United States District Court, District of Columbia
EDWARD J.X. FORD, JR., Plaintiff,
CHARLES MASSARONE, et al., Defendants.
COLLEEN KOLLAR KOTELLY, United States District Court Judge.
matter is before the Court on Defendants Motion for Summary
Judgment [ECF No. 48]. For the reasons discussed below, the
motion will be granted.
Plaintiff's Criminal Convictions
has been convicted of three murders, see Mem. of P.
& A. in Support of Defs.' Mot. for Summ. J. [ECF No.
48] (“Defs.' Mem.”), Decl. of JoAnn Kelley
(“Kelley Decl.”) ¶ 3, and has “been in
continuous custody since May 23, 1980, ” Compl. [ECF
No. 1] ¶ 48, the date on which he
“pistol-whipped” a man “and then shot him
to death, ” Movant's Mem. of Law with P. & A.
in Support of Pl.'s Mot. in Opp'n to Defs.' Mot.
to Dismiss [ECF No. 16] (“Pl.'s First
Opp'n”), Ex. A (Notice of Action dated August 25,
2005). This “Federal conviction for First Degree Murder
. . . entailed [plaintiff and his accomplices] unlawfully
entering the Minimum Security Correctional Complex at Lorton,
Virginia and murdering the victim, who was confined at the
facility.” Kelley Decl., Ex. C (Hearing Summary dated
October 9, 2012) at 2. According to plaintiff, the victim
twice had attempted to kill him, first by shooting him while
he sat in his vehicle, and later by “throw[ing] several
gasoline fire bombs against his door while firing weapons
to keep the [him] and his family trapped inside.”
Pl.'s Mot. in Opp'n to Defs.' Mot. to Dismiss
and/or Summ. J. with Mem. of Law with P. & A. in Support
[ECF No. 51] (“Pl.'s Second Opp'n”) at
37; Compl. ¶ 63. He claimed to have killed the victim
out of “[f]ear for his safety and the safety of his
family[.]” Kelley Decl., Ex. C at 2. On September 15,
1980, the United States District Court for the Eastern
District of Virginia imposed concurrent sentences of life
imprisonment for first degree murder and fifteen years for
conspiracy to commit first degree murder. Compl. ¶ 45;
Kelley Decl., Ex. A (Sentence Monitoring Computation Data) at
1-2. The presumptive parole date on plaintiff's federal
sentence was November 22, 2005. Kelley Decl., Ex. B at 1.
shot and killed his second victim in Northeast Washington on
February 3, 1980. See Kelley Decl., Ex. B (DC Board
of Parole Guideline Rehearing Assessment dated October 1,
2012) at 1. The victim allegedly “had raped and utterly
terrorized [plaintiff's] aunt, ” who at that time
“was dying from throat cancer[.]” Pl.'s
Second Opp'n at 37; Compl. ¶ 63. An accomplice
“met the victim . . . on the street [and] led him to
[plaintiff's] car where he was forced to get into the
car. The victim was shot in the head inside the car then
pushed out of the car into an alley.” Kelley Decl., Ex.
B at 1. On June 4, 1982, the Superior Court of the District
of Columbia imposed concurrent sentences of 20 years to life
imprisonment for one count of first degree murder while
armed, 10 years for kidnapping while armed, and an
unspecified term for carrying a pistol without a license.
See Compl. ¶ 47; Kelley Decl. ¶ 3.
Plaintiff's D.C. sentence was to be served consecutively
to the federal sentence, Pl.'s Second Opp'n, Ex. A
(Memorandum to plaintiff from G.C. Nye, Inmate Systems
Manager, dated May 15, 1990), and his aggregate minimum
sentence was 20 years imprisonment, id., Ex.
(Sentencing Monitoring Computation Data) at 3; see
Compl. ¶ 46.
February 26, 1980 in Prince George's County, Maryland,
plaintiff reportedly shot and killed a friend. Kelley Decl.,
Ex. B at 1. Plaintiff “admitted that he was convicted
of the offense [while denying that he actually had]
commit[ed] the offense.” Id., Ex. C at 2.
