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PATE v. U.S.

August 6, 2004.

ANTHONY PATE, Plaintiff,
U.S., et al., Defendants.

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


Currently before the Court is Defendant United States' Motion for Summary Judgment ("Def.'s Mot.") [DE # 30] and the plaintiff's opposition thereto. The plaintiff, Anthony Pate, brings this action against the United States alleging that the United States Parole Commission ("USPC") and its employees caused him to be wrongfully detained for an alleged parole violation. In support of its motion for summary judgment, the United States advances three grounds upon which it contends the Court should rule in its favor: "(1) [the p]laintiff's claims are barred by the doctrine of res judicata; (2) the United States is shielded from liability by sovereign immunity; and (3) the United States fully complied with its regulations." Def.'s Mot. at 1. Because the Court concludes that the Federal Tort Claims Act ("FTCA") does not confer subject matter jurisdiction to this Court over the claims actually asserted in this case, where the alleged negligence arises out of the failure of the United States to properly carry out its administrative responsibilities, the defendant's motion must be granted. I. FACTS

On October 19, 1994, Anthony Pate was released on parole after serving sentences for robbery and possession of an unlicenced firearm convictions that were secured in the Superior Court of the District of Columbia. Defendant's Statement of Material Facts as to Which There is no Genuine Dispute ("Def.'s Statement") ¶ 1, adopted in the Memorandum of Points and Authorities in Support of Defendant United States' Motion for Summary Judgment ("Def.'s Mem."); see also Def.'s Mot. at Exhibit ("Ex.") A; Plaintiff's Opposition to Defendants [sic] United States' Motion for Summary Judgment ("Pl.'s Opp'n") at 3-4.*fn1 On September 8, 1999, the District of Columbia Board of Parole ("DCBP") issued a parole violation warrant for Pate's arrest alleging his involvement in the first-degree murder of his brother.*fn2 Def.'s Mo., Ex. F; Pl.'s Opp'n at 3. Pate was arrested pursuant to the warrant on February 3, 2000. Def.'s Mot., Ex. F; Pl.'s Opp'n at 3.

  The charges against Pate for the killing of his brother were eventually dismissed without prejudice for want of prosecution on June 1, 2000.*fn3 Def.'s Mot., Ex. K; Pl.'s Opp'n at 3. Pate's counsel informed the DCBP of the dismissal of the charges the following day. Def.'s Mot., Ex. H. According to the government, "the case [against Pate] remain[ed] an open and ongoing grand jury investigation" despite the grand jury's failure to return an indictment. Def.'s Mot., Ex. K. Within the first few months of Pate's detention, four status hearings were convened to assess whether Pate had violated his parole, two held on July 11, 2000 and August 2, 2000, prior to the federal government assuming control over the District of Columbia's parole system, and two held on September 19, 2000, and October 6, 2000,*fn4 after the federal government assumed control over the system.*fn5 Def.'s Mot., Ex. I, M, O & R. At each hearing, the convening board determined that it did not have enough evidence to make an informed determination concerning whether Pate's parole should be revoked and deferred a decision on the matter pending the presentation of further information. Def.'s Statement ¶ 4; Pl.'s Opp'n at 3. As the records of those hearings indicate, one of the reasons that the hearing officer repeatedly concluded that the hearings had to be postponed was that the investigating officers had not appeared to present testimony. Def.'s Mot., Ex. I, M, O & R. After the fourth occasion on October 6, 2000, the USPC formally requested that it receive any documentation the United States Attorneys Office ("USAO") had related to the evidence against Pate, specifically, any documentation about eyewitnesses, any statements of the investigating officers, and whether the firearm used to commit the murder had been recovered. Def.'s Mot., Ex. P; Pl.'s Opp'n at 3. Within a week, the USAO responded to the request by providing the USPC with the names and telephone numbers of the investigating officers and several police reports relating to Pate, but it refused to produce the eyewitnesses for "security" reasons. Def.'s Mot., Ex. Q; Pl.'s Opp'n at 3. It also reported that no weapon was ever recovered. Def.'s Mot., Ex. Q.

  Eight months later, on June 11, 2001, the USPC subpoenaed the police officers to appear at a fifth hearing on June 19, 2001. Def.'s Mot., Ex. S, T, & U; Pl.'s Opp'n at 3. Again the officers failed to appear for the hearing. Def.'s Mot., Ex. V; Pl.'s Opp'n at 3. On June 19, 2001, the hearing examiner stated that he had no concrete evidence before him that implicated Pate in the murder and criticized the officers for failing to appear upon request for the fifth time. Def.'s Mot., Ex. V. The examiner concluded that Pate had not violated his parole and recommended that Pate be returned to parole supervision with the time that Pate had been in custody on the murder warrant credited to his sentence. Id. Despite this recommendation, Pate remained in custody until early July of 2001. Pl.'s Opp'n at 3-4. The rationale given for the delay by the USPC, ten days after the June 19, 2001 recommendation, was that the "exceptional circumstances" of Pate's violent history and past obstruction of justice combined with him being charged with murder based on the statement of an eye-witness who identified Pate as the perpetrator, required that "a final attempt by the [USPC] to convene a revocation hearing with the necessary witnesses" be made prior to Pate's release. Def.'s Mot., Ex. V at 6.

