Jones v. Fulwood

860 F.Supp.2d 16

Michael Andre JONES, et al., Plaintiffs,¹

v.Isaac FULWOOD, Jr., et al., Defendants.

Civil Action No. 11–0935 (ABJ).

United States District Court, District of Columbia.

May 16, 2012.

Theodore Wrenn, Ayer, MA, pro se.

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 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.

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, seeD.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. 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, 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 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 Sellmon standard” to which the defendants must adhere.⁵Id. 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 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. DISCUSSIONA. 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, 125 S.Ct. 1242, 161 L.Ed.2d 253 (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, 125 S.Ct. 1242. Here, ...