UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JIMMIE McNAIR, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-0404 (TSC) ) U.S. PAROLE COMMISSION, et al., ) ) Defendants. )
MEMORANDUM OPINION
This matter is before the court on Defendants’ Motion to Dismiss Second Amended
Complaint (ECF No. 42), Plaintiff’s Motion in Opposition to Defendants[’] Answer to
Plaintiff[’s] Amended Complaint (ECF No. 45) and his Motion under Writ Madam[us] to Have
Prompt Evidentiary Hearing on the Matters at Hand That Can Be Viewed By Transcripts (ECF
No. 46). For the reasons discussed below, the court grants Defendants’ motion, dismisses
Plaintiff’s Second Amended Complaint in its entirety, and denies Plaintiff’s motions as moot.
I. BACKGROUND
A. Plaintiff’s Criminal Conviction, Sentence, and Supervised Release
On October 5, 2010, police arrested Plaintiff for unlawful distribution of a controlled
substance (cocaine). (See Mem. of P. & A in Support of Defs.’ Mot. to Dismiss (“Defs.’
Mem.”), Ex. 1 at 2.) A jury found Plaintiff guilty, and on December 6, 2011, the Superior Court
of the District of Columbia imposed a 48-month term of imprisonment followed by a five-year
term of supervised release. (Id., Ex. 2 at 1.) The supervised release term commenced on May
12, 2014, and Plaintiff was to remain under the supervision of the Court Services and Offender
1 Supervision Agency for the District of Columbia (“CSOSA”), see D.C. Code § 24-133(c)(2),
through May 11, 2019, (Defs.’ Mem. Ex. 2 at 1.) Barely four months passed when Plaintiff
committed the first of many violations of the conditions of supervised release. (See generally id.,
Ex. 3 at 1-2.)
On August 5, 2015, Jequan S. Jackson, Case Analyst with the United States Parole
Commission (“USPC”), recommended that a supervision revocation warrant be issued, (id., Ex.
3 at 2.) The USPC charged Plaintiff with seven violations of the conditions of his supervised
release based on the reports of Kyndall Johnson, Plaintiff’s supervision officer (“CSO”).1 (See
id., Ex. 3 at 1-2.) For example, Plaintiff’s urine specimens tested positive for alcohol on two
occasions and for cocaine on 10 occasions, (id., Ex. 3 at 1-2,) and he failed to comply with a
graduated sanction, use of a global positioning system tracking device, when he “failed to charge
his GPS as directed by his supervising officer,” prior to his “remov[al] from the GPS program as
a result of a master tamper alert on 7/15/2015,” (Id., Ex. 3 at 2.)
Commissioner Charles Masserone signed the warrant on August 19, 2015. (Id., Ex. 3 at
3.) A deputy United States Marshal executed the warrant on October 7, 2016 at the D.C. Jail
where Plaintiff was detained, (id., Ex. 4 at 1,) following his arrest in the District of Columbia on
October 4, 2016, for distribution of a controlled substance (crack cocaine) and possession of a
1 According to the Warrant Application, Plaintiff violated a special condition of his release (drug aftercare) as evidenced by two urine specimens testing positive for alcohol (Charge No. 1); used dangerous and habit forming drugs as evidenced by 10 urine specimens testing positive for cocaine (Charge No. 2); failed to submit to drug testing by [NOT?] submitting urine specimens on 17 occasions (Charge No. 3); failed to comply with graduated sanctions (global positioning systems, Charge No. 4); failed to report to his supervising officer (Charge No. 5); and violated a special condition of his release (drug aftercare, Charge Nos. 6 and 7) by refusing to participate in the Halfway Back 60-day drug aftercare program and the Re-Entry and Sanction Center drug aftercare program. (See Defs.’ Mem., Ex. 3 at 1-2.) 2 controlled substance (crack cocaine), (see id., Ex. 5 at 1.) Jackson supplemented the warrant
application by adding an eighth charge, a law violation, arising from Plaintiff’s arrest. (Id., Ex.
6.)
Hearing examiner Kelley conducted Plaintiff’s probable cause hearing on October 14,
2016, and he found probable cause to detain Plaintiff pending a supervision revocation hearing.
