United States District Court, D. Columbia.
ARNETT COBB, Plaintiff, Pro se, PETERSBURG, VA.
For UNITED STATES OF AMERICA, Defendant: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff, proceeding pro se, sues the United States " to stop the [United States Parole Commission] from continuing [its] decade-long practice of applying" its parole guidelines retroactively, in violation of the Constitution's ex post facto clause. Compl. ¶ ¶ 1-2, ECF No. 1. Defendant moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Def.'s Mot. to Dismiss the Compl., ECF No. 10. Defendant argues that res judicata applies and, alternatively, that no claim for relief has been stated since the Commission has indeed applied the desired parole guidelines. Plaintiff has filed an opposition, ECF No. 13, defendant has replied, ECF No. 14, and plaintiff has filed a surreply, ECF No. 15. For the reasons explained below, the Court finds that plaintiff's prior litigation in the Northern District of West Virginia precludes this action. Therefore, defendant's motion to dismiss will be granted.
Plaintiff's documented criminal history is as follows:
On January 18, 1980, the Superior Court of the District of Columbia sentenced the petitioner to 9 1/2 years for burglary, destruction of property, and drug possession. On February 28, 1984, the D.C. Superior Court sentenced the petitioner to 35 years, consecutive to the 1980 sentence, for assault with intent to rape, robbery, and unauthorized use of a vehicle. The aggregated total term of the 1980 and 1984 sentences was 44 1/2 years. The D.C. Board of Parole initially denied parole on June 1, 1992 but granted it by order dated October 20, 1992.
On September 7, 1993, the petitioner was arrested and charged with rape while armed, kidnaping and sodomy. The D.C. Parole Board issued a warrant charging the petitioner with violating his parole by committing the new offenses and failing to report his arrest. The warrant was placed as a detainer. Subsequently, the petitioner was convicted of rape and unauthorized use of a vehicle for the 1993 incident. On September 13, 1994, the Superior Court of the District of Columbia sentenced the petitioner to 12-36 years.
Cobb v. Warden, FCI Gilmer, No. 5:10cv66, 2010 WL 6339850, at *1 (N.D.W.Va. Dec. 20, 2010) report and recommendation adopted, No. 5:10Cv66, 2011 WL 1137304 (N.D.W.Va. Mar. 25, 2011), cert. of appealability den. and appeal dismissed sub nom. Cobb v. Fulwood, 446 Fed.Appx. 593, 594 (4th Cir. 2011) (record citations omitted).
The United States Parole Commission (" Commission" or " USPC" ) assumed responsibility over District of Columbia offenders in 1998 as a result of the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.L. No. 105-33, 111 Stat. 712, 734-37 (codified at D.C. Code § § 24-101-42. See Fletcher v. Reilly, 433 F.3d 867, 870, 369 U.S.App.D.C. 100 (D.C. Cir. 2006) (discussing " Changes to Parole and Reparole Regulations for D.C. Code Offenders" ). Plaintiff had his first hearing before the Commission in April 2001, but was denied parole and scheduled for a rehearing in 36 months. Cobb, 2010 WL 6339850, at *1. Subsequent hearings were held in August 2004, July 2007, and January 2010. See
Id. at [WL] *2.
The latter hearing was scheduled to consider " new adverse information" regarding plaintiff's withdrawal from a residential sex offender treatment program " after only 32 days." Id. Following the hearing, the Commission rescinded plaintiff's presumptive parole date of May 7, 2010 (set following the July 2007 hearing) and " reevaluated [plaintiff's] case under the 1987 guidelines of the D.C. Board of Parole," id., which utilized " a numerical scoring system . . . to guide the Board in making the [discretionary] decision to grant or deny parole." McRae v. Hyman, 667 A.2d 1356, 1360 (D.C. 1995). The Commission scored plaintiff at zero, which " ordinarily would have indicated [that] parole should have been granted." Cobb, 2010 WL 6339850, at *2. However, the Commission found " a reasonable probability" that plaintiff " would not obey the law if released[,] [that] his release would endanger the public safety," and that plaintiff needed to complete a sex offender treatment program " to reduce the risk that he poses to the community." Id. (internal citations and quotation marks omitted). As a result, the Commission departed from the guidelines, denied parole, and set a presumptive parole date of January 7, 2013, after plaintiff's service " of an additional 32 months, contingent upon his participation in and completion of the Bureau of Prison's Sex Offender Treatment Program." Id. at *7.
Plaintiff filed this civil action in April 2014 from the Federal Correctional Institution in Petersburg, Virginia. He asserts that he is " now nearly 60 years old [and] is a suitable candidate for release, as determined by the 1987 Guidelines." Compl. at 28. Plaintiff wants this Court to " grant [his] immediate release on parole." Id.
II. LEGAL STANDARD
In evaluating a motion to dismiss under Rule 12(b)(6), the court must " treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App.D.C. 23 (D.C. Cir. 1979) (citations omitted). Nevertheless, the court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S.App.D.C. 4 (D.C. Cir. 2002); see Warr ...