the complaint’s prior deficiencies. Each of these
arguments is addressed in turn.
A.

Dismissal with Prejudice was Both Warranted and Adequately Explained

According to Seth, the dismissal of his complaint with prejudice must be in error because
“the Memorandum Opinion identifies numerous possible areas where additional or other facts
could cure the supposed defects in [Seth’s] original Complaint.” Id. at 9. He presses this point
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in his reply, which largely consists of tables matching deficiencies identified in the prior ruling
with new allegations contained in the Proposed Amended Complaint that purport to address each
such deficiency. See Pl.’s Reply to Defs.’ Opp’n (“Pl.’s Reply”) at 6–10, ECF No. 32.
Seth errs in assuming that the recitation in the 2018 Decision of certain facts he failed to
elucidate was an indication that such facts could cure the complaint. They cannot. The central
reason that his federal and state antidiscrimination claims were dismissed with prejudice is that
he could not allege sufficient facts suggesting that he was denied DDS services due to his
disability, rather than due to the fact—barely acknowledged in his complaint—that he had been
deemed by a federal court, by clear and convincing evidence, to be a danger to the community.
See 2018 Decision at *11–14. As the defendants argue, this fact, which remains unchallenged in
the Eastern District of North Carolina, “undermines any allegation—that was pled or could be
pled—suggesting that the District failed to act for plaintiff . . . because he has an intellectual
disability.” Defs.’ Opp’n at 5 (internal quotation marks and citation omitted). The emphasis, in
the original ruling, on the dangerousness finding by the warden at FMC Butner and by the
Eastern District of North Carolina offered sufficient explanation why “the allegation of other
facts consistent with the challenged pleading could not possibly cure the deficiency” in the
complaint, and therefore provided sufficient explanation as to why the federal and state
antidiscrimination claims were dismissed with prejudice. See Firestone, 76 F.3d at 1209
(internal quotation marks and citation omitted); He Depu v. Yahoo! Inc., 334 F. Supp. 3d 315,
321 n.8 (D.D.C. 2018) (“[T]he amended allegations must be consistent with plaintiffs’ pleading,
not with issues noted by the Court.”).
The dangerousness finding was also the foundation for the dismissal with prejudice of
Seth’s unjustified isolation claim. See 2018 Decision at *14. In light of the Eastern District of

10

North Carolina’s finding, by clear and convincing evidence, that Seth’s release to the community
would pose a substantial risk of causing bodily injury and that state placement was not available,
Seth could allege no facts that the state’s treatment officials had determined that community
placement was now appropriate or could be reasonably accommodated. Id. at *13–14. As noted
in the prior ruling, the Rehabilitation Act does not require that any benefit extended to one
category of handicapped persons be extended to all other categories, see id. at *14 (citing
Traynor v. Turnage, 485 U.S. 535, 549 (1988)), nor does the IDRA provide for judicial review as
to whether suitable arrangements for state custody are in fact available, id. (citing United States
v. Wigren, 641 F.3d 944, 946 (8th Cir. 2011)).2 Notwithstanding Seth’s frustration with the
District’s refusal to serve him, given the conditional language of the IDRA, the Attorney General
is not required to release a committed person to the District in the absence of the District’s
willingness to assume responsibility for that person’s custody, care, or treatment, id., and thus
the decision to dismiss Seth’s unjustified isolation claim with prejudice was warranted and
adequately explained.
Finally, Seth’s CIDA claim was dismissed with prejudice based on the conclusion that no
private right of action in federal court is provided for individuals, such as Seth, who have not

