Jones v. United States Parole Commission , 860 F. Supp. 2d 16 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
MICHAEL ANDRE JONES, et al., )
)
1
Plaintiffs, )
)
v. ) Civil Action No. 11-0935 (ABJ)
)
ISAAC FULWOOD, JR., et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
This matter is before the Court on the defendants’ motion to dismiss. For the reasons
discussed below, the motion will be granted.
I. BACKGROUND
Theodore Wrenn (“plaintiff”) was convicted in the Superior Court of the District of
Columbia on one count of first degree child sexual abuse. Mem. of P. & A. in Supp. of Defs.’
Mot. to Dismiss (“Defs.’ Mem.”), Ex. J (Judgment and Commitment/Probation Order, United
States v. Wrenn, No. F5502-98 (D.C. Super. Ct. Feb. 25, 1999)). Plaintiff describes the
underlying offense as follows:
48. That on or about March 1998, Plaintiff entered his sister’s
house in a drunkard state and high on drugs. He noticed his twelve
year old daughter lying on the floor, sleeping.
49. Plaintiff had begun rubbing on his daughter’s hands and
legs when his niece entered the room.
50. Plaintiff was lain [sic] prostrate on top of his daughter.
1
The complaint has been dismissed voluntarily as to plaintiff Michael Andre Jones,
leaving Theodore Wrenn as the sole plaintiff.
1
51. Plaintiff’s niece threatened calling the police under the fear
factor of when she too had been sexually abused by her father.
52. Plaintiff ran from the house, immediately, and went to his
brother’s house.
53. July 29, 1998, marshals arrested Plaintiff and he was
charged with First Degree Sexual Abuse of a minor . . . .
Compl. at 23-24 (page numbers designated by the Court). 2 In February of 1999, the Superior
Court imposed a five to 15 year term of imprisonment. Defs.’ Mem., Ex. J.
By the time of the plaintiff’s initial parole hearing on June 5, 2003, see Defs.’ Mem., Ex.
K (D.C. Adult Initial Hearing Summary dated June 5, 2003) at 1, the District of Columbia Board
of Parole (“Board”) had been abolished, and the United States Parole Commission (“USPC”) had
assumed jurisdiction to make parole decisions for District of Columbia Code offenders, see D.C.
Code § 24-131. The hearing examiner deemed the plaintiff “an extremely dangerous individual
in as much as he had the capacity to have sexual intercourse with his own 11 year old daughter
on three separate occasions prior to the instant offense.” Id., Ex. K at 2. He applied the parole
guidelines promulgated by the USPC (“2000 Guidelines”) and recommended an upward
departure from the guidelines. Id. The USPC concurred:
After consideration of all factors and information presented, a
decision above the Total Guideline Range is warranted because
you are a more serious risk than indicated by your Base Point
Score. You admitted during the hearing that you had sexually
abused your daughter on 3 occasions prior to the instant offense.
During the hearing, you attempted to mitigate your commission of
the offense. During your incarceration, you have not participated
in any programs related to your offense that would make you less
of a risk to the community if released. In addition, you abused a
position of trust to commit this offense. Abuse of a position of
trust was not considered in the computation of the base point score.
2
Page numbers of the Complaint are based on the order in which they were presented to
the Court and designated by the Court’s electronic filing system.
2
These factors make you a more serious risk to the community if
released on parole at this time.
Id., Ex. L (Notice of Action dated July 1, 2003) at 1. The USPC denied parole and continued the
matter to June 2006, when time the plaintiff would have served more than 7 years of his
sentence, and 36 months beyond the initial hearing date. Id. The record does not reflect what
took place at that hearing, if it occurred. 3
A reconsideration hearing was held on August 15, 2007. Defs.’ Mem., Ex. M (Hearing
Summary) at 1. Again applying the USPC’s 2000 Guidelines, the hearing examiner
recommended that parole be denied and the matter continued until the plaintiff served another 36
months’ incarceration. Id. at 2-3. This was an upward departure from the strict application of
the 2000 Guidelines with which the USPC concurred:
After consideration of all factors and information presented, a
decision above the Current Total Guideline Range is warranted
because you are a more serious risk than indicated by the
guidelines in that during the hearing you minimized your
commission of the offense. During your incarceration, you have
no participated in any program related to [y]our offense that would
make you . . . less of a risk to the community if released.
Furthermore, you abused a position of trust when you committed
this offense.
Id., Ex. N (Notice of Action dated September 19, 2007) at 1.
