OPINION
This matter is before the Court on Defendants’ motion to dismiss. For the reasons discussed below, the motion will be granted.
I. BACKGROUND
Plaintiff is “a prisoner of the District of Columbia, in the custody of the Federal Bureau of Prisons.” Compl. [Dkt. 1] at 2. He is serving a 30-year sentence imposed by the Superior Court of the District of Columbia on February 12, 1999, upon his conviction for aggravated assault. Id. at 3. The sentence runs “consecutively] to a 1996 non-parolable federal sentence of fifty-seven months for unlawful possession of a firearm by a convicted felon.” Id.
In anticipation of Plaintiff’s parole eligibility date of January 1, 2010, on October 28, 2009, Scott Kubic (“Kubic”), a hearing examiner of the United States Parole Commission (“Commission”), conducted the initial parole hearing. Id. Kubic continued the hearing “due to his concerns about [Plaintiffs] involvement regarding a charge of conspiracy to commit murder.” Id. Kubic’s experience led him to believe “that, often times, offenders agree to plead guilty to lesser included offenses to minimize the length of their sentence^], and not necessarily because they were not involved in more serious conduct.” Id. at 3-4. Kubic obtained “a copy of the Police Report and Grand Jury Indictment,” id. at 4, and based on this additional information, Kubic concluded that “a new hearing [was] necessary to allow [Plaintiff] the opportunity to respond to the information in those documents.” Id.
“The indictment indicate[d] that between March 20, 1995 and December 13, 1995, members of the Stanton Terrace Crew, including [Plaintiff], conspired to murder members of the Parkland Crew, who were viewed as competitor crack cocaine dealers, in order to seek revenge for the killing of a former member of the Stanton Terrace Crew.”
McIntyre v. Ebbert,
No. 3:10cv1739,
Because the instant offense involved unusual cruelty to the victim in that you were present and fired a weapon where there were women and a child. You also were a member of a crew who committed Murder. Additional time is needed for programming in that you need to participate and complete the Victim Impact Group in order to remain crime free in the community.
Id. at 3.
Executive Reviewer S. Husk (“Husk”) concurred with the decision to deny Plaintiff parole, and to support his finding that Plaintiffs behavior “involved exceptional cruelty to the victims and reflects ongoing criminal behavior,” id. 4, he described Plaintiffs criminal history and his current offenses of conviction as follows:
[Plaintiff] has been serving the current sentence since 2/21/2000 but has been in continuous custody since 12/13/95. He served first a 57 month federal sentence for Possession of a Firearm by a Convicted Felon. The federal charge resulted from a search of [Plaintiffs] apartment on 12/13/95. During that search, a sawed-off shotgun was recovered.... [A]lso recovered from the apartment was a handwritten diary which described shootings and armed robberies in which the shotgun was used. Also recovered was a videotape from January of 1994 in which [Plaintiff] was seen ... demonstrating how to use a sawed-off shotgun and a semi-automatic pistol and his four year old son was mimicking him handling guns and crack cocaine....
The Superior Court case for which he is being considered for parole involved a shooting that occurred on 5/11/95. There were at least three victims to the shooting including two women and a four year old child. It does not appear that these three persons were the intended victims. Instead, the intended victim was ... an associate with the Parkland Crew. [The victim] was shot at but there is no evidence that any of the bullets struck him on 5/11/95.
The 5/11/95 shooting was the result of an ongoing conspiracy of the Stanton Terrace Crew, of which [Plaintiff] was a member, to murder members of the Parkland Crew in order to eliminate them as competitors in the sale of crackcocaine. Also, revenge was sought for the 3/20/95 murder of a member of the Stanton Terrace Crew.
Initially, [Plaintiff] was charged with counts that included the deaths of William Zimmerman on 5/13/95 and Michael Thompson on 5/14/95. However, it appears that he pled guilty only to the events related to the 5/11/95 shooting.
Id. at 3. Of particular note was Plaintiffs alleged “admi[ssion] to being present during two other shootings” on May 13, 1995 and May 14, 1995, “that resulted in the death of the victims. Those murders were also carried out in furtherance of the illegal activity of the Stanton Street Crew.” Id. at 4. From these and other factors, Husk concluded “that the instant offense involved exceptional cruelty to the victims and reflects ongoing criminal behavior.” Id.
Citing, among other things, Plaintiffs “presen[ce] when two other men were murdered in furtherance of the illegal activities of the Stanton Street Crew,” the Commission denied Plaintiff parole. Compl., Ex. (Notice of Action dated Mar. 13, 2010) at 1. Rather than setting a rehearing date within 12 months as the 1987 Regulations would have allowed, the Commission made an upward departure, continuing the matter “for a reconsideration hearing in January 2013 after service of 36 months from [Plaintiffs] parole eligibility date of January 1, 2010.” Notice of Action dated Mar. 13, 2010 at 1. Plaintiffs “request] that the Commission reopen his case” was denied. Compl. at 6.
On August 19, 2010, Plaintiff filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania,
id.,
“challenging the Commission’s departure from the [1987 Regulations] for District of Columbia offenders.”
