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Epps v. Howes

September 2, 2008

LARRY D. EPPS, PLAINTIFF,
v.
PAUL G. HOWES, FORMER ASSISTANT UNITED STATES ATTORNEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on two motions for relief from judgment and a motion to amend the Complaint filed by Plaintiff, Larry D. Epps. Mr. Epps pled guilty to second degree murder in Criminal Action No. F-09286-88B in the Superior Court of the District of Columbia in 1989. See Mem. Op. filed July 31, 2007 ("Mem. Op.") [Dkt. # 24]. He filed a lawsuit on April 17, 2006 against then United States Attorney General Alberto Gonzalez (the "Attorney General"), the United States Parole Commission (the "U.S. Parole Commission"), the Government of the District of Columbia Board of Parole (the "D.C. Parole Board"), the Government of the District of Columbia (the "District of Columbia"), and Paul G. Howes, a former Assistant U.S. Attorney ("AUSA") claiming that (1) Mr. Howes violated his civil rights in various respects; (2) the United States negligently hired and trained Mr. Howes and failed to provide necessary medical treatment to Mr. Epps; and (3) the Parole Commission violated his rights by denying parole and then paroling him with a condition of parole for life. Id.; see generally Compl. at 5-9 [Dkt. # 1]. Former AUSA Howes, then Attorney General Alberto Gonzalez, and the U.S. Parole Commission (collectively, the "Federal Defendants") moved for this Court to dismiss the claims against them. The Court granted the Federal Defendants' motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) on July 31, 2007, on the basis that Mr. Howes and Attorney General Gonzalez enjoyed absolute immunity against Mr. Epps's allegations and that the remaining Federal Defendants were protected by sovereign immunity. Mr. Epps appealed to the D.C. Circuit, and then, both while his appeal was pending, as well as after his appeal was dismissed for failure to prosecute, Mr. Epps filed motions with this Court for relief from judgment under Rule 60(b). Mr. Epps has also filed a motion to amend the complaint to comport with newly discovered evidence. Because Mr. Epps has not brought forth "newly discovered evidence" as that term has been interpreted under Federal Rule of Civil Procedure 60(b)(2), his motions for relief from judgment [Dkt. ## 29 & 32] will be denied. Furthermore, because Mr. Epps's motions for relief from judgment will be denied, his motion to amend the Complaint [Dkt. # 31] will be denied as moot.

I. BACKGROUND

On April 17, 2006, Mr. Epps filed a Complaint asserting that in 1988 the U.S. Attorney's Office in Washington, D.C., acting through former AUSA Howes, secured an indictment against him for first degree murder. Compl. at 2. He alleged that AUSA Howes threatened to seek an indictment against him for a second murder as well, even though the AUSA had information that indicated someone else was guilty of the second murder. See id. at 4. The threat, according to Mr. Epps, caused him to capitulate and plead guilty to second degree murder although he had a defense of self-defense. Id. Further, Mr. Epps charged that AUSA Howes negotiated a plea bargain outside the presence of Mr. Epps's lawyer; initiated the ejection of Mr. Epps from a drug treatment program in Colorado; caused Mr. Epps to lose his liberty; misrepresented critical facts to the court during his probation revocation hearing; and caused Mr. Epps's counsel to be ineffective. Id. at 5-7. The U.S. Parole Commission was alleged to have improperly rubber-stamped the D.C. Parole Board's denial of his parole request in September 2002, and, when it did parole him, to have improperly imposed parole for life. See id. at 8-9. Although the United States was not a named defendant in the Complaint, Mr. Epps charged it with negligence in its hiring and training of Mr. Howes. Id. at 6. He also alleged cruel and unusual punishment in violation of the Eighth Amendment for failure to provide medical treatment at some point in his incarceration; no specific person(s) or location(s) is named as responsible for this violation. Id. at 7.

The Federal Defendants filed a Motion to Dismiss on June 27, 2007 arguing, inter alia, that the Court lacked subject matter jurisdiction over Mr. Epps's claims against them. See Mot. to Dismiss at 1 [Dkt. # 16]. Specifically, the Federal Defendants argued that the claims against former AUSA Howes and Attorney General Gonzales were barred by absolute immunity and his claims against the U.S. Parole Commission and the United States were barred by sovereign immunity. Id. The Court granted the Motion to Dismiss with respect to each of the Federal Defendants, for the reasons advanced. See Mem. Op. at 1-2.