On reconsideration in 2009, the USPC applied the parole regulations promulgated by the
Board (“1987 Regulations”). See generally Defs.’ Mem., Ex. O (Hearing Summary dated
November 17, 2009). Although the plaintiff’s score would have supported the grant of parole,
the hearing examiner recommended an upward departure from the 1987 Regulations, id. at 3,
based in part on the plaintiff’s apparent lack of “insight regarding his actions, thoughts,
3
The plaintiff represents that a reconsideration hearing took place in June 2006, that parole
was denied, and that the USPC continued the matter for three years. See Compl. ¶ 55. The
record does not include exhibits related to this hearing.
3
behaviors and consequences of his actions.” Id. at 2. At that time, the hearing examiner
believed that, “based on his past behavior and lack of [sex offender] treatment,” the plaintiff
“pose[d] a threat to the community in terms of his likelihood to reoffend . . . .” Id. The USPC
denied parole and continued the matter for another 12 months. Id., Ex. P (Notice of Action dated
February 23, 2010) at 1. By that point, plaintiff had served approximately 11 years of the 5 to 15
year sentence.
The plaintiff’s most recent parole rehearing occurred on October 5, 2010. See Defs.’
Mem., Ex. Q (Hearing Summary dated October 5, 2010) at 1. The hearing examiner noted the
plaintiff’s participation in a sex offender treatment program, see id. at 3, but also observed that
the plaintiff’s “victim was . . . extremely vulnerable . . . as she was 12 years of age, and mentally
retarded.” id. at 4. Even though the plaintiff was eligible for parole release under the 1987
Regulations, the hearing examiner recommended an upward departure because he deemed the
plaintiff “a more serious risk than indicated by the guidelines.” Id. The USPC denied parole and
continued the matter to October 2012, by which time the plaintiff will have served 24 more
months since his last hearing. Id., Ex. S (Notice of Action dated February 10, 2011) at 1. It
reasoned:
[The guidelines indicate that parole should be granted, but the
[USPC] is departing from the guidelines because [it] finds that you
remain at risk of reoffending based on the nature of your offense
and your criminal history. Moreover, you are a more serious
parole risk than indicated by your base point score because your
victim, your 12-year old daughter who is mentally retarded, was an
extremely vulnerable victim. It is recommended that you continue
to participate in and successfully complete the sex offender
treatment program at FMC Devens. Your continued participation
in sex offender treatment is required to minimize your risk to the
community to a level that does not compromise public safety if
you are granted parole in the future. It is also recommended that
the [Federal Bureau of Prisons] forward an updated mental health
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evaluation and sex offender treatment progress report to the
[USPC] prior to your next hearing.
Id., Ex. T (Notice of Action dated July 21, 2011). 4
According to the plaintiff, notwithstanding his eligibility for release on parole, the USPC,
its Chairman and Commissioners in their official and individual capacities, see Compl. at 4, have
refused to “provide[] a ‘presumptive’ release date based on their suitability criteria,” in violation
of rights protected under the United States Constitution, among other provisions, id. at 6. Count
I asserts “unconstitutional parole procedures [which] significantly increase plaintiff[’s]
sentence,” resulting in a violation of his right to due process. Id. at 29. Count II alleges that the
defendants’ “failure to provide fair warning notice” of their decisions to depart from both the
1987 Regulations and the 2000 Guidelines violates of the ex post facto clause. Id. Count III
alleges that the defendants erroneously deferred parole release “without providing presumptive
release dates” in violation of his right to due process and equal protection. Id. The plaintiff
demands a declaratory judgment, a reduction in his sentence, and punitive damages of $500,000
“for malicious and willful conduct violating the Sellman standard” to which the defendants must
adhere. 5 Id. at 6. Specifically, the plaintiff contends that the defendants’ application of the
4
The July 21, 2011 Notice of Action modified the reasons for the decision to deny parole
set forth in the February 21, 2011 Notice of Action.
5
The Court presumes that the plaintiff is referring to Sellman v. Reilly, 551 F. Supp. 2d 66(D.D.C. 2008), and alleges “that [the] USPC retroactively applied its own parole guidelines and
practices so as to significantly increase the risk that [he] would serve [a] longer term [ ] of
incarceration,” id. at 68.