  While waiting for yet another hearing, Pate filed a petition for a writ of habeas corpus during the first week of July 2001.*fn6 Pl.'s Opp'n at 4. However, after nearly a year in custody, the USPC finally released Pate on July 10, 2001, concluding that no further evidence would be brought before it that might establish the probable cause necessary to hold him. Def.'s Mot., Ex. V & W. In total, Pate "was in custody under the jurisdiction of the [USPC] from August 5, 2000, through on or about July 10, 2001." Def.'s Statement ¶ 16.

  Pate filed this action on August 5, 2002, alleging that the USPC violated his civil rights by detaining him for nearly nine months without a timely hearing to determine his parole status.*fn7 Pl.'s Opp'n at 2. On September 25, 2003, the United States moved for summary judgment under three theories: (1) that Pate's claims are barred by res judicata and collateral estoppel based on the resolution of a prior class action suit in which Pate was a party; (2) that it is shielded from suit pursuant to the FTCA in this action by sovereign immunity; and (3) that the USPC acted in compliance with its governing regulations, 28 C.F.R. § 2.101 et seq. (2001).*fn8 Def.'s Mot. at 1. The plaintiff opposes the motion.


  A. Whether the Plaintiff has Pled Constitutional Claims against the United States?

  The United States in its motion for summary judgment states that "[the p]laintiff makes only common-law tort claims against the United States." Def.'s Mem. at 1. Pate argues in his opposition to the summary judgment motion that, in fact, he has alleged constitutional claims against the United States. Pl.'s Opp'n at 2.

  Pate initially filed suit against both the District of Columbia and the United States, as well as against individual members of the DCBP, but he did not assert both constitutional and common law claims against every defendant. Plaintiff's Complaint for Violation of Civil Rights, Gross Negligence and Damages ("Pl.'s Compl.") ¶¶ 33-35. Pate generally alleges in the first paragraph of his complaint that the "[d]efendants subjected [him] to constitutional violations of his Due Process rights under the Fifth Amendment and unreasonable seizure in violation of the Fourth Amendment to the Constitution. Pendent common law claims are also made by the plaintiff including gross negligence and negligence." Id. ¶ 1 (emphasis added). However, elsewhere in the plaintiff's complaint, where he specifically names the defendants against whom he is asserting his claims, the plaintiff carefully crafts his allegations so as to assert his constitutional claims only against the District of Columbia and its employees. For example, under the heading "Parties," Pate identifies individual members of the DCBP by name and alleges that those persons are responsible for "insur[ing] that all constitutional, statutory and local laws are complied with." Id. ¶¶ 5-7 (emphasis added). Yet, when Pate identifies the United States as the federal entity responsible for the USPC and its employees, he only alleges that the United States is responsible for "gross negligence" committed by its employees, and not for the commission of any constitutional violations. Id. ¶ 8. Further, in setting forth the counts against the defendants, Pate divides his claims into "constitutional claims" and "common law claims," and lists only the "[t]he [d]efendants District of Columbia, [and individual members of the DCBP, namely,] Margaret Quick, Jasper Clay and Michael Green" under the heading "constitutional claims," id. ¶¶ 3-4, while listing the United States, the USPC, and the District of Columbia under the heading "common law claims." Id. ¶ 35.

  Pate's claims against the individual members of the DCBP and the District of Columbia have already been dismissed. Memorandum Opinion of July 24, 2003; Stipulation of Dismissal at 1. Yet, Pate has suggested in his opposition to the current motion that his constitutional claims have survived the dismissal of the District of Columbia defendant since he "was held in violation of his constitutional rights and [the USPC] violated his rights to due process and to be free from unreasonable seizure by failing to conduct timely revocation hearings within a reasonable time after his detention." Pl.'s Opp'n at 1. In sum, Pate now asserts that he pled constitutional claims against the United States.

  Generally, a court should liberally construe a complaint so as to cause the facts and allegations in the complaint to be construed in the light most favorable to the plaintiff. Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983). However, where the plaintiff has demonstrated knowledge of how to plead a proper constitutional claim, but appears to have deliberately plead that claim only against certain defendants, the complaint should not be read as having pled the claim against all of the defendants. In other words, the complaint should not be so liberally construed so as to have it asserting a claim against a defendant where the plaintiff has meticulously indicated that the claim is only being plead against other named defendants. Cf. Ali v. District of Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002) (declining to construe a reference to a statute in the plaintiff's opposition to the defendant's request for dismissal as a constructive amendment of the plaintiff's complaint so as to create a claim against the defendant under that statute). The Ali Court reasoned that even construing the plaintiff's pleadings "liberally," the reference to the Religious Freedom Restoration Act ("RFRA") in a response to a motion to dismiss was "insufficient to put the District [of Columbia] on notice that it faced a RFRA claim." Id. (citing Sinclair, 711 F.2d at 293 (holding that complaint must give "defendant fair notice of the plaintiff's claim and the grounds upon which it rests")). But see Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999). 193 F.3d at 548-49 (construing a claim first mentioned in an opposition to dismissal filing by a pro se litigant as an amendment to the plaintiff's complaint based on the special deference given to pro se litigants). Here, Pate is represented by counsel and is not a pro se litigant. Pate's attorney has carefully articulated allegations in the count of the plaintiff's complaint specifically identifying against which defendants the claims pertain. It follows then, that the allegations alleged against each defendant in the individual counts of the ...

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