Seth protests that because the District determined in March 2015 that “carefully supervised
community-based services are appropriate,” Pl.’s Mem. at 13, the “subsequent decision by DDS not to provide
services to [Seth] is not a determination by DDS sufficient to satisfy the Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581 (1999) standard[] that community based services are not ‘appropriate,’” id. at 13–14. These arguments have
already been rejected, 2018 Decision at *14, and Seth offers no citation to undermine the cases relied upon, such as
Wigren, 641 F.3d at 946–47, which held that the IDRA does not provide for judicial review of or establish standards
for determining whether suitable arrangements for state custody are available, nor does it endow the committed
person with a judicially enforceable right to state custody. See also United States v. Johnson, 453 F. App’x 664, 667
(8th Cir. 2012) (holding that the government is not required to put on proof on the matter of state custody aside from
the initial certification by the warden). Further, whatever quarrel Seth has with DDS’s “unilateral[]” decision that
state placement is not appropriate, Pl.’s Mem. at 14, this assessment was ratified by the Complex Warden at FMC
Butner and the Eastern District of North Carolina. See 2018 Decision at *6 (noting that the Eastern District of North
Carolina found that “state placement is not available” in the District (quoting Competency H’rg Tr. (May 24, 2018)
at 46:19, United States v. Seth, No. 17-hc-2090 (E.D.N.C. June 7, 2018), ECF No. 34)); id. at *14 & n.12 (“[T]his
Court would be hard-pressed to order [Seth’s] release,” which was part of the relief Seth requested in his complaint,
see Compl. at 48, “given the finding of dangerousness in the Eastern District of North Carolina.”).
2

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been determined intellectually disabled through the process set out in the CIDA and because the
CIDA does not obligate the District to petition for Seth’s commitment. See id. at *15–17. Under
the Cort v. Ash test, Seth could not establish that the CIDA provided an implied right of action in
federal court for individuals who had not been determined by the Superior Court of the District
of Columbia to have an intellectual disability, nor could he overcome the discretionary nature of
the petition provision in the CIDA, which establishes that the District is not required to file a
petition for civil commitment every time an individual is found incompetent in a criminal case.
See id. at *16–17 (citing Cort v. Ash, 422 U.S. 66, 78 (1975)). Seth does not even attempt to
offer new evidence consistent with his challenged pleading, relying instead on a new legal
argument that the CIDA’s legislative history shows that Seth is “one of the class for whose
especial benefit the statu[t]e was created.” Pl.’s Reply at 10–11 (emphasis in original) (citing
Proposed Am. Compl. ¶¶ 141, 144 (discussion of the Committee Report for 2002 amendments to
the CIDA)). By contrast, Seth’s memorandum in opposition to the defendants’ motion to dismiss
his original complaint argued that “[t]here is no need to look to the Committee Report to discern
CIDA’s purpose.” Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss at 31, ECF No. 21. The
legislative history Seth now relies on addresses only one of the relevant Cort v. Ash prongs and,
in any event, is consistent with this Court’s conclusion that the CIDA’s legislative history
indicates that this local statute only affords rights to those determined to be intellectually
disabled after a petition is filed in Superior Court. See 2018 Decision at *16. Thus, Seth’s
CIDA claim “suffers the same legal deficiency that existed in the [original] Complaint.” Defs.’
Opp’n at 10. Seth’s attempt to relitigate his CIDA claim demonstrates that he cannot allege
additional facts consistent with the challenged pleading, and therefore dismissal with prejudice
was appropriate.

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B.

Seth’s “New” Evidence Demonstrates that Reconsideration is Not Warranted

Consideration of the new factual allegations proffered by Seth only reinforces the
conclusion that dismissal with prejudice was appropriate in the first place and that
reconsideration is not warranted now. “[R]econsideration is only appropriate when ‘the moving
party shows new facts or clear errors of law which compel the court to change its prior
position.’” Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 n.2 (D.C. Cir. 2007)
(quoting Nat’l Ctr. for Mfg. Scis. v. Dep’t of Def., 199 F.3d 507, 511 (D.C. Cir. 2000)).
Reconsideration motions may not be used to “relitigate old matters, or to raise arguments or
present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping
Co., 554 U.S. at 485 n.5 (internal quotation marks and citation omitted). In other words, the
evidence presented in a reconsideration motion must be “newly discovered or previously
unavailable despite the exercise of due diligence.” Johnson v. District of Columbia, 266 F. Supp.
3d 206, 211 (D.D.C. 2017) (internal quotation marks and citation omitted). “Courts routinely
deny Rule 59(e) motions where all relevant facts were known or should have been known by the
party prior to the entry of judgment.” Id.; see also SEC v. Bilzerian, 729 F. Supp. 2d 9, 15
(D.D.C. 2010) (denying Rule 59(e) motion where “new evidence” was “not newly available; it is
simply newly received”).
Seth’s new factual allegations were neither unavailable, within the meaning of Rule
59(e), prior to entry of judgment, nor are they sufficient now to compel a different result. He
protests that “some” of the additional evidence he wishes to offer was “unavailable at the time
this action was initiated,” Pl.’s Reply at 1 (emphasis added), but that is not the governing
standard under Rule 59(e), which asks whether the evidence could have been raised “prior to the
entry of judgment,” Exxon Shipping Co., 554 U.S. at 485 n.5 (emphasis added). Although Seth
insists that it “should come as no surprise” that he “continued to identify evidence and witnesses
13