The USPC since has adopted a new regulation pursuant to which it applies the 1987
Regulations if the prisoner, as does the plaintiff, meets the following qualifications:
(i) The prisoner committed the offense of conviction after March 3,
1985 and before August 5, 1998;
(ii) The prisoner is not incarcerated as a parole violator;
(iii) The prisoner received his initial hearing after August 4, 1998; and
(iv) The prisoner does not have a parole effective date, or a presumptive
parole date before January 1, 2010.
5
USPC’s 2000 Guidelines instead of the Board’s 1987 Regulations led to the denial of parole in
2003, 2006, 2007, 2009, and 2011, see id. at 13, 24-27, and to the “service of a substantial
additional period of time” in prison, id. at 27. Had the 1987 Regulations been applied, the
plaintiff asserts, he would have been released on parole “immediately after service of his
minimum sentence.” Id. at 26 (emphasis removed).
II. DISCUSSION
A. The Plaintiff May Proceed Under § 1983
A prisoner must seek habeas relief if he seeks “to invalidate the duration of [his]
confinement[ ] either directly through an injunction compelling speedier release or indirectly
through a judicial determination that necessarily implies the unlawfulness of the State’s
custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (emphasis in original); see Chatman–Bey
v. Thornburgh, 864 F.2d 804, 810 n.5 (D.C. Cir. 1988) (A “prisoner’s challenge to the
determination of his eligibility for parole . . . attack[s] the ‘fact or duration’ of confinement” and
“therefore, habeas is the sole remedy available to such a prisoner.”). A claim under § 1983
“remains available for procedural challenges where success in the action would not necessarily
spell immediate or speedier release for the prisoner.” Wilkinson, 544 U.S. at 81. Here, the
plaintiff’s success on his challenge under § 1983 would not necessarily result in his immediate or
speedier release from custody, and therefore, the Court finds that he need not bring his claims in
a petition for a writ of habeas corpus in the district of his confinement. See Wilson v. Fulwood,
772 F. Supp. 2d 246, 259 (D.D.C. 2011).
28 C.F.R. § 2.80(o)(2) (effective Nov. 13, 2009).
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B. The Plaintiff’s Claims Against the USPC and its Commissioners Will Be Dismissed
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies
outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004)
(noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our
jurisdiction”). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the defendants
move to dismiss the claims against the USPC and its Commissioners in their official capacities
for lack of subject matter jurisdiction. See Defs.’ Mem. at 19-21. Insofar as the plaintiff sues the
Commissioners in their individual capacities, the defendants move to dismiss on the ground that
they are immune from suit. See id. at 22-24.
1. Sovereign Immunity
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983). Such consent may not be implied, but must be “unequivocally expressed.” United
States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). “Sovereign immunity is jurisdictional
in nature.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Therefore, “[a]bsent a
waiver, sovereign immunity shields the Federal Government . . . from suit.” Id.; see United
States v. Sherwood, 312 U.S. 584, 586 (1941).
The plaintiff brings this action under 42 U.S.C. § 1983, arguing that “Section 1983 is an
appropriate legal vehicle to attack unconstitutional parole procedures,” Compl. at 31, particularly
because the USPC “act[s] under color of state law,” id., in rendering parole decisions for District
of Columbia offenders. The USPC is a federal entity. See, e.g., Epps v. Howes, No. 06-717,
2007 WL 2248072, at *3 (D.D.C. July 31, 2007); see also Settles v. U.S. Parole Comm’n, 429
F.3d 1098, 1106 (D.C. Cir. 2005). Notwithstanding its role in parole matters for District of
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Columbia Code offenders, it “retains the immunity it is due as an arm of the federal sovereign.”
Settles, 429F.3d at 1106. The United States has not waived this immunity, see id. at 1105-06,
and the plaintiff’s claims against the USPC are therefore barred. Mowatt v. U.S. Parole
Comm’n, 815 F. Supp. 2d 199, 205 (D.D.C. 2011); Bolden-Bey v. U.S. Parole Comm’n, 731 F.
Supp. 2d 11, 14 (D.D.C. 2010) (dismissing § 1983 claim against the USPC for lack of subject
matter jurisdiction); see Hunter v. Reilly, 693 F. Supp. 2d 53, 59 (D.D.C. 2010) (denying leave to
amend complaint to add claim for damages on the ground that “sovereign immunity bars a claim
for money damages against the USPC, and against its commissioners in their official capacities
because of the USPC’s status as a federal government entity.”), aff’d, 405 F. App’x 514 (D.C.
Cir. 2011) (per curiam).
