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Thompson v. Cushwa

United States District Court, District of Columbia

December 28, 2018

PATRICIA K. CUSHAW, et al., Defendants.



         Plaintiff Richard Thompson, proceeding pro se, is a federal prisoner in custody of the United States Bureau of Prisons (“BOP”). In December 2017, Thompson filed suit against nine officials employed by the United States Parole Commission (“USPC”), as well as two former directors of the BOP, alleging that they violated his due process rights by “denying [him] mandatory parole” based on “illogical” reasons. Dkt. 1 at 14 (Compl. ¶ 61). Before Defendants could answer, moreover, Thompson moved for a preliminary injunction to “return[]” him to the halfway house where he was briefly held leading up to his mandatory parole date. Dkt. 15 at 12. For the reasons set forth below, the Court will DENY Thompson's motion.

         I. BACKGROUND

         Thompson-by his own admission-has an extensive criminal history, most of which he accumulated while in prison. In 1974, he was sentenced to eight years' imprisonment on a rape charge. Dkt. 1 at 6 (Compl. ¶ 15); Dkt. 27-1 at 2 (Pl.'s Ex. B-1). Three years later, while he was in custody, Thompson was convicted of murdering another inmate. Dkt. 1 at 6 (Compl. ¶ 16); Dkt. 27-1 at 2 (Pl.'s Ex. B-1). He was sentenced to a life sentence, which he began serving in 1980. Dkt. 27-1 at 2 (Pl.'s Ex. B-1). In 1982 and 1983, Thompson received a five-year sentence for attempted escape (concurrent to his life sentence) and a ten-year sentence for assault on a federal corrections officer (consecutive to his life sentence). Dkt. 1 at 7 (Compl. ¶¶ 18-19); Dkt. 27-1 at 2 (Pl.'s Ex. B-1). In addition to these criminal charges, Thompson also incurred sixteen separate disciplinary infractions between 1980 and 1985. Dkt. 27-1 at 4 (Pl.'s Ex. B-3). He has been “largely compliant with the rules of the institution since 1985.” Dkt. 1-1 at 27 (Pl.'s Ex. K).

         In March 1992, Thompson appeared before the USPC for his initial parole hearing.[1] Dkt. 1 at 7 (Compl. ¶ 20). Pursuant to 28 C.F.R. § 2.12(a), a federal prisoner who is eligible for parole is entitled to an initial parole hearing to determine whether the USPC should “(1) set a presumptive release date . . .; (2) set an effective date of parole; or (3) continue the prisoner to a fifteen year reconsideration hearing, ” id. § 2.12(b). Thompson alleges that, after the initial hearing, the Commission continued him to his fifteen-year reconsideration hearing set for February 2007. Dkt. 1 at 7 (Compl. ¶ 20); Dkt. 15 at 4. Thompson further alleges that he received statutory interim hearings every two years thereafter. Dkt. 15 at 4; see also 28 C.F.R. § 2.14(a)(1)(ii). These hearings did not alter his parole status, but, in 1998, the USPC did expedite his fifteen-year reconsideration hearing by one year for his “Superior Program Achievement” of “maintaining a clear conduct record” for “15 years.” Dkt. 1 at 7 (Compl. ¶ 22); see also 28 C.F.R. § 2.14(a)(2)(ii).

         In September 2006, Thompson appeared before the USPC for his fifteen-year reconsideration hearing. Dkt. 15 at 4; Dkt. 27-1 at 2 (Pl.'s Ex. B-1). The Examiner considered Thompson's prehearing assessment, as well as statements by Thompson and his representative. See Dkt. 27-1 at 2-3 (Pl.'s Exs. B-1, B-2). Thompson alleges that “[a]t the conclusion of that hearing [he] . . . was recommended to continue to his statutory two-thirds mandatory release date with specific condition[s] of parole.” Dkt. 15 at 4-5; see also Dkt. 1 at 8 (Compl. ¶ 24) (“The examiner, Mr. Paul Howard, recommended [Thompson] be . . . paroled at his two-thirds mandatory release date at 2/3/2017, with detailed and specific parole conditions which created a presumption of release.”). The exhibits Thompson attached to his reply brief, however, show that the Examiner recommended against parole and that Thompson unsuccessfully appealed that decision. See Dkt. 27-1 at 6 (Pl.'s Ex. B-5) (Hrg. Summary) (“Recommendation: Continue to Expiration”); id. at 8 (Pl.'s Ex C-1) (Notice of Action) (“As a result of the hearing conducted on September 20, 2006, the following action was ordered: Continue to expiration.”); id. at 11 (Pl.'s Ex. D) (Notice of Action on Appeal) (“You have also claimed on appeal that the decision to continue to expiration is not supported by the facts. The National Appeals Board finds no merit to your claim.”). Even though “[Thompson] ha[d] not incurred any disciplinary infractions since 1985, ” the Examiner recommended against parole because “[Thompson] is still viewed as a more serious risk based on his original criminal offense for Rape, current offense for Murder, Attempted Murder (2 counts), Assault on a Staff Member (2 counts), Escape, and 32 administrative infractions.” Id. at 5-6 (Pl.'s Exs. B-4, B-5).