(See generally id., Ex. 7.) Rebecca Vogel of the Public Defender Service represented Plaintiff at
the probable cause hearing. (See id., Ex. 7 at 1.) In anticipation of a supervision revocation
hearing, Plaintiff had an opportunity to request the attendance of adverse witnesses. (Id., Ex. 7 at
6-7.) Notwithstanding notice that his “failure to make a request for the attendance of any
adverse witness is a waiver of [his] opportunity to confront and cross-examine that witness at a
revocation hearing,” (id., Ex. 7 at 6,) Plaintiff did not request an adverse witness.
Hearing examiner Joseph M. Pacholski conducted Plaintiff’s revocation hearing on
November 30, 2016, (id., Ex. 8 at 1,) at which CSO Kerri Guest-Uzzle testified, (see generally
id., Ex. 8 at 1-4.) Plaintiff waived counsel and represented himself. (Id., Ex. 8 at 1.) Pacholski
noted Plaintiff’s assertion that the USPC lacked jurisdiction over the matter and Plaintiff’s
objection to the absence of adverse witnesses, particularly the lab technician who tested
Plaintiff’s urine specimens and the technician who would have monitored his GPS device. (Id.,
Ex. 8 at 2.) Pacholski “pointed out to [Plaintiff] that he did not request . . . witnesses at the
Probable Cause hearing,” (id., Ex. 8 at 2,) and that he waived counsel, (id., Ex. 8 at 1,) for the
revocation hearing. Based largely on the CSO Guest-Uzzle’s testimony and reports prepared by
CSO Johnson, Pacholski found that Plaintiff violated seven supervised release conditions
(Charge Nos. 1-7). (Defs.’ Mem., Ex. 8 at 4.) The police officer who arrested Plaintiff on
3 October 4, 2016 did not appear at the revocation hearing, and Pacholski made no finding with
respect to Charge No. 8 due to the lack of evidence. (Id., Ex. 8 at 4.)
Pacholski recommended revocation of supervised release and Plaintiff’s return to custody
for a term of 22 months from the date of the warrant’s execution. (Id., Ex. 8 at 5.) His
recommendation exceeded the ordinary guideline range of 12 to 16 months for the following
reasons:
Our subject argued every point and did not take responsibility for any of his behavior. Our subject did not provide any information as to why he was able to have 4 months of satisfactory compliance and then not comply with any terms other than he was sick and he feared for his safety. Our subject did not explain what steps he took to resume satisfactory compliance and did not feel he needed to explain other than he was sick. The subject’s sickness was not an extended stay at a hospital and did not hinder his ability to contact his [community supervision officer]. Our subject did not appear he was amenable for supervision. Our subject did excuse his [Public Defender Service] attorney and wanted to represent himself. Our subject was upset that he did not receive a Probable Cause hearing within 5 days but did not explain how this delay hindered his ability to defend himself against the charges. Our subject is a poorer risk because he has 24 convictions and 10 commitments that are not fully accounted for in the SFS. Our subject after the hearing became irate and called the Examiner a number [of] racial terms. The subject then slammed a hearing room door and caused a security issue at the institution [prompting] staff to respond. Some of the incident could be heard in the hearing room and the record was activated again to secure the evidence[.] (Id., Ex. 8 at 5.)
Executive reviewer Lynne Jenkins, after listening to the last 20 minutes of the recording
of the hearing, agreed that revocation was warranted and recommended a slightly higher
sanction: a 26-month term of imprisonment. (Id., Ex. 8 at 5.) She noted Plaintiff’s October 4,
2016 arrest, and the “very poor attitude” Plaintiff exhibited “during and after the hearing,”
indicating that “he is not amenable to supervision.” (Id., Ex. 8 at 5.) The USPC concurred: it 4 revoked Plaintiff’s supervised release and ordered his return to custody for 26 months.2 (Id., Ex.
9 at 1.) Plaintiff sent four submissions to the National Appeals Board, which ultimately affirmed
the USPC’s decision. (Id., Ex. 10 at 1.)
