Thomas v. District of Columbia Government

580 F.Supp.2d 142

Norman A. THOMAS, Plaintiff, v. DISTRICT OF COLUMBIA GOVERNMENT, et al., Defendants.

Civil Action No. 07-1286(HHK).

United States District Court, District of Columbia.

September 30, 2008.

COPYRIGHT MATERIAL OMITTED

Frederick Arnold Douglas, Douglas & Boykin, PLLC, Washington, DC, for Plaintiff.

Corliss Vaughn Adams, Office of the Attorney General, Blanche L. Bruce, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

HENRY H. KENNEDY, JR., District Judge.

Norman Thomas, a Jamaican National, brings this action against the District of Columbia Government ("District"), the District of Columbia Board of Parole ("Parole Board"), the District of Columbia Department of Corrections ("Department of Corrections"), the United States Department of Homeland Security ("Homeland Security"), and the State of New York alleging that these entities violated various laws.¹ Thomas's causes of action against the District and the State of New York are based on 42 U.S.C. § 1983. Thomas, who has been convicted of criminal offenses and has been in custody for various lengths of time as a result of his criminal conduct, seeks to have the records of the time he spent in custody corrected in order to be in a better position to avoid an order of removal issued by the United States Citizenship and Immigration Services ("ICE"), a component of Homeland Security.

Before the court are the District's and Homeland Security's motions to dismiss. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes the motions should be granted.

I. BACKGROUND

Thomas was arrested in October 1988 and charged with possession of a controlled substance. Compl. at 2. On February 10, 1989, he was sentenced in the Superior Court of the District of Columbia ("Superior Court") to a term of 20 months to five years' imprisonment, a term which allegedly was to expire on October 14, 1993. Id. He served the minimum term and was released on parole by the Parole Board in 1991. Id. While on parole and prior to the expiration of the 1989 sentence, Thomas was arrested in Pennsylvania and charged with possession of crack cocaine. Id. A jury found him guilty and the Pennsylvania court sentenced him to a term of 5 years' imprisonment. Id. at 3.

At some point, Thomas came to the attention of officials of ICE and ICE lodged a detainer against him. Id. at 2. Pennsylvania authorities granted Thomas parole in 1993. Id. at 3. Before releasing him, Pennsylvania Department of Corrections officials notified both the Parole Board and ICE to ascertain whether either entity wanted to take Thomas into custody. Id. The Parole Board declined. Id.

On or about July 30, 1993, ICE took Thomas into custody and initiated removal proceedings based on his criminal convictions in the District of Columbia and in Pennsylvania.² Defendant's Memorandum in Support of Motion to Dismiss and In Opposition to Plaintiff's Motion for a Preliminary Injunction ("DHS Mot."), Declaration of Jacob Antoninis ("Antoninis Decl.") ¶¶ 6-7. An Immigration Judge released Thomas on bond in 1993 after determining both that there were no outstanding warrants pending and that no local, state, or federal law enforcement agency wanted to take him into custody. See id. ¶ 7; Compl. at 3-4. Thereafter Thomas resided in New York State. Compl. at 4.

On August 6, 1995, Thomas was involved in a car accident in New York City. Compl. at 4. A police officer at the scene determined that there was an "outstanding warrant for his arrest in the District of Columbia." Id. Thomas was arrested, transferred to a New York City jail, and, without an extradition hearing, returned to the custody of the District of Columbia on August 7, 1995. Id. at 4-5. Thomas was informed that the Parole Board considered his 1991 conviction in Pennsylvania a violation of the terms of his parole, and on this basis it issued a parole violator warrant in 1991. Id. at 5.

Thomas "contested these facts with defendant D.C. Board of Parole authorities based on the fact that the Pennsylvania Department of Corrections had notified both the D.C. Board of Parole and the D.C. Department of Corrections ascertaining whether plaintiff was wanted by either of them, and they informed the Pennsylvania Department of Corrections authorities that plaintiff was not wanted and that plaintiff could be released to [ICE]." Compl. at 5. Further, before ICE released him on bond, ICE "made certain that plaintiff had no outstanding warrants pending." Id. According to Thomas, "his D.C. sentence had expired" on October 14, 1993, yet the Parole Board "violated a defunct sentence and made plaintiff serve additional time on this defunct expired sentence imposed on February 10, 1989." Id. Ultimately, the Parole Board revoked Thomas's parole and imposed an additional term of imprisonment. See id.

