Jones v. United States Parole Commission

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

MICHAEL ANDRE JONES, et al., )

)

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Plaintiffs, )

)

v. ) Civil Action No. 11-0935 (ABJ)

)

ISAAC FULWOOD, JR., et al., )

)

Defendants. )

_________________________________________ )

MEMORANDUM OPINION

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.

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The complaint has been dismissed voluntarily as to plaintiff Michael Andre Jones,

leaving Theodore Wrenn as the sole plaintiff.

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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, see D.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.

2

Page numbers of the Complaint are based on the order in which they were presented to

the Court and designated by the Court’s electronic filing system.

2

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,

3

The plaintiff represents that a reconsideration hearing took place in June 2006, that parole

was denied, and that the USPC continued the matter for three years. See Compl. ¶ 55. The

record does not include exhibits related to this hearing.

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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

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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 Sellman standard” to which the defendants must

adhere. 5 Id. at 6. Specifically, the plaintiff contends that the defendants’ application of the

4

The July 21, 2011 Notice of Action modified the reasons for the decision to deny parole

set forth in the February 21, 2011 Notice of Action.

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The Court presumes that the plaintiff is referring to Sellman v. Reilly, 551 F. Supp. 2d 66

(D.D.C. 2008), and alleges “that [the] USPC retroactively applied its own parole guidelines and

practices so as to significantly increase the risk that [he] would serve [a] longer term [ ] of

incarceration,” id. at 68.

The USPC since has adopted a new regulation pursuant to which it applies the 1987

Regulations if the prisoner, as does the plaintiff, meets the following qualifications:

(i) The prisoner committed the offense of conviction after March 3,

1985 and before August 5, 1998;

(ii) The prisoner is not incarcerated as a parole violator;

(iii) The prisoner received his initial hearing after August 4, 1998; and

(iv) The prisoner does not have a parole effective date, or a presumptive

parole date before January 1, 2010.

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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. DISCUSSION

A. 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 (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. Here, the

plaintiff’s success on his challenge under § 1983 would not necessarily result in his immediate or

speedier release from custody, and therefore, the Court finds that he need not bring his claims in

a petition for a writ of habeas corpus in the district of his confinement. See Wilson v. Fulwood,

772 F. Supp. 2d 246, 259 (D.D.C. 2011).

28 C.F.R. § 2.80(o)(2) (effective Nov. 13, 2009).

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B. The Plaintiff’s Claims Against the USPC and its Commissioners Will Be Dismissed

Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004)

(noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our

jurisdiction”). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the defendants

move to dismiss the claims against the USPC and its Commissioners in their official capacities

for lack of subject matter jurisdiction. See Defs.’ Mem. at 19-21. Insofar as the plaintiff sues the

Commissioners in their individual capacities, the defendants move to dismiss on the ground that

they are immune from suit. See id. at 22-24.

1. Sovereign Immunity

“It is axiomatic that the United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,

212 (1983). Such consent may not be implied, but must be “unequivocally expressed.” United

States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). “Sovereign immunity is jurisdictional

in nature.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Therefore, “[a]bsent a

waiver, sovereign immunity shields the Federal Government . . . from suit.” Id.; see United

States v. Sherwood, 312 U.S. 584, 586 (1941).

The plaintiff brings this action under 42 U.S.C. § 1983, arguing that “Section 1983 is an

appropriate legal vehicle to attack unconstitutional parole procedures,” Compl. at 31, particularly

because the USPC “act[s] under color of state law,” id., in rendering parole decisions for District

of Columbia offenders. The USPC is a federal entity. See, e.g., Epps v. Howes, No. 06-717,

2007 WL 2248072, at *3 (D.D.C. July 31, 2007); see also Settles v. U.S. Parole Comm’n, 429

F.3d 1098, 1106 (D.C. Cir. 2005). Notwithstanding its role in parole matters for District of

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Columbia Code offenders, it “retains the immunity it is due as an arm of the federal sovereign.”

Settles, 429F.3d at 1106. The United States has not waived this immunity, see id. at 1105-06,

and the plaintiff’s claims against the USPC are therefore barred. Mowatt v. U.S. Parole

Comm’n, 815 F. Supp. 2d 199, 205 (D.D.C. 2011); Bolden-Bey v. U.S. Parole Comm’n, 731 F.

Supp. 2d 11, 14 (D.D.C. 2010) (dismissing § 1983 claim against the USPC for lack of subject

matter jurisdiction); see Hunter v. Reilly, 693 F. Supp. 2d 53, 59 (D.D.C. 2010) (denying leave to

amend complaint to add claim for damages on the ground that “sovereign immunity bars a claim

for money damages against the USPC, and against its commissioners in their official capacities

because of the USPC’s status as a federal government entity.”), aff’d, 405 F. App’x 514 (D.C.