B. Plaintiff’s Second Amended Complaint
Plaintiff filed his original complaint in the Superior Court on December 7, 2016. (ECF
No. 1-1.) Defendants removed the case on March 7, 2017. (ECF No. 1.) This court construed
the complaint as raising constitutional challenges to the supervision revocation proceedings,
demanding monetary compensation for Plaintiff’s alleged unlawful incarceration, and demanding
Plaintiff’ immediate release from custody. Plaintiff amended his complaint, shifting focus from
the USPC’s actions to the validity of his underlying criminal conviction in the Superior Court.
(See generally ECF No. 5.) Subsequently Plaintiff filed documents (ECF Nos. 6, 8) purporting
to add new parties and claims, and on June 19, 2017, Plaintiff filed a motion for leave to amend
his complaint. (ECF No. 7.)
Defendants filed their first motion to dismiss on September 29, 2017. (ECF No. 16.)
Because Plaintiff’s amendments and other submissions had strayed so far from the claims set
forth in his original complaint, the court denied Defendants’ motion to dismiss without prejudice,
as it appeared to be moot. (ECF No. 21.) In addition, the court allowed Plaintiff to file a second
amended complaint encompassing all the claims he intends to bring, all the defendants against
2 The USPC imposed a term of imprisonment calculated from the date of the warrant’s execution, without regard to “street time.” Upon revocation of supervised release, Plaintiff “receive[d] no credit for time spent on supervised release, including any time spent in confinement on other sentences (or in a halfway house as a condition of supervised release) prior to the execution of the [USPC’s] warrant.” 28 C.F.R. § 2.218(c).
5 whom he makes his claims, and all the relief he demands. On February 16, 2018, Plaintiff filed a
document titled:
Motion to bring Clarity to Plaintiff Allegations Under & or pursuant to 28 U.S.C. 1651 & or 42 U.S.C. § 1983. Plaintiff claims fall under either 28 U.S.C. 1651 & or 42 U.S.C. § 1983 or Both Declaratory Relief & or monetary gains for purpose of one or the other & or both & or the improper handling & wrongdoing of U.S.P.C. et al employees, illegal detention/unlawful detention, invalid conviction & or sentence & or invalid conviction & or sentence & or ineffective assistance of Appeal Counsel under Williams (ECF No. 27 at 1.) The court construes this document as Plaintiff’s Second Amended Complaint
(“2d Am. Compl.”) against the following defendants:
Rebecca Vogel Charles T. Massarone Patricia K. Cushwa Olinda Moyd J. Kelly Gary N. Kashurba Jequan S. Jackson District of Columbia CSOSA Joseph M. Pacholski Patricia Smoot Kyndall Johnson USPC
(See 2d Am. Compl. at 5-6.) The individual defendants are sued in both their official and
individual capacities. (See id. at 5.) Notwithstanding the Second Amended Complaint’s vague,
rambling and disorganized presentation, it appears that Plaintiff:
• challenges his Superior Court conviction; • alleges prosecutorial misconduct; • raises ineffective assistance of trial and appellate counsel claims; and • contends that the USPC, its Commissioners and employees violated his constitutionally-protected rights. Among other relief, Plaintiff demands monetary damages of $100 million.3 (See id. at 4, 6.)
