United States District Court, D. Columbia.
MICHAEL ROY JOHNSON, Plaintiff, Pro se, ATWATER, CA.
For DISTRICT OF COLUMBIA, Defendant: Joseph Alfonso Gonzalez, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.
For ISAAC FULWOOD, JR., Chairman, United States Parole Commission, JANIE L. JEFFERS, JEFFREY S. KOSTBAR, KENNETH WALKER, PHYLLIS BAKER, SANDRA G. HYLTON, DOROTHY A. BEALE, SKVORC CASEY, DONNA A. MCLEAN, PAUL R.A. HOWARD, STEVE HUSK, Defendants: Kenneth A. Adebonojo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
RUDOLPH CONTRERAS, United States District Judge.
Plaintiff, a prisoner currently incarcerated at the United States Penitentiary in Atwater, California, sues the District of Columbia, former Metropolitan Police Department Detective John A. Burke, and the Chairman and certain named employees of the United States Parole Commission (" the Commission" ). Presently before
the Court is the federal defendants' motion to dismiss under Rules 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. See Mem. of P. & A. in Supp. of Fed. Defs.' Mot. to Dismiss [Dkt. # 23] at 1. Plaintiff has filed an opposition [Dkt. # 29], defendant has replied [Dkt. # 37], and plaintiff has filed a surreply. For the following reasons, the Court will grant the federal defendants' motion and dismiss this case.
To put the claims against the federal defendants in proper context, the Court begins with the allegations against former MPD Detective Burke. In the enumerated paragraphs comprising his " Statement of Claim," Compl. at 5, plaintiff alleges that on December 26, 1989, Burke " presented [a] Complaint and his sworn Affidavit in Support of An Arrest Warrant to Superior Court Judge Shelli Bowers," who issued an arrest warrant " charging Plaintiff Johnson with rape while armed." Compl. ¶ 24. On December 27, 1989, plaintiff " presented himself for arrest," id. ¶ 25, and was charged with rape while armed of his " 19 year old, live-in girlfriend of 6 months." Id. ¶ ¶ 1-2. The arrest stemmed from events that had occurred on either December 24, 1989, or December 25, 1989. See id. ¶ ¶ 4, 18.
Plaintiff alleges that after Burke spoke with the complaining witness, he contacted plaintiff and plaintiff agreed to appear for an interview with Burke at MPD's Sex Offense Branch on December 26, 1989. In addition to the interview, plaintiff alleges that he submitted a handwritten statement describing his version of the events. See id. ¶ ¶ 4-16. According to plaintiff, Burke failed to " perform an adequate investigation [before he] swore out [the foregoing] Affidavit in Support of An Arrest Warrant, asserting that there's probable cause and reasonable grounds for the issuance of an arrest warrant for the Plaintiff . . . ." Id. ¶ 17.
On March 17, 1990, plaintiff was released on bond " but [was] . . . arrested again and charged with the rape of a 22 year old prostitute." Id. ¶ 29. Plaintiff entered what he deemed to be " a coerced guilty plea in the latter case" and on November 27, 1990 " was sentenced to 15 years to life." Id. ¶ 30; see Johnson v. U.S., 633 A.2d 828 (D.C. 1993) (affirming denial of collateral motion to withdraw guilty plea); see also Defs.' Ex. H [Dkt. # 23-1] ( Johnson v. Rios, No. 1:10-cv-01164-SMS,
(E.D.Cal. Mar. 29, 2011) , aff'd sub nom Johnson v. Clay, No. 11-17321, 539 F.App'x 748 (9th Cir. 2013) (unpublished) (denying habeas petition). According to plaintiff, the " December 1989 rape case was dismissed as part of the plea deal." Compl. ¶ 30.
Plaintiff's claims against the Commission and its employees stem from his prison sentence for the 1990 rape conviction. Plaintiff alleges that after the Commission assumed responsibility of D.C. Code offenders in 1998, defendant Dorothy A. Beale, a hearing examiner for the Commission, conducted " a Pre-hearing Assessment of the plaintiff [on October 7, 1999] in preparation of his initial parole hearing," and " applied the 2000 guidelines which indicated that parole should be denied." Am. Compl. ¶ 16. According to plaintiff, Beale " requested a copy of the 1989 police report [that] [s]he believed . . . would 'determine the degree of risk' plaintiff posed." Id. ¶ 17. On February 6, 2000, defendant Jeffrey S. Kosbar, an executive reviewer for the Commission, " noted that the Commission had received the police report of the 1989 rape allegations," and " stated 'that the police report indicates that our subject did rape the victim while armed with a knife.' " Id. ¶ 19. On March 22, 2000, defendant Kenneth Walker, an examiner, " prepared a Hearing Summary after interviewing plaintiff at his initial hearing [and] calculated plaintiff's Total Point Score as a 3." Id. ¶ 21. Plaintiff alleges that based on the 2000 guidelines, his Total Point Score " meant parole [was] automatically denied at the initial hearing." Id.
Plaintiff alleges that at the initial hearing in March 2000, " he was asked about the 1989 rape allegations," Compl. ¶ 31, and " [d]espite the facts that [plaintiff] provided, the [C]ommission made a determination of guilt based solely on the fabricated police report prepared by Defendant Burke." Id. ¶ 33. Plaintiff " was denied parole and given a sixty month reconsideration date," which he alleges was a departure from the guidelines' presumptive reconsideration period of 12 to 18 months due to " the use of the 1989 rape allegations." Id. ¶ 34. Plaintiff alleges that " [t]hereafter," he lodged objections to the Commission's use of the 1989 rape allegations, id. ¶ 35, but that he " has been seen and denied parole on 3 other occasions (2005, 2008, and 2010), and the 1989 rape allegations are still being relied upon." Id. ¶ 41.
Plaintiff claims, among other violations, that the federal defendants " violated his Fifth Amendment due process rights from 2000 to 2008 when they deprived him [of] parole considerations pursuant to the D.C. Board of Parole Guidelines," Am. Compl. ¶ 56, and that they " violated the ex post facto clause of the [C]onstitution when they retroactively applied the Commission's ...