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March 18, 2004.


The opinion of the court was delivered by: REGGIE WALTON, District Judge

*fn1 When plaintiff initially filed his complaint, he named Edward F. Reilly, Commissioner of the United States Parole Commission, as the sole defendant. However, on August 13, 2003, plaintiff filed a Motion to Correct Caption and Substitute Defendant in Complaint, wherein he sought to name the United States Parole Comm ission as the sole defendant. Because the Court will grant this motion in the Order accompanying this Memorandum Opinion, it will not discuss defendant's arguments as it pertains to Mr. Reilly in his individual capacity, including plaintiff's alleged failure to serve Mr. Reilly in that capacity.


Plaintiff Charles E. Forrester, Jr., who is proceeding pro se, has brought this action challenging the decision by the United States Parole Commission (the "Commission") to deny him parole and seeks to compel the Commission to expunge inaccurate information maintained in its records. Defendant has filed a motion to dismiss plaintiff's complaint. For the reasons set forth below, the Court will grant the defendant's motion.

  I. Factual Background

  According to the record in the plaintiff's underlying criminal case, on July 8, 1991, the plaintiff told his co-defendant, Deon Adams, that he had money for him but he needed his help hauling some trash. Defendant's Motion Page 2 to Dismiss ("Def.'s Mot."), Exhibit ("Ex.") B (Presentence Report re: Charles E. Forrester, at 3). When the two arrived at two vacant buildings located at Alabama Avenue and Smith Place, in Southeast, Washington, D.C., plaintiff told Adams that he would not pay Adams the money he owed him unless Adams assisted plaintiff in setting fire to the two buildings. Id. Adams agreed and proceeded to set one of the buildings on fire while the plaintiff set the other building on fire. As Adams was exiting the building he had set on fire, the plaintiff threw gasoline on him, and set him on fire. Id. Adams was seriously injured but he survived his injuries.*fn2

  Both the plaintiff and Adams were charged with two counts of destruction of property and two counts of arson. Id. at 4. Adams pled guilty to one count of felony destruction of property, and testified against plaintiff at his trial. Id. Plaintiff was found guilty of destruction of property, arson, assault with intent to kill, and malicious disfigurement. Id. at 5. Plaintiff was sentenced "to an aggregate prison term of [nine to] twenty-seven years. . . ."*fn3 Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 3-4; Def.'s Mot., Ex. A (Superior Court of Page 3 the District of Columbia Judgment and Commitment/Probation Order dated March 1, 1994).

  On January 12, 1999, plaintiff's initial parole hearing was held. Compl. at 3.*fn4 At this hearing, plaintiff stated "that he accept[ed] full responsibility for [his] crime[,]" however, he also denied pouring gasoline on Adams and stated that Adams set the fires, not plaintiff. Def.'s Mot., Ex. C (D.C. Initial Hearing Summary) at 1. Based on plaintiff's prior criminal history and his current offense, minus two points for superior program achievement, the hearing examiner awarded plaintiff a total point score of 2. Id. (D.C. Code Point Assignment Sheet) at 2. However, the hearing examiner stated that based on the plaintiff's current offense, in addition to " 1 previous conviction for malicious destruction and battery, it appears that the subject does pose a more serious risk than reflected by the point score of 2." Id. at 3. Thereafter, on February 17, 1999, plaintiff was issued a Notice of Action indicating that he was being denied parole. Def.'s Mot., Ex. D (Notice of Action dated February 17, 1999) at 1. While based on his Total Point Score "[t]he guidelines for adult offenders . . . indicate[d] that parole should be granted at th[at] time[,]" the Page 4 Commission determined that parole should be denied because it concluded:
[Plaintiff] [is] a more serious risk than indicated by [his] Total Point Score in that [he] demonstrated the mentality of a ruthless professional criminal, which [he] confirmed by refusing to accept responsibility at [his] parole hearing. In addition to setting fire to a building, [plaintiff's] deliberate act of throwing gasoline on [his] codefendant and lighting him on fire demonstrates extreme brutality to the victim. The apparent reason for [his] heinous actions were to obstruct justice by silencing a key witness and thus eliminating evidence to be used against [him] in a court of law. As a result of [his] actions the victim was left permanently disfigured. Further, [his] actions that involved setting two buildings on fire had the effect of endangering the lives of emergency fire fighters. . . .
After a consideration of all factors and information presented, a departure from the rehearing guidelines at this consideration [sic] is warranted for the following reasons: It is unlikely that continued positive program performance will be a meaningful indication of acceptable risk for release on parole in [plaintiff's] case in light of the serious long term risk factors described above.
Id. at 1. A parole rehearing date was initially scheduled for September 22, 2004, and after several corrections,*fn5 was scheduled for "March 2004, after the service of 60 months from [plaintiffs] parole eligibility date of March 23, 1999." Id.; Def.'s Mot., Ex. H (Notice of Action dated June 2, 2001).