while litigating the motion to dismiss,” Pl.’s Reply at 12, he fails to explain why either his
continued investigation or the defendants’ motion to dismiss never prompted him to move to
amend the complaint prior to entry of the judgment, either as of right under Federal Rule of Civil
Procedure 15(a)(1)(B), or with the consent of the party or judicial approval under Federal Rule of
Civil Procedure 15(a)(2). See Defs.’ Opp’n at 6–7 (noting this lack of explanation).
Regardless, Seth’s proffered evidence, even if deemed “previously unavailable despite
the exercise of due diligence,” Johnson, 266 F. Supp. 3d at 211, does not “compel the court to
change its prior position,” Carter, 503 F.3d at 145 n.2. First, the 2018 Decision critically
assessed Seth’s allegation regarding DDS “utilizing criteria or methods of administration” for its
services, which criteria allegedly “have the effect of subjecting [Seth] to discrimination on the
basis of disability,” Compl. ¶ 133, for not “provid[ing] . . . further details on these criteria, how
they affected him, or the defendants’ motivations for imposing such criteria.” 2018 Decision at
*11. To address this criticism, Seth alleges that he can now present “statements made in
communications by DDS employees creat[ing] a strong inference that their motivation was to
discriminate against [Seth].” Pl.’s Mem. at 10. As support, Seth points to a single email
communication from a DDS employee in 2015 indicating that DDS wanted “to leave as small a
footprint as possible” in committing Seth, see Pl.’s Reply at 6 (citing Proposed Am. Compl. ¶¶
127, 128), which Seth interprets to “reflect[] both DDS’s willingness in 2015 to civilly commit
[Seth] and its simultaneous preference that others remain unaware of this action . . . evidencing
DDS’s bias against serving individuals with intellectual disability,” Proposed Am. Compl. ¶ 128.
According to Seth, this email, together with evidence that the District provides community-based
services to individuals with mental illness who are dangerous and has the capacity of serving
individuals such as Seth who have an intellectual disability and are dangerous, is sufficient to

14

create an inference that the District’s ultimate refusal to accept responsibility for Seth was
motivated by discrimination on the basis of his intellectual disability. Pl.’s Mem. at 10; Pl.’s
Reply at 6–8.
Although, at the motion-to-dismiss stage, the complaint’s factual allegations and
reasonable inferences to be drawn from those facts are assumed to be true, Niskey v. Kelly, 859
F.3d 1, 5 (D.C. Cir. 2017), Seth still offers insufficient facts to support a reasonable inference
that a desire “to leave as small a footprint as possible” in providing community-based services to
a man accused of sexual activities with children reflects discrimination on the basis of Seth’s
disability, as opposed to common-sense concerns about the community’s possible reaction to
Seth’s potential (later confirmed) dangerousness. See Harris v. D.C. Water & Sewer Auth., 791
F.3d 65, 69 (D.C. Cir. 2015) (a claim may be rendered plausible when the facts alleged in the
complaint eliminate other, legitimate reasons and thus lead to a reasonable inference of
discrimination).3

