UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) STEVEN M. HUNT ER, ) ) Plaintiff, )

) v. ) Civil Action No. 09-0025 ( RW R) ) EDWARD F. REI L L Y, J R., ) ) Def endant. )

)

MEMORAN DUM OP INION This matter is befor e the Court on plaintiff’ s motions for summary judgme nt, to amend the complaint, and f

or injunctive re lief, and de fenda nt’s motion to di smiss. Beca use plaintiff alre ady has obtained the relief

he see ks throug h a habe as cor pus action filed in the United States District Court for the Western D istrict of L ouisiana, that is, a par ole hea ring at which the regulations of the forme r District of Columbia Boa rd of Par ole wer e applied, the Court will gra nt defe ndant’s motion. I n addition, the Court will deny plaintiff’s motions for summary judgme nt and for injunctive relief

as moot, and will deny

plaintiff’s motion to amend the complaint. I . BA CKGROUND On Fe bruar

y 1, 1996, in the Superior Court of the D istrict of Columbia, plaintiff was sentenc ed to an a g g reg ate ter m of 10 to 30 y ear s’ incar cer ation on his convictions for simple assault, ag g ravated assault while a rmed, a nd assault with a dang erous we apon. Compl. at 12. 1

Plaintiff has submitted a prepr inted form Complaint for Violation of Civil Ri g hts, 1 and attac hes to it a 20-pag e handwritten statement. Unless other wise indicate d, a re fer ence to the Complaint (“Compl.”) in this Memorandum Opinion is a refe renc e to the handwritten statement.He “ committed his offenses a fter the 1987 Reg ulations and 1991 Policy Guideline we re a dopted” by the District of Columbia Boa rd of Par ole (“ Parole B oard” ). Id. By the time plaintiff bec ame elig ible for pa

role, the Par ole B oard ha d been a bolished, and the United States Par ole Commi ssion (“USPC”) had a ssumed the jurisdiction and authority to gr ant, deny , or re voke parole , to impose or modify conditions of parole , and to promulg ate r egulations pertaining to parole for District of

Columbi a Code off

ender s. SeeNational Capital Revitalization and SelfGover nment I mprovement Ac t of 1997 (“Re vitaliz ation Act”) , 111 Stat. 745, Pub. L . 105-33, § 11231, codified at D.C. Code § 24-131(a) , (b). When the USPC conducte d plaintiff’s initial parole he aringin Febr uary 2005 and a rehe aringin J uly

2008, it applied its own guide lines, see 28 C.F.R. § 2.80 et seq ., for District of Columbi a Code off

ender s: The USPC calc ulated Hunter’ s [S alient Fa ctor Score] as an

__ placing him in the risk cate g ory __ with a base point score of __ and added __ points beca

use [t he underly

ing offe nse] was a crime of violence in whic h [t he victim’s] death could have resulted . . .. The base point score was 4 conver ted to a base guideline rang e of 12-18 months, which was added to Hunter’ s parole elig ibilit y period of 124 months. The USPC then added 12-16 months for [a] dis ci p l i n ar y infrac tion, for what they consider “new criminal conduct,” and added 0-6 months for 3 disciplinary infrac tions . . . which they consider a s administrative infrac tion[ s]. Then [t he USPC] added 12- 22 months for disciplinary infrac tion Hunter g uidelin e ra n ge of

. . . 136-142 [giv i n g] Hu n ter [a] g uideline rang e total of 148-164 months. The USPC denied Hunter’ s reque s t fo r parole on Marc h __, 2005, a decision within the Guidelines. At that time, Hunter had serve d 115 months[ ,] 48 months awa y from th e bottom of his total g uideline rang e. The USPC set [a] rehe aringfor F ebrua ry 2008. On J uly 30, 2008, the USPC conducte d Hunter’ s rehe aring und er the 2000 Guidelines. The USPC added 0-10 months to Hunter’ s guideline rang e of 148-164, for 1 disciplinary inf r a c ti o n they consider “new criminal conduct,” g iv[ ing] Hunter [a] total g uideline

2rang e o f 148-174. The USPC then added 0-8 months to Hunter[’s] g uideline rang e of 148-174, for 4 disciplinary infractions

. . . which they consider Administrative I n f r a c ti o n s [g iv in g ] H u

nte r [a] g uideline rang e of 148-182. The USPC denied Hunter’ s reque st for parole and s et [ a] re h ear ing for 36 months J uly 2011. Above the top of th e g uideline by

