Daniel v. Fulwood ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ROY A. DANIEL, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-862 (RWR)
)
ISAAC FULWOOD, JR., et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
The plaintiffs are federal inmates who alleged that the
U.S. Parole Commission violated the Ex Post Facto Clause in
making parole decisions by applying the 2000 parole guidelines
rather than the 1972 parole regulations that were in place at the
time each plaintiff was sentenced. The plaintiffs also alleged
that they were denied fair parole review hearings, in violation
of the Due Process Clause of the Fifth Amendment. A previous
memorandum opinion granted the defendants’ motion to dismiss both
of the plaintiffs’ claims. The plaintiffs now move for
reconsideration under Federal Rule of Civil Procedure 59(e).
Because the plaintiffs fail to show clear error or manifest
injustice, their motion will be denied.
BACKGROUND
Plaintiffs Roy A. Daniel, Alfonso Taylor, Harold Venable,
Percy Jeter, Abdus-Shahid Ali, and William Terry are federal
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inmates who were incarcerated for violations of the D.C. Code
before March 3, 1985. At the time the plaintiffs were
incarcerated, their parole hearings were governed by the 1972
Parole Regulations as applied by the D.C. Parole Board. (Compl.
¶ 3.) However, the plaintiffs’ parole hearings have proceeded
under the 2000 Guidelines as adopted by the United States Parole
Commission (“USPC”), which assumed jurisdiction over D.C. Code
offenders in 1997. (Id. at ¶ 4; see also Sellmon v. Reilly, 551
F. Supp. 2d 66, 68 (D.D.C. 2008).) The plaintiffs alleged that
when the defendants - - the Chairman and two Commissioners of
the USPC - - applied the revised parole guidelines, they violated
the Ex Post Facto Clause and the Due Process Clause of the United
States Constitution by effectively increasing each plaintiff’s
period of incarceration. (Compl. ¶¶ 6, 10-17.)
An opinion and order issued in September 2011 (“September
opinion”) dismissed the plaintiffs’ complaint for failure to
state a claim. The September opinion held that the complaint did
not plausibly plead that the retroactive application of parole
regulations to prisoners created a significant risk of longer
incarceration in violation of the Ex Post Facto Clause, and that
parole regulations do not create a constitutionally protected
liberty interest that is protected by the Due Process Clause.
See Daniel v. Fulwood, 823 F. Supp. 2d 13, 15 (D.D.C. 2011).
The plaintiffs have moved under Federal Rule of Civil Procedure
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59(e) for reconsideration of the September opinion. The
defendants oppose.
DISCUSSION
“‘While the court has considerable discretion in ruling on a
Rule 59(e) motion, the reconsideration and amendment of a
previous order is an unusual measure.’” Matthews v. District of
Columbia, 774 F. Supp. 2d 131, 132 (D.D.C. 2011) (quoting Berg v.
Obama, 656 F. Supp. 2d 107, 108 (D.D.C. 2009) (internal quotation
omitted)). “[A]s a rule [a] court should be loathe to [revisit
its own prior decisions] in the absence of extraordinary
circumstances such as where the initial decision was clearly
erroneous and would work a manifest injustice.” Marshall v.
Honeywell Technology Solutions, Inc., 598 F. Supp. 2d 57, 59
(D.D.C. 2009)(quoting Lederman v. United States, 539 F. Supp. 2d
1, 2 (D.D.C. 2008) (internal quotation omitted)). “‘A motion to
alter the judgment need not be granted unless there is an
intervening change of controlling law, new evidence becomes
available, or there is a need to correct a clear error or prevent
manifest injustice.” Matthews, 774 F. Supp. 2d at 132 (quoting
Berg, 656 F. Supp. 2d at 108). “Motions for reconsideration ‘are
not simply an opportunity to reargue facts and theories upon
which a court has already ruled.’” Moses v. Dorado, 840 F. Supp.
2d 281, 286 (D.D.C. 2012) (quoting Black v. Tomlinson, 235 F.R.D.
532, 533 (D.D.C. 2006)(internal quotations omitted))).