3 Plaintiff also demanded his release from custody, (see 2d Am. Compl. at 5,) and declaratory relief, (see id. at 4.) In recent filings, Plaintiff notified the Clerk of Court of his release from FCI Fairton on July 20, 2018, (ECF No. 48,) and his current address at the Piedmont Regional Jail in Farmville, Virginia (ECF No. 49.) Because it appears that Plaintiff has served all the time attributable to the revocation of supervised release, the Court denies these claims as moot. 6 II. DISCUSSION
A. Legal Standards
1. Dismissal Under Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, see Gen. Motors Corp. v. EPA, 363 F.3d
442, 448 (D.C. Cir. 2004), and the law presumes that “a cause lies outside [the court’s] limited
jurisdiction” unless the plaintiff establishes otherwise, Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). In response to a motion to dismiss a complaint for lack of
subject matter jurisdiction, a plaintiff must establish jurisdiction by a preponderance of the
evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l
Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). In evaluating a motion to dismiss under Rule
12(b)(1), the court must “assume the truth of all material factual allegations in the complaint and
‘construe the complaint liberally, granting Plaintiff the benefit of all inferences that can be
derived from the facts alleged[.]’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
2. Dismissal Under Rule 12(b)(6)
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” and “the grounds for the court’s jurisdiction” so that each defendant has
fair notice of the claim and the ground upon which it rests. Fed. R. Civ. P. 8(a); see Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing cases). Rule 12(b)(6) permits a defendant to
move for dismissal on the ground that the complaint has failed “to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a motion “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a Rule
7 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted). “A claim has facial plausibility when the Plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A complaint containing only “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements” cannot survive a motion
to dismiss. Id. In addition, the presumption of truth accorded factual allegations at this stage
does not apply to legal conclusions in a complaint, including those “couched” as factual
allegations. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
B. Claims Arising from Proceedings in the District of Columbia Courts
1. Ineffective Assistance of Trial Counsel
Plaintiff’s ineffective assistance of trial counsel claim arises from counsel’s alleged
failure to call a witness whose “substantial material and exculpatory testimony . . . could [have]
influence[d] the court determination on the probable cause factor,” such that Plaintiff “would not
have been held under charges to stand trial.” (2d Am. Compl. at 1; see id. at 5.) Plaintiff also
contends that “the key . . . drug evidence was not contain[ed] in the evidence bag,” and that the
prosecutor used “inflammatory” language “and promised/mislead the jury by evidences that was
not supported by facts & or introduce during . . . trial.” (Id.) His ineffective assistance of
appellate counsel arises from counsel’s alleged failure to raise meritorious arguments on appeal.
(See id. at 1-2, 5.)
D.C. Code § 23-110 provides:
A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was 8 imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the [Superior Court] to vacate, set aside, or correct the sentence. D.C. Code § 23-110(a). A plaintiff has no recourse in federal district court “if it appears that
[he] has failed to make a motion for relief under this section or that the Superior Court has
denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to
test the legality of his detention.” D.C. Code § 23-110(g); see Williams v. Martinez, 586 F.3d
995, 998 (D.C. Cir. 2009) (“Section 23-110(g)’s plain language makes clear that it only divests
federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable
claims pursuant to [§] 23-110(a).”); Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir.), cert.
denied, 479 U.S. 993 (1986).
A claim that trial counsel was ineffective is the sort of claim “routinely brought pursuant
to § 23-110.” Rahim v. U.S. Parole Comm’n, 77 F. Supp. 3d 140, 146 (D.D.C. 2015) (citations
omitted); see Reed v. Thomas, 287 F. Supp. 3d 6, 10 (D.D.C. 2018). And a claim arising from
alleged prosecutorial misconduct is cognizable under D.C. Code 23-110. Graham v. FCC
Coleman USP II Warden, No. 14-CV-1567, 2016 WL 2962190, at *3 (D.D.C. May 20, 2016)
(quoting Saunders v. United States, 72 F. Supp. 3d 105, 109 (D.D.C. 2014)), certificate of
appealability denied, No. 16-5179, 2017 WL 2728390 (D.C. Cir. Jan. 3, 2017); Briscoe v. Jarvis,
77 F. Supp. 3d 183, 186 (D.D.C. 2015), certificate of appealability denied, No. 15-5098 (D.C.
Cir. June 3, 2016). “[T]o the extent that [Plaintiff] is seeking review of claims arising from
errors that occurred during his trial and trial counsel’s performance, those claims are indeed
foreclosed from federal court review by D.C. Code § 23-110 because [Plaintiff] has not
9 demonstrated the inadequacy of that available remedy.” Coleman v. Ives, 841 F. Supp. 2d 333,
335 (D.D.C. 2012).
2. Ineffective Assistance of Appellate Counsel
A claim of ineffective assistance of appellate counsel falls outside the scope of D.C. Code
§ 23-110. See Williams, 586 F.3d at 998; Streater v. United States, 429 A.2d 173, 174 (D.C.