Mr. Epps filed a Notice of Appeal with the D.C. Circuit on August 17, 2007 [Dkt. # 26], and then a Motion for Relief from the Judgment ("First Motion for Relief") [Dkt. # 29] under Federal Rule of Civil Procedure 60(b)(2) with this Court on September 28, 2007. On December 20, 2007, the D.C. Circuit dismissed Mr. Epps's appeal for lack of prosecution because he failed to answer an order to show cause that it issued on November 6, 2007; the mandate issued 45 days later. See Mandate from Court of Appeals filed February 13, 2008 ("Mandate") [Dkt. # 30].

On June 9, 2008, Mr. Epps filed a "Motion to Amend the Complaint to Comport with the Evidence [under] Federal Civil Rule of Procedure 15. (c) [sic]" ("Motion to Amend the Complaint") [Dkt. # 31] and a "Motion for Relief from the Judgment [under] Federal Rule of Civil Procedure Rule 60.(b)(2) [sic] and 60.(6) [sic]" ("Second Motion for Relief") [Dkt. # 32]. His motions for relief from judgment under Federal Rules of Civil Procedure 60(b)(2) and 60(b)(6) are based on his assertion that he has obtained newly discovered evidence in the form of original transcripts and other documents pertaining to his criminal prosecution and related parole proceedings in D.C. Superior Court Criminal Action No. F-09286-88B. See 2d Mot. for Relief at 1. Mr. Epps sought access to these transcripts and documents for years, beginning as far back as June 26, 1990, but had been informed repeatedly that the transcripts did not exist. See id. at 1-2; see also Mot. to Amend Compl. at 1. Eventually, sometime in 1994, with the aid of counsel from the D.C. Public Defender's Service, Mr. Epps discovered that the transcripts and related records had been sealed during Mr. Epps's criminal trial, but that they did exist. See 2d Mot. for Relief at 3.

On November 17, 2004, Mr. Epps filed a Petition for a Writ of Mandamus with the D.C. Superior Court to unseal the hitherto missing transcripts and related documents, Pet. for Writ of Mandamus at 1 [Dkt. # 32-4], which the court granted.*fn1 The following documents were unsealed: (1) a transcript from Mr. Epps's arraignment/plea colloquy, dated May 8, 1989;*fn2 (2) a transcript from a "Rule 35 Proceeding," dated April 9, 1990, at which Mr. Howes allegedly admitted on the record that Mr. Epps acted in a manner consistent with self-defense in the case where he pled guilty to second degree murder;*fn3 and (c) a transcript from a show cause hearing before the Honorable Ricardo M. Urbina, who had not presided over Mr. Epps's plea proceedings, as to why Mr. Epps's probation should not be revoked, dated June 26, 1990. Id. at 4. None of these records was available to the U.S. Parole Commission at any of Mr. Epps's parole hearings prior to September 2005. See 2d Mot. for Relief at 2. When these transcripts were unsealed and made available to the Parole Commission in Mr. Epps's parole hearing in September 2005, he was granted parole. Id. Mr. Epps asserts that: (1) these records prove that former AUSA Howes "knowingly and intentionally" pursued an indictment against Mr. Epps for an unrelated murder with which he knew Mr. Epps was not involved, see 1st Mot. for Relief at 3; 2d Mot. for Relief at 8; and (2) Mr. Howes caused Judge Urbina and the U.S. Parole Commission "to infer [during Mr. Epps's probation revocation and probation hearings] that Plaintiff . . . was an extreme risk to public safety based upon an incomplete public record that was sealed . . . to conceal the actions proform [sic] by the government," thereby preventing them from ever considering the mitigating and exculpatory evidence relating to the second degree murder case to which Mr. Epps pled guilty and the murder case for which Mr. Howes obtained an indictment which was later dismissed. See First Mot. for Relief at 8-9. Based on this newly discovered evidence, Mr. Epps requests that the Court grant relief from its judgment dismissing his Complaint against the Federal Defendants.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 60(b) provides for motions for relief from a judgment or order due to: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct; (4) void judgment; (5) satisfied, released, or discharged judgment; or (6) "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b).

III. DISCUSSION

The D.C. Circuit dismissed Mr. Epps's appeal without prejudice for lack of prosecution and issued its Mandate. Jurisdiction is now proper in this Court to decide Mr. Epps's motions for relief from judgment and Motion to Amend the Complaint.*fn4

A. Rule 60(b) Motion for Relief from Judgment

Mr. Epps has failed to establish that relief should be granted under either Rule 60(b)(2) or Rule 60(b)(6). The records Mr. Epps has finally obtained, while they may be newly discovered, could not change the outcome of the case. That evidence merely supports his factual contentions, which the Court, for the ...


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