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Boling v. United States Parole Commission

United States District Court, District of Columbia

November 30, 2017

OLIVER M. BOLING, Plaintiff,



         The 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.

         Pending 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 dismissed.[1]

         I. BACKGROUND

         A. Factual History and Prior Adjudication of the Plaintiff's Claims

         The 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pertain to events beginning in January 2005, when the Commission, as the authority over D.C. parolees and supervisees, rescinded the plaintiff's presumptive parole date of April 9, 2005, and rescheduled him for parole reconsideration in December 2018 (“15-year setoff”).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 instant complaint.

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).

         The 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 original).[2]

         B. The Instant Lawsuit

         The 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).[3] 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.

         In 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.


         A. Federal Rule of Civil Procedure 12(b)(1)

         To 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)). Absent ...

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