1980) (per curiam). “[B]ecause the Superior Court lacks authority to entertain a [§] 23-110
motion challenging the effectiveness of appellate counsel, that section is, by definition,
inadequate to test the legality of [Plaintiff’s] detention.” Williams, 586 F.3d at 998. Ordinarily,
an ineffective assistance of appellate counsel claim is litigated in the District of Columbia Court
of Appeals on a motion to recall the mandate. See Watson v. United States, 536 A.2d 1056,
1060-61 (D.C. 1987) (en banc). This Court may review a “federal habeas petition asserting
ineffective assistance of appellate counsel,” but only after a petitioner has “moved to recall the
mandate in the [District of Columbia] Court of Appeals.” Williams, 586 F.3d at 999. Plaintiff
does not indicate whether he sought to recall the Court of Appeals’ mandate, and absent any
showing that he has done so, his ineffective assistance of appellate counsel claim is not properly
before this court. Richardson v. United States, 999 F. Supp. 2d 44, 49 (D.D.C. 2013) (“Only a
petitioner who has moved to recall the mandate may proceed with an ineffective assistance of
appellate counsel claim in this Court.”); Chase v. Rathman, 765 F. Supp. 2d 1, 2-3 (D.D.C. 2011)
(noting that petitioner’s “apparent failure to seek recall of the mandate does not allow this court
to entertain his petition, and it does not render his remedy in the District of Columbia Court of
Appeals inadequate or ineffective.”).
C. Plaintiff’s Civil Rights Claims
In relevant part, 42 U.S.C. § 1983 provides:
10 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983 (emphasis added). “The District of Columbia is considered a ‘person’ for
purposes of § 1983.” Jordan v. District of Columbia, 113 F. Supp. 3d 278, 281 (D.D.C. 2015)
(citations omitted). However, § 1983 does not apply to federal government entities or “to federal
officials acting under color of federal law.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104
(D.C. Cir. 2005) (citations omitted); Rush v. Samuels, 82 F. Supp. 3d 470, 480 (D.D.C. 2015)
(dismissing § 1983 claims against Federal Bureau of Prisons and its Director).
A viable § 1983 claim against a government official in his or her individual capacity
requires that a plaintiff “allege the violation of a right secured by the Constitution and laws of the
United States, and . . . show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). A complaint must
allege that the official was personally involved in the asserted constitutional violation. See Iqbal,
556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a Plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.”).
While “personal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law,” Kentucky v. Graham, 473 U.S. 159, 165-66
(1985), suits against a government official in his official capacity “‘generally represent only
another way of pleading an action against an entity of which an officer is an agent,’” id. (quoting
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). In other words,
11 “[a] section 1983 suit for damages against municipal officials in their official capacities is thus
equivalent to a suit against the municipality itself.” Atchinson v. District of Columbia, 73 F.3d
418, 424 (D.C. Cir. 1996) (citing Kentucky v. Graham, 473 U.S. at 165-66). A § 1983 claim
against a municipality may proceed “only if ‘the complaint states a claim that a custom or policy
of the municipality caused the violation[.]’” Pollard v. District of Columbia, 191 F. Supp. 3d 58,
79 (D.D.C. 2016) (quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C .Cir. 2003)),
aff’d, 698 F. App’x 616 (D.C. Cir. 2017). “Respondeat superior liability does not apply.”
Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (citing Monell, 436 U.S. at
694).
1. Rebecca Vogel and Olinda Moyd
Although Plaintiff mentions Vogel and Moyd in his Second Amended Complaint, (see 2d
Am. Compl. at 5, 6,) he fails to allege facts sufficient to state a plausible claim against them. For
example, following Vogel’s name is an assertion that Plaintiff’s probable cause hearing was
untimely. (Id. at 5.) Plaintiff does not fault Vogel for the timing of a probable cause hearing,
and it is unclear whether or how Vogel could have been liable for any constitutional violation
Plaintiff might have suffered as a result of the delay. Plaintiff provides an address for purpose of
service on Moyd, but his complaint sets forth no factual allegations with respect to Moyd’s role
in Plaintiff’s criminal case or supervision proceedings. And in light of their affiliation with the
D.C. Public Defender Service, it does not appear that a § 1983 claim against either Vogel or
Moyd could survive because a public defender is not considered a “state actor.” See Polk County
v. Dodson, 454 U.S. 312, 325 (1981); Harris v. Fulwood, 947 F. Supp. 2d 26, 29 (D.D.C. 2013)
(dismissing § 1983 claims against former attorney with the Public Defender Service for the
District of Columbia and law student who represented Plaintiff at probable cause and parole
12 revocation hearings), aff’d on other grounds, 611 F. App’x 1 (D.C. Cir. 2015). The court
concludes that Plaintiff’s Second Amended Complaint fails to state a claim against Vogel and
Moyd upon which relief can be granted.
