Theodore WRENN v. Isaac FULWOOD, Jr., et al.
Civil Action No. 11-0935 (ABJ)
United States District Court, District of Columbia.
May 16, 2012.
AMY BERMAN JACKSON, District Judge.
Kenneth A. Adebonojo, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
AMY BERMAN JACKSON, District Judge.
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 con-vict-ed in the Superior Court of the District
48. That on or about March 1998, Plaintiff entered his sister‘s house in a drunkard state and high on drugs. Hе noticed his twelve year old daughter ly-ing 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.
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, imme-diately, 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 Suрerior Court imposed a five to 15 year term of imprisonment. Defs.’ Mem., Ex. J.
By the time of the plaintiff‘s initial pa-role 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 Co-lumbia Code offenders, see
After consideration of all factors and information presented, a decision above the Total Guideline Range is warranted because you are a more seriоus 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 of-fense. During the hearing, you attempt-ed 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 po-sition of trust to commit this offense. Abuse of a position оf trust was not considered in the computation of the base point score. These factors make you a more serious risk to the communi-ty 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 occurrеd.3
After consideration of all factors and information presented, a decision above the Current Total Guideline Range is warrаnted because you are a more seri-ous risk than indicated by the guidelines in that during the hearing you mini-mized 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 re-leased. Furthermore, you abused a po-sition of trust when you committed this offense.
Id., Ex. N (Notice of Action dated Septem-ber 19, 2007) at 1.
On reconsideration in 2009, the USPC applied the parole rеgulations promulgated by the Board (“1987 Regulations“). See generally Defs.’ Mem., Ex. O (Hearing Summary dated November 17, 2009). Al-though the plaintiff‘s score would have supported the grant of parole, the hearing examiner recommended an upward depar-ture from the 1987 Regulations, id. at 3, based in part on the plaintiff‘s apparent lack of “insight regarding his actions, thoughts, 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 anoth-er 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 re-hearing occurred on October 5, 2010. See Defs.’ Mem., Ex. Q (Hearing Summary dated October 5, 2010) at 1. The hearing examinеr noted the plaintiff‘s participation in a sex offender treatment program, see id. at 3, but also observed that the plain-tiff‘s “victim was ... extremely vulnerable ... as she was 12 years of age, and men-tally retarded.” id. at 4. Even though the plaintiff was eligible for parole release un-der the 1987 Regulations, the hearing ex-aminer recommended an upward depar-ture 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 Febru-ary 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 pa-role 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 success-fully complete the sex offender treat-ment 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.
According to the plaintiff, notwithstand-ing 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 Consti-tu-tion, among other provisions, id. at 6. Count I asserts “unconstitutional parole procedures [which] significantly increase plaintiff[‘s] sentence,” resulting in a viola-tion of his right to due process. Id. at 29. Count II alleges that the defendants’ “fail-ure to provide fair warning notice” of their decisions to depart from both the 1987 Regulations and the 2000 Guidelines vio-lates of the ex post facto clause. Id. Count III alleges that the defendants erroneously deferred parole releаse “without providing presumptive release dates” in violation of his right to due process and equal protec-tion. Id. The plaintiff demands a declara-tory judgment, a reduction in his sentence, and punitive damages of $500,000 “for ma-licious and willful conduct violating the Sellmon standard” to which the defen-dants must adhere.5 Id. at 6. Specifically, the plaintiff contends that the defendants’ application of the USPC‘s 2000 Guidelines instead of the Board‘s 1987 Regulations led to the denial of parolе in 2003, 2006, 2007, 2009, and 2011, see id. at 13, 24-27, and to the “service of a substantial addi-tional 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 ser-vice 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 dеtermina-tion that necessarily implies the unlawful-ness 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 eligi-bility 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
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 jurisdic-tion“). Under
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 prerequi-site 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 un-der
The USPC‘s immunity extends to its Commissioners, all of whom the plаintiff
2. Quasi-Judicial Immunity
The USPC Commissioners are amenable to suit in their individual capaci-ties under
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 pa-role 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 pa- role
Generally, under the indeterminate sen-tencing scheme in effect at all times rele-vant 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 sen-tence imposed, and any person so convict-ed and sentenced may be released on pa-role ... at any time after having served the minimum sentence.”
The Board could, “in unusual circum-stances, waive the [Salient Factor Score]6 and the pre[-] and post-incarceration fac-tors ... to grant or deny parole to a parole candidate.”
It is true that the USPC applied its 2000 Guidelines, instead of the operative 1987 Regulations, at plaintiff‘s initial pa-role hearing in 2003 and on rehearing in 2007. However, the record reveals that the USPC then shifted course and applied the 1987 Regulations at each subsequent rehearing. And, it appears to the Court
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 hear-ings.” Defs.’ Mem. at 28. The Court concurs. See Johnson v. Reilly, 734 F.Supp.2d 26, 27 (D.D.C.2010) (reconsider-ation hearing at which USPC applied 1987 Guidelines rendered injunctive and declar-atоry 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 Sellmon, 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 thе effect of extending his time in prison beyond the time the USPC could have imposed had it applied the 1987 Reg-ulations. Absent such a showing his ex post facto claim fails.
Based on the nature of the plaintiff‘s offense, his criminal history, and the vul-nerability 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 pa-role guidelinеs 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 reason-able 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 pe-titioner would not obey the law if released and would pose a threat to the communi-ty“); 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 litiga-tion re-affirmed application of
D. The Plaintiff Fails to State a Due Process Claim
The plaintiff argues that the USPC “in-creased [his] sentencing range taking him well past his eligibility/suitability release date,” Compl. ¶ 57, аnd thus “caus[ed] a liberty interest violation through proce-dural due process,” id. ¶ 58. He claims that, under the 1987 Regulations, he “could have be[en] paroled immediately after service of his minimum sentence.”
“There is no constitutional or in-herent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. In-mates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979). The District of Co-lumbia Code “provides no substantive limi-tations on the Board‘s authority to grant parole which would create a liberty inter-est.” Price v. Barry, 53 F.3d 369, 370 (D.C.Cir.1995). And under the 1987 Regu-lations, “parole is never ‘required after the Board determines that the necessary pre-requisites exist.‘” Ellis v. District of Co-lumbia, 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 defen-dants’ 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 рrotection claim-there are no allega-tions 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. Pa-role Comm‘n, No. 02-5207, 2002 WL 31520756, at *1 (D.C.Cir. Nov. 13, 2002) (per curiam); see also Hunter v. U.S. Pa-role Comm‘n, 308 Fed.Appx. 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-situаted prison-ers because of the defendants’ discrimina-tory intent). The complaint offers no “fac-tual content that allows the court to draw the reasonable inference that [the defen-dants are] liable for the misconduct al-leged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (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, according-ly, the defendants’ motion to dismiss will be granted. An Order accompaniеs this Memorandum Opinion.
AMY BERMAN JACKSON
UNITED STATES DISTRICT JUDGE