10 months. Compl. at 12-13 (blank lines in orig inal). Ac cordingto plaintiff, if the USPC had applied the Parole B oard’ s 1987 Reg ulations and 1991 Policy Guideline, he w ould have be en pre sumed suitable for pa

role re lease at his initi al hea ring with a low level of

supervision: [U] nder the 1987 Reg ulations his backg round would have qualified him to an SFS of 8, placing him in a g ood risk/low risk cate g ory with a baseli n e s co re of 0. One point would have been added to his baseline score beca

use his curr ent offe nse involved violence and one point would have been subtracted for s ustained progr am ac hievement, lea ving H unter with a total point score of 0. ([Notably ] even if the Boa rd would have added one point for disciplinary infrac tion the one point for sustained prog ram [achieveme nt] would still have [given] Hunter [a] total point score of 1). Wit h a total point score of 0 and or (1), Hunter would have been presumed suitable for parole at his I nitial hearingwith a low level of supervision. Compl. at 17. I n other wor ds, application of the U SPC ’s g uidelines alleg edly “incr ease d the risk that [pl aintiff] would and . . . in fac t [ did] serve a long er te rm of inca rce ration” in violation of the Ex Post Facto Clause of

the United States Constitut ion. Id. at 19; Compl. (preprinted f orm) at 5 (pag e number

desig nated by

the Court). Plaintiff demands an O rder direc ting the de fenda

nt to conduct a ne w par ole re hear ing a nd to apply the forme r Parole B oard’ s 1987 Regulations and 1991 Policy Guideline. Compl. (pre printed for

m) at 5.

3I I . DI SCUS SI ON A. Defe ndant’s Motion to Dismiss Def endant moves to dismiss this action as moot bec ause “ [p] laintiff is liti g ating this identical cla im in Hunter v. Parole Comm’n , 06-1745 (DD D/J DK) ( W.D. L a.),” Def endant’ s Memorandum of

L aw in Support of Motion to Dismis s and Opposition to Pl aintiff’s Motion for Summary J udg ment (“D ef.’ s Mem.”) at 1, and bec ause the USPC alre ady has “or dere d a new parole hear ing in lig ht of this Court’s decision in Sellmon v. Re illy , 551 F. Supp. 2d 66 (D.D .C. 2008).” Id. at 2. 2 The Court take s judicial notice of the r ecor ds of the United States District Court for the Western District of L ouisiana. See Cov ad Commc’ns Co. v. B ell Atl. Corp ., 407 F.3d 1220, 1222 (D.C. Cir. 2005); Does I through II I v. D istrict of Columbia , 238 F. Supp. 2d 212, 216-17 (D.D.C. 2002). I

n October 2006, while he wa s incarc era ted at the United States Penitentiar y in Pollock, L ouisiana, plaintiff filed a n application for

a fe dera l writ of habe as cor pus in the United States District Court for the Western D istrict of L ouisiana. Gene rally , plaintiff alleg ed that the 3 USPC ’s guidelines for D istrict of Columbia Code offende rs violate the Ex PostFa cto Clause of the United States Constitut ion. See Application for F eder al Writ of Habea s Corpus, Hunter v. United States Parole Comm’n , No. 06-1745 (W.D. L a. filed O ct. 6, 2006). In rele vant par t, the application re ad:

I n Sellmon , the Court found four signific ant fa cial diffe renc es betwe en the pa role 2 reg imes in effe ct under

the forme r Parole B oard a nd the USPC, see Se llmon , 551 F. Supp. 2d at 87-88, and that these diffe renc es may have the prac tical ef

fec t of substantially

incre asing the risk that an inmate would se rve a leng thier term of

incar cer ation under the USPC g uidelines. Acc ording to the Fe dera l Bure au of Prisons’ Inmate L ocator , plaintiff cur rently is 3 incar cer ated a

t the United States Penitentiary in L ewisburg , Pennsy lvania. 4The USPC added 12-18 additional months to petitioner’s Guidelines for [a] prison disciplinary infrac tion (assa ult on a corr ectional office r)

. . . which the [US PC] consider[ed] new criminal conduct wh en petitioner would not have rec eived 12-18 to his g uideline rang e under t h e old D.C. Parole Boa rd Guideline rules. And

. . . there is a r e a s o nable probability that the old D.C. Parole Boa rd Rules would not have c onsider[ed] the prison disciplinary infrac tion as new c riminal conduct or

consider it unless it was done in the last y ear .