2. Johnson and CSOSA
Plaintiff’s allegations regarding Johnson are limited to the decision she and her
supervisor made requiring Plaintiff to submit to urine testing three times per week and to
perform community service during his term of supervised release. (2d Am. Compl. at 4.) He
mentions CSOSA apparently for the sole purpose of identifying Johnson’s affiliation and role as
Plaintiff’s CSO. (See 2d Am. Compl. at 6.) Absent from the Second Amended Complaint,
however, are any factual allegations to support a plausible claim against CSOSA or against
Johnson in either her official or individual capacity.
3. District of Columbia
A § 1983 claim against the District may proceed only if there exists a municipal custom
or policy, the implementation of which caused the violation of constitutionally-protected rights.
See Elkins v. District of Columbia, 690 F.3d 554, 564 (D.C. Cir. 2012) (“Case law has
established that a municipality can be held liable only for constitutional violations committed by
an employee who acted according to a city ‘policy or custom’ that was ‘the moving force’ behind
the violation.”) (citing Monell, 436 U.S. at 694)). The fatal pleading defect of Plaintiff’s Second
Amended Complaint is its failure to allege facts describing or suggesting the existence of a
municipal custom or policy resulting in the violation of a constitutional right. See, e.g., Hampton
v. Comey, 139 F. Supp. 3d 1, 6 (D.D.C. 2015) (dismissing § 1983 claim against Prince George’s
County, Maryland because complaint “is devoid of any allegation that the unidentified officer’s
13 alleged misconduct grew out of a custom, policy, or practice of the County”). The absence of
factual allegations regarding the District of Columbia warrants dismissal of any claim Plaintiff
purports to raise against it.
4. Massarone, Kelley, Smoot, Cushwa, Kashurba and Jackson
Based on a careful review of the Second Amended Complaint, the court identifies no
factual allegations to support a legal claim against Massarone, Kelley, Smoot, Cushwa,
Kashurba, or Jackson. While each of these defendants may have played a minor role in
Plaintiff’s supervision revocation proceedings, Plaintiff does not identify what action each
individual took or how each action violated Plaintiff’s constitutional rights. Therefore, the court
dismisses any claim Plaintiff purports to raise against these defendants in their individual
capacities. See, e.g., Haight v. O’Bannon, 102 F. Supp. 3d 179, 181 (D.D.C. 2015) (dismissing
individual capacity claims brought against Chief of Police “[b]ecause the complaint lacks any
allegations that [she] was personally involved in the single incident at issue”); James v. District
of Columbia, 869 F. Supp. 2d 119, 122 (D.D.C. 2012) (dismissing sua sponte § 1983 claim
against police sergeant in his individual capacity where “nothing in the complaint suggests that
[the sergeant] was involved in the acts underlying the Plaintiff’s claims,” leading the Court to
conclude “that the Plaintiff has not stated a plausible claim for relief” as against him).
To the extent that Plaintiff brings a claim against these defendants and Pacholski in their
official capacities, the court treats the claims as if Plaintiff had brought them against the USPC
itself. “It is elementary that ‘the United States, as sovereign, is immune from suit save as it
consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)). Sovereign immunity extends to
14 government agencies and to their employees sued in their official capacities. See FDIC v.
Meyer, 510 U.S. 471, 475 (1994); Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir.
1984) (“Sovereign immunity . . . bar[s] suits for money damages against officials in their official
capacity absent a specific waiver by the government.”). And the United States has not waived its
immunity for alleged constitutional violations. See Meyer, 510 U.S. at 483-86.
Plaintiff would be no more successful in his demand for monetary damages as against
any Commissioner or employee in his official capacity, or against the USPC itself. See, e.g., Ray
v. Smoot, 168 F. Supp. 3d 111, 114 (D.D.C. 2016) (dismissing § 1983 complaint against Parole
Commission Chairperson in her official capacity as barred under doctrine of sovereign
immunity). There is no clear waiver that renders the USPC subject to liability under §
1983. “Despite its role in administering parole for D.C. Code offenders, the Commission retains
the immunity it is due as an arm of the federal sovereign.” Settles, 429 F.3d at 1106.
