Hurd v. District of Columbia

          MEMORANDUM OPINION

          ELLEN S. HUVELLE United States District Judge

         Plaintiff Michael D. Hurd, Jr. brings this action against the District of Columbia for damages under 42 U.S.C. § 1983 for “wrongful deprivation of liberty.” (Am. Compl. at 9 [ECF 7].) Before the Court are Hurd's and the District's cross-motions for summary judgment. For the reasons stated herein, the District's motion for summary judgment will be granted, and Hurd's will be denied.

         BACKGROUND

         I. FACTUAL BACKGROUND^[1]

         Plaintiff Michael Hurd was stopped by the Metropolitan Police Department in August 2005 (id. ¶ 9), and charged with five crimes to which he pled guilty in January 2006: “one count of carrying a pistol without a license[, ] . . . one count of possession of a prohibited weapon, two counts of possession of unregistered firearms and one count of possession of a quantity of cocaine.” (Id. ¶¶ 10-11.) He was sentenced to 42 months in prison and three years of supervised release with the execution of all but 45 days suspended, as well as a $1, 000 fine and one year of probation. (Id. ¶ 11.) The sentence consisted of 15 months of imprisonment and three years of supervised release for the felony gun charge, and several consecutive, shorter sentences adding up to an additional 27 months of imprisonment for the four misdemeanor charges. (See 2006 Superior Court Judgment [ECF 38-3].) Several months later Hurd violated the terms of his probation by testing positive for both cocaine and marijuana, and at a show cause hearing in September 2006, his parole was revoked. (See Pl.'s Resp. to D.C.'s Statement of Material Facts (“Pl.'s Resp.”) at 1-2 [ECF 40].) He was ordered to serve his 42-month prison sentence, to be followed by three years of supervised release. (See Am. Compl. ¶ 12.)

         On June 11, 2007-i.e., less than a year after his parole was revoked and he was sent to serve his full sentence-Hurd was released from the federal facility at which he was being held in West Virginia and sent to Hope Village, a halfway house in the District. (See Id. ¶ 15.) He was released from the halfway house in July 2007, and thereafter began his three-year term of supervised release. (See Id. ¶ 17.) Hurd thus served only the felony part of his sentence. He should have served the remaining misdemeanor time at the jail that is run by the D.C. Department of Corrections (“DOC”), but instead BOP discharged him “under circumstances that he reasonably believed reflected a deliberate sentence reduction.” Hurd, 864 F.3d at 674. “During this time, he had regular contact with the District of Columbia Court Services & Offender Supervision Agency officers who were monitoring his supervised release, and was never found to have violated the terms of his supervised release.” (Am. Compl. ¶ 20.) Although he tested positive for marijuana and cocaine “on more than 50 separate occasions” throughout his term of supervised release, the Parole Commission never revoked his supervised release. (Pl.'s Resp. at 5-6.)

         Hurd appeared in D.C. Superior Court several times during this period. (See Id. at 4-5.) He was charged with simple assault in 2007, but found not guilty following a trial in 2008. (See Id. at 4.) He was charged “with possession with intent to distribute cocaine while armed, possession of drug paraphernalia, possession of an unregistered firearm and possession of unregistered ammunition” in late 2008, but this case was dismissed, and all charges were dropped. (Id.) Hurd was again charged with simple assault in 2009, but the charge was dismissed; another assault charge in 2010 was not papered. (See Id. at 5.)

         In September 2011, Hurd pled guilty to possession of marijuana. (See Am. Compl. ¶ 25.) Because he had been participating in a sheet metal apprenticeship since his release from federal prison and was working towards his journeyman certification with the union (see Def.'s Resp. to Pl.'s Statement of Material Facts (“Def.'s Resp.”) at 7-8 [ECF 43-1]), he was permitted to serve his 9-day sentence over three consecutive weekends. (See Am. Compl. ¶ 25.) Hurd surrendered to the DOC for his first weekend of incarceration on September 23, 2011, and was released on September 25. (See Id. ¶ 26.) He surrendered to serve his second weekend on September 30; however, at the end of the weekend, on October 2, DOC did not release him as expected. (See Id. ¶¶ 27-28.)