* * * The USPC added 12-22 months to petit ioner[’s] guideline ra ng e for prison disciplinary infrac tions for g reater than what petitioner would have rec eived under the old D.C. Parole Boa rd Rules

. . .. The 12-22 months

. . . which the [US P C ] added to petitioner[’s] g uideline incre ase[d] petit ioner[’s] quantum of punishment in violation of the Constit ution and ar e . . . har sher than that under the old D.C. Parole Boa rd Guidelines (Rules) that [were] in eff ect at the t ime petitioner was c onvicted and se ntence [d]

. Id. at 7-8 (pa g e number s desig nated by the Court). In short, “application of [t he USPC’s 2000] g uidelines (laws) was (is) illeg al and a violation of the Ex P ost Fac to Clause.” Id . at 8 (par enthese s in origina l). As plaintiff has a lleg ed in the complaint filed in this Court, the USPC initially denied plaintiff par ole and c ontinued the matter f or re consideration in Februa ry 2008. Answer

and Response to Petition for Writ of Habea s Corpus and Motion for Summary J udg ment, Hunter v. United States Parole Comm’n , No. 06-1745 (W.D. L a. filed June 15, 2009) (F ebrua ry 17, 2005, Hea ring Summary

and Mar ch 16, 2005, Notice of Ac tion). After a par ole re consideration hear ing on July

30, 2008, the USPC aga in denied par ole and c ontinued the matter f or

rec onsideration in J uly

2011. Id. (Jul y

20, 2008, Hea

ring Summary

and August 11, 2008 Notice of Ac tion). Howeve r, in J une 2009, the USPC took the following a ction:

Reopen pursuant to 28 C.F.R. § 2.75(e) and rema nd for a new parole deter mination hear ing. At this hear ing, the Commi ssi o n wi l l apply

5the D.C. Boa rd of Parole guidelines in eff ect at the time the prisoner committed his offe nses, i.e., the 1987 g uidelines. The Boa rd’s Dec ember 1991 policy g uideline on the definition of g uideline terms also applies in this case. Id. (June 12, 2009, Notice of Ac tion). The United States Ma g istrate Judge to whom plaintiff’ s case had bee n assig ned

rec ommended that the ha beas pe tition be denied and dismissed as moot. Report and Recommendation of Mag istrate Judge, Hunter v. U nited States Parole Comm’n , No. 06-1745 (W.D. L a. filed June 24, 2009). The district judg e dec lined to adopt the re port until such time as 4 the USPC conducted the ne w par ole hea ring and submitted, on or bef ore O ctober

20, 2009, “a repor t which . . . explain[ ed] the result of the ne w hea ring and its eff

ect upon [plaintiff’s] sentenc e under

the old and ame nded guidelines.” Or der, Hunter v. U nited States Parole Comm’n , No. 06-1745 (W.D. L a. filed Aug . 5, 2009). The U SPC timely filed its report, a

nd attache d to it a copy

of the July

27, 2009 Hea

ringSummary

and September

26, 2009 Notice of Action. Report Pursuant to August 5, 2009, Order , Hunter v. U nited States Parole Comm’n , No. 06-1745 (W.D. L a. filed O ct. 20, 2009). Af ter having a

pplied the forme r Parole B oard’ s 1987 Reg ulations and 1991 Policy Guideline, and de partingfrom them, the USPC denied par ole and continued the matter

for a rehe aringin J uly

2010. Id. at 3. Ultimately , the district judge deeme d the mag istrate’s r eport moot, found no violation of the Ex Pos t Fac to Clause, and found no a buse of discre tion on the part of the U SPC

. Hunter v. U nited States Parole Comm’n , No. 06-1745,

See H unter v. United States Parole Comm ’n , No. 06-1745, 2009 WL2407657 4 (W.D. L a. June 24, 2009) (Mag istrate Report a nd Recommendation). 62009 WL 3853378, at *9 (W.D. L a. Nov. 17, 2009)

. She thus “defe r[red] to the judgment of the 5 USPC as to [plainti ff’ s] s uitability for pa role.” Id. at 13. “[T] hroug hout the litigation, the plaintiff ‘ must have suffe red, or be thre atene d with, an actua l injury

trac eable to the defe ndant and likely to be re dresse d by

a fa vorable judicial decision.’” Spence r v. Kemna , 523 U.S. 1, 7 (1998) (quoting Lewis v. Conti nental Bank Corp ., 494 U.S. 472, 477 (1990)). “ [A] case is moot when the issues prese nted ar e no long er ‘ live’ or the par ties lack a leg ally cog nizable interest in the outcome.” Powell v. Mc Cormack, 395 U.S. 486, 496 (1969); see Spe ncer v . Kemna , 523 U.S. at 18 (“[M]oot ness, howeve r it may have c ome about, depr ives [the Court] of the powe r to ac t; there is nothing f or [the Court] to remedy , even if [it ] were disposed to do so.”)