5. Pacholski
USPC hearing examiners “act under color of District of Columbia law when dealing with
D.C. Code violators and, when they do, “are amenable to suit under § 1983 in . . . their individual
capacities.” McIntyre v. Fulwood, 892 F. Supp. 2d 209, 216 (D.D.C. 2012) (citing Fletcher v.
District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004), judgment vacated on reh’g on other
grounds, 391 F.3d 250 (D.C. Cir. 2004). Plaintiff’s claim against Pacholski cannot survive,
however, because Pacholski is immune from suit.
“Members of the judiciary are entitled to absolute immunity for acts performed in their
judicial capacities, and the Supreme Court has extended this immunity to certain officials who
perform quasi-judicial functions.” Morgan v. U.S. Parole Comm’n, 304 F. Supp. 3d 240, 248-49
15 (D.D.C. 2016). USPC hearing examiners fall into the category of officials. Thus, hearing
examiners like Pacholski are “federal agents performing a quasi-judicial function in making a
parole determination in [a] specific case, [and therefore] are protected by absolute quasi-judicial
immunity from such a suit.” Nelson v. Williams, 750 F. Supp. 2d 46, 52 (D.D.C. 2010) (citations
omitted), aff’d, No. 10-5429, 2011 WL 2618078 (D.C. Cir. June 23, 2011); accord Harris v.
Fulwood, 989 F. Supp. 2d 64, 73 (D.D.C. 2013), aff’d on other grounds, 611 F. App’x 1 (D.C.
Cir. 2015).
6. USPC
According to Plaintiff, USPC violated his constitutionally protected rights when it
exercised jurisdiction over him even though the underlying criminal conviction was invalid (see
2d Am. Compl. at 4), failed to conduct a timely probable cause hearing (see id.,), “denied his
right to confrontation of adverse witnesses” (id. at 3), and caused his return to custody after he
sanctions had been imposed by CSOSA for the same conduct (id. at 3.). None of these
challenges survives.
First, Plaintiff fails to demonstrate that his Superior Court conviction is unlawful. Nor
does Plaintiff show that he ever challenged his conviction in the District of Columbia courts.
The USPC is not obliged to verify the validity of an offender’s criminal conviction. See
Fardella v. Garrison, 689 F.2d 208, 211 (4th Cir. 1982). Thus, the USPC had before it what
appeared to be a valid judgment and commitment order, pursuant to which it exercised its
jurisdiction during Plaintiff’s five-year supervision term.
Second, Plaintiff’s challenge to the timeliness of his probable cause hearing has been
resolved by this court previously. See McNair v. U.S. Parole Comm’n, 253 F. Supp. 3d 280, 283
(D.D.C. 2017), appeal dismissed, No. 17-5153 (D.C. Cir. Dec. 6, 2017). Under 28 C.F.R.
16 § 2.214(a), a probable cause hearing must occur within five days of the execution of the
warrant.4 (See 2d Am. Compl. at 4; Pl’s Opp’n at 3.) Defendants concede that Plaintiff’s
probable cause hearing was untimely – USPC conducted the hearing on October 14, 2016, or
seven days after execution of the warrant. (Defs.’ Mem. at 11-12.) Nevertheless, Plaintiff has
received the process he was due and he has not alleged that he suffered any prejudice as a result
of the delay. See McNair, 253 F. Supp. 3d at 283.
Third, with regard to adverse witnesses, the court notes that Plaintiff had an opportunity
to request witnesses and declined to do so. (See Defs.’ Mem., Ex. 7 at 6-8, ECF No. 42-1 at 21-
23.) Insofar as Plaintiff objects to Pacholski’s reliance on lab test results supporting Charge Nos.
1 and 2 (urine specimens testing positive for alcohol and cocaine, respectively) rather than lab
technicians’ live testimony, “[r]eliance on hearsay in parole revocation proceedings is not per se
impermissible.” Crawford v. Jackson, 323 F.3d 123, 128 (D.C. Cir. 2003) (citing Morissey v.