  On June 7, 2000, the Commission issued a Notice of Action informing plaintiff that his "salient factor score" was being "changed from a 9 to a 10 Page 5 because the offense in case number CA-892113X did not result in a conviction as the Commission had been informed." Def.'s Mot., Ex. G (Notice of Action dated June 7, 2000). Plaintiff was informed that this change did "not affect [his] base point score or [his] total point score and [did] change the Parole Commission's decision to deny parole. . . ." Id. On April 23, 2003, plaintiff wrote a letter to Edward F. Reilly, Chairman of the Commission, to state that the inaccurate information concerning the state conviction still remained in his parole file. Compl., Ex. 3 (Letter to Edward F. Reilly from Charles E. Forrester, dated April 28, 2003) at 1. Specifically, plaintiff noted that while the initial hearing report indicated that plaintiff had " 1 previous conviction for malicious destruction and battery," in actuality the charge had been dismissed by the prosecutor, and thus there was no prior conviction. Id., at 2. Plaintiff requested that the inaccurate information be "expunged from [his] parole file immediately, especially in light of the fact that [he is] scheduled to have [his] parole reconsideration hearing in March 2004." Id.

  On May 14, 2003, plaintiff filed his complaint in this Court. Plaintiff advances several arguments as grounds for the relief he is requesting. First, he alleges that he has a viable claim pursuant to 42 U.S.C. § 1983 (2000), because when the Commission applied the "harsher, federal preponderance of the evidence standard. . . . to determine plaintiff's suitability for release on parole[,]" it violated his civil rights because, as a District of Columbia offender, Page 6 the Commission should have applied the District of Columbia "parole laws and regulations." Compl. at 5. Alternatively, plaintiff states that he brings this lawsuit pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706 (2000), because the defendant's decision to apply the harsher federal standard to him was arbitrary and capricious. Id. at 4-5. Finally, plaintiff asserts a claim pursuant to the Privacy Act, 5 U.S.C. § 552a(e)(5) (2000), for the defendant's failure to expunge the information that incorrectly indicates that he had a prior felony conviction from his parole file. Id. at 21-22. Plaintiff seeks, inter alia, an "injunction/declaratory judgment against the Commission, compelling the agency to conduct an immediate parole hearing . . . in which it employ[s] all applicable D.C. parole laws and regulations . . ." Id. at 27, ¶ 3.

  II. Defendant's Motion to Dismiss

  Defendant has filed a motion seeking dismissal of plaintiff's complaint. First, defendant argues that plaintiff seeks early release from confinement and, therefore, plaintiff's sole avenue for relief is to file a petition for a writ of habeas corpus. Def.'s Mem. at 6. However, because plaintiff previously filed a petition for writ of habeas corpus or, alternatively, a writ of mandamus, in the United States District Court for the Eastern District of Virginia, which the district court denied, defendant further contends that plaintiff is barred from pursuing such relief again pursuant to the Supreme Court's decision in McClesky v. Zant, 499 U.S. 467, 494 (1991), or alternatively, on res judicata grounds. Id. Page 7 at 8-9. Next, defendant argues that plaintiff cannot bring a § 1983 claim against the federal defendants because the statute "only applies to state officials acting under color of state law." Id., at 11 (citation omitted). Furthermore, defendant asserts that plaintiff cannot obtain monetary damages because such relief is barred by the doctrine of sovereign immunity. Id., at 12. Finally, defendant contends that plaintiff's Privacy Act claim lacks merit because "[t]he Commission is not required to expunge records from an inmate's file and more importantly, . . . the information has not been relied upon in making a decision in [plaintiffs] case." Id. at 23 (citation omitted).

  Plaintiff takes exception to all of defendant's arguments.*fn6 First, plaintiff contends that he "did not bring his § 1983 [action] to challenge the fact or duration of his imprisonment[,]" and thus he is not limited to seeking habeas relief. Plaintiff's Reply [sic] to the Defendant's Motion to Dismiss Plaintiff's Complaint ("Pl's Opp'n") at 2. Rather, according to plaintiff, he initiated this lawsuit to challenge "the Commission's prohibited application of the federal parole regulation . . . upon plaintiff, which denied him a fair and impartial parole procedure. . . ." Id., at 2-3. Second, plaintiff argues that he has asserted a cognizable claim under the APA "because the Commission has employed a wholly federal standard upon plaintiff during the course of his Page 8 initial parole hearing, [and therefore] the Court [should] . . . conclude that the Commission has arbitrarily and capriciously abused its discretion. . . ." Id. at 11. Plaintiff further argues that res judicata should not be "employed . . . to defeat the ends of justice or so as to work an injustice." Id. at 10. Third, as to his Privacy Act claim, plaintiff maintains that because the hearing examiner "considered false information to recommend that plaintiff be denied parole . . . [a] reasonable fact finder would infer that the examiner and the Commissioners' decision making process was tainted with the use of a wholly false felony conviction. . . ." Id. at 16-17. Finally, plaintiff argues that because the Commission has not expunged the false information, even after plaintiff notified the Commission of this fact, the Court should exercise its discretion and require the agency to expunge this false information from plaintiff's parole files. Id. at 24.


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