Seth posits that “it does not take much pleading to withstand a motion to dismiss in the discrimination
context,” Pl.’s Reply at 4 (internal quotation marks and alteration omitted) (quoting Brown v. District of Columbia,
No. 16-cv-0947 (EGS), 2017 WL 4174417, at *2 (D.D.C. Sept. 18, 2017)), citing a refrain from a racial
discrimination case holding that “’I was turned down for a job because of my race’ is all a complaint has to say to
survive a motion to dismiss,” id. (quoting Sirmans v. Caldera, 138 F. Supp. 2d 14, 21 (D.D.C. 2001) (internal
citation omitted)). Sirmans, which is not binding on this Court, was decided before Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which are. See Sirmans, 138 F. Supp. 2d at 21 (citing
Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). In any event, the cases Seth relies on, such as Brown, which
involved a pro se plaintiff, whose pleadings are provided more leeway, 2017 WL 4174417, at *2, or Alston v.
District of Columbia, 561 F. Supp. 2d 29, 39 (D.D.C. 2008) (cited at Pl.’s Mem. at 7 n.2), are distinguishable.
Indeed, Seth has been warned previously that “Alston’s continuing guidance regarding the analysis of a motion to
dismiss is . . . questionable” since it was decided before the Supreme Court’s decision in Iqbal. See 2018 Decision
at *13 n.11. Regardless, unlike plaintiffs who may be able to “state a facially plausible claim,” Rudder v. Williams,
666 F.3d 790, 794 (D.C. Cir. 2012), without reference to anticipated justifications or defenses, see Alston, 561 F.
Supp. 2d at 39 (“There is no mention in the complaint of any causes other than the ‘extent and severity of her
disabilities.’”), Seth must, even in his complaint, acknowledge the dangerousness certification at FMC Butner and
the dangerousness finding in the Eastern District of North Carolina. These legitimate, non-discriminatory reasons
for the DDS’s actions, together with Seth’s failure to allege sufficient facts demonstrating that DDS’s actions were
nonetheless taken because of his disability, supported dismissal with prejudice in the first instance, and support
denial of the motion to alter or amend the judgment now.
3

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Second, in response to the 2018 Decision’s footnote that Seth had utterly failed to
develop any legal theory distinguishing Seth’s intellectual disability from mental illness as the
“crux” of his discrimination claims, see 2018 Decision at *12 n.9, Seth says that he can offer
evidence “show[ing] that Defendants have a track record of providing similar services to
individuals with behaviors similar to his own but who have different disabilities.” Pl.’s Mem. at
10. As support, he alleges that the defendants “filed more than 40 petitions to civilly commit
individuals found not competent to stand trial as a result of mental illness, while . . . avoid[ing]
civilly committing and serving people with intellectual disability under similar circumstances.”
Id. at 15; see also Pl.’s Mot. at 2–3 (citing the District’s practice of “regularly” seeking to civilly
commit individuals with mental illness “who are determined incompetent and dangerous” under
the Ervin Act, D.C. CODE §§ 21-501, et seq., while “refus[ing] to serve people with intellectual
and developmental disabilities in the same situation,” under the CIDA). Seth suggests that this
data supports a disparate impact theory, apparently because he “identif[ies] a specific practice
that, while facially neutral, nonetheless had a disproportionate adverse effect on a protected class
of individuals.” Pl.’s Reply at 7 (quoting 2018 Decision at *12 (quoting Anderson v. Duncan, 20
F. Supp. 3d 42, 54 (D.D.C. 2013) (internal quotation marks and alteration omitted))).
Seth notes discrepancies between the number of individuals served by the Ervin Act and
the CIDA, but offers no evidence suggesting that “the practice in question caused individuals to
suffer the offending adverse impact because of their membership in a protected group.”
Anderson, 20 F. Supp. 3d at 54 (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994
(1988) (internal quotation marks and alterations omitted)). Although individuals served by the
Ervin Act have mental illness, whereas those served by the CIDA have intellectual or
developmental disabilities, this is not the only distinction among the populations. See Heller v.

