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BRANDON v. DISTRICT OF COLUMBIA BD. OF PAROLE

March 28, 1986

ROOSEVELT BRANDON, Plaintiff,
v.
DISTRICT OF COLUMBIA BOARD OF PAROLE, et al., Defendants


Charles R. Richey, United States District Judge.


The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 The Court has before it cross motions for summary judgment and the oppositions and replies thereto. Plaintiff in the above-entitled action is a prisoner at Lorton Reformatory presently serving a ten to thirty year consecutive sentence for a charge of rape while armed. Prior to this, he was sentenced to a term of ten to thirty years for second degree murder and served nine years before being paroled.

 Originally, plaintiff filed his complaint pro se. Another deceased member of this Court dismissed the complaint sua sponte. The Court of Appeals, 734 F.2d 56, 236 App. D.C. 155 (1984), reversed the sua sponte dismissal and remanded the case to this Court. Counsel was appointed pro bono publico, and an amended complaint and petition for habeas corpus was subsequently filed.

 Plaintiff alleges in his Amended Complaint and Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241 (1982) that defendants violated his Due Process and Equal Protection Rights under the Fifth Amendment of the Constitution. Plaintiff further contends that the actions of the Parole Board violated 42 U.S.C. § 1983, and, prior to the application of 42 U.S.C. § 1983 to the District of Columbia, the principles set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971).

 Plaintiff requests that the Court (1) declare that defendants violated his Due Process and Equal Protection Rights; (2) order the defendants to amend the plaintiff's Certificate of Parole; (3) award general damages of $200.00; and (4) award attorney's fees and costs.

 Upon consideration of the briefs, argument of counsel, the administrative record, the declarations, and depositions in evidence, the Court finds that it must grant defendants' Motion for Summary Judgment and deny plaintiff's Cross Motion. In so doing, the Court, with the consent of both sides, has resolved any issues of fact in accordance with the agreement of the attorneys at the Summary Judgment hearing on October 2, 1985.

 BACKGROUND

 Plaintiff, Roosevelt Brandon, pled guilty to second degree murder on January 20, 1966. In April of that year, he was sentenced to ten to thirty years in prison. After serving nearly nine years at Lorton Reformatory, the plaintiff was paroled in April, 1975. Seven months later, plaintiff was arrested and charged with rape while armed. Subsequently, his parole was revoked in February of 1976; he was sentenced to ten to thirty years in April, 1976. This sentence was to run consecutively to his prior sentence for second degree murder.

 In November, 1976, the plaintiff was scheduled for a parole hearing. However, the Parole Board continued his hearing date because his presentence report was unavailable. In January, 1977, the Board of Parole held a hearing and denied reparole. Again, in October, 1977, reparole was denied, but this time the Board of Parole requested a Forensic Psychiatric Office evaluation. According to the Chairperson of the Board of Parole, it was the Board's policy during these years to require a Forensic Psychiatric Office report for any person, such as the plaintiff, convicted of a violent crime. Just Deposition at 59. In May, 1978, plaintiff had a single consultation with the staff clinical psychologist who determined that he needed more data to assess the plaintiff's psychiatric needs.

 In February, 1979, the Board held another reparole hearing. However, this hearing was continued pending the completion of the psychiatric report requested in October, 1977. In April, 1979, the plaintiff was examined by a psychiatrist, Dr. Mould, who referred the plaintiff to the psychiatric clinic. The plaintiff began psychotherapy four months later.

 In November, 1979, the Classification Board at the District of Columbia Correctional Complex recommended that the plaintiff be reparoled to his consecutive term because of the gains he had made in the program and in his psychiatric counselling. On February 1, 1980, the plaintiff was reparoled to his consecutive sentence.

 PLAINTIFF MUST HAVE A PROTECTED LIBERTY INTEREST FOR DUE PROCESS TO APPLY

 Due process analysis begins with an inquiry as to whether the government's action deprived the plaintiff of a constitutionally protected interest in life, liberty, or property. Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 843 (9th Cir. 1985); see U.S. Const. amend. V. Only after the plaintiff has shown that a constitutionally protected interest is involved will a court examine what process was due. It is axiomatic that due process is not implicated every time an individual suffers a "grievous loss" because of some government action. Meachum v. Fano, 427 U.S. 215, 224, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976), quoted in Baumann, 754 F.2d at 843. Moreover, an individual must have more than an unilateral expection; he must have a "legitimate claim to entitlement." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), quoted in Greenholtz, ...


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