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Epps v. U.S. Attorney General

September 8, 2008


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


Larry D. Epps complains that a Community Supervision Officer ("CSO") erroneously reported that he had used drugs, when his positive drug test resulted from prescription medications, causing him to be incarcerated for sixty days to await a revocation hearing by the United States Parole Commission ("Parole Comission"), after which he was re-paroled. As a result, his newly-established home repair business collapsed. He seeks compensatory and punitive damages from the following Federal Defendants: United States Attorney General, the Parole Commission, the Court Services and Offender Supervision Agency ("CSOSA")*fn1 , and CSOSA employees, CSOs Joseph Alston and Emesha James (the Attorney General and CSOs Alston and James will be referred to, collectively, as the "Individual Defendants").*fn2 The Court concludes that the Complaint against the Federal Defendants must be dismissed.


Mr. Epps was sentenced by the Superior Court of the District of Columbia on June 23, 1989, to a term of incarceration of 12 years to life for second degree murder.*fn3 Fed. Defs.' Mem. in Supp. of Mot. to Dismiss or in the Alternative for Summ. J. ("Defs.' Mem.") at 2 [Dkt. # 14]. He was released on parole by the Parole Commission on October 8, 2005, to remain on parole supervision for life. Id.

On August 16, 2006, Mr. Epps's CSO, Emesha James, prepared a report recommending that a warrant be issued for his arrest. Id. According to the report, Mr. Epps had failed to report to supervision, as required, on July 25 and 27, 2006; and on August 2, 3, 4 and 7, 2006. He had also failed to report for drug testing, as required, on April 3 and 6, 2006; May 8, 15 and 18, 2006; and June 5, 12 and 15, 2006. Id. According to Ms. James's report, when Mr. Epps resumed contact with her on August 1, 2006, he admitted that he had been using cocaine. Id. CSO James therefore put Mr. Epps on a daily reporting schedule as a sanction but he failed to show up until August 9, 2006. Id. at 3.

Based on Ms. James's report, the Parole Commission issued a warrant on August 25, 2006, and Mr. Epps was arrested in September 2006.*fn4 He was remanded to the custody of the USMS and the Parole Commission was notified that Mr. Epps was in custody on September 11, 2006. Id. A hearing to determine whether there was probable cause to believe Mr. Epps had violated the terms of his probation was held before a hearing examiner on September 15, 2006. Id. Counsel from the Public Defender Service appeared to represent Mr. Epps. Id. Mr. Epps explained to the hearing examiner that all of the drug test violations were medically related and that any lengthy stint of incarceration would cause him to lose his newly established home improvement business. Pl.'s Mot. for Summ. J. at 3-4.*fn5 According to Mr. Epps, the Public Defender "made no effort to defend [him] before the [hearing] [e]xaminer and in fact remain[ed] mute during the whole procession of the show cause hearing." Compl. at 6. The hearing examiner found that probable cause existed for the arrest and scheduled a parole revocation hearing for November 8, 2006. Defs.' Mem. at 5. Mr. Epps was incarcerated in the meantime. Compl. at 5-6. At the November 8 parole revocation hearing, CSO James failed to appear, and Mr. Epps was released on a finding of insufficient evidence to support parole revocation. Defs.' Mem. at 5. He was instructed to report immediately to his parole officer. Id.*fn6

Mr. Epps filed this Complaint on June 29, 2007. See Compl. He alleges that CSO James caused the warrant for his arrest to be issued in violation of the Fourth Amendment to the U.S. Constitution by "misrepresenting critical facts" to the Parole Commission; that the Parole Commission's failure to provide him a probable cause hearing within five days of his arrest violated his Fifth and Fourteenth Amendment rights under the U.S. Constitution; that the inability of appointed counsel to represent him adequately at his probable cause and final revocation hearings and the failure of CSO James to appear at his revocation hearings violated his Sixth Amendment rights to effective assistance of counsel and to be confronted with the witnesses against him; and that the United States' failure to assess properly its officials' propensity for truth, honesty and integrity caused a violation of Mr. Epps's Eighth Amendment right to be free from cruel and unusual punishment because such failure permitted the hiring of CSO James who allegedly "intentionally and [] malic[iously]"misrepresented critical facts in her parole violation report. See id. generally. He seeks compensatory and punitive damages. Id. at 14. The Federal Defendants move, pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(5) and (b)(6), for dismissal of this action for lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted, and failure to serve the Individual Defendants properly; or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. Mr. Epps opposes and filed a cross motion for summary judgment.*fn7


Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002) (Kotelly, J.) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. A sufficient complaint "contains a short and plain statement of the claim showing that the pleader is entitled to relief" enough "to give a defendant fair notice of the claims against him." Ciralsky v. CIA, 355 F.3d 661, 668-70 (D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted).

The court must treat the complaint's factual allegations - including mixed questions of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); see also Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., No. 07-7105, 2008 U.S. App. LEXIS 9627, at *14 (D.C. Cir. Apr. 29, 2008) (under Rule 12(b)(6), "a court must construe a complaint liberally in the plaintiff's favor, accepting all of the allegations in the complaint as true, even if doubtful in fact") (citing Twombly, 127 S.Ct. at 1965). Even so, the facts alleged "must be enough to raise a right to relief above the speculative level," Twombly, 127 S.Ct. at 1965, and the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Aktieselskabet, 2008 U.S. App. LEXIS 9627, at *19 n.4; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "A complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet, 2008 U.S. App. LEXIS 9627, at *19 n.4.

In deciding a 12(b)(6) motion, the Court may consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).However, the Court may, in its discretion, consider matters outside the pleadings and thereby convert a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. See Fed. R. Civ. P. 12(b); Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).


Mr. Epps is angry because CSO James recommended a warrant for his arrest based on alleged use of cocaine, which he believes resulted from false positive test results due to prescription medication for his serious health problems. The CSO's recommendation was adopted by the Parole Commission, Mr. Epps was arrested on September 7, 2006, he had to wait until September 15, 2006 for a probable cause hearing on whether he had violated the terms of his probation, and then had to wait until November 8, 2006 for a revocation hearing. In the meantime, his home repair business collapsed. He asserts that his Fourth, Fifth, Sixth, Eighth, and Fourteenth ...

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