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The plaintiffs had argued that the Ex Post Facto analysis
should compare the 2000 guidelines against the 1987 regulations
which plaintiffs asserted were substantially similar to the 1972
regulations. The September opinion held that “[t]he plaintiffs’
allegations regarding the similarities among the pre- and post-
1987 Board’s practices are too speculative to allow plaintiffs
convicted before 1987 to rely on the 1987 Regulations when
arguing an Ex Post Facto violation.” Daniel, 823 F. Supp. 2d at
20-21 (citing Sellmon v. Reilly, 561 F. Supp. 2d 46, 49 (D.D.C.
2008)). The plaintiffs argue that the opinion erred because the
D.C. Court of Appeals found that the 1987 Guidelines “‘merely
formalize the manner in which the Board exercises the discretion
conferred upon it’ by the 1972 Regulations.” (Pls.’ Mem. in
Supp. of Mot. for Recons. (“Pls.’ Mem.”) at 2 (quoting Davis v.
Henderson, 652 A.2d 634, 636 (D.C. 1991))).
This issue was argued by the parties before. The September
opinion considered the applicability of Davis and determined that
it was not binding. Daniel, 823 F. Supp. 2d at 20-21 n.3. While
the plaintiffs admit this in the motion for reconsideration, they
claim to rely on the Davis ruling as an interpretation of
D.C. Code, not as a binding precedent. (Pls.’ Mem. at 2.)
However, the September opinion interpreted Sellmon as “holding
that Davis did not require the federal district court to treat
the 1972 and 1987 Regulations as interchangeable when analyzing
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an Ex Post Facto claim.” Daniel, 823 F. Supp. 2d at 20-21 n.3.
The Sellmon opinion states in relevant part:
The Davis decision did not hold that the 1987
Regulations actually represented or codified the actual
practice of the Board prior to their enactment . . . .
[T]he D.C. Circuit has already held that the Davis
decision is not binding on federal courts with respect
to the question of whether the retroactive application
of the 1987 Regulations violated the Ex Post Facto
Clause.
Sellmon, 551 F. Supp. 2d at 86. Plaintiffs have shown no clear
error or any manifest injustice warranting reconsideration on
this point.
The plaintiffs also argue that reconsideration should be
granted because the 2000 Guidelines impose substantive legal
burdens not present in the 1972 regulations. (Pls.’ Mem. at 5.)
They allege that the September opinion erred when it concluded
that “because the Commission sometimes departs upward under the
2000 Guidelines, it must also depart down.” (Id. at 7.) The
plaintiffs also assert that “[a]t a minimum it is impermissible
to draw [the inference] against the moving party in a 12(b)(6)
motion.” (Pls.’ Mem. at 7-8.) The plaintiffs mischaracterize
the September opinion’s reasoning. The September opinion stated
that while it “accept[ed] all of the plaintiffs’ factual
allegations as true[,] . . . even the plaintiffs’ well-pleaded
factual allegations are insufficient to state a plausible ex post
facto claim.” Daniel, 823 F. Supp. 2d at 27 n.6 (internal
citation omitted). The September opinion reached its conclusion
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not based upon impermissible inferences drawn against the
plaintiffs, but rather because “there remains no reasonably
reliable method of comparing a particular defendant’s
incarceration period under the 1972 Regulations, as opposed to
under the 2000 Guidelines” and that “any comparison of the
plaintiffs’ incarceration period under the two regulatory regimes
would be speculative.” Daniel, 823 F. Supp. 2d at 27 (citing
Wilson v. Fullwood, 772 F. Supp. 2d 246, 266–67 (D.D.C. 2011) and
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)). The
September opinion did not infer that the parole board departs
down from the guidelines, but, more broadly, reasoned that “the
Commission will use its discretion to depart from the guidelines
where appropriate.” Daniel, 823 F. Supp. 2d at 27. As the
September opinion noted, a court must “presume [that] the
[Commission] follows its statutory commands and internal policies
in fulfilling its obligations.” Id. (citing Garner v. Jones, 529
U.S. 244, 256 (2000).)
Finally, the plaintiffs contend that “to sustain a claim
that the Commission violated the Ex Post Facto Clause, plaintiffs
need only plead (and later prove) that the 2000 Guidelines create
a ‘significant risk’ that retroactive application will result in
a longer period of incarceration for the plaintiffs.” (Pls.’
