United States District Court, District of Columbia
OLIVER M. BOLING, Plaintiff,
UNITED STATES PAROLE COMMISSION et al., Defendants.
A. HOWELL CHIEF JUDGE.
pro se plaintiff, Oliver M. Boling, a District of
Columbia prisoner currently incarcerated at the Federal
Correctional Institution in Estill, South Carolina,
instituted this lawsuit against six employees of the United
States Parole Commission (“Commission”) and a
case manager at the Bureau of Prisons (“BOP”),
alleging that they engaged in a conspiracy to deprive him of
certain constitutional rights and to commit fraud during
parole proceedings in January 2005. He seeks equitable relief
and monetary damages.
before the Court is the defendants' motion to dismiss the
complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Defs.' Mot. to Dismiss,
ECF No. 14. Upon consideration of the defendants' motion
and reply, ECF No. 18, and the plaintiff's opposition,
ECF No. 16, and surreply, ECF No. 20, the Court finds that
most of the plaintiff's claims are barred by sovereign
immunity and res judicata, and the remaining
personal- capacity claims are frivolous. Accordingly, for the
reasons explained more fully below, the defendants'
motion is granted on those grounds and this case is
Factual History and Prior Adjudication of the Plaintiff's
allegations in the prolix complaint are sketchy and difficult
to follow but nevertheless make clear that the claims pertain
to events beginning in January 2005, when the Commission, as
the authority over D.C. parolees and supervisees, rescinded
the plaintiff's presumptive parole date of April 9, 2005,
and rescheduled him for parole reconsideration in December
2018 (“15-year setoff”). See Not. of
Action, ECF No. 14-1 at 4; Compl. at 8-11, ECF No. 1. These
events underlying the plaintiff's instant complaint also
prompted his prior actions. Thus, the detailed history set
out below by the United States Court of Appeals for the Tenth
Circuit in the plaintiff's appeal from the District of
Kansas' denial of his 2007 habeas petition is pertinent
background to the Commission's actions challenged in the
Mr. Boling was convicted of sodomy in the District of
Columbia in 1976. In 1983, he was convicted of assault with a
dangerous weapon. At that time, a D.C. court sentenced Mr.
Boling to a prison term of 23 years and 8 months to 71 years
and 6 months. In February 1999, the District of Columbia
Board of Parole (D.C. Board) released Mr. Boling, subject to
a 48-year period of supervision, until June 2047. Within
months of Mr. Boling's release, D.C. authorities arrested
Mr. Boling after he allegedly struck his wife with a cane and
hit her with his fists. Assault charges against Mr. Boling
were ultimately dismissed. However, on April 13, 1999, the
D.C. Board issued a parole violation warrant, citing Mr.
Boling's alleged assault on his wife and failure to abide
by all laws as a violation of the conditions of his parole.
Mr. Boling's wife moved to Connecticut and obtained a
temporary protective order that prevented Mr. Boling from
visiting her. Authorities in Connecticut arrested Mr. Boling
later in April 1999 after he initiated another encounter with
his wife. As a result of that incident, Mr. Boling was
convicted of violating a protective order and disorderly
conduct, and a Connecticut court sentenced Mr. Boling to a
term of imprisonment of approximately one year. Per the terms
of the D.C. Board's April 13, 1999, parole violation
warrant, the United States Marshals Service transported Mr.
Boling back to the District of Columbia after he completed
his Connecticut sentence in February 2000. In July 2000, the
D.C. Board revoked Mr. Boling's parole and set a hearing
date for reconsideration of Mr. Boling's parole. In July
2001, the D.C. Board transferred Mr. Boling to the custody of
the Bureau of Prisons.
In December 2003, the Commission held a hearing at which it
considered whether to continue Mr. Boling's imprisonment.
Among other things, the Commission took note of Mr.
Boling's assault of his wife within two months of his
release in 1999. After determining that Mr. Boling should not
be paroled at that time, the Commission was faced with the
task of setting a new date for reconsideration of Mr.
Boling's parole status. The Commission's guidelines
calculation yielded a recommended reconsideration date of
48-60 months. However, the Commission concluded that Mr.
Boling's return to violent criminal activity indicated
that he posed a more serious risk than its guidelines
calculations suggested. Accordingly, the Commission's
decision, rendered in a Notice of Action dated December 19,
2003 (December 2003 Notice of Action), set a reconsideration
date of 72 months.