         Thompson's contrary understanding of the USPC's decision may have resulted from the Examiner's assertion that Thompson's “MR/Statutory Release” date was February 3, 2017, even though his “Full Term Date” was “Life, ” id. at 2 (Pl.'s Ex. B-1), and from arguable ambiguity in whether the Examiner's recommendation to “Continue to Expiration” was intended to refer to “expiration” of the “MR/Statutory Release” date or the “Full Term Date.” Although not a defined term, the USPC typically uses the phrase “continue to expiration” to refer to the “mandatory release” date-that is, the date the sentence imposed by the court expires less statutory good time-and not to the “mandatory parole” date-that is, the date on which the prisoner has served “two thirds of each consecutive term or terms” or his sentence. See 18 U.S.C. § 4206(d); 28 C.F.R. §§ 2.35(d); 2.60(f); Dkt. 27-1 at 13 (Pl.'s Ex. I) (Notice of Action) (“Deny mandatory parole. Continue to expiration.”); Dkt. 30-1 at 1 (Pl.'s Ex. T) (Notice of Action) (“No change in previous decision to deny mandatory parole and continue to expiration”).[2]

         In February 2017, Thompson became eligible for what is inaptly named “mandatory parole, ” Dkt. 1 at 14 (Compl. ¶ 61), which, in the federal system, is not mandatory at all. Dufur v. U.S. Parole Comm'n, 314 F.Supp.3d 10, 19 (D.D.C. 2018); see also 18 U.S.C. § 4206(d) (providing that mandatory release is not appropriate if the Commission “determines that [the prisoner] has seriously or frequently violated institution rules and regulations”). Thompson alleges that, “in anticipation” of his mandatory parole date, he was transferred to a halfway house on May 23, 2016. Dkt. 1 at 10 (Compl. ¶ 34); Dkt. 1-1 at 26 (Pl.'s Ex. J) (Dep't of Corrections Inmate Mgmt. Rpt.). Less than two weeks later, however, he was taken back to a federal detention center. Dkt. 1 at 10 (Compl. ¶ 38). Defendants represent that Thompson's placement in the halfway house was due to “an error or miscommunication that occurred between the Parole Commission and BOP” and that “he was returned when the error was discovered.” Dkt. 20 at 6. Indeed, Thompson's exhibits confirm that the same week he was “furlough[ed]” to the halfway house “in anticipation of his Parole, ” Dkt. 1-1 at 20 (Pl.'s Ex. J) (Dep't of Corrections Inmate Mgmt. Rpt.), the USPC issued a memorandum “declin[ing] to order Mandatory Parole, ” and, instead, “schedul[ing] a Mandatory Parole Hearing on the next available docket, ” id. at 27 (Pl.'s Ex. K).

         Thompson appeared for his mandatory parole hearing in July 2016, and parole was again denied. Dkt. 1 at 11 (Compl. ¶¶ 40-42). The Examiner cited Thompson's past behavior, including the fact that he had “killed an inmate” in 1976, “attempted to escape” in 1982, “stabbed a BOP staff member 17 times in 1983, ” and committed “many more infractions, ” and reasoned that those incidents “indicate[d] a high probability that [he] [would] not follow society's folkways and mores if released.” Dkt. 1-1 at 36. (Pl.'s Ex. S) (Notice of Action). Thompson appealed. See Dkt. 1-1 at 37-38 (Pl.'s Ex. T); id. at 44-69 (Pl.'s Ex. U). Later, Thompson also filed a petition for writ of habeas corpus in the U.S. District Court for the District of New Jersey under 28 U.S.C. § 2241, and the court reopened a prior case that Thompson had brought in that court. Dkt. 1 at 11-12 (Compl. ¶¶ 45, 51-52).

         In December 2017, Plaintiff brought this action against the eleven federal officials employed by the BOP and USPC who he alleges were involved in the decision to deny him parole, asserting that they “maliciously, arbitrability, capriciously, and intentionally deprived [him] of [his] Due Process rights.” Dkt. 1 at 15 (Compl. Prayer). Thompson seeks $31, 200 in compensatory damages, $100, 000, 000 in punitive damages, and “[a] permanent injunction . . . reinstating [his] release date immediately, [and] returning [him] back to the halfway-house.” Id. On February 22, 2018, Thompson filed a motion for the appointment of counsel, which the Court denied, reasoning that, because the “mandatory parole” statute “is not, in fact, mandatory, ” Thompson “ha[d] yet to show that he has a claim that is potentially meritorious or that his claim is unusually complex.” Dkt. 12 at 2. Thompson now moves for a preliminary injunction, requesting that the Court order Defendants to “restore [him] to his former status at the [h]alfway [h]ouse prior to being taken [into] custody by the U.S. Marshal[] Service until the Court resolve[s] the matter.” Dkt. 15 at 7. In support of his motion, Thompson explains that he does not contend that “mandatory parole” is, in fact, mandatory but rather argues that the USPC “creat[ed] an expectation of release” when “it continued [him] to his mandatory release date, ” and that it failed to provide him with due process when it subsequently denied him “mandatory parole” based on “the same set of facts” that the USPC had previously considered when it “continued [him] to his mandatory release date.” Dkt. 27 at 1-2.

         II. ANALYSIS

         Although Thompson's complaint seeks both money damages and injunctive relief, his motion for a preliminary injunction is limited to seeking his “return[] . . . to his former status at the halfway house and reinstat[ement of] his release date.” Dkt. 27 at 6. The Court is without authority to grant either form of relief.

         A. Reinstatement of Release Date

         “A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail, a party seeking a preliminary injunction must show (1) “that he is likely to succeed on the merits, ” (2) “that he is likely to suffer irreparable harm in the absence of preliminary relief, ” (3) “that the balance of equities tips in his favor, ” and (4) “that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The movant “bear[s] the burden of produc[ing] . . . ...

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