Cir. 2011) (per curiam).

The USPC’s immunity extends to its Commissioners, all of whom the plaintiff sues in

part in their official capacities. A suit against a government official in his official capacity

“generally represent[s] only another way of pleading an action against an entity of which an

officer is an agent,” and “an official capacity suit is, in all respects other than name, to be treated

as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations

omitted). It follows that any claims for damages against government officials in their official

capacities are barred by the doctrine of sovereign immunity unless either the government

specifically waives the immunity, or the government agents’ actions fall within an exception to

the immunity doctrine. See Clark v. Library of Cong., 750 F.2d 89, 103-04 (D.C. Cir. 1984)

(holding that the doctrine of sovereign immunity barred a claim for money damages against the

Librarian of Congress in his official capacity because immunity had not been waived and the

exceptions to immunity did not apply). Here, the plaintiff raises constitutional claims against the

USPC Commissioners, and the United States “has not waived sovereign immunity with respect

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to actions for damages based on violations of constitutional rights by federal officials when

brought against the United States directly, or against officers sued in their official capacities.”

Hamrick v. Brusseau, 80 F. App’x 116, 116 (D.C. Cir. 2003) (per curiam) (internal citations

omitted). The plaintiff’s claims against the USPC Commissioners in their official capacities are

also barred under the doctrine of sovereign immunity. Ali v. U.S. Parole Comm’n, No. 06-0235,

2007 WL 902312, at *2 (D.D.C. Mar. 23, 2007).

2. Quasi-Judicial Immunity

The USPC Commissioners are amenable to suit in their individual capacities under §

1983 and, by extension, under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). See Fletcher v. District of Columbia, 370 F.3d 1223, 1227

(D.C. Cir. 2004), vacated in part on other grounds, 391 F.3d 250 (D.C. Cir. 2004); see Settles,

429 F.3d at 1104 (reaffirming the holding in Fletcher that “a cause of action under § 1983 will

lie against the individual members of the [USPC] when acting pursuant to the Revitalization Act

§ 11231”). However, the Commissioners are absolutely immune from a lawsuit such as this

which is “predicated on acts taken in their ‘quasi-judicial’ or ‘quasi-legislative’ capacity.”

Taylor v. Reilly, No. 09-0749, 2010 WL 891276, at *2 (D.D.C. Mar. 9, 2010); see Fletcher v.

U.S. Parole Comm’n, 550 F. Supp. 2d 30, 43 (D.D.C. 2008) (reaffirming grant to USPC

Commissioners of absolute quasi-judicial immunity from suit). Therefore, the plaintiff’s claim

for money damages against the USPC Commissioners in their individual capacities “is barred

because the defendants, as federal agents performing a quasi-judicial function in making a parole

determination in [the plaintiff’s] specific case, are protected by absolute quasi-judicial immunity

from such a suit.” Anderson v. Reilly, 691 F. Supp. 2d 89, 92 (D.D.C. 2010); Nelson v. Williams,

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750 F. Supp. 2d 46, 52 (D.D.C. 2010), aff’d, No. 10-5249, 2011 WL 2618078 (D.C. Cir. June 23,

2011), cert. denied, 132 S. Ct. 1035 (2012).

C. The Plaintiff Fails to State an Ex Post Facto Claim

“In order to state an ex post facto claim, plaintiff would have to allege that the parole

authority is applying later-adopted laws that disadvantage him instead of the laws that were in

effect at the time he committed the offenses.” Austin v. Reilly, 606 F. Supp. 2d 4, 9 (D.D.C.

2009) (citing Weaver v. Graham, 450 U.S. 24, 30 (1981)). In the parole context, a “retroactively

applied parole . . . regulation or guideline violates the Ex Post Facto Clause if it ‘creates a

significant risk of prolonging [the plaintiff’s] incarceration.’” Fletcher v. Reilly, 433 F.3d 867,

877 (D.C. Cir. 2006) (quoting Garner v. Jones, 529 U.S. 244, 251 (2000)).

Generally, under the indeterminate sentencing scheme in effect at all times relevant to the

Complaint, the Superior Court sentenced an offender “for a maximum period not exceeding the

maximum fixed by law, and for a minimum period not exceeding one-third of the maximum

sentence imposed, and any person so convicted and sentenced may be released on parole . . . at

any time after having served the minimum sentence.” D.C. Code § 24-403(a) (emphasis added).