McIntyre,
On remand, the Commission “determined that there is insufficient evidence to conclude that [Plaintiff was] involved in [the] murders” committed on May 13, 1995 and May 14, 1995, but again denied parole for the following reasons:
The current sentence resulted from your conviction on three counts of aggravated assault that occurred on May 11, 1995. In this shooting, you were one of several individuals that planned to retaliate against a rival crew member and proceeded to fire shots toward persons that were standing outside of an apartment building. The shots struck three individuals, including a 4 year old child but missed the intended target. The Commission concludes that your criminal activity was not limited to this one incident but the conduct was indicative of your commitment to violent acts in furtherance of your criminal lifestyle. Your commitment to crime is evidenced by the fact that, for nearly three years prior to the offense, you were a member of the Stanton Street Crew that was involved in drug trafficking activities in the Southeast section of the District of Columbia. You possessed weapons during that time frame as evidenced by a videotape from January of 1994 ... inwhich you were demonstrating how to use a sawed off shotgun. You continued to possess weapons and engage in drug trafficking activities up until the May 11, 1995 shooting but also thereafter. At the time of your arrest in December of 1995, a sawed-off shotgun was recovered from your residence as was evidence of your continued drug trafficking activities ... and a diary describing several violent crimes. Though you were involved in only one shooting, the Commission finds that you were involved in ongoing criminal behavior in the community, possessed weapons in furtherance of that criminal behavior and were committed to engage in violent acts if necessary to support that lifestyle. Thus, the Commission concludes that you remain a risk to the community.
Compl., Ex. (Notice of Action dated Apr. 14, 2011) at 1.
Plaintiff claims that Defendants have violated his rights to due process and equal protection, arguing that he was denied a fair and impartial parole hearing. See Compl. at 14-15, 31. The Commission’s decision to deny parole was based on “[t]he deliberate fabrication of the record,” he alleges, notwithstanding Plaintiffs evidence that he was not present at the murders. Id. at 25. In addition, he claims that Defendants failed to maintain Commission records with the requisite level of accuracy, and that they relied on erroneous information in the records resulting in a decision adverse to Plaintiff, that is, denial of parole. See id. at 26-27, 29. He brings this action under 42 U.S.C. § 1983 against Isaac Fulwood (“Fulwood”), Chair of the Commission, and hearing examiners Kubic, Pacholski and Husk in both their official and individual capacities, and under the Privacy Act, see 5 U.S.C. § 552a, against the Commission. See Compl. at 2-3. He demands a declaratory judgment, nominal and punitive damages, and injunctive relief. See id. at 34-35.
II. ANALYSIS
A. Res Judicata (Claim Preclusion)
Defendants move to dismiss on the ground that Plaintiffs claims are barred under the doctrine of res judicata.
3
“[U]nder res judicata, ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were
or could have been raised
in that action.’ ”
Drake v. FAA,
(1) whether the claim was adjudicated finally in the first action; (2) whether the present claim is the same as the claim which was raised or which might have been raised in the prior proceeding; and (3) whether the party against whom the plea is asserted was a party or in privity with a party in the prior case.
Youngin’s Auto Body v. Dist. of Columbia,
Plaintiff brings due process and equal protection claims against Defendants arising from the Commission’s March 13, 2010 decision to deny parole based on Paeholski’s statement — later proved wrong — that during the reconsideration hearing Plaintiff admitted his presence at the murders committed on May 13, 1995 and May 14, 1995. These constitutional claims arise from the same nucleus of facts as did the claims before the Middle District of Pennsylvania on its consideration of Plaintiffs prior habeas petition. The petition was decided in Plaintiffs favor by a court of competent jurisdiction. Although the respondent to the habeas petition is not named a defendant to this civil action, he is considered in privity with Defendants in this action.
See Wilson,
Plaintiff responds that the claims presented in this action differ from those raised in his habeas petition because this case “is directed specifically at the named individuals in both their official and individual capacities for their participation and wrongful actions against Plaintiffs’ [sic] right[s] as provided under the [C]onstitution.” PL’s Opp’n [Dkt. 21] at 3. He cannot avoid the preclusive effect of the habeas ruling simply by naming new parties, particularly where these Defendants and the respondent to the habeas petition all are federal government officials.
See Sunshine Anthracite Coal v. Adkins,
The Court concludes that Plaintiffs claims arise from the same nucleus of facts as did the claims presented in his habeas action in the Middle District of Pennsylvania. The final judgment on the merits of the habeas petition precludes this § 1983 action.
B. Immunity
Defendants are amenable to suit under § 1983 in both their individual capacities,
see Fletcher v. District of Columbia,
“Courts have extended absolute immunity to a wide range of persons playing a role in the judicial process.”
Wagshal v. Foster,
(1) whether the functions of the official in question are comparable to those of a judge; (2) whether the nature of the controversy is intense enough that future harassment or intimidation by litigants is a realistic prospect; and (3) whether the system contains safeguards which are adequate to justify dispensing with private damage suits to control unconstitutional conduct
Id.
The functions of Commissioners and other Commission officials generally meet this test.
See, e.g., Anderson v. Reilly,
C. Privacy Act Claims
“The [Privacy] Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government’s part to comply with the requirements.”