         The DOC Records Office employs Legal Instruments Examiners (“LIEs”) who, at the time of any inmate's potential discharge, “conduct the review of an inmate's file to look for other pending charges and other matters to determine whether he is eligible for release and also run[] a check for any outstanding warrants, detainers or other holds.” (Def.'s Resp. at 10.) Mark Sibert was the LIE in charge of plaintiff's case, and the one who denied his release. (See Pl.'s Resp. at 9.) According to Sibert, he denied Hurd's release in reliance on Hurd's 2006 judgment and commitment, which showed that he had 27 months left to serve on his sentence. (See Sibert Dep. at 65-66 [ECF 39-8].) Hurd filed a complaint with the DOC Records Office after he was not released on October 2; on October 26, 2011, he received a response asserting that he was being held because he “was erroneously released from the Bureau of Prisons on July 18, 2007.” (Pl.'s Resp. at 7.)

         Hurd filed a habeas petition on November 16, 2011, under his original case number in Superior Court. (See Am. Compl. ¶ 31.) Inexplicably, he did not receive a hearing until July 27, 2012, at which time Judge Holeman-who sentenced Hurd in 2006 to the original 42 months of imprisonment-orally denied the habeas petition. (See Id. ¶¶ 34-35.) Judge Holeman concluded that Hurd had not stated a due process claim, because “a convicted person will not be excused from serving his sentence [merely] because someone in a ministerial capacity makes a mistake with respect to the execution of the sentence” (Habeas Hearing Transcript at 67 [ECF 38-12]), and Hurd's case was materially different from other cases in which relief had been granted. (See Id. at 69 (“Now, to the extent that when we hold up United States v. Merritt to be factually similar to this case, it is, in fact, factually distinguishable from this case.”).) Although Hurd appealed that denial, the D.C. Court of Appeals did not rule on the appeal prior to his release from DOC custody on September 30, 2013; following his release, the D.C. Court of Appeals dismissed Hurd's appeal as moot. (See Am. Compl. ¶¶ 36-39.)

         II. PROCEDURAL HISTORY

         Hurd filed his complaint with this Court on May 1, 2015, and amended the complaint on July 10, 2015. (See Compl. [ECF 1]; see also Am. Compl.) His complaint consists of a single claim under 42 U.S.C. § 1983 for violation of his substantive and procedural due process rights, based on the District's choice to “suddenly and unjustly re-incarcerate[] him without a hearing, four years after he was mistakenly released from a federal prison.” Hurd, 146 F.Supp.3d at 59. The District moved to dismiss the amended complaint on July 27, 2015, and on November 19, 2015, this Court granted that motion. See Id. at 72 (“[T]he Court concludes that plaintiff cannot, as a matter of law, state a constitutional claim for damages based on a violation of his due process rights, and therefore, the District's motion to dismiss will be [granted].”).

         Plaintiff appealed, and on July 28, 2017, the Court of Appeals for the District of Columbia Circuit vacated this Court's dismissal and remanded for further proceedings. See Hurd v. District of Columbia, 864 F.3d 671 (D.C. Cir. 2017). The Circuit concluded that Hurd's substantive due process claim was not precluded by the earlier habeas proceedings before Judge Holeman, see Id. at 679-82, and that Hurd's amended complaint stated a claim for procedural due process because, under the particular facts of his case, he alleged “a liberty interest crystallized sufficiently by the close of the period of supervision to entitle him to some kind of process before re-incarceration.” Id. at 683. The Court also revived Hurd's substantive due process claim based on its determination that this Court had considered materials outside the amended complaint. See Id. at 686-87. On remand, the panel counseled this Court to consider whether County of Sacramento v. Lewis, 523 U.S. 833 (1998), and its “shock the conscience” test should be employed along with, or instead of, the multi-factor test used in United States v. Merritt, 478 F.Supp. 804 (D.D.C. 1979), to determine whether the re-incarceration violated Hurd's substantive due process rights.

         On remand, after attempting without success to negotiate a settlement, the parties began fact discovery, which was completed in early 2019. The District filed for summary judgment on April 5, 2019, and Hurd filed a cross-motion for summary judgment on April 26. Argument was held on the motions on November 18, 2019. (See November 18, 2019 Minute Entry.)

         ANALYSIS

         The first issue is whether the District can be held liable under § 1983. This was not previously addressed by this Court or by the Circuit. This Court concludes that the District cannot be held liable under § 1983, and therefore it does not reach the issue of whether there was a procedural or substantive due process violation under the Fifth Amendment.^[2]

         I. LEGAL STANDARDS

         A. Summary Judgment

         Summary judgment should be granted to the movant if it has shown that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); see generally Celotex Corp. v. Catrett,477 U.S. 317 (1986). The mere existence of some factual dispute will not preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might ...