Mem. at 8 (quoting Garner, 529 U.S. at 255.)) They note that the
September opinion stated that “[t]he court remains open to
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reconsider whether the plaintiffs have a plausible claim if, in
fact, the plaintiffs provide a non-speculative means of
establishing what their incarceration periods would be under the
1972 Regulations, notwithstanding that those regulations are
purely discretionary.” Daniel, 823 F. Supp. 2d at 27 n.6.
The controlling inquiry articulated in Garner is as follows:
When the rule does not by its own terms show a
significant risk, the respondent must demonstrate, by
evidence drawn from the rule’s practical implementation
by the agency charged with exercising discretion, that
its retroactive application will result in a longer
period of incarceration than under the earlier rule.
Garner, 529 U.S. at 255. The D.C. Circuit summarized that “[t]he
question is one of practical effect.” Fletcher v. District of
Columbia, 391 F.3d 250, 251 (D.C. Cir. 2004). The plaintiffs’ Ex
Post Facto claim was originally dismissed for failure to raise
facial differences between the 1972 Regulations and the 2000
Guidelines that allowed the court to reasonably infer that the
latter subject the plaintiffs to a significant risk of increased
incarceration time. The motion for reconsideration explains that
the plaintiffs would demonstrate the practical effects of the
1972 Regulations by reviewing the records of parole decisions
under the 1972 Regulations in order to establish that application
of the 2000 Guidelines created a significant risk of longer
incarceration. However, the September opinion emphasized the
“amorphous nature of the 1972 Regulations,” which suggests that
even examination of Parole Board decisions in an attempt to
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divine the practical implementation of the Regulations would be
necessarily and inherently speculative. Daniel, 823 F. Supp. 2d
at 22. Plaintiffs have not shown that
. to be wrong. As another court found in addressing a similar Ex
Post Facto claim, the pre-1987 Regulations involved “so much
discretion that the Court simply cannot compare . . . how the
Commission might have evaluated parole under those regulations
with how the Commission did evaluate parole under the modern 2000
Guidelines.” Wilson, 772 F. Supp. 2d at 267.
Although a complaint may survive a motion to dismiss “even
if it strikes a savvy judge that actual proof of [the alleged]
facts is improbable, and that a recovery is very remote and
unlikely,” it must nonetheless “raise a reasonable expectation
that discovery will reveal evidence” that supports the
plaintiffs’ claims in order to survive dismissal. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). Here, although the
plaintiffs have indeed stated their intention to establish the
practical effect of the 1972 Regulations by examining the record,
they have made no plausible showing of non-speculative evidence
sufficient to support an Ex Post Facto claim. Although, as the
plaintiffs note, “every parole regime . . . contains an element
of discretion” (Pls.’ Rep. at 1), not all parole regimes are as
discretionary as the 1972 Regulations are. In considering a
motion for reconsideration, a court is not required to draw any
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inference in favor of the plaintiffs; it merely examines its
previous decision for clear error or manifest injustice. See
Matthews, 774 F. Supp. 2d at 132. Further, as the Federal
Circuit has stated, a court “is not required to permit discovery
based merely on the hope on the part of a plaintiff that it might
find evidence to support its complaint.” Bubaker Amusement Co.,
Inc., v. United States, 304 F.3d 1349, 1361 (Fed. Cir. 2002));
see also Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009)(complaints
that are deficient under Fed. R. Civ. P. 8 are not entitled to
discovery); United States v. Marshall, 526 F.2d 1349, 1355 (9th
Cir. 1975), cert. denied sub nom. Marshall v. United States, 426
U.S. 923 (1976) (finding that the district court did not abuse
discretion in denying extensive discovery where the “claimed
infringement of constitutional rights was quite tenuous”).
The plaintiffs have not satisfied the September opinion’s
invitation to establish a non-speculative means of demonstrating
what their incarceration periods would have been under the purely
speculative 1972 regulations. Reconsideration of that opinion is
not warranted, and the plaintiffs’ motion will be denied.
CONCLUSION AND ORDER
The plaintiffs have not shown clear error or manifest
injustice in the September 2011 opinion granting the defendants’
motion to dismiss. Accordingly, it is hereby
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ORDERED that the plaintiffs’ motion [29] for reconsideration
be, and hereby is, DENIED.
SIGNED this 27th day of September, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge