Razzoli, Kevin v. Fed Bur of Prisons

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2000 Decided November 7, 2000

No. 99-5289

Kevin Razzoli,

Appellant

v.

Federal Bureau of Prisons and

United States Parole Commission,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 99cv01711)

Anthony F. Shelley, appointed by the court, argued the

cause as amicus curiae for appellant. With him on the briefs

was John D. Bates.

Kevin Razzoli, appearing pro se, was on the briefs for

appellant.

Madelyn E. Johnson, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: This appeal puts in question the

relationship between an en banc decision of this court and two

recent Supreme Court cases. The latter require a prisoner to

succeed in a habeas action before bringing a claim that

challenges, even indirectly, the duration of his custody--for

example a damages claim for due process violations made in

the course of a decision revoking good time credit. See

Edwards v. Balisok, 520 U.S. 641 (1997). Balisok has been

read as mandating the use of habeas only when the claim, if

successful, will inevitably necessitate invalidation of a decision

creating, extending, or refusing to curtail custody. But in

Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988),

we found that habeas was the exclusive remedy even where a

claim's impact on custody was only probabilistic. Chatman-

Bey itself involved a decision on parole eligibility, a necessary

but not sufficient step toward the actual grant of parole.

Concluding that there is no inescapable conflict between

Chatman-Bey and the later Supreme Court decisions, we

adhere to Chatman-Bey: for a federal prisoner, habeas is

indeed exclusive even when a non-habeas claim would have a

merely probabilistic impact on the duration of custody.

* * *

Appellant Kevin Razzoli is a federal prisoner serving a

sentence for attempted murder. He challenges an order by

the district court dismissing his claims against the Federal

Bureau of Prisons ("BOP") and the United States Parole

Commission for declaratory relief and damages under the

Privacy Act, 5 U.S.C. s 552a, and the Freedom of Informa-

tion Act, 5 U.S.C. s 552 ("FOIA").

Razzoli's current troubles started when a prison official at

the Allenwood Federal Correctional Institution claimed that

on July 23, 1995 he had found cocaine and a razor blade in

Razzoli's cell. After a Unit Disciplinary Committee hearing,

Razzoli received a sanction that included the loss of 60 days

statutory good time credit. A report on the incident was

forwarded to the FBI for investigation, but no new criminal

charges were brought against Razzoli. After the Disciplinary

Committee action, but based on the same events, the United

States Parole Commission withdrew Razzoli's recommended

parole release date and established a new date twenty-four

months later, in effect delaying his eligibility for parole by

two years.

Razzoli filed a pro se complaint in district court here,

alleging that the BOP staged the incident on which the

actions of the Disciplinary Committee and Parole Commission

were based. Although the complaint does not highlight the

difference, it suggests that the Disciplinary Committee found

him guilty only of possession and that the Parole Commission

found him guilty of possession with intent to distribute. It

further alleges that the Parole Commission conspired with

the BOP and knowingly used false information against Razzo-

li. The complaint says that Razzoli never received a copy of

any FBI report and suggests that the report must not have

supported the Parole Commission's determination.

Before the complaint was served on either of the federal

defendants, the district court dismissed the case sua sponte

for failure to state a claim on which relief could be granted.

The court found that Razzoli's claims amounted to collateral

attacks on the actions of the Disciplinary Committee, and that

under Balisok and the key predecessor cases of Heck v.

Humphrey, 512 U.S. 477 (1994), and Preiser v. Rodriguez,

411 U.S. 475 (1973), "the sole federal remedy for challenging

the loss of good time credit is a petition for habeas corpus."

Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C.

July 30, 1999). Under Balisok, a non-habeas civil action by a

prisoner is not cognizable where " 'a judgment in favor of the

plaintiff would necessarily imply the invalidity of his convic-

tion or sentence,' unless the prisoner can demonstrate that

the conviction or sentence has previously been invalidated."

Balisok, 520 U.S. at 643 (quoting Heck, 512 U.S. at 487).

We review the district court's dismissal for failure to state

a claim de novo. See Davis v. District of Columbia, 158 F.3d

1342, 1348 (D.C. Cir. 1998). Dismissal under Rule 12(b)(6) is

proper if, taking all the material allegations of the complaint

as admitted and construing them in plaintiff's favor, we find

that he has failed to allege each of the material elements of

his cause of action. See Taylor v. Federal Deposit Insurance

Corp., 132 F.3d 753, 761 (D.C. Cir. 1997); see also Kowal v.

MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.

1994). In addition, we are bound to read the filings of a pro

se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520

(1972); Richardson v. United States, 193 F.3d 545, 548 (D.C.

Cir. 1999). The application of Preiser, Heck, and Balisok

complicates our task, for we must find allegations that are not

only sufficient to make out claims under the statutes, but that

also do not trigger the habeas-channeling rule. We appointed

amicus curiae to argue the issues for appellant.

The theory of Razzoli's Privacy Act claim is that BOP and

the Parole Commission violated 5 U.S.C. s 552a(e)(5) by

maintaining in their files and using a false record, the report

of the drug possession incident, even though they knew it to

be false. We read the Privacy Act part of the complaint as

having two dimensions, one clearly running afoul of Balisok,

the other not so clearly.

What clearly runs afoul of Balisok is his apparent claim in

relation to the recision of good time. If BOP knowingly

preserved and acted upon a totally invented record of drug

possession, plainly the recision of good time would have to be

overturned, thus accelerating Razzoli's release. Indeed, Raz-

zoli has already brought such a claim in the Middle District of

Pennsylvania in the form of an action under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), and the Third Circuit has found it barred

under the Balisok doctrine. See Razzoli v. Swinson, No.

97-7558, slip op. at 4-6 (3rd Cir. June 1, 2000).

But the amicus contends that Razzoli frames a second

attack that implicates only the determination by the Parole

Commission to postpone his parole eligibility. Under this

reading, Razzoli is arguing that the Parole Commission deci-

sion was based on addtional inaccuracies in his record--the

absence of the FBI report and the addition of "intent to

distribute" to the possesion charge. The government resists

this interpretation, but we think it within the range of plausi-

ble interpretations given the alleged absence of the FBI

report from the record, the complaint's explicit attacks on the

decision of the Parole Commission, and the distinction (slight-

ly submerged, to be sure) between the Disciplinary Commit-

tee's charge of possession and the Parole Commission's find-

ing of possession with intent to distribute.

The Supreme Court's trilogy addressing the relation be-

tween petitions for habeas corpus and other prisoner claims

began with Preiser v. Rodriguez, 411 U.S. 475 (1973). State

inmates who had been deprived of good time credit in prison

disciplinary proceedings brought actions under 42 U.S.C.

s 1983 seeking injunctive relief to compel restoration of the

credit. The Court saw "the essence" and "traditional func-

tion" of habeas as being "to secure release from illegal

custody." Id. at 484. The Court found that an attack on

revocation of good time qualified as an attempt to secure such

release. Such an attack is "just as close to the core of habeas

corpus as an attack on the prisoner's conviction, for it goes

directly to the constitutionality of his physical confinement

itself and seeks either immediate release from that confine-

ment or the shortening of its duration." Id. at 489. More

critically, the Court found that the habeas remedy was exclu-

sive. Comparing the general language of s 1983 with the

specificity of the habeas statute and focusing on Congress's

clear intent to assure exhaustion of state remedies in the

latter, it found a congressional intent to provide only one

remedy for attacks on physical confinement. Id. at 489-92.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court

extended Preiser to cover a prisoner's s 1983 claim for

damages for alleged constitutional violations in his arrest and

conviction, observing that "establishing the basis for the

damages claim necessarily demonstrates the invalidity of the

conviction." Id. at 481-82. The Court went on to hold that

"in order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or

sentence invalid, a s 1983 plaintiff must prove that the con-

viction or sentence has been [overturned]." Id. at 486-87.

