The opinion of the court was delivered by: Beryl A. Howell United States District Judge
Plaintiff Karim Mowatt filed the complaint in this matter in December, 2009, alleging that his Fifth, Sixth, Eighth and Fourteenth Amendment constitutional rights were violated when he did not receive a timely parole revocation hearing. Pending before the Court, are motions to dismiss the complaint by the Defendants U.S. Parole Commission and its employee, and the warden of the U.S. Penitentiary Atlanta. For the reasons set forth below, the motion to dismiss is granted.*fn1
I. Introduction and Background
In 1989, Plaintiff was convicted in the Superior Court of the District of Columbia of drug and weapons charges and sentenced to of a minimum of 7 years, 4 months to 22 years in prison. Mem. of P. & A. in Supp. of Their Mot. to Dismiss Pl.'s Compl. at 2, ECF No. 12 [hereinafter Mem.]. He was released on parole in 2004, but the next year, following a physical altercation with police officers, he was federally indicted for several other drug and weapons charges in the District of Maryland. U.S. v. Mowatt, 513 F.3d 395, 398 (4th Cir. 2004); Mem. at 2. As a result, a parole-violation warrant was issued, which was to be used as a detainer if Plaintiff were convicted on these federal charges. Mem. at 3. Plaintiff was convicted on the federal charges and sentenced to a 197-month prison term. Id. at 4.
On August 22, 2006, after Plaintiff had begun serving his federal sentence, Plaintiff's parole-violation warrant was erroneously executed rather than only lodged as a detainer. Mem. at 3--4. The U.S. Parole Commission promptly terminated the revocation process and lodged the warrant as a detainer. Id. at 4.
In 2008, the U.S. Court of Appeals for the Fourth Circuit vacated Plaintiff's conviction and the charges against him were dismissed. Mowatt, 513 F.3d 395; Mem. at 4. On February 28, 2008, the parole-violation warrant was again executed, triggering Plaintiff's entitlement to a prompt revocation hearing. Mem. at 5; see 28 C.F.R. § 2.102(f) ("An institutional revocation hearing shall be held within ninety days of the retaking of the parolee on the parole violation warrant."). He received that hearing on November 17, 2008, and his parole was revoked. Mem. at 6.*fn2
Plaintiff now brings this action against the U.S. Parole Commission ("Commission"); Rhonda A. Moore, a case analyst for the Commission, in her official and individual capacity; and Loren A. Grayer, warden of the U.S. Penitentiary Atlanta, in his official and individual capacity. Compl. at 1. Plaintiff alleges that Defendants violated his Sixth Amendment right to counsel, Eighth Amendment right against cruel and unusual punishment, and Fifth Amendment right against deprivation of liberty without due process by imprisoning him on the execution of the parole-violation warrant without holding a timely revocation hearing. Id.*fn3 Plaintiff seeks only damages as relief. Id. at 6.
The Commission exercises parole authority over D.C. Code offenders in accordance with the National Capital Revitalization and Self-Government Improvement Act, which is an Act of Congress applicable exclusively to the District of Columbia. Pub. L. No. 105-33, § 11231, 111 Stat. 712, 734--37 (1997); see 28 C.F.R. § 2.70; Sellmon v. Reilly, 551 F. Supp. 2d 66, 68 (D.D.C. 2008). "Every person who, under color of any statute . . . of . . . the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. "For the purposes of [§ 1983], any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia." Id. Therefore, as a general matter, a D.C. Code offender may allege claims under § 1983 against the Commission or its employees stemming from the exercise of the Commission's parole authority over D.C. Code offenders. The Court will therefore consider claims against the Commission and Ms. Moore under § 1983.
Warden Grayer, however, exercises his authority under color of federal law, see 28 C.F.R. ch. V, not "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia," 42 U.S.C. § 1983. The Court will therefore consider official-capacity claims against Warden Grayer as made directly under the Constitution and personal-capacity claims against Warden Grayer as made under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which authorizes personal- capacity suits against officials acting under color of federal law for violations of constitutional rights as an analog to personal-capacity claims brought under § 1983 against officials acting under color of state law for such violations.
Defendants have moved in relevant part to dismiss this case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss, ECF No. 12; Mem. at 1. This motion will be granted. The Court lacks subject-matter jurisdiction over all claims against the Commission and all official-capacity claims against Ms. Moore and Warden Grayer because Defendants are entitled to sovereign immunity on such claims. Plaintiff fails to state any personal-capacity claim against Ms. Moore upon which relief can be granted because Ms. Moore is entitled to absolute immunity on such claims. Finally, Plaintiff fails to state any personal-capacity claim against Warden Grayer because Plaintiff has not sufficiently pled allegations of Warden Grayer's personal liability under the Fifth, Sixth, or Eighth Amendments. The Court need not reach Defendants' arguments under Rule 12(b)(2), (3), or (5). Moreover, the Defendants are incorrect in arguing that Plaintiff should assert his claims in a petition for habeas corpus because Plaintiff does not challenge the fact of his confinement.
A. Motion to Dismiss Under Rule 12(b)(1)
A court must dismiss a case when it lacks subject-matter jurisdiction. McManus v. District of Columbia, 530 F. Supp. 2d 46, 62 (D.D.C. 2007); Fed. R. Civ. P.12(b)(1). "Plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Am. Farm Bureau v. U.S. Envtl. Protection Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court must construe the allegations in the complaint liberally but "need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiffs' legal conclusions." Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006); see also Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S. Ct. 2246 (1987). The Court must be assured that it is acting within the scope of its jurisdictional authority and therefore must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. See Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Westberg v. Fed. Deposit Inc. Corp., 759 F. Supp. 2d 38, 41 (D.D.C. 2011); Dubois v. Wash. Mut. Bank, No. 09-cv-2176, 2010 WL 3463368, at *2 (D.D.C. Sept. 2, 2010); Hoffman v. District of Columbia, 643 F. Supp. 2d 132, 135--36 (D.D.C. 2009); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13--14 ...