United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
U.S. Parole Commission (“the Commission”) has
denied Plaintiff parole seven times since 2004. Id.
¶¶ 4, 10-13.
The 1987 Guidelines
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.
The Commission's Denials of Parole
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.
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.
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.
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.
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. ...