Brewer, 408 U.S. 471, 4890 (1972)).5 But if, for example, a revocation decision “were either
totally lacking in evidentiary support or were so irrational as to be fundamentally unfair,”
Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002) (citations omitted), a Plaintiff might
demonstrate a due process violation. Plaintiff makes no such claim or showing, however, and
4 “A supervised releasee who is retaken and held in custody in the District of Columbia on a warrant issued by the Commission, and who has not been convicted of a new crime, shall be given a probable cause hearing by an examiner of the Commission no later than five days from the date of such retaking.” 28 C.F.R. § 2.214(a).
5 “For most purposes, supervised release is the functional equivalent of parole and the law pertaining to the revocation of parole is applicable to the revocation of supervised release.” Anderson v. U.S. Parole Comm’n, No. 10-CV-1451, 2010 WL 5185832, at *2 (D.D.C. Dec. 22, 2010) (citations omitted). Proceedings pertaining to supervised release and parole are administrative matters apart from a criminal case, Smallwood v. U.S. Parole Comm’n, 777 F. Supp. 2d 148, 150 (D.D.C. 2011) (citing Morissey v. Brewer, 408 U.S. 471, 480 (1972)). 17 does not undermine the validity of the decision reached on the basis of CSO Guest-Uzzle’s
testimony and supporting documentation.
Lastly, Plaintiff invokes the doctrine of collateral estoppel (see 2d Am. Compl. at 3; Pl.’s
Opp’n at 4-5), arguing that imposing additional conditions to the term of his supervised release
(i.e., submitting urine samples three times each week and performing community service) bar the
USPC and its examiners from imposing any additional sanction (i.e., his return to custody), for
the same underlying conduct which violated the conditions of his supervised release. Collateral
estoppel (issue preclusion) does bar the relitigation of issues previously tried and decided in a
court of competent jurisdiction involving the same parties. See Ashe v. Swenson, 397 U.S. 436,
443-44 (1970); Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992).
However, Plaintiff cites no authority, and the Court is not aware of any, for the proposition that
sanctions imposed by a CSO or by CSOSA have the same preclusive effect as court rulings. Nor
does Plaintiff support his assertion that a CSO’s determinations in any way undermine the
USPC’s authority to issue a warrant for a releasee’s apprehension if the “releasee is alleged to
have violated the conditions of his release,” 28 C.F.R. § 2.211(a)(2), to cause the warrant’s
execution, see 28 C.F.R. § 2.212, to conduct a probable cause hearing, 28 C.F.R. § 2.214(a), to
schedule a revocation hearing if the releasee requests one upon a hearing officer’s determination
of probable cause, 28 C.F.R. § 2.214(d), to conduct a revocation hearing, see 28 C.F.R. § 2.216,
to revoke supervision, see 28 C.F.R. § 2.218(a)(2), and to determine whether and for how long a
releasee shall be returned to prison, see 28 C.F.R. § 2.214(b).6
6 Plaintiff would fare no better were he to argue that the USPC violated the double jeopardy clause by causing his return to custody. The double jeopardy clause applies only to criminal prosecution and sentencing, not to supervision revocation matters. See Crowe v. Johnston, No. 11-2019, 2011 WL 5970881, at *1 (D.D.C. Nov. 29, 2011) (“[I]t is established that ‘jeopardy 18 For the foregoing reasons, the court grants Defendants’ Motion to Dismiss Second
Amended Complaint, denies Plaintiff’s “Motion in Opposition to Defendants[’] Answer to
Plaintiff[’s] Amended Complaint and his “Motion under Writ Madam[us] to Have Prompt
Evidentiary Hearing on the Matters at Hand That Can Be Viewed By Transcripts, and dismisses
this civil action. An Order is issued separately.
DATE: March 6, 2019 /s/ TANYA S. CHUTKAN United States District Judge
does not attach in probation or parole revocation proceedings because they are not new criminal prosecutions but rather continuations of the original prosecutions which resulted in probation or parole.’”) (quoting Hardy v. United States, 578 A.2d 178, 181 (D.C. 1990)); Brown v. U.S. Parole Comm’n, 713 F. Supp. 2d 11, 14 (D.D.C. 2010) (noting that “the USPC’s decisions to revoke petitioner’s parole do not implicate the Double Jeopardy Clause”). 19