The plaintiff was sentenced to an indeterminate prison term of five to 15 years, and his parole

eligibility thus was “established by the sentencing court.” Cosgrove v. Thornburgh, 703 F. Supp.

995, 997 (D.D.C. 1988). Parole may be granted when it appears that “there is a reasonable

probability that a prisoner will live and remain at liberty without violating the law, that his

release is not incompatible with the welfare of society, and that he has served the minimum

sentence imposed or the prescribed portion of his sentence, as the case may be.” D.C. Code §

24-404(a). In 1987, the Board promulgated regulations, see 28 D.C.M.R. § 204 (1987), which

adopted “criteria consist[ing] of pre[-] and post-incarceration factors which enable[d] the Board

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to exercise its discretion when, and only when, release is not incompatible with the safety of the

community.” 28 D.C.M.R. § 204.1. If the Board’s decision fell “outside the numerically

determined guideline,” the decision must have been “explained by reference to specific

aggravating or mitigating factors” set forth in Appendices 2-1 and 2-2. Id. § 204.1.

The Board could, “in unusual circumstances, waive the [Salient Factor Score] and the

pre[-] and post-incarceration factors . . . to grant or deny parole to a parole candidate.” 6 28

D.C.M.R. § 204.22. For example, a prisoner may have appeared to be a higher risk to the

community if his current offense involved ongoing criminal behavior, if he had an “[u]nusually

extensive and serious prior record,” or if he demonstrated “[u]nusual cruelty to victims.” 28

D.C.M.R. § 204, app. 2-1. In these circumstances, the Board could depart upward and deny

parole to a prisoner even if he otherwise would have been eligible for parole release under a

strict application of the 1987 Regulations. See 28 D.C.M.R. § 204.22. Conversely, a prisoner

could have been deemed a better risk than application of the 1987 Regulations would suggest,

and the Board could make a downward departure if, for example, his criminal record “result[ed]

exclusively from trivial offenses” or who experienced a “substantial crime-free period for which

credit [had] not already been given on the Salient Factor Score.” 28 D.C.M.R. § 204, app. 2-1.

In either circumstance, the Board would have been required to “specify in writing those factors”

on which it relied “to depart from the strict application” of the 1987 Regulations. 28 D.C.M.R. §

204.22.

It is true that the USPC applied its 2000 Guidelines, instead of the operative 1987

Regulations, at plaintiff’s initial parole hearing in 2003 and on rehearing in 2007. However, the

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The Salient Factor Score (“SFS”) is “an actuarial parole prognosis aid to assess the

degree of risk posed by a parolee.” 28 D.C.M.R. § 204.3. It is “one of the factors used in

calculating parole eligibility” pursuant to the 1987 Regulations. Id. § 204.2.

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record reveals that the USPC then shifted course and applied the 1987 Regulations at each

subsequent rehearing. And, it appears to the Court that the plaintiff did not remain in custody

past his minimum sentence because the USPC applied the incorrect set of parole guidelines.

Rather, he is in custody because the USPC expressly departed from the 1987 Regulations based

on its determination that the plaintiff is a more serious parole risk than would be indicated by his

point score alone, particularly given the repeated nature of the conduct, and the victim’s age,

mental incapacity, and familial relationship with the plaintiff. While the Court understands the

basis for plaintiff’s frustration, at bottom, the grant of parole is a discretionary exercise, and

while it was necessary that he be accorded due process, there was no legal imperative that

required that plaintiff be released when he was first eligible or at any particular point thereafter.

In addition, the defendants argue that the plaintiff’s ex post facto claim now “is moot

because the [USPC] applied the 1987 guidelines during reconsideration hearings.” Defs.’ Mem.

at 28. The Court concurs. See Johnson v. Reilly, 734 F. Supp. 2d 26, 27 (D.D.C. 2010)

(reconsideration hearing at which USPC applied 1987 Guidelines rendered injunctive and

declaratory relief moot). Even if the USPC had continued to apply its 2000 Guidelines in error,

the only relief the plaintiff could be awarded is a rehearing and application of the 1987

Regulations, and that has already occurred. See Sellman, 551 F. Supp. 2d at 84 (“Were these

plaintiffs to prevail in their ex post facto challenge, they would gain at most a new parole hearing

. . . .”) (citation and internal quotation marks omitted).

Finally, the plaintiff fails to demonstrate that the application of the 2000 Guidelines had

the effect of extending his time in prison beyond the time the USPC could have imposed had it

applied the 1987 Regulations. Absent such a showing his ex post facto claim fails.