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Doe, 509 U.S. 312, 322–24 (1993) (concluding that a state had a rational basis for requiring a
lower standard of proof for commitments for “mental retardation” than for mental illness, as
“mental retardation is easier to diagnose” and “[m]ental retardation is a permanent, relatively
static condition . . . so a determination of dangerousness may be made with some accuracy based
on previous behavior”). Seth states that “[u]pon information and belief, in just the last fiscal
year, 40 Ervin Act petitions seeking civil commitment of incompetent defendants with mental
illness were filed,” Proposed Am. Compl. ¶ 116, compared to only two petitions filed under the
CIDA in the last seven years, id., yet he provides no further citation for this information, or any
way to compare commitments under the Ervin Act and the CIDA with an estimated population
of defendants with mental illness compared to defendants with intellectual disabilities. See
Anderson, 20 F. Supp. 3d at 54 (a prima facie case of disparate impact requires “statistical
evidence of a kind and degree sufficient to show that the practice in question caused” adverse
impact because of membership in a protected group (internal quotation marks and citations
omitted)). Notably, the Ervin Act provides a process for the involuntary commitment of
individuals with mental illness who, because of their mental illness, are found “likely to injure
[themselves] or other persons if not committed,” even if that person has not been arrested in
connection with a criminal case, D.C. CODE § 21-541(a), whereas the CIDA was recently
amended to prohibit new commitments other than commitments of persons found incompetent in
a criminal case. See D.C. CODE §§ 7-1303.04; 7-1303.12a(a); Proposed Am. Compl. ¶ 141 n.15;
Disability Services Reform Amendment Act of 2018, D.C. Act 22-227 (2018). These
differences among the Ervin Act and the CIDA require more than surface-level statistics
comparing commitments under the two acts, which serve different populations, of different sizes,
with potentially different levels of immediate risk to the public. Seth’s statistics are therefore

17

inadequate to “show that the practice in question caused individuals to suffer the offending
adverse impact because of their membership in a protected group.” Anderson, 20 F. Supp. 3d at
54 (internal quotation marks and alternation omitted); see also Figueroa v. Tillerson, 289 F.
Supp. 3d 212, 230 (D.D.C. 2018) (without proper statistical analysis, “the Court has no basis on
which to assess whether any disparity . . . may be caused by the challenged [practice] rather than
the randomness of chance, the overall small number of [members of the protected class], or some
other factor”); Defs.’ Opp’n at 8 (“[P]laintiff’s comparison is unavailing because he attempts to
compare distinct populations and commitments that are governed by differing statutes.”).
Third, Seth argues that the defendants “were fully aware of [Seth’s] potential
dangerousness throughout the planning process [so] their decision not to initiate commitment and
custody proceedings was not premised on the FMC Butner’s Warden’s Certificate of
Dangerous[ness] filed on April 28, 2017.” Pl.’s Mem. at 13. He notes that in May 2017, a
month after the dangerousness certificate and a year before the Eastern District of North Carolina
commitment proceeding, DDS communicated that “the idea is to get [Seth] out of confinement
as soon as possible within the timing realities of the two commitment processes.” Id. (quoting
email communications between DDS and Seth’s counsel). Indeed, Seth cites former DDS
Director Nuss for the proposition that “there would be no need or basis for civil commitment in
the absence of a dangerousness finding.” Pl.’s Mot., Ex. 1, Decl. of Laura L. Nuss (“Nuss
Decl.”) at ¶ 6, ECF No. 29-2. This background, Seth argues, “create[s] a strong inference that
DDS’s ultimate failure to serve [Seth] was not because of the charges against [him] or his
potential dangerousness but was instead discrimination against [Seth] due to his intellectual
disability.” Pl.’s Mem. at 13.