According to plaintiff, “he was implicated in the
murder by . . . members of a rival drug gang in retaliation
for his committing the murder on the Lorton Complex.”
Id., Ex. C at 2. On June 18, 1981, “[h]e was
sentenced . . . to a naturalized life term consecutive to any
other sentence.” Id., Ex. B at 1 (emphasis
removed). A detainer has been lodged. Id. ¶ 3;
see id., Ex. A at 5. If plaintiff were to be paroled
from the D.C. sentence, he would be handed over to the
Maryland authorities. See id., Ex. C at 3; Compl.
¶ 64 (remarking that parole on the D.C. sentence means
“getting paroled to another life sentence, which awaits
[plaintiff] in the State of Maryland”).
addition to these murder convictions, plaintiff's
criminal history includes a robbery conviction in 1965 and a
drug conviction in 1977. Compl. ¶ 84.
Parole Authority for D.C. Code Offenders
times relevant to the Complaint, the Superior Court imposed
on an offender an indeterminate sentence “for a maximum
period not exceeding the maximum fixed by law, and for a
minimum period not exceeding one-third of the maximum
sentence imposed.” D.C. Code § 24-403(a).
“[A]ny person so convicted and sentenced may be
released on parole . . . at any time after having served the
minimum sentence.” Id. (emphasis added).
Under District of Columbia law, parole may be granted when it
appears that “there is a reasonable probability that a
prisoner will live and remain at liberty without violating
the law, that his . . . release is not incompatible with the
welfare of society, and that he . . . has served the minimum
sentence imposed or the prescribed portion of his . . .
sentence, as the case may be[.]” D.C. Code §
24-404(a) (formerly codified at D.C. Code § 24.204(a)
plaintiff committed the crimes for which he currently is
imprisoned and when the Superior Court imposed his sentence,
“authority for parole decisions for D.C. Code
violations was vested in the District of Columbia Parole
Board (the ‘Parole Board').” Compl. ¶ 5.
The Parole Board was authorized to “[d]etermine if and
when it is in the best interest of society and the offender
to release him . . . on parole[.]” D.C. Code §
24-401.02(a) (formerly codified at D.C. Code § 24-201.2
(1989)). Consistent with the statute, the Parole Board's
[T]he [Parole] Board shall be authorized to release a
prisoner on parole in its discretion after he . . .
has served the minimum term or terms of the sentence imposed
or after he . . . has served one-third (1/3) of the term or
terms for which he . . . was sentenced, as the case may be,
if the following criteria are met:
(a) The prisoner has observed substantially the rules of the
(b) There is a reasonable probability that the prisoner will
live and remain at liberty without violating the law; and
(c) In the opinion of the [Parole] Board, the release is not
incompatible with the welfare of society.
28 D.C.M.R. § 200.1 (emphasis added). “Once a
prisoner became eligible for parole, the . . .
Parole Board would then determine whether he . . . was
suitable for parole.” Sellmon v.
Reilly, 551 F.Supp.2d 66, 69 (D.D.C. 2008) (emphasis in
original) (footnote omitted).
Parole Board since has been abolished, see D.C. Code
§ 24-131(b), pursuant to the National Capital
Revitalization and Self-Government Improvement Act of 1997,
Pub. L. No.105-33, § 11231(a)-(c), 111 Stat. 712, 745
(1997). The Revitalization Act also transferred to the United
States Parole Commission (“Commission”) the
authority to grant, deny, impose or modify conditions of, and
revoke parole for District of Columbia Code felony offenders.
