United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE
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.
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).
March 1992, Thompson appeared before the USPC for his initial
parole hearing. 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. §
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).
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
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).
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).
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.
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.
Reinstatement of Release Date
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] . . . ...