The USPC’s immunity extends to its Commissioners, all of whom the plaintiff sues in
part in their official capacities. A suit against a government official in his official capacity
“generally represent[s] only another way of pleading an action against an entity of which an
officer is an agent,” and “an official capacity suit is, in all respects other than name, to be treated
as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations
omitted). It follows that any claims for damages against government officials in their official
capacities are barred by the doctrine of sovereign immunity unless either the government
specifically waives the immunity, or the government agents’ actions fall within an exception to
the immunity doctrine. See Clark v. Library of Cong., 750 F.2d 89, 103-04 (D.C. Cir. 1984)
(holding that the doctrine of sovereign immunity barred a claim for money damages against the
Librarian of Congress in his official capacity because immunity had not been waived and the
exceptions to immunity did not apply). Here, the plaintiff raises constitutional claims against the
USPC Commissioners, and the United States “has not waived sovereign immunity with respect
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to actions for damages based on violations of constitutional rights by federal officials when
brought against the United States directly, or against officers sued in their official capacities.”
Hamrick v. Brusseau, 80 F. App’x 116, 116 (D.C. Cir. 2003) (per curiam) (internal citations
omitted). The plaintiff’s claims against the USPC Commissioners in their official capacities are
also barred under the doctrine of sovereign immunity. Ali v. U.S. Parole Comm’n, No. 06-0235,
2007 WL 902312, at *2 (D.D.C. Mar. 23, 2007).
2. Quasi-Judicial Immunity
The USPC Commissioners are amenable to suit in their individual capacities under §
1983 and, by extension, under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). See Fletcher v. District of Columbia, 370 F.3d 1223, 1227
(D.C. Cir. 2004), vacated in part on other grounds, 391 F.3d 250 (D.C. Cir. 2004); see Settles,
429 F.3d at 1104 (reaffirming the holding in Fletcher that “a cause of action under § 1983 will
lie against the individual members of the [USPC] when acting pursuant to the Revitalization Act
§ 11231”). However, the Commissioners are absolutely immune from a lawsuit such as this
which is “predicated on acts taken in their ‘quasi-judicial’ or ‘quasi-legislative’ capacity.”
Taylor v. Reilly, No. 09-0749, 2010 WL 891276, at *2 (D.D.C. Mar. 9, 2010); see Fletcher v.
U.S. Parole Comm’n, 550 F. Supp. 2d 30, 43 (D.D.C. 2008) (reaffirming grant to USPC
Commissioners of absolute quasi-judicial immunity from suit). Therefore, the plaintiff’s claim
for money damages against the USPC Commissioners in their individual capacities “is barred
because the defendants, as federal agents performing a quasi-judicial function in making a parole
determination in [the plaintiff’s] specific case, are protected by absolute quasi-judicial immunity
from such a suit.” Anderson v. Reilly, 691 F. Supp. 2d 89, 92 (D.D.C. 2010); Nelson v. Williams,
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750 F. Supp. 2d 46, 52 (D.D.C. 2010), aff’d, No. 10-5249, 2011 WL 2618078 (D.C. Cir. June 23,
2011), cert. denied, 132 S. Ct. 1035 (2012).
C. The Plaintiff Fails to State an Ex Post Facto Claim
“In order to state an ex post facto claim, plaintiff would have to allege that the parole
authority is applying later-adopted laws that disadvantage him instead of the laws that were in
effect at the time he committed the offenses.” Austin v. Reilly, 606 F. Supp. 2d 4, 9 (D.D.C.
2009) (citing Weaver v. Graham, 450 U.S. 24, 30 (1981)). In the parole context, a “retroactively
applied parole . . . regulation or guideline violates the Ex Post Facto Clause if it ‘creates a
significant risk of prolonging [the plaintiff’s] incarceration.’” Fletcher v. Reilly, 433 F.3d 867,
877 (D.C. Cir. 2006) (quoting Garner v. Jones, 529 U.S. 244, 251 (2000)).
Generally, under the indeterminate sentencing scheme in effect at all times relevant to the
Complaint, the Superior Court sentenced an offender “for a maximum period not exceeding the
maximum fixed by law, and for a minimum period not exceeding one-third of the maximum
sentence imposed, and any person so convicted and sentenced may be released on parole . . . at
any time after having served the minimum sentence.” D.C. Code § 24-403(a) (emphasis added).
The plaintiff was sentenced to an indeterminate prison term of five to 15 years, and his parole
eligibility thus was “established by the sentencing court.” Cosgrove v. Thornburgh, 703 F. Supp.
