Jаmes David Blue THUNDER, Plaintiff, v. U.S. PAROLE COMMISSION, Defendant.
Civ. No. 14-1596(EGS)
United States District Court, District of Columbia.
Signed September 28, 2015
Peter Rolf Maier, U.S. Attorney’s Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
EMMET G. SULLIVAN, United States District Judge
This matter is before the Court on defendant’s Motion to Dismiss. For the reasons discussed below, the motion will be granted.1
Plaintiff was convicted of murder in 1978 in the United States District Court for the District of North Dakota, sentenced to a life term of imprisonment, and released on parole in August 1995.2 The United States Parole Commission (“Commission”) issued a warrant on October 3, 1997 charging plaintiff with violations of two conditions of his parole. See Mem. of Law in Support of Mot. to Dismiss (“Def.’s Mem.”), Attach. A (Revocation Hearing Summary) at 1, 4. A preliminary hearing took place on November 20, 1997, and on Deсember 1, 1997, “the Commission found probable cause that [plaintiff] was in violation of his parole conditions.” Id., Attach. A at 1.3
Plaintiff’s revocation hearing began on January 14, 1998. Id. Attach. A at 1, 4. The hearing examiner made “findings ... on Charge No. 1—Fraud and Charge No. 2—Violation of Special Condition” that he undergo mental health treatment. Id. Attach. A at 1. When it was determined that plaintiff had committed additional criminal conduct, the hearing was continued to June 3, 1998. Id. Attach. A at 1, 4-11.
At the June 3, 1998 hearing, several witnesses testified, and based on their testimony, the hearing examiner found that plaintiff had assaulted his ex-wife (Charge No. 4—(B) Assault), beat his two step-children (Charge No. 5—Assault), sexually assaulted his step-daughter (Charge No. 6—Sodomy or Unlawful Sexual Contact with a Minor), аnd had unlawful sexual contact with another child (Charge No. 7—Unlawful Sexual Contact with a Minor). See generally id. Attach. A at 5-12. He recommended revocation of plaintiff’s parole and a 15-year continuance of the matter, id. Attach. A at 14, and the Commission concurred, id. Attach. B (Notice of Action dated June 24, 1998) at 1-2. The Commission reconsidered the matter in December 2013, denied re-parole and, “continue[d plaintiff] to the expiration of [his] sentence.” Id. Attach. C (Notice of Action dated January 23, 2014) at 1.
Plaintiff purports to bring this action against the Commission under the Administrative Procedures Act (“APA”), see
The Commission ... may delegate to hearing examiners any powers necessary to conduct hearings and proceedings, take sworn testimony, obtain and
make findings of probable cause and issue subpoenas for witnesses or evidence in parole revocation proceedings, and recommend disposition of аny matters enumerated in subsection (b) of this section....
Plaintiff demands an order enjoining the Commission from enforcing
II. DISCUSSION
A. Res Judicata Bars Plaintiff’s Claims
Defendant argues that the doctrine of res judicata bars plaintiff’s “claim[] that the ... Commission’s failure to take testimony under oath at his 1998 revocation hearing[s] violated ... his right to due process.” Def.’s Mem. at 5.
“The doctrine of res judicata prevents repetitious litigation involving the same causes of action or the same issues.” I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C.Cir.1983). It contains two components: claim preclusion and issue preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Claim preclusion applies if there has been previous litigation “(1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C.Cir.2006). Whether the facts of each lawsuit are similar enough to qualify as “the same сause of action turns on whether they share the same nucleus of facts.” Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C.Cir.2002) (internal quotation marks and citation omitted). A party cannot escape application of the doctrine by raising a different legal theory or by seeking a different remedy in the new action that was available to him in the prior action. See Apotex, Inc. v. FDA, 393 F.3d 210, 218 (D.C.Cir.2004).
Since 2001, plaintiff has filed four habeas actions. See Compl. at 7; see generally Blue Thunder v. U.S. Parole Comm’n, No. 5:13-cv-187, 2013 WL 6061824, at *2-3 (E.D.Ky. Nov. 18, 2013) (describing habeas petitions filed in 2001, 2004, 2009 and 2013). The district court dismissed the first petition on the merits, concluding that the respondents (among which was the Commission) neither exceeded their jurisdiction with respect to the fraud chargе, nor denied plaintiff due process in revoking his parole. See Blue Thunder, 2013 WL 6061824, at *2 (citing Blue Thunder v. Gallegos, No. 01-WM-1965 (D.Colo. May 17, 2002) (unpublished order)). The court dismissed plaintiff’s second habeas action
Relevant to this case is an APA claim raised in plaintiff’s fourth habeas petition: “that the [Commission] violated his due process rights by exceeding the scope of its authority relating to the requirement that, pursuant to
It is apparent that res judicata bars plaintiff’s current APA claim. This actiоn arises from the same nucleus of facts—plaintiff’s 1998 parole revocation hearings—as plaintiff’s four habeas actions. Courts of competent jurisdiction entertained plaintiff’s prior challenges to the Commission’s decision to revoke parole based on testimony presented at the 1998 hearings, and have ruled against plaintiff on the merits. Here, plaintiff pleads no new facts and is “simply raising a new legal theory [which] is precisely what is barred by res judicata.” Apotex, 393 F.3d at 218.
B. A Hearing Examiner Is Not Required to Take Sworn Testimony
Even if res judicata did not bar plaintiff’s APA claim, dismissal of the complaint still is warranted. First, the Court observes that the pertinent language of
Moreover, there is no requirement that parole revocatiоn hearing testimony be given under oath. A parole revocation hearing “is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply tо parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). “[T]he minimum requirements of due process” include:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to
present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Id. at 488-89. Nothing in the record of this case supports a finding that plaintiff did not receive all the process he was due.
Lastly, there no requirement that a hearing examiner make findings with respect to a parolee’s law violation based on actual criminal charges. For example, a hearing examiner may determine that a parolee has engaged in “[n]ew criminal conduct ... еither by a new federal, state, or local conviction, or by an independent finding ... at [a] revocation hearing.”
III. CONCLUSION
The Court concludes that plaintiff’s complaint fails to state a claim upon which relief can be granted, and, accordingly, defendant’s motion to dismiss will be granted. An Order is issued separately.
EMMET G. SULLIVAN
United States District Judge