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Bannister v. United States Parole Commission

United States District Court, District of Columbia

March 25, 2019





         Defendant United States Parole Commission has denied parole multiple times to Plaintiff Markist Bannister, a federal prisoner who suffers from severe paranoid schizophrenia. The most recent denial of parole occurred in 2017. Plaintiff alleges that, for years, the Commission's denials violated the Rehabilitation Act because the Commission failed to reasonably accommodate his mental illness. As relief, Plaintiff does not seek parole. Instead, he asks the court to compel the Commission to re-evaluate his parole eligibility in light of reasonable accommodations that might make him otherwise qualified for parole.

         This matter comes before the court on Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. The court grants Defendants' Motion but declines to dismiss this action. The Commission did not violate the Rehabilitation Act because it conducted an individualized assessment of Plaintiff's eligibility for parole; it appropriately considered Plaintiff's disability as it pertains to future dangerousness; and it properly evaluated the reasonable accommodations that Plaintiff sought but nevertheless found him ineligible for parole. The court therefore dismisses with prejudice the failure-to-accommodate aspect of his claim.

         The court, however, dismisses the Complaint without prejudice insofar as Plaintiff challenges the Commission's failure to adopt regulations to implement the Rehabilitation Act. Plaintiff asserts such claim under the Rehabilitation Act, but the Rehabilitation Act does not provide a private cause of action to enforce the congressional mandate requiring federal agencies to promulgate implementing regulations. Such challenge must be brought under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(1) (providing that courts “shall compel agency action unlawfully withheld or unreasonably delayed”). Accordingly, the court will afford Plaintiff an opportunity to amend his Complaint to bring a claim under the Administrative Procedure Act.


         A. Factual Background

         Plaintiff Markist Bannister is a federal prisoner in Ayers, Massachusetts, serving a sentence of five to thirty years for robbery and aggravated assault. See Compl., ECF No. 1 [hereinafter Compl.], ¶ 1. The Bureau of Prisons classified Plaintiff-who suffers from paranoid schizophrenia, attention-deficit hyperactivity disorder, and an intellectual disability-at its most severe mental health classification. Id. ¶¶ 3, 27, 34, 37. When Plaintiff takes his medications as prescribed, he has a bright affect, euthymic mood, and friendly interaction style. Id. ¶ 31. The Bureau of Prisons has recognized that Plaintiff would be able to function in the community, if he were placed in “a mental health group facility with psychiatric and mental health services.” Id. ¶ 33.

         Defendant U.S. Parole Commission (“the Commission”) has denied Plaintiff parole seven times since 2004. Id. ¶¶ 4, 10-13.

         1. The 1987 Guidelines

         Since 2010, the Commission has applied the now-defunct D.C. Parole Board's 1987 Guidelines (“the 1987 Guidelines”). Under the 1987 Guidelines, the Commission first calculates a “Salient Factor Score” (“SFS”), which accounts for, among other things, the person's criminal history, prior commitments, age at time of offense, recent commitment-free period, status of prisoner at time of current offense, and history of drug abuse. Id. ¶ 19 (citing Compl., ECF No. 1-1 [hereinafter Guidelines], § 204.4). The SFS categorizes an applicant as either low, fair, moderate, or high risk. See Guidelines § 204.17. Once the risk category is determined, the Commission considers pre- and post-incarceration factors-such as the violent nature of the offense, disciplinary infractions in prison, and achievement in prison programming-which produces a Grid Score. Id. § 204.18, Compl. ¶ 22. At an initial parole hearing, offenders with a Grid Score of 0, 1 or 2 shall be granted parole, and applicants with a Grid Score of 3, 4 or 5 shall be denied parole. See Guidelines § 204.19. For subsequent hearings, or “rehearings, ” the Commission takes the prior hearing's Grid Score and adjusts it based on the offender's interim institutional record. Id. § 204.21. Applicants with a Grid Score of 0 up to 3 are granted parole, and applicants with a score of 4 or 5 are denied parole. Id. The Commission may, “in unusual circumstances, ” deviate from this “strict” scoring system, so long as it explains the departure in writing. Id. § 204.22.

         2. The Commission's Denials of Parole

         In 2004 and 2007, the Commission denied Plaintiff parole. See Compl. ¶¶ 38, 42. In both instances, the Commission improperly applied the Commission's own guidelines adopted in 2000, instead of the 1987 Guidelines. See Id. ¶¶ 39, 43; see Sellmon v. Reilly, 551 F.Supp.2d 66 (D.D.C. 2008) (holding that the Commission's application of the 2000 Guidelines to offenders, like Plaintiff, who violated the D.C. Code before August 5, 1998, violated the Ex Post Facto Clause). Following the decision in Sellmon v. Reilly, in 2010 the Commission conducted a retroactive review of its previous denials and, applying the appropriate 1987 Guidelines, determined that Plaintiff would have received a Grid Score of 3 in 2004 and a Grid Score of 4 in 2007. See Id. ¶¶ 43-44. As to 2007, the Commission determined that Plaintiff's Grid Score would have increased by one point to 4 because of negative institutional behavior since 2004. The Commission also found that Plaintiff would not have received a one-point reduction due to his lack of programming achievement, which the Commission expressly recognized was “as a result” of his paranoid schizophrenia and prior substance abuse. See Id. ¶ 45.

         At his next parole reconsideration hearing held in 2010, Plaintiff again received a Grid Score of 4. See Id. ¶ 50. Once more, the Commission denied Plaintiff a point reduction because of his lack of programming “due to [his] diagnosis” of paranoid schizophrenia and prior substance abuse. See Id. ¶ 49; see also id., Ex. B, ECF No. 1-2, at 1.

         Plaintiff's Grid Score improved at his next rehearing. In 2011, Plaintiff received a Grid Score of 3 because he had no intervening disciplinary infractions and he had completed programming; in addition, a staff psychologist testified that Plaintiff could live in a group home placement. See Compl. ¶¶ 52, 53, 56. Nonetheless, the Commission denied Plaintiff parole, explaining in its Notice of Action that “your mental illness and inability to function in an open setting makes you a more serious risk if released.” See Id. ¶¶ 54-55. In 2013, Plaintiff's Grid Score increased by a point to a 4 due to intervening disciplinary infractions, rendering him ineligible for parole. See Id. ¶ 62.

         In 2015, Plaintiff appeared for another parole hearing. See Id. ¶ 68. He had incurred no new disciplinary infractions since his last hearing. And, even though he had completed some programming in the intervening period-including anger management, counseling, and a mental health support group-the Commission did not deduct one point for program achievement because Plaintiff had failed to participate in a victim impact or a General Educational Development (“GED”) course. See id. ¶¶ 69-70. Plaintiff's Grid Score therefore remained a 4, and the Commission again denied Plaintiff parole. See Id. ¶ 67; see also id., Ex. F, ECF No. 1-6, at 3.

         In 2017, Plaintiff had another parole hearing. This time, before the hearing and through counsel, he wrote the Commission requesting that the “Commission accommodate his mental disability in rendering a decision on his parole application.” See Id. ¶ 78; see also id., Ex. E, ECF No. 1-5 [hereinafter Ex. E], at 1. Plaintiff alleged that the Commission had committed errors in past hearings, including “consider[ing] factors . . . that are related to [Plaintiff's] mental disability” and “not giv[ing] credit for programming . . . because [Plaintiff] had been unable to secure a [GED] degree . . . due to his disability.” Ex. E at 1-2. Plaintiff asked the Commission to “depart[ ]” from the 1987 Guidelines and proposed five “steps” the Commission should take to accommodate Plaintiff's disability. ...

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