Finally, Balisok extended Preiser and Heck to cover a s 1983

damages action for procedural violations allegedly committed

in a prison disciplinary hearing that deprived the plaintiff

prisoner of good time credits. The Court rejected any dis-

tinction between procedural and substantive claims, saying

that any such distinction "disregards the possibility, clearly

envisioned by Heck, that the nature of the challenge to the

procedures could be such as necessarily to imply the invalidi-

ty of the judgment." Id. at 645.

In each of the cases of the trilogy, the plaintiff's establish-

ment of his claim would itself have been sufficient to entitle

him to earlier release--subject, at least in the Balisok case, to

the possibility of renewed revocation of the good time credit

in a new hearing untainted by constitutional error. See

Balisok, 520 U.S. at 647. But in 1988 this court read Preiser

to require habeas for a federal prisoner's attack on a parole

eligibility decision, reversal of which would merely give him a

chance at earlier parole. Chatman-Bey v. Thornburgh, 864

F.2d 804 (D.C. Cir. 1988). We recognized both of the case's

arguable distinctions from Preiser: first that Chatman-Bey

was a federal prisoner and second that success on his stated

claim would not lead either to immediate release or to a

definite reduction in sentence. Id. at 808-10. We also

rejected both, relying on the Preiser Court's finding of a

congressional determination that habeas be the exclusive

means for challenging the fact or duration of custody. Id. at

808 n.4 ("in the most practical sense, parole eligibility 'impli-

cates' the duration of confinement"). Application of

Chatman-Bey here funnels plaintiff's claim into habeas.

The amicus would have us hold that Chatman-Bey is no

longer controlling. In Anyanwutaku v. Moore, 151 F.3d 1053

(D.C. Cir. 1998), we read the Preiser trilogy as not requiring

habeas for a District of Columbia prisoner's s 1983 attack on

an adverse parole eligibility decision. Instead, we saw it as

barring a s 1983 claim "only when, if successful, it would

'necessarily imply,' or automatically result in, a speedier

release from prison." Id. at 1056. We distinguished Chat-

man-Bey on the ground that it involved a federal prisoner,

and said that we need not consider whether it had any

"continuing vitality after Heck and Balisok." Id. at 1057.

Now we must.

Of course a Supreme Court decision flatly contradicting an

earlier circuit precedent would control. See Dellums v. Unit-

ed States Nuclear Regulatory Comm'n 863 F.2d 968, 978 n.

11 (D.C. Cir. 1988). But, faced with the issue Anyanwutaku

left open, we find no such flat contradiction. First, none of

the cases in the trilogy addressed claims with a merely

probabilistic impact on the duration of custody; thus none

had occasion to rule definitely on whether such claims need

be brought in habeas. Second, as we noted in Chatman-Bey,

the Supreme Court has made clear that habeas is proper for

such a claim. See Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484 (1973), cited in Chatman-Bey, 864

F.2d at 807. Third, although the Ninth Circuit has read

Balisok as inapplicable to attacks on parole eligibility deci-

sions, saying that their success would not guarantee a reduc-

tion in confinement, Neal v. Shimoda, 131 F.3d 818, 824 (9th

Cir. 1997), the Seventh Circuit has given the trilogy a quite

different reading, saying that it calls for habeas exclusivity

whenever the proof necessary for a prisoner's claim "involves

the proof of a fact that would also be essential to a habeas

corpus action." Clayton-EL v. Fisher, 96 F.3d 236, 242 (7th

Cir. 1996); see also id. at 244. Fourth, Chatman-Bey made

clear that a major implication of habeas exclusivity in cases

involving federal prisoners was its impact on venue. See

Chatman-Bey, 864 F.2d at 805, 810-14. In non-habeas feder-

al prisoner actions, a plaintiff could almost always name a

defendant over whom the district court for the District of

Columbia would have personal jurisdiction. But a habeas

challenge must be brought against the custodian, a rule that

channels such claims into the federal court with jurisdiction

over the claimant's prison. Id. That consequence is, of

course, every bit as applicable here as in Chatman-Bey itself,

but had little or no relevance to Anyanwutaku; even if state

prisoners with probabilistic claims are relieved of the stric-

tures of Balisok, the District of Columbia would generally not

be a possible site for litigation.