D.C. Code § 24-131(a); see Franklin v. District of
Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998) (discussing
transfer of parole authority). For D.C. Code offenders such
as plaintiff who found themselves in federal custody prior to
the Revitalization Act, “the Commission administered
their parole hearings, but in such circumstances, [it] was
required to apply the Parole Board's regulations,
guidelines, policies, and practices[.]” Compl. ¶
Parole Regulations and Guidelines
Parole Board's early regulations, issued in 1972,
“listed a set of factors that included, ‘[a]mong
others, ' the nature of the prisoner's offense, his
prior criminal history, his personal and social history, and
his institutional experience (including behavior in prison,
involvement in academic and vocational programs,
etc.).” Daniel v. Fulwood, 766 F.3d 57, 58-59
(D.C. Cir. 2014) (citing 9 D.C.R.R. § 105.1 (1972)).
They provided no “way to translate the factors into a
parole release date, ” however, Phillips v.
Fulwood, 616 F.3d 577, 579 (D.C. Cir. 2010), and the
Parole Board then “operated with discretion that was
‘almost unbridled, '” Wilson v.
Fullwood, 772 F.Supp.2d 246, 267 (D.D.C. 2011) (citing
Sellmon, 551 F.Supp.2d at 86 n.15).
Parole Board made its parole decisions for D.C. Code
offenders using guidelines “promulgated in 1985,
see 32 D.C. Reg. 940 (Feb. 15, 1985), ” which
have become known “as the 1987 [R]egulations because of
their year of publication[.]” Phillips, 616
F.3d at 580 n.2. It adopted “criteria consist[ing] of
pre[-] and post-incarceration factors which enable[d it] to
exercise its discretion when, and only when, release is not
incompatible with the safety of the community.” 28
D.C.M.R. § 204.1. Plaintiff has conceded “that the
crimes for which he was tried, convicted, and sentence[d] did
occur well-before the 1987 [Regulations] were enacted,
” Pl.'s Second Opp'n at 3, yet maintains that
the 1987 Regulations apply to him, see, e.g., Compl.
the 1987 Regulations called for the calculation of a salient
factor score (“SFS”), 28 D.C.M.R. § 204.2,
described as “an actuarial parole prognosis aid to
assess the degree of risk posed by a parolee, ” 28
D.C.M.R. § 204.3. To calculate the SFS, the Parole Board
considered six pre-incarceration factors: (1) prior
convictions and adjudications (Item A); (2) prior commitments
of more than 30 days (Item B); (3) age at the commission of
current offense (Item C); (4) recent commitment-free period
(Item D); (5) the offender's status (e.g., as a parolee
or probationer) at time of current offense (Item E); and (6)
a history of heroin or opiate dependence (Item F).
See 28 D.C.M.R. §§ 204.4-204.16. Then it
assigned a numerical value to each factor. See 28
D.C.M.R. § 201 app. 2-1 (SALIENT FACTOR SCORE). With
respect to the first factor, and with exceptions not relevant
here, the Parole Board counted “[a]ll convictions . . .
for criminal offenses . . . other than the current
offense.” 28 D.C.M.R. § 204.5(a).
SFS placed the candidate into one of four risk categories
(10-9 = low risk, 8-6 = fair risk, 5-4 = moderate risk, or
3-0 = high risk) from which the Parole Board would determine
a baseline number of points (‘base point score')
that provided 0 for low risk, 1 for fair risk, 2 for moderate
risk, and 3 for high risk.” Sellmon, 551
F.Supp. 2d. at 70; see 28 D.C.M.R. § 204.17
& app. 2-1 (POINT ASSIGNMENT GRID ADULT OFFENDERS).
“The [Parole] Board would then take the base point
score and adjust it using the remaining pre-incarceration
factor and . . . two-post incarceration factors to arrive at
the Point Assignment Grid Score (‘total point
score').” Sellmon, 551 F.Supp. 2d. at 70.
remaining pre-incarceration factor assessed the type of risk
the candidate posed. Id.; see 28 D.C.M.R.
§ 204.18(a)-(g). If the candidate's current offense
or a past convictions involved a felony causing death or
serious bodily injury, a felony in which the candidate used a
dangerous weapon, or a felony conviction for distribution or
intent to distribute illegal drugs, the Parole Board added
one point () to the candidate's base point score.
