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McNair v. U.S. Parole Commission

United States District Court, District of Columbia

March 6, 2019

JIMMIE McNAIR, Plaintiff,
v.
U.S. PAROLE COMMISSION, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge.

         This matter is before the court on Defendants' Motion to Dismiss Second Amended Complaint (ECF No. 42), Plaintiff's Motion in Opposition to Defendants['] Answer to Plaintiff['s] Amended Complaint (ECF No. 45) and his Motion under Writ Madam[us] to Have Prompt Evidentiary Hearing on the Matters at Hand That Can Be Viewed By Transcripts (ECF No. 46). For the reasons discussed below, the court grants Defendants' motion, dismisses Plaintiff's Second Amended Complaint in its entirety, and denies Plaintiff's motions as moot.

         I. BACKGROUND

         A. Plaintiff's Criminal Conviction, Sentence, and Supervised Release

         On October 5, 2010, police arrested Plaintiff for unlawful distribution of a controlled substance (cocaine). (See Mem. of P. & A in Support of Defs.' Mot. to Dismiss (“Defs.' Mem.”), Ex. 1 at 2.) A jury found Plaintiff guilty, and on December 6, 2011, the Superior Court of the District of Columbia imposed a 48-month term of imprisonment followed by a five-year term of supervised release. (Id., Ex. 2 at 1.) The supervised release term commenced on May 12, 2014, and Plaintiff was to remain under the supervision of the Court Services and Offender Supervision Agency for the District of Columbia (“CSOSA”), see D.C. Code § 24-133(c)(2), through May 11, 2019, (Defs.' Mem. Ex. 2 at 1.) Barely four months passed when Plaintiff committed the first of many violations of the conditions of supervised release. (See generally id., Ex. 3 at 1-2.)

         On August 5, 2015, Jequan S. Jackson, Case Analyst with the United States Parole Commission (“USPC”), recommended that a supervision revocation warrant be issued, (id., Ex. 3 at 2.) The USPC charged Plaintiff with seven violations of the conditions of his supervised release based on the reports of Kyndall Johnson, Plaintiff's supervision officer (“CSO”).[1] (See id., Ex. 3 at 1-2.) For example, Plaintiff's urine specimens tested positive for alcohol on two occasions and for cocaine on 10 occasions, (id., Ex. 3 at 1-2, ) and he failed to comply with a graduated sanction, use of a global positioning system tracking device, when he “failed to charge his GPS as directed by his supervising officer, ” prior to his “remov[al] from the GPS program as a result of a master tamper alert on 7/15/2015, ” (Id., Ex. 3 at 2.)

         Commissioner Charles Masserone signed the warrant on August 19, 2015. (Id., Ex. 3 at 3.) A deputy United States Marshal executed the warrant on October 7, 2016 at the D.C. Jail where Plaintiff was detained, (id., Ex. 4 at 1, ) following his arrest in the District of Columbia on October 4, 2016, for distribution of a controlled substance (crack cocaine) and possession of a controlled substance (crack cocaine), (see id., Ex. 5 at 1.) Jackson supplemented the warrant application by adding an eighth charge, a law violation, arising from Plaintiff's arrest. (Id., Ex. 6.)

         Hearing examiner Kelley conducted Plaintiff's probable cause hearing on October 14, 2016, and he found probable cause to detain Plaintiff pending a supervision revocation hearing. (See generally id., Ex. 7.) Rebecca Vogel of the Public Defender Service represented Plaintiff at the probable cause hearing. (See id., Ex. 7 at 1.) In anticipation of a supervision revocation hearing, Plaintiff had an opportunity to request the attendance of adverse witnesses. (Id., Ex. 7 at 6-7.) Notwithstanding notice that his “failure to make a request for the attendance of any adverse witness is a waiver of [his] opportunity to confront and cross-examine that witness at a revocation hearing, ” (id., Ex. 7 at 6, ) Plaintiff did not request an adverse witness.

         Hearing examiner Joseph M. Pacholski conducted Plaintiff's revocation hearing on November 30, 2016, (id., Ex. 8 at 1, ) at which CSO Kerri Guest-Uzzle testified, (see generally id., Ex. 8 at 1-4.) Plaintiff waived counsel and represented himself. (Id., Ex. 8 at 1.) Pacholski noted Plaintiff's assertion that the USPC lacked jurisdiction over the matter and Plaintiff's objection to the absence of adverse witnesses, particularly the lab technician who tested Plaintiff's urine specimens and the technician who would have monitored his GPS device. (Id., Ex. 8 at 2.) Pacholski “pointed out to [Plaintiff] that he did not request . . . witnesses at the Probable Cause hearing, ” (id., Ex. 8 at 2, ) and that he waived counsel, (id., Ex. 8 at 1, ) for the revocation hearing. Based largely on the CSO Guest-Uzzle's testimony and reports prepared by CSO Johnson, Pacholski found that Plaintiff violated seven supervised release conditions (Charge Nos. 1-7). (Defs.' Mem., Ex. 8 at 4.) The police officer who arrested Plaintiff on October 4, 2016 did not appear at the revocation hearing, and Pacholski made no finding with respect to Charge No. 8 due to the lack of evidence. (Id., Ex. 8 at 4.)