In March 2004, Mr. Boling filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241. His petition
challenged the December 2003 Notice of Action. In November
2004, while Mr. Boling's petition was pending before the
district court, the Commission held another hearing to
reconsider the December 2003 Notice of Action. The Commission
considered newly received reports that Mr. Boling had
threatened to kill or harm his wife and harm her family on
numerous occasions. The Commission also took into
consideration the newly reported fact that Mr. Boling had
previously attempted to kill his wife by physically attacking
her on more than one occasion. In light of this information,
the Commission entered a Notice of Action, dated January 5,
2005 (January 2005 Notice of Action), which extended Mr.
Boling's parole reconsideration date to December 2018.
The January 2005 Notice of Action voided the December 2003
Notice of Action.
Boling v. Mundt, 261 Fed. App'x 133, 135-36
(10th Cir. 2008).
Tenth Circuit considered the merits of the plaintiff's
claims grounded upon “the decision of [the] Commission
to revoke his parole and defer reconsideration of parole
beyond the length of time recommended under the
Commission's guidelines.” Id. at 135.
Agreeing with the district court, the Tenth Circuit found no
merit to the plaintiff's argument that the Commission had
violated the ex post facto clause by applying its
guidelines “rather than the appropriate laws in effect
when [Plaintiff] committed his first offense in 1976.”
Id. at 137. That court further found “no legal
support” for the plaintiff's argument that the
Commission had impermissibly departed upwardly from its
guidelines “by considering conduct that did not result
in a criminal conviction, ” and no factual support for
the plaintiff's argument that the Commission had
“impermissibly ‘double counted' his
offenses” by using the same information “to make
two distinct determinations.” Id. at 138. The
Tenth Circuit suggested that the Commission's finding of
a pattern of behavior to warrant a longer re-incarceration
period necessarily required consideration of overlapping
events, and agreed with the district court “that, in
this case, ‘[t]he Commission [had properly] departed
from its guidelines based on the extent, nature, repetition,
and timing of [Mr. Boling]'s assaultive and threatening
behavior which was not adequately taken into consideration by
the calculation of [Mr. Boling]'s guideline range.”
Id. (record citation omitted; alterations in
The Instant Lawsuit
plaintiff filed this civil action in October 2015 against the
following individuals in their individual and official
capacities: Pamela Posch and Helen H. Krapels, both
identified as “Gen. Counsel, USPC”; Steve Husk,
Rob Haworth, Kathleen A. Piner and Jeffery Kosbar, all
identified as “USPC Examiner”; and Michael Gray,
identified as “BOP-Lev. Worth Case Man.” Compl.
at 7 (Caption). The plaintiff alleges that the individual
defendants “each knowingly and intentionally conspired
together to violate [his] Fifth, Fourteenth, and Eighth
Amendment Constitutional Rights in violation of 42 U.S.C.
Section 1985(3) [and] Section 1986[, ]” as well as
“18 U.S.C. [§] 241 and 242[.]” Compl. at 5.
addition, the plaintiff accuses Examiner Kosbar of carrying
out “a fraudulent scheme” when he allegedly
introduced at the parole reconsideration hearing conducted in
July 2004 “an audio tape taken the morning of the
hearing by Plaintiff's wife.” Compl. at 3-4. After
the plaintiff objected to Kosbar's use of “the
phony tape taken the day of the hearing, ” he claims
that Kosbar postponed the hearing. Id. at 4. Four
months later, in November 2004, Examiner Haworth allegedly
“illegally conducted a hearing without Plaintiff
present and Ordered that [he] do a 15 year reconsideration
pursuant to 28 U.S.C. 2.28(f) § 2.12(b) until 2018 with
interim hearings.” Id. The plaintiff accuses
the defendants generally of “fraud, fraudulent
concealment, forgery, falsifying evidence, perjury, [and]
obstruction of justice.” Compl. at 25. He seeks, among
other equitable relief, “to be placed on the next
parole docket, ” and compensatory damages totaling $50,
000, 000. Id. at 24-27.
APPLICABLE LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1)
survive a motion to dismiss under Rule 12(b)(1), the
plaintiff bears the burden of demonstrating the court's
subject-matter jurisdiction over the claims asserted.
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
“‘Federal courts are courts of limited
jurisdiction, ' possessing ‘only that power
authorized by Constitution and statute.' ” Gunn
v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)). Indeed, federal courts are “forbidden
. . . from acting beyond our authority, ”
NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.
2008), and, therefore, have “an affirmative obligation
‘to consider whether the constitutional and statutory
authority exist for us to hear each dispute, ' ”
James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d
1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l
Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)).