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Seth’s evidence of DDS’s planning process offers nothing to contradict the history
already recounted in the 2018 Decision, which noted that the District and Seth’s attorneys had
been discussing and planning for Seth’s eventual commitment since at least February 2015, a
process that entailed multiple assessments of Seth’s competency and potential risk to the
community. 2018 Decision at *4–6. The 2018 Decision also acknowledged that dangerousness
was a consideration for the District in determining whether to exercise discretion to seek a civil
commitment. See id. at *16 (citing the Committee Report for an amendment to the CIDA, the
Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002, D.C. Bill
14-616, which explained that the purpose of the Act was to “ensure public safety and protect the
community from individuals who may be dangerous to others without treatment or supervision”
(internal quotation marks and citation omitted)). What Seth once again fails to grapple with is
that planning for responsibility for an individual whose “potential dangerousness” is known, Pl.’s
Mem. at 13, is not equivalent to planning for responsibility for an individual who has been
declared, by clear and convincing evidence, to pose a substantial risk of injury to the community.
Seth attempts to argue that his “potential dangerousness” was a constant throughout DDS’s
consideration of his placement in order to draw the inference that the District’s action (or
inaction) can only be explained as discrimination on the basis of his intellectual disability. He
has it exactly backwards. Seth’s intellectual disability was a constant; what changed was the
certainty of his dangerousness. In light of Seth’s failure, once again, to offer facts supporting an
inference that DDS’s ultimate refusal to exercise its discretion to file a petition for his civil
commitment was an action taken on the basis of his disability, his “new evidence” on this front
offers no reason to alter or amend the judgment.

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Fourth, Seth avers that “publicly available budget data shows DDS’s budget allocations
have increased year over year every year since 2016, and . . . at no time during the relevant time
period has DDS had a waiting list for its services.” Id. at 15; see also Nuss Decl. at ¶ 5 (noting
that the District is required to provide services to all individuals who are eligible for services
under a waiver program and that there was a funded slot available when Seth was found eligible
for DDS services). This data, according to Seth, rebuts the 2018 Decision’s finding that his
original complaint “offers no reason to think that [DDS’s] change [of position regarding Seth’s
care] was made by reason of his disability, rather than, for example, budgetary choices made by
the new leadership or FMC Butner’s Certificate of Dangerousness.” 2018 Decision at *12. This
data was neither unavailable within the meaning of Rule 59(e) prior to the entry of judgment nor
does it compel a different outcome. Even without any budgetary strain, Seth has failed to offer
evidence supporting an inference that DDS’s refusal to accept responsibility for Seth’s care was
because of his disability, as opposed to concerns—which may not have been alleviated by budget
increases Seth cites—shared by new leadership in light of Seth’s dangerousness finding.
Finally, Seth offers to present new allegations and declarations “from former high-level
public officials . . . who explain that the District has public systems capable of serving [him]
safely in the community. . . . [and that Seth] is not only an excellent candidate for communitybased placement but that incarcerating him indefinitely in a corrections facility unequipped to
meet his unique needs is extremely harmful to his well-being.” Pl.’s Mem. at 15. Even though
Seth has not established that he now possesses evidence that was unavailable prior to the entry of
judgment, the supporting exhibits and declarations he proffers in support of reconsideration have
been carefully considered, including the statement from Nuss, the former director of DDS, that
based on her knowledge “the decision by DDS to allow [Seth] to languish and regress in federal

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custody rather than carry out its mission and mandate remains inexplicable other than as a matter
of discrimination and refusal to alter a usual way of working in order to accommodate an
individual’s needs.” Nuss Decl. ¶ 24. Seth’s situation remains undeniably troubling, 2018
Decision at *1, and may even raise questions about the Attorney General’s compliance with the
statutory obligation to encourage the District to accept responsibility for Seth’s care, id. at *14
n.12 (citing the Attorney General’s obligation, under 18 U.S.C. § 4246(d), to “continue
periodically to exert all reasonable efforts to cause [the] State to assume . . . responsibility for the
person’s custody, care, and treatment”). Yet, no evidence Seth now offers changes the
conclusion in the 2018 Decision that Seth has failed to show that DDS’s refusal to serve him was
an action taken “at least in part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an
identifiable group.” Pers. Adm’r of Mass v. Feeney, 442 U.S. 256, 279 (1979). Despite Nuss’s
experience and declarations, her inference of discrimination is “unsupported by the facts set out
in the complaint.” Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (internal
quotation marks and citation omitted). See also Defs.’ Opp’n at 9 (“[O]ne agency director’s
willingness to accept responsibility for a dangerous individual does not mean a subsequent
director’s unwillingness to do so must have been motivated by discriminatory animus; plaintiff is
demanding an inference [of discrimination] that does not logically follow the facts pled.”
(emphasis in original)).
Seth, in an attempt to show that he was discriminated against on the basis of his
disability, continues to overlook and minimize an inescapable fact about his particular disability:
he was found “by clear and convincing evidence,” to be “suffering from a mental disease or
defect as a result of which his release would create a substantial risk of bodily injury to another
person or serious damage to the property of another.” E.D.N.C. Commitment Order at 1. It is

