Jesse Redmond v. Isaac Fulwood, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2016 Decided June 9, 2017

No. 15-5145

JESSE R. REDMOND, JR.,

APPELLANT

v.

ISAAC FULWOOD, JR., FORMER CHAIRMAN, UNITED STATES

PAROLE COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00308)

David C. Wolff, appointed by the court, argued the cause

as amicus curiae in support of appellant. With him on the

briefs was Kathryn L. Clune.

Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief was R. Craig

Lawrence, Assistant U.S. Attorney.

Before: ROGERS, BROWN and MILLETT, Circuit Judges.

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Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Jesse Redmond, Jr. was

convicted of sexual assault under District of Columbia law. He

was twice denied parole by the United States Parole

Commission. Alleging that his denials of parole were infected

by unconstitutional decisionmaking, Redmond filed suit

against the then-Chair of the Commission, Isaac Fulwood, Jr.,

in his personal capacity. The district court dismissed the case

sua sponte, concluding that parole commissioners are entitled

to absolute immunity from such lawsuits. We affirm, albeit on

the ground that Fulwood is entitled to qualified immunity. We

leave for another day the question of whether parole

commissioners merit absolute immunity as a matter of law.

I

Jesse R. Redmond, Jr. was convicted in the District of

Columbia in 1996 of one count of first-degree sexual assault,

and acquitted of one count of oral sodomy and one count of

anal sodomy. He was sentenced to serve fifteen years to life in

prison. Fifteen years after his conviction, in 2011, Redmond

became eligible for parole. He was denied parole both at his

2010 pre-eligibility hearing and in a subsequent hearing held in

2011. The 2011 denial occurred despite the Hearing

Examiner’s finding that Redmond should be paroled under the

applicable parole guidelines.

Dissatisfied with his parole denials and without any option

to appeal, Redmond brought suit against the then-Chairman of

the United States Parole Commission, Isaac Fulwood, Jr., in his

personal capacity, pursuant to Bivens v. Six Unknown Named

3

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1

The district court sua sponte dismissed Redmond’s complaint

under the Prison Litigation Reform Act, 28 U.S.C.

§§ 1915(e)(2)(B)(iii), 1915A(b)(2), holding that Fulwood is

absolutely immune from suit for acts taken in the course of his

duties as Chairman of the United States Parole Commission.

Redmond appealed to this court, and we now affirm. We

do so, however, because Fulwood is entitled to qualified

immunity for each of the claims in Redmond’s complaint.

Accordingly, we need not and do not reach the question of

whether Fulwood is entitled to absolute immunity for actions

taken during his tenure as Chairman of the United States Parole

Commission. See Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C.

Cir. 2012) (“Because we conclude that the [Parole

Commission] defendants are entitled to qualified immunity, we

do not address the issue of absolute immunity.”); see also

Radtke v. Caschetta, 822 F.3d 571, 573 n.2 (D.C. Cir. 2016)

(“[W]e are free to affirm the lower court on alternative

grounds.”) (citing RSM Prod. Corp. v. Freshfields Bruckhaus

Deringer U.S. LLP, 682 F.3d 1043, 1045 n.2 (D.C. Cir. 2012)).

1

The United States Parole Commission exercises parole jurisdiction

not only over federal offenders, but also over individuals convicted

of crimes under District of Columbia law. However, unlike federal

offenders, those who were convicted of violating District law (like

Redmond) are not entitled to appeal parole denials to the National

Appeals Board. See DEPARTMENT OF JUSTICE, U.S. PAROLE

COMM’N, Frequently Asked Questions: Is it possible to appeal the

parole decision?, https://www.justice.gov/uspc/frequently-asked-

questions#q7 (last accessed May 30, 2017) (“Decisions granting or

denying parole for prisoners sentenced under the District of

Columbia Code may not be appealed to the Commission. D.C.

offenders may appeal decisions revoking their parole or supervised

release.”).

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II

Courts are required to dismiss complaints in civil actions

“in which a prisoner seeks redress from a governmental entity

or officer or employee of a governmental entity,” and the

complaint “seeks monetary relief from a defendant who is

immune from such relief.” 28 U.S.C. § 1915A; see also id.

§ 1915(e)(2)(B)(iii). Accordingly, a prisoner’s civil complaint

is properly dismissed sua sponte if the person the prisoner

seeks to sue is protected by either qualified or absolute

immunity. See, e.g., Reynolds v. Morrison, No. 16-5151, 2016

WL 7438665, at *1 (D.C. Cir. Dec. 22, 2016) (affirming

dismissal under 28 U.S.C. § 1915A(b) because defendants

were entitled to judicial immunity); cf. Thompson v. Drug

Enforcement Admin., 492 F.3d 428, 435 (D.C. Cir. 2007)

(noting that qualified immunity is a basis for dismissal of

prisoner complaints under 28 U.S.C. § 1915A).

Qualified immunity shields federal and state officials from

suits for money damages unless a plaintiff shows both that

(i) the official violated a statutory or constitutional right, and

(ii) that right was “clearly established at the time of the

challenged conduct.” Taylor, 685 F.3d at 1113 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). We can

begin—and often end—our qualified immunity analysis with

either prong of the test. Taylor, 685 F.3d at 1113.

Because Redmond has proceeded pro se, we construe the

allegations of his complaint liberally. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be

liberally construed,’ and ‘a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.’”) (citations omitted).