         Pacholski recommended revocation of supervised release and Plaintiff's return to custody for a term of 22 months from the date of the warrant's execution. (Id., Ex. 8 at 5.) His recommendation exceeded the ordinary guideline range of 12 to 16 months for the following reasons:

Our subject argued every point and did not take responsibility for any of his behavior. Our subject did not provide any information as to why he was able to have 4 months of satisfactory compliance and then not comply with any terms other than he was sick and he feared for his safety. Our subject did not explain what steps he took to resume satisfactory compliance and did not feel he needed to explain other than he was sick. The subject's sickness was not an extended stay at a hospital and did not hinder his ability to contact his [community supervision officer]. Our subject did not appear he was amenable for supervision. Our subject did excuse his [Public Defender Service] attorney and wanted to represent himself. Our subject was upset that he did not receive a Probable Cause hearing within 5 days but did not explain how this delay hindered his ability to defend himself against the charges. Our subject is a poorer risk because he has 24 convictions and 10 commitments that are not fully accounted for in the SFS.
Our subject after the hearing became irate and called the Examiner a number [of] racial terms. The subject then slammed a hearing room door and caused a security issue at the institution [prompting] staff to respond. Some of the incident could be heard in the hearing room and the record was activated again to secure the evidence[.]

(Id., Ex. 8 at 5.)

         Executive reviewer Lynne Jenkins, after listening to the last 20 minutes of the recording of the hearing, agreed that revocation was warranted and recommended a slightly higher sanction: a 26-month term of imprisonment. (Id., Ex. 8 at 5.) She noted Plaintiff's October 4, 2016 arrest, and the “very poor attitude” Plaintiff exhibited “during and after the hearing, ” indicating that “he is not amenable to supervision.” (Id., Ex. 8 at 5.) The USPC concurred: it revoked Plaintiff's supervised release and ordered his return to custody for 26 months.[2] (Id., Ex. 9 at 1.) Plaintiff sent four submissions to the National Appeals Board, which ultimately affirmed the USPC's decision. (Id., Ex. 10 at 1.)

         B. Plaintiff's Second Amended Complaint

         Plaintiff filed his original complaint in the Superior Court on December 7, 2016. (ECF No. 1-1.) Defendants removed the case on March 7, 2017. (ECF No. 1.) This court construed the complaint as raising constitutional challenges to the supervision revocation proceedings, demanding monetary compensation for Plaintiff's alleged unlawful incarceration, and demanding Plaintiff' immediate release from custody. Plaintiff amended his complaint, shifting focus from the USPC's actions to the validity of his underlying criminal conviction in the Superior Court. (See generally ECF No. 5.) Subsequently Plaintiff filed documents (ECF Nos. 6, 8) purporting to add new parties and claims, and on June 19, 2017, Plaintiff filed a motion for leave to amend his complaint. (ECF No. 7.)

         Defendants filed their first motion to dismiss on September 29, 2017. (ECF No. 16.) Because Plaintiff's amendments and other submissions had strayed so far from the claims set forth in his original complaint, the court denied Defendants' motion to dismiss without prejudice, as it appeared to be moot. (ECF No. 21.) In addition, the court allowed Plaintiff to file a second amended complaint encompassing all the claims he intends to bring, all the defendants against whom he makes his claims, and all the relief he demands. On February 16, 2018, Plaintiff filed a document titled:

Motion to bring Clarity to Plaintiff Allegations Under & or pursuant to 28 U.S.C. 1651 & or 42 U.S.C. § 1983. Plaintiff claims fall under either 28 U.S.C. 1651 & or 42 U.S.C. § 1983 or Both Declaratory Relief & or monetary gains for purpose of one or the other & or both & or the improper handling & wrongdoing of U.S.P.C. et al employees, illegal detention/unlawful detention, invalid conviction & or sentence & or invalid conviction & or sentence & or ineffective assistance of Appeal Counsel under Williams

(ECF No. 27 at 1.) The court construes this document as Plaintiff's Second Amended Complaint (“2d Am. Compl.”) against the following defendants:

Rebecca Vogel Olinda Moyd Jequan S. Jackson Joseph M. Pacholski Kyndall Johnson
Charles T. Massarone J. Kelly District of Columbia Patricia Smoot USPC
Patricia K. Cushwa Gary N. Kashurba CSOSA

(See 2d Am. Compl. at 5-6.) The individual defendants are sued in both their official and individual capacities. (See id. at 5.) Notwithstanding the Second Amended Complaint's vague, rambling and ...


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