See 28 D.C.M.R. § 204 app. 2-1 (TYPE OF RISK
ASSESSMENT and POINT ASSIGNMENT GRID ADULT OFFENDERS).
post-incarceration factors were the candidate's
institutional behavior and sustained program achievement.
See 28 D.C.M.R. § 204.18(h)-(i). The Parole
Board could add one point to a candidate's base point
score () if he committed serious disciplinary infractions,
and it could subtract one point from the candidate's base
point score (-1) if the “offender demonstrated
sustained achievement in the area of prison programs,
industries, or work assignments during this period of
incarceration.” 28 D.C.M.R. § 204 app. 2-1
candidate's total point score was zero, one or two, the
1987 Regulations provided that “[p]arole shall be
granted at the initial hearing” with an appropriate
level of supervision. 28 D.C.M.R. § 204.19(a)-(c). If
the candidate's total point score was three, four or
five, parole was to be “denied at initial hearing and
rehearing scheduled.” 28 D.C.M.R. § 204.19(d). On
rehearing, the Parole Board took the candidate's
“total point score from the initial hearing and
adjust[ed] that score according to the institutional record
of the candidate since the last hearing[.]” 28 D.C.M.R.
§ 204.21. If the candidate's score on rehearing was
zero, one, two or three, parole ordinarily would be granted
at the appropriate level of supervision. 28 D.C.M.R. §
204.21(a); see 28 D.C.M.R. § 204 app. 2-2
(POINT GRID FOR PAROLE REHEARINGS). If the candidate's
score was four or five, parole was “denied and a
rehearing date scheduled.” 28 D.C.M.R. §
1987 Regulations provided that the Parole Board could,
“in unusual circumstances, waive the SFS and the pre[-]
and post-incarceration factors . . . to grant or deny parole
to a parole candidate.” 28 D.C.M.R. § 204.22. For
example, if the candidate repeatedly had failed under parole
supervision, had a history of repetitive sophisticated
criminal behavior, had an unusually extensive and serious
prior record, had displayed unusual cruelty to victims, or
had “[r]epeated or [e]xtremely [s]erious [n]egative
[i]nstitutional [b]ehavior, ” the Parole Board could
deny parole. 28 D.C.M.R. § 204, app. 2-1 (DECISION
WORKSHEET: INITIAL HEARINGS for WORSE RISK). If the
candidate's criminal record resulted exclusively from
trivial offenses or if he showed exceptional achievement in
educational or vocational programs while incarcerated, the
Parole Board could find him a better risk than application of
the 1987 Regulations would suggest and thus could have
granted parole. 28 D.C.M.R. § 204, app. 2-1 (DECISION
WORKSHEET: INITIAL HEARINGS for BETTER RISK). In
these circumstances, the Parole Board was required to
“specify in writing those factors which it used to
depart from the strict application” of the 1987
Regulations. 28 D.C.M.R. § 204.22.
1991 Policy Guideline
1991, the Parole Board “adopted a policy guideline
(‘1991 Policy Guideline') to define the terms used
in the appendices” to the 1987 Regulations.
Sellmon, 551 F.Supp.2d at 71. The 1991 Policy
Guideline defined “negative institutional
behavior” to exclude consideration of an infraction
(other than murder, manslaughter, kidnapping, armed robbery,
or first degree burglary) occurring more than three years
before the initial parole hearing. Id. The term
“sustained program or work assignment
achievement” meant the “successful completion of
one or more educational or vocational programs, or program
levels, each of which enabled the [candidate] to develop an
academic or job-related skill, OR enabled the offender to
progress to a higher level of difficulty or skill in the
program area.” Id. On rehearing, such
accomplishments were “ordinarily . . . considered as
sustained program or work assignment achievement where
completion occurred since the preceding consideration for
release on the sentence.” 1991 Policy Guideline sec.
1991 Policy Guideline also describes an unusually extensive
or serious prior record as a record of at least five felony
convictions for the commission or attempted commission of any
one or any combination of specified crimes of violence:
b. Assault, OR maliciously disfiguring another person, OR