However, because Redmond brought suit against Fulwood

only in his personal capacity, Redmond’s suit must be limited

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to actions taken specifically by Fulwood or by the Commission

with Fulwood’s involvement. That is to say, Fulwood cannot

be held personally responsible for all of the Commission’s

actions, in particular those decisions in which he did not take

part. Accordingly, because the only decision with respect to

Redmond that Fulwood participated in was the 2011 decision

denying Redmond’s request for reconsideration of the adverse

parole determination, our review is limited to that decision.

Liberally read, Redmond’s complaint alleges five claims

against Fulwood. The first four claims are allegations that

Fulwood violated Redmond’s rights under the Due Process

Clause of the Fifth Amendment by: (i) failing to consider that

Redmond was acquitted of sodomy charges at trial; (ii) denying

parole because Redmond had not completed certain

rehabilitative courses, even though those courses were not

offered at the facility in which Redmond was incarcerated; (iii)

failing to correct errors in Redmond’s parole guideline scores;

and (iv) exhibiting bias against Redmond due to the nature of

his offense.2 The fifth claim is an allegation that Fulwood

violated Redmond’s First and Fifth Amendment rights by

grounding the denial of parole in part on Redmond’s continued

profession of innocence.

As a matter of law, Fulwood enjoys qualified immunity for

each of those claims.

First, with respect to the alleged failure to consider that

Redmond was acquitted of the sodomy charges at trial,

2

Redmond frames his bias argument as a violation of his First

Amendment rights, but allegations of bias and unfair treatment more

accurately sound in due process. Given our obligation to construe

Redmond’s complaint liberally, we analyze his bias argument under

the Fifth Amendment’s Due Process Clause.

6

Redmond does not plausibly allege any constitutional violation

because Fulwood expressly acknowledged that acquittal in the

decision. See Appellee’s Br. Add. 2 n.1 (“Redmond was

convicted of sexual assault (vaginal intercourse), but acquitted

of oral and anal sodomy as was pointed out in a memo

addressing counsel’s request to schedule Redmond’s rehearing

earlier than ordered.”).

Second, regarding the importance attached by the

Commission to parole applicants’ participation in rehabilitative

programs, Fulwood did not leave Redmond in the impossible

position of having to take unavailable courses, as he alleges.

Instead, Redmond was advised to “volunteer for the

comprehensive residential sex offender treatment program so

that he could be transferred to a facility that conducts the

program” or “to participate in other comprehensive programs

that will reduce his risk level.” Appellee’s Br. Add. 3. There

is nothing plausibly unconstitutional about advising Redmond

to participate in certain programs that would best prepare him

for paroled release into society.

Third, with respect to the Commission’s improper reliance

on an erroneous salient factor score under the parole guidelines,

Fulwood candidly acknowledged that error in his

reconsideration letter. See Appellee’s Br. Add. 3. (“Counsel is

correct that the Commission should not have counted

[Redmond’s] convictions and commitments where there was a

period of more than 10 years between the last countable

conviction and the commencement of the current offense

conduct.”). That error is of no constitutional moment,

however, because either way the District’s parole guidelines

recommended that Redmond be granted parole. Id. The

Commission chose to override that recommendation, making

any errors in its calculation beside the point. See 28 C.F.R.

7

§ 2.74(b) (Commission may depart from the guidelines

recommendation).

Fourth, Fulwood is entitled to qualified immunity for

Redmond’s allegation of bias arising from the nature of his

crime because there is no clearly established right for parole-

eligible prisoners to be treated equally in the parole process

regardless of the nature or seriousness of their crimes. Indeed,

Parole Commissioners are expected to grant parole only when

there is a “reasonable probability” that (i) the prisoner “will live

and remain at liberty without violating the law,” (ii) “his or her

release is not incompatible with the welfare of society,” and

(iii) “he or she has served the minimum sentence imposed or

the prescribed portion of his or her sentence[.]” D.C. CODE

§ 24-404(a). The latitude granted to the Commission in

making that determination is broad, and some consideration of

the nature of the underlying crime makes sense. See McRae v.

Hyman, 667 A.2d 1356, 1357 (D.C. 1995) (“The District’s

parole scheme confers discretion to grant or deny parole[.]”);

see also Gooding v. Marberry, 341 F. App’x. 173, 174 (7th Cir.

2009) (“The District of Columbia’s parole regime * * * is

entirely discretionary[.]”).

Finally, no clearly established First or Fifth Amendment

law prohibited Fulwood’s consideration of Redmond’s refusal

to acknowledge culpability. Redmond cites no appellate or

Supreme Court case holding that the Constitution forbids

factoring a refusal to admit guilt into the length of

incarceration. Indeed, the Third Circuit has specifically held

that the requirement that a prisoner seeking parole first admit

guilt does not violate the prisoner’s First Amendment rights.

See Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010).

Moreover, a plurality of the Supreme Court has explained that

conditioning participation in certain rehabilitative programs for

prisoners on an admission of guilt is constitutionally

8

permissible because “[a]cceptance of responsibility is the

beginning of rehabilitation,” and “a recognition that there are

rewards for those who attempt to reform is a vital and necessary

step toward completion.” McKune v. Lile, 536 U.S. 24, 47

(2002) (plurality opinion of Kennedy, J.); cf. U.S.S.G.

§ 3E1.1(a) (“If the defendant clearly demonstrates acceptance

of responsibility for his offense, decrease the offense level by

2 levels.”). Given that precedent, it was not clearly

unconstitutional in these circumstances for Fulwood to factor

Redmond’s refusal to admit guilt into his decisionmaking.

Because, under even the most generous reading of the

complaint, Fulwood is entitled to qualified immunity on each

of the claims against him, we affirm the district court’s

dismissal of Redmond’s complaint.

So ordered.