995, 997 (D.D.C. 1988). Parole may be granted when it appears that “there is a reasonable
probability that a prisoner will live and remain at liberty without violating the law, that his
release is not incompatible with the welfare of society, and that he has served the minimum
sentence imposed or the prescribed portion of his sentence, as the case may be.” D.C. Code §
24-404(a). In 1987, the Board promulgated regulations, see 28 D.C.M.R. § 204 (1987), which
adopted “criteria consist[ing] of pre[-] and post-incarceration factors which enable[d] the Board
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to exercise its discretion when, and only when, release is not incompatible with the safety of the
community.” 28 D.C.M.R. § 204.1. If the Board’s decision fell “outside the numerically
determined guideline,” the decision must have been “explained by reference to specific
aggravating or mitigating factors” set forth in Appendices 2-1 and 2-2. Id. § 204.1.
The Board could, “in unusual circumstances, waive the [Salient Factor Score] and the
pre[-] and post-incarceration factors . . . to grant or deny parole to a parole candidate.” 6 28
D.C.M.R. § 204.22. For example, a prisoner may have appeared to be a higher risk to the
community if his current offense involved ongoing criminal behavior, if he had an “[u]nusually
extensive and serious prior record,” or if he demonstrated “[u]nusual cruelty to victims.” 28
D.C.M.R. § 204, app. 2-1. In these circumstances, the Board could depart upward and deny
parole to a prisoner even if he otherwise would have been eligible for parole release under a
strict application of the 1987 Regulations. See 28 D.C.M.R. § 204.22. Conversely, a prisoner
could have been deemed a better risk than application of the 1987 Regulations would suggest,
and the Board could make a downward departure if, for example, his criminal record “result[ed]
exclusively from trivial offenses” or who experienced a “substantial crime-free period for which
credit [had] not already been given on the Salient Factor Score.” 28 D.C.M.R. § 204, app. 2-1.
In either circumstance, the Board would have been required to “specify in writing those factors”
on which it relied “to depart from the strict application” of the 1987 Regulations. 28 D.C.M.R. §
204.22.
It is true that the USPC applied its 2000 Guidelines, instead of the operative 1987
Regulations, at plaintiff’s initial parole hearing in 2003 and on rehearing in 2007. However, the
6
The Salient Factor Score (“SFS”) is “an actuarial parole prognosis aid to assess the
degree of risk posed by a parolee.” 28 D.C.M.R. § 204.3. It is “one of the factors used in
calculating parole eligibility” pursuant to the 1987 Regulations. Id. § 204.2.
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record reveals that the USPC then shifted course and applied the 1987 Regulations at each
subsequent rehearing. And, it appears to the Court that the plaintiff did not remain in custody
past his minimum sentence because the USPC applied the incorrect set of parole guidelines.
Rather, he is in custody because the USPC expressly departed from the 1987 Regulations based
on its determination that the plaintiff is a more serious parole risk than would be indicated by his
point score alone, particularly given the repeated nature of the conduct, and the victim’s age,
mental incapacity, and familial relationship with the plaintiff. While the Court understands the
basis for plaintiff’s frustration, at bottom, the grant of parole is a discretionary exercise, and
while it was necessary that he be accorded due process, there was no legal imperative that
required that plaintiff be released when he was first eligible or at any particular point thereafter.
In addition, the defendants argue that the plaintiff’s ex post facto claim now “is moot
because the [USPC] applied the 1987 guidelines during reconsideration hearings.” Defs.’ Mem.
at 28. The Court concurs. See Johnson v. Reilly, 734 F. Supp. 2d 26, 27 (D.D.C. 2010)
(reconsideration hearing at which USPC applied 1987 Guidelines rendered injunctive and
declaratory relief moot). Even if the USPC had continued to apply its 2000 Guidelines in error,
the only relief the plaintiff could be awarded is a rehearing and application of the 1987
Regulations, and that has already occurred. See Sellman, 551 F. Supp. 2d at 84 (“Were these
plaintiffs to prevail in their ex post facto challenge, they would gain at most a new parole hearing
. . . .”) (citation and internal quotation marks omitted).
Finally, the plaintiff fails to demonstrate that the application of the 2000 Guidelines had
the effect of extending his time in prison beyond the time the USPC could have imposed had it
applied the 1987 Regulations. Absent such a showing his ex post facto claim fails.