Finding Chatman-Bey alive and at worst only modestly

ailing, we conclude that Razzoli's Privacy Act claim--not only

in regard to the good time decision but also in regard to

parole eligibility--is not cognizable. In one respect, however,

the district court erred on this claim: it should have been

dismissed without prejudice. If Razzoli is successful in over-

turning the Disciplinary Committee and Parole Committee

actions through a petition for habeas, he should be allowed to

bring his Privacy Act claim at that time. See Fottler v.

United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).

There remains Razzoli's FOIA claim. The district court

concluded that not only the Privacy Act but also the FOIA

claim was barred by Heck and Balisok. We do not see the

logic. A FOIA claim wins, generally speaking, if the plaintiff

has properly requested the document from the agency and no

exemption applies. Razzoli evidently seeks the supposedly

exonerating FBI report. Of course that report could possibly

be helpful in both his good time and his parole eligibility

claims. But a judicial finding that some agency must deliver

this report to Razzoli would not itself establish some neces-

sary element of those claims; so Balisok would not apply

even under the comparatively broad reading that prevails in

the Seventh Circuit. See Clayton-EL v. Fisher, 96 F.3d at

242.

Appellees contend that, quite apart from Heck and Balisok,

Razzoli has failed to state a claim on which relief can be

granted. In reviewing the decision of a lower court, we "can

affirm a correct decision even if on different grounds than

those assigned in the decision under review." Danielsen v.

Burnside-Ott Aviation Training Center, Inc., 941 F.2d 1220,

1230 (D.C. Cir. 1991). This court has found that rule particu-

larly applicable when reviewing a dismissal for "failure to

state a claim,... a pure question of law which we review de

novo." See id. (citing Securities and Exchange Comm'n v.

Chenery Corp., 318 U.S. 80 (1943)).

Here, despite the efforts of the amicus to stretch our

imaginations, we find little more in the complaint than a bald

reference to the statute. Appellant mentions in passing that

he did not receive the FBI report, but makes no reference to

requests for this document. He later claims that he "has

exhausted all other remedies available to him to attempt to

correct the record, but was denied," but in the context of the

complaint this seems to be a reference to the entire record of

his cocaine possession. Complaint at 4, Razzoli v. Federal

Bureau of Prisons, No. 99 CV 1711 (D.D.C. June 27, 1999)

Even giving the pro se plaintiff the benefit of every reason-

able doubt, we cannot make out a FOIA claim from this

complaint.

The only question remaining is whether sua sponte dismiss-

al without leave to amend was appropriate. The Prisoner

Litigation Reform Act of 1995 not only allows but requires a

district court to dismiss a prisoner's claim before the defen-

dant answers if it finds that the complaint fails to state a

claim. See 28 U.S.C. 1915A(b)(1). Even prior to the enact-

ment of that statute, this court had approved of sua sponte

dismissals for failure to state a claim in some circumstances.

See Baker v. Director, United States Parole Comm'n, 916

F.2d 725, 726 (D.C. Cir. 1990) (per curiam). But nothing has

altered our long-standing rule that a sua sponte dismissal for

failure to state a claim without leave to amend is reversible

error unless "the claimant cannot possibly win relief." See

Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir.

1998) (quoting Baker, 916 F.2d at 726). This will be the case

either when "the facts alleged affirmatively preclude relief, or

because, even though plaintiff makes clear that he has facts to

add to his complaint, he would not have a claim upon which

relief could be granted even with those facts." Id. Neither

of these formulations applies to Razzoli. Accordingly, al-

though we agree with the judgment that Razzoli failed to

state a claim, we must remand and order the district court to

dismiss the complaint with leave to amend.

We vacate the order dismissing the Privacy Act claim with

prejudice and remand for the district court to do so without

prejudice. We also vacate the order dismissing the FOIA

claim with prejudice and remand for the district court to

dismiss with leave to amend.

So ordered.