The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This matter is before the Court on Defendants' motion to dismiss. For the reasons discussed below, the motion will be granted.
Plaintiff is "a prisoner of the District of Columbia, in the custody of the Federal Bureau of Prisons." Compl. [Dkt. 1] at 2. He is serving a 30-year sentence imposed by the Superior Court of the District of Columbia on February 12, 1999, upon his conviction for aggravated assault. Id. at 3. The sentence runs "consecutive[ly] to a 1996 non-parolable federal sentence of fifty-seven months for unlawful possession of a firearm by a convicted felon." Id.
In anticipation of Plaintiff's parole eligibility date of January 1, 2010, on October 28, 2009, Scott Kubic ("Kubic"), a hearing examiner of the United States Parole Commission ("Commission"), conducted the initial parole hearing. Id. Kubic continued the hearing "due to his concerns about [Plaintiff's] involvement regarding a charge of conspiracy to commit murder." Id. Kubic's experience led him to believe "that, often times, offenders agree to plead guilty to lesser included offenses to minimize the length of their sentence[s], and not necessarily because they were not involved in more serious conduct." Id. at 3-4. Kubic obtained "a copy of the Police Report and Grand Jury Indictment," id. at 4, and based on this additional information, Kubic concluded that "a new hearing [was] necessary to allow [Plaintiff] the opportunity to respond to the information" in those documents." Id.
"The indictment indicate[d] that between March 20, 1995 and December 13, 1995, members of the Stanton Terrace Crew, including [Plaintiff], conspired to murder members of the Parkland Crew, who were viewed as competitor crack cocaine dealers, in order to seek revenge for the killing of a former member of the Stanton Terrace Crew." McIntyre v. Ebbert, No. 3:10cv1739, 2011 WL 839544, at *1 (M.D. Pa. Mar. 7, 2011). Plaintiff "was indicted on twelve counts and subsequently pled guilty to three counts of Aggravated Assault." Id. The assault charges arose from an attempt by members of the Stanton Terrace Crew to murder an associate of the Parkland Crew, but the perpetrators only managed to shoot and wound three bystanders --- two women and a child. Id. Kubic's concern apparently arose because of Plaintiff's supposed participation in or responsibility for the March 13, 1995 murder of William Zimmerman and the May 14, 1995 murder of Michael Thompson by members of the Stanton Terrace Crew. See id.
Another hearing examiner, Joseph Pacholski ("Pacholski"), conducted a second hearing on January 28, 2010. Id. According to Pacholski, during the hearing Plaintiff "admitted [that] he was present for the two murders alleged in the indictment, and for the shooting of two women and a child." Id. Although Plaintiff "submitted a document indicating that . . . the government [did not] allege that [Plaintiff] was present at the time of the murders," id., Ex. (Hearing Summary dated Jan. 28, 2010) ("Hearing Summary") at 2, Pacholski made his decision based on Plaintiff's "own admission of being present at the time of the shooting of the child and the two women."*fn1 Hearing Summary at 3.*fn2 He recommended "[a] decision above the guidelines," referring to the 1987 parole regulations of the former District of Columbia Board of Parole ("1987 Regulations"), for the following reasons:
Because the instant offense involved unusual cruelty to the victim in that you were present and fired a weapon where there were women and a child. You also were a member of a crew who committed Murder. Additional time is needed for programming in that you need to participate and complete the Victim Impact Group in order to remain crime free in the community.
Executive Reviewer S. Husk ("Husk") concurred with the decision to deny Plaintiff parole, and to support his finding that Plaintiff's behavior "involved exceptional cruelty to the victims and reflects ongoing criminal behavior," id. 4, he described Plaintiff's criminal history and his current offenses of conviction as follows:
[Plaintiff] has been serving the current sentence since 2/21/2000 but has been in continuous custody since 12/13/95. He served first a 57 month federal sentence for Possession of a Firearm by a Convicted Felon. The federal charge resulted from a search of [Plaintiff's] apartment on 12/13/95. During that search, a sawed- off shotgun was recovered. . . . [A]lso recovered from the apartment was a handwritten diary which described shootings and armed robberies in which the shotgun was used. Also recovered was a videotape from January of 1994 in which [Plaintiff] was seen . . . demonstrating how to use a sawed-off shotgun and a semi-automatic pistol and his four year old son was mimicking him handling guns and crack cocaine . . . .
The Superior Court case for which he is being considered for parole involved a shooting that occurred on 5/11/95. There were at least three victims to the shooting including two women and a four year old child. It does not appear that these three persons were the intended victims. Instead, the intended victim was . . . an associate with the Parkland Crew. [The victim] was shot at but there is no evidence that any of the bullets struck him on 5/11/95.
The 5/11/95 shooting was the result of an ongoing conspiracy of the Stanton Terrace Crew, of which [Plaintiff] was a member, to murder members of the Parkland Crew in order to eliminate them as competitors in the sale of crack cocaine. Also, revenge was sought for the 3/20/95 murder of a member of the Stanton Terrace Crew.
Initially, [Plaintiff] was charged with counts that included the deaths of William Zimmerman on 5/13/95 and Michael Thompson on 5/14/95. However, it appears that he pled guilty only to the events related to the 5/11/95 shooting.
Id. at 3. Of particular note was Plaintiff's alleged "admi[ssion] to being present during two other shootings" on May 13, 1995 and May 14, 1995, "that resulted in the death of the victims. Those murders were also carried out in furtherance of the illegal activity of the Stanton Street Crew." Id. at 4. From these and other factors, Husk concluded "that the instant ...