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because of that substantial risk, and the District’s refusal to exercise its discretion to commit him,
that he was committed to the care of the Attorney General. Seth has tried valiantly to cobble
together facts supporting an inference that DDS refused to provide him care because of his
disability, as opposed to because of his dangerousness, but he has once again failed to do so.
“To survive a motion to dismiss, [plaintiff] must allege in [his] complaint ‘sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’ In other words,
[plaintiff] must do more than allege ‘facts that are merely consistent with a defendant’s liability’
or raise only ‘a sheer possibility that a defendant has acted unlawfully.’” Citizens for
Responsibility & Ethics in Wash., 2019 WL 1907230, at *4 (internal quotation marks and
citations omitted) (quoting Iqbal, 556 U.S. at 678). Even taking Seth’s “new evidence” into
account, he fails to state a claim for relief that would survive a motion to dismiss, and therefore
his motion to amend or alter the judgment must be denied.
C.

Even if Reconsideration Were Warranted, Leave to Amend Would Be Futile

“Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be ‘freely
give[n]’ when ‘justice so requires.’ But after entry of judgment, a court has no obligation to
grant leave to amend unless a plaintiff first satisfies ‘Rule 59(e)’s more stringent standard for
setting aside that judgment.’” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir.
2015) (alteration in original) (quoting Ciralsky, 355 F.3d at 673). Where the plaintiff fails to
meet this “stringent standard,” the motion for leave to file an amended complaint is properly
denied as moot. See id. at 18 (citing Ciralsky, 355 F.3d at 673); Osborn, 797 F.3d at 1062 (“As a
technical matter, the District Court lack[s] authority to rule on the merits of [a] 15(a) motion
[when] it [does] not modify its final judgment.”). Seth’s failure to meet the stringent Rule 59(e)
standard is sufficient reason to deny his motion for leave to amend under Rule 15(a).

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Nevertheless, “even if [Seth had established that] dismissal with prejudice was error, the
remedy at this point would be to grant reconsideration, dismiss without prejudice, and allow
[Seth] to amend his Complaint.” Strumsky v. Wash. Post Co., 922 F. Supp. 2d 96, 106 (D.D.C.
2013). Yet, as noted, supra Section III.B, evaluation of the Proposed Amended Complaint
confirms that even if the motion to alter or amend the judgment were granted, this case would
not survive a motion to dismiss, and thus granting leave to file an amended complaint “would
appear to be an ‘empty exercise’ in which courts are not required to engage.” Strumsky, 922 F.
Supp. 2d at 106 (quoting Norman v. United States, 467 F.3d 773, 775 (D.C. Cir. 2006)); see also
Confederate Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (“[T]he law does
not require the doing of vain things.”). Under Rule 15, a motion to amend may be denied “on
grounds of futility where the proposed pleading would not survive a motion to dismiss.” In re
Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 215 (D.C. Cir. 2010). For the reasons
discussed above, the “new” facts Seth alleges fail to cure the deficiencies in his complaint, and
therefore granting leave to amend would be futile.
IV.

CONCLUSION
For the foregoing reasons, Seth’s Motion to Alter or Amend Judgment and Motion for

Leave to File Amended Complaint, ECF No. 29, is DENIED. An order consistent with this
Memorandum Opinion will be entered contemporaneously.
Date: May 8, 2019

__________________________
BERYL A. HOWELL
Chief Judge

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