Doe v. Chao,
Each agency that maintains a system of records shall maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.
According to Plaintiff, Defendants’ decision to depart from the 1987 Regulations occurred “without verification of all relevant factual evidence” and therefore “made an adverse decision based on inaccurate information to the detriment of [Plaintiffs] request for release.” Compl. at 26. He claims that Pacholski made a “personal attempt of falsifying the record,” id. at 28, presumably by injecting as if it were a fact an admission that Plaintiff was present at the May 13, 1995 and May 14, 1995 murders. See Pl.’s Opp’n at 3 (stating that the Commission made “an advers[e] decision ... based on inaccurate records ... the Plaintiff proved to be false, by entering documentation of [the prosecutor’s statement] in open court ... that the [C]omission chose to ignore”). In this way, the Commission “acted in a manner which was intentional and willful.” Compl. at 26. In other words, he contends that the Commission failed to maintain its records with the requisite level of accuracy because it failed to verify Pacholski’s so-called fact — that Plaintiff was present at the May 13, 1995 and May 14, 1995 murders — and relied on this “fact” when denying his parole application. Plaintiff alleges that by ignoring the truth (that Plaintiff did not admit that he was present at the murders), the Commission acted intentionally and willfully and, therefore, Plaintiff insists he entitled to damages. 5
“Defendants do not dispute that they have some obligation to undertake efforts to maintain accurate records.” Defs.’ Mot. [Dkt. 18] at 21. They argue that Plaintiff has not made an adequate showing of an intentional or willful violation of the Privacy Act. Id. at 22. They point to Plaintiffs failure to mention the factual error in his April 30, 2010 letter asking the Commission to reopen his case. Id. The significance of this omission is unclear, particularly in this case. By then Plaintiff not only had denied his presence at the two murders but also had produced an excerpt of the sentencing transcript to support his assertion.
To prevail on his claim for damages, Plaintiff must show:
(1) he has been aggrieved by an adverse determination; (2) the Commission failed to maintain his records with the degree of accuracy necessary to assure fairness in the determination; (3) the Commission’s reliance on the inaccurate records was the proximate cause of the adverse determination; and (4) the Commission acted intentionally or willfully in failing to maintain accurate records.
It cannot be said that Kubic obtained a copy of the police report and grand jury indictment and scheduled a new hearing without grounds for believing his actions were lawful. Offense behavior was relevant to the Commission’s determination as to Plaintiffs suitability for release.
See
28 D.C.M.R. § 204.18 (1987) (directing consideration of “whether the current offense involved a felony in which the parole candidate caused, attempted to cause, or threatened to cause death of serious bodily injury to another individual,” and “whether the current offense involved a felony in which the parole candidate used a dangerous weapon,” among other preincarceration factors, to determine whether the candidate should be paroled);
cf. Griffin v. Ashcroft,
No. 02-5399,
The Middle District of Pennsylvania noted:
[Ultimately, the Commission may determine that reasons other than the [Plaintiffs] presence at the murders compel departure from the guidelines — such as [his] involvement in the May 11, 1995 shooting, his membership in a street crew, the artifacts of drug distribution found in his home, or the Petitioner’s diary indicating his violence. Had the Commission indicated in its statement of reasons that it would have departed from the guidelines for any or each of these other stated reasons, independent from the [Plaintiffs] presence at the murders, the court might have found that decision to have had a rational basis.
McIntyre,
III. CONCLUSION
Plaintiffs claims are barred under the doctrine of res judicata and quasi-judicial immunity, and he has failed to state a claim under the Privacy Act. Accordingly, Defendants’ motion to dismiss [Dkt. 18] will be granted. A memorializing Order accompanies this Opinion.
Notes
. Plaintiff attached an excerpt of the transcript of his sentencing hearing, during which the prosecutor stated:
[Plaintiff] was charged under a liability with two of the murders that actually took place, but the Government was not going to allege and does not allege that [he] was present at the time of these murders.
Compl., Ex. (Sentencing Transcript) at 13:20-24.
. According to the Hearing Summary, Plaintiff “stated that he did not fire at the females or the 4 year old child but he was firing his weapon at individuals in a different direction than the woman and child.” Hearing Summary at 1.
. For purposes of this Opinion, the Court presumes, without deciding, that service of process has been effected properly on Fulwood, Kubic, Pacholski and Husk, and that the Court may exercise personal jurisdiction over them. The Court therefore declines to address Defendants’ arguments for dismissal of the complaint under Rule 12(b)(2) for lack of personal jurisdiction, under Rule 12(b)(4) for insufficient process, or under Rule 12(b)(5) for insufficient service of process.
. Fulwood, Kubic, Pacholski and Husk in their official capacities are not subject to suit for money damages under § 1983.
See Settles v. U.S. Parole Comm’n,
. For purposes of this Opinion, the Court presumes that Plaintiff named as a defendant a federal agency covered by the Privacy Act,
see
5 U.S.C. § 551(1) (defining "agency” to mean "each authority of the Government of the United States”), because no Privacy Act claim can be brought against an individual government employee.
See Martinez v. Bureau of Prisons,