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Based on the nature of the plaintiff’s offense, his criminal history, and the vulnerability of

the victim, the USPC deemed the plaintiff to be a more serious risk than his score otherwise

indicated. An upward departure in these circumstances is a valid exercise of the USPC’s

discretion. See Phillips v. Fulwood, 616 F.3d 577, 582 (D.C. Cir. 2010) (upward departure from

parole guidelines based on conclusion that prisoner represented a more serious risk than the

guideline range indicated); Cambrel v. Bledsoe, No. 3:CV-08-1684, 2011 WL 3439199, at *11

(M.D. Pa. Aug. 5, 2011) (finding that, applying 1987 Regulations on parole rehearing, the USPC

cited valid reason for deviation from guideline range, thus setting forth “a rational and

reasonable basis for denying . . . parole”); Cobb v. Warden, FCI Gilmer, No. 5:10CV66, 2011

WL 1137304, at *4 (N.D.W. Va. Mar. 25, 2011) (rejecting ex post facto claim arising from

upward departure from 1987 Regulations on rehearing because “there [was] a reasonable

probability that the petitioner would not obey the law if released and would pose a threat to the

community”); see also Blunt v. DeBoo, No. 10-cv-73, 2011 WL 198106, at *3 (N.D.W. Va. Jan.

19, 2011) (noting that “the Sellmon litigation re-affirmed application of 28 C.F.R. § 2.80(o) in

those cases where the Commission departed from the guidelines on the basis that the prisoner’s

release would pose a ‘serious risk’ to the public safety”).

D. The Plaintiff Fails to State a Due Process Claim

The plaintiff argues that the USPC “increased [his] sentencing range taking him well past

his eligibility/suitability release date,” Compl. ¶ 57, and thus “caus[ed] a liberty interest violation

through procedural due process,” id. ¶ 58. He claims that, under the 1987 Regulations, he “could

have be[en] paroled immediately after service of his minimum sentence.” Id. ¶ 62 (emphasis in

original). The plaintiff maintains that the parole statute and the 1987 Regulations employ

“mandatory language” which so restricts the USPC’s discretion that the 1987 Regulations “give

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rise to a protectable liberty interest in parole release.” Pls.’ Resp. to Defs.’ Mot. to Dismiss

(“Pl.’s Opp’n”) at 16. The law, however, recognizes no liberty interest in parole.

“There is no constitutional or inherent right of a convicted person to be conditionally

released before the expiration of a valid sentence.” Greenholtz v. Inmate of Nebraska Penal &

Correctional Complex, 442 U.S. 1, 7 (1979). The District of Columbia Code “provides no

substantive limitations on the Board’s authority to grant parole which would create a liberty

interest.” Price v. Barry, 53 F.3d 369, 370 (D.C. Cir. 1995). And under the 1987 Regulations,

“parole is never ‘required after the Board determines that the necessary prerequisites exist.’”

Ellis v. District of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996) (quoting Bd. of Pardons v.

Allen, 482 U.S. 369, 376 (1987)) (emphasis in original); McRae v. Hyman, 667 A.2d 1356, 1361

(D.C. 1995) (concluding that the 1987 Regulations do not give rise to a liberty interest in parole).

E. The Plaintiff Fails to State an Equal Protection Claim

The plaintiff alleges that the defendants’ failure to grant parole violated his right to equal

protection. Compl. ¶ 71. He contends that he was “treated with discrimination.” because three

other sex offenders “had received presumptive dates” for their parole release but he had not.

Pl.’s Opp’n at 17. The complaint sets forth no factual allegations to support an equal protection

claim -- there are no allegations from which the Court could conclude that the plaintiff “is a

member of a suspect class deserving heightened scrutiny,” that his membership in that class

played any role in the USPC’s decision, or that other similarly situated persons received more

favorable treatment. See King v. U.S. Parole Comm’n, No. 02-5207, 2002 WL 31520756, at *1

(D.C. Cir. Nov. 13, 2002) (per curiam); see also Hunter v. U.S. Parole Comm’n, 308 F. App’x

856, 859-60 (5th Cir. 2009) (deeming the plaintiff’s equal protection claim abandoned absent

allegation or proffer that he was treated differently from similarly-situated prisoners because of

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the defendants’ discriminatory intent). The complaint offers no “factual content that allows the

court to draw the reasonable inference that [the defendants are] liable for the misconduct

alleged,” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009), and, therefore, the

plaintiff’s equal protection claim must be dismissed.

III. CONCLUSION

The complaint fails to state claims upon which relief can be granted and, accordingly, the

defendants’ motion to dismiss will be granted. An Order accompanies this Memorandum

Opinion.

AMY BERMAN JACKSON

United States District Judge

DATE: May 16, 2012

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