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Based on the nature of the plaintiff’s offense, his criminal history, and the vulnerability of
the victim, the USPC deemed the plaintiff to be a more serious risk than his score otherwise
indicated. An upward departure in these circumstances is a valid exercise of the USPC’s
discretion. See Phillips v. Fulwood, 616 F.3d 577, 582 (D.C. Cir. 2010) (upward departure from
parole guidelines based on conclusion that prisoner represented a more serious risk than the
guideline range indicated); Cambrel v. Bledsoe, No. 3:CV-08-1684, 2011 WL 3439199, at *11
(M.D. Pa. Aug. 5, 2011) (finding that, applying 1987 Regulations on parole rehearing, the USPC
cited valid reason for deviation from guideline range, thus setting forth “a rational and
reasonable basis for denying . . . parole”); Cobb v. Warden, FCI Gilmer, No. 5:10CV66, 2011
WL 1137304, at *4 (N.D.W. Va. Mar. 25, 2011) (rejecting ex post facto claim arising from
upward departure from 1987 Regulations on rehearing because “there [was] a reasonable
probability that the petitioner would not obey the law if released and would pose a threat to the
community”); see also Blunt v. DeBoo, No. 10-cv-73, 2011 WL 198106, at *3 (N.D.W. Va. Jan.
19, 2011) (noting that “the Sellmon litigation re-affirmed application of 28 C.F.R. § 2.80(o) in
those cases where the Commission departed from the guidelines on the basis that the prisoner’s
release would pose a ‘serious risk’ to the public safety”).
D. The Plaintiff Fails to State a Due Process Claim
The plaintiff argues that the USPC “increased [his] sentencing range taking him well past
his eligibility/suitability release date,” Compl. ¶ 57, and thus “caus[ed] a liberty interest violation
through procedural due process,” id. ¶ 58. He claims that, under the 1987 Regulations, he “could
have be[en] paroled immediately after service of his minimum sentence.” Id. ¶ 62 (emphasis in
original). The plaintiff maintains that the parole statute and the 1987 Regulations employ
“mandatory language” which so restricts the USPC’s discretion that the 1987 Regulations “give
13
rise to a protectable liberty interest in parole release.” Pls.’ Resp. to Defs.’ Mot. to Dismiss
(“Pl.’s Opp’n”) at 16. The law, however, recognizes no liberty interest in parole.
“There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence.” Greenholtz v. Inmate of Nebraska Penal &
Correctional Complex, 442 U.S. 1, 7 (1979). The District of Columbia Code “provides no
substantive limitations on the Board’s authority to grant parole which would create a liberty
interest.” Price v. Barry, 53 F.3d 369, 370 (D.C. Cir. 1995). And under the 1987 Regulations,
“parole is never ‘required after the Board determines that the necessary prerequisites exist.’”
Ellis v. District of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996) (quoting Bd. of Pardons v.
Allen, 482 U.S. 369, 376 (1987)) (emphasis in original); McRae v. Hyman, 667 A.2d 1356, 1361
(D.C. 1995) (concluding that the 1987 Regulations do not give rise to a liberty interest in parole).
E. The Plaintiff Fails to State an Equal Protection Claim
The plaintiff alleges that the defendants’ failure to grant parole violated his right to equal
protection. Compl. ¶ 71. He contends that he was “treated with discrimination.” because three
other sex offenders “had received presumptive dates” for their parole release but he had not.
Pl.’s Opp’n at 17. The complaint sets forth no factual allegations to support an equal protection
claim -- there are no allegations from which the Court could conclude that the plaintiff “is a
member of a suspect class deserving heightened scrutiny,” that his membership in that class
played any role in the USPC’s decision, or that other similarly situated persons received more
favorable treatment. See King v. U.S. Parole Comm’n, No. 02-5207, 2002 WL 31520756, at *1
(D.C. Cir. Nov. 13, 2002) (per curiam); see also Hunter v. U.S. Parole Comm’n, 308 F. App’x
856, 859-60 (5th Cir. 2009) (deeming the plaintiff’s equal protection claim abandoned absent
allegation or proffer that he was treated differently from similarly-situated prisoners because of
14
the defendants’ discriminatory intent). The complaint offers no “factual content that allows the
court to draw the reasonable inference that [the defendants are] liable for the misconduct
alleged,” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009), and, therefore, the
plaintiff’s equal protection claim must be dismissed.
III. CONCLUSION
The complaint fails to state claims upon which relief can be granted and, accordingly, the
defendants’ motion to dismiss will be granted. An Order accompanies this Memorandum
Opinion.
AMY BERMAN JACKSON
United States District Judge
DATE: May 16, 2012
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