The circumstances of Thomas's subsequent detention are unclear. It appears, however, that Thomas again found himself in ICE custody from which he was released on March 28, 1997. Antoninis Decl. ¶ 5. He has remained on release since then, notwithstanding the issuance of a final order of removal on July 2, 2003. Id. ¶¶ 5, 8. His efforts to challenge the final removal order, first by appealing to the Board of Immigration Appeals, then by petition for writ of habeas corpus in federal court, and lastly for review by the United States Court of Appeals for the Second Circuit, were unsuccessful. See id. ¶¶ 9-12

By this action Thomas "seeks a declaratory judgment so that he can petition the Board of Immigration Appeals to consider him for 212(c) relief" based on a corrected criminal record.³ Opposition to the Motion to Dismiss Filed By Defendants the District of Columbia and the District of Columbia Department of Corrections ("Pl.'s Opp'n") at 10. He cannot "adequately challenge the deportation order" before "correct[ing] his criminal record in D.C. which was the only basis for denying Plaintiff relief under 212(c)." Id. at 4.

II. DISCUSSION

A. Claims Against the District of Columbia

Thomas alleges that his 1995 detention was unlawful because the 1989 Superior Court sentence already had expired. See Compl. at 5. He asserts that the District of Columbia violated the Accardi doctrine,⁴ the District of Columbia Administrative Procedures Act, the Good Time Credits Act, and 28 D.C.M.R. § 601.7, in addition to the Fifth Amendment to the United States Constitution, by (1) failing to credit good time and street time in accordance with applicable District of Columbia laws and regulations, and (2) forcing Thomas to serve additional time upon revocation of parole on the sentence imposed in 1989 even though the sentence had expired on October 14, 1993. In other words, had the District of Columbia properly credited good time pursuant to the Good Time Credits Act and "street time" pursuant to 28 D.C.M.R. § 601.7, his sentence would have expired long before he was taken into custody on August 7, 1995.⁵ Id. at 6. Further, he attributes the initiation of deportation proceedings to the 1995 detention. See id. at 6-7. But for the 1995 detention, Thomas asserts that he would have been "entitled to a 212(c) waiver of deportation." Id. at 7; see id. at 15.

The District of Columbia moves to dismiss this action on the ground that the complaint fails to state a claim upon which relief can be granted. Defendants' Memorandum of Points and Authorities in Support of their Motion to Dismiss ("D.C. Mot.") at 4-5. Specifically, the District argues that Thomas does not allege its municipal liability under 42 U.S.C. § 1983 ("Section 1983").⁶ See id. at 5.

"[A] municipality can be found liable under [Section] 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (citing Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (emphasis in original)). "Respondeat superior or vicarious liability will not attach under [Section] 1983." Id. The District of Columbia, then, is subject to liability under Section 1983 only "when an official policy or custom causes the complainant to suffer a deprivation of a constitutional right." Carter v. District of Columbia, 795 F.2d 116, 122 (D.C.Cir.1986). The policy or custom itself must be the moving force behind the constitutional violation. Id. (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ("[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question."); Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (requiring plaintiff to show a course deliberately pursued by city establishing affirmative link between city's policy and alleged constitutional violation).

The District argues that "Thomas has failed to allege that the violation of his constitutional rights resulted from a District custom, policy, or practice, or that a final policy decision maker consciously chose to pursue unconstitutional policies and/or ratified constitutional misconduct." D.C. Mot. at 5. Thomas's opposition relies in large part on factual allegations appearing nowhere in the complaint, and attempts to stretch those allegations far enough to survive the District's motion.⁷ Factual allegations appearing in briefs or memoranda generally are not considered when deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C.Cir.1994). Hence, the Court relies only on the factual allegations set forth in Thomas's pro se complaint. See id.

Thomas primarily attributes the violations of his...