. Review of the docket of

plaintiff’s L ouisiana ca se make s clea r that plaintiff ha s obtained the re lief he ha s sought thus fa r: a pa role re hear ing at which the USPC applies the former Parole Boa rd’s 1987 Regulations and 1991 Policy Guideline. Ac cording ly , the Court will gr ant defe ndant’s motion to dism iss. See W ilson v. Reilly , 163 Fe d. Appx. 122, 125 (3d Ci r. 2006) ( per curiam) (af

firming district court’s dismissal of habe as petition as moot “bec ause the relief Wil son sought in his petition had bee n provided, the D istrict Court could fashion no re asonable

reme dy for him”) ; Gassaway v. United States Parole Comm ’n , No. 3:08CV415, 2009 WL 3055326, at *3 (E.D. V a. Sept. 23, 2009) (pr ovisionally dismiss ing a s moot a District of Columbi a off

ender ’s cha lleng e to the application of the USPC’s guidelines upon the U SPC ’s repr esentation that it would conduct a new pa role he aringusing the former Parole B oard’ s 1987 Plaintiff’s appea l is pending be fore the United States Court of Appe als for the 5 Fifth Circuit. See H

unter v. United States Parole Comm ’n , No. 09-31186 (5th Cir. filed D ec. 17, 2009). 7regulations); see also Lane v. W illiams , 455 U.S. 624, 631 (1982) (f inding that a

n attack on sentenc es which e x pired duringthe cour se of ha beas pr ocee dings r ender ed the c ase moot); Thorndyke v . W

ashington , 224 F. Supp. 2d 72, 75 (D.D .C. 2002) (dismissing habe as petition as moot upon issuance of c orre cted Notice of Ac tion “[b] eca use the pe titioner’s arguments now rely on fac ts that are no long er a ccur ate, [and] the arg uments no longe r ra ise ‘live’ issues” ). B. Plaintiff ’s Motion for Leave to Ame nd the Complaint Plaintiff moves to amend his complaint in order to “ seek[] damag es and injunctive a nd decla ratory relief ag ainst the [USP C] and var ious commissi oners in their of ficial a nd/or individual capac ities pursuant to 42 U.S.C. § 1983 and Bivens v . Six Unknown Named A gents of Fed. Bure au of Narcotics , 403 U.S. 388 (1971)[.] ” Emer . Mot. for L eave to Amend Compl. [Dkt. #23] at 1. B eca

use def endant ha s not y et filed a

responsive ple ading , plaintiff may amend his complaint as of rig ht. SeeFe d. R. Civ. P . 15(a) . Howeve r, plaintiff’s motion suffe rs from fata l infirmities. I t violates L ocal Civil Rules 7(i) and 15.1 bec ause it fa iled to attach the proposed a

mended c omplaint. Reading the motion as the proposed a mended c omplaint, it violates Fe dera l Rule of Civil Procedur e 10(a ) bec ause, a mong othe r thing s, it fails to name the intended def

endants. I

n any event, a llowing amendment would be f utile in part. For actions take n under § 11231 of the Revitalization Act, members of the U SPC are

amena ble to suit in t heir individual ca pacities unde r 42 U.S.C. § 1983 and, by extension, under Bivens

. Fletche r v. District of Columbia , 370 F.3d 1223, 1227 ( D.C. Cir. 2004), vacate d in part on other grounds , 391 F.3d 250 ( D.C. Cir. 2004); see Se ttles v. United States Parole Comm’n , 429 F.3d 1098, 1104 ( D.C. Cir. 2005) (re aff irming the holding in Fletche r that “a c ause of

action under § 1983 w ill li e ag ainst the individual members of the [USPC] when a cting pursuant to the

8Revitaliz ation Act § 11231”) . Plaintiff does not mention in his m otion which of the “ various

commissioners” he intends to sue a nd, under the se circ umstances, pr oper summonses ca nnot be issued and ser

vice of proce ss cannot be e ffe cted. Moreove r, a suit ag ainst USPC commissioners in their offic ial capa cities is treate d as a suit ag ainst the USPC i tself. See A li v. United States Parole Comm’n , No. 06-0235, 2007 WL 902312, at *2 (D.D .C. Mar. 23, 2007) ( citing Kentucky v. Graham , 473 U.S. 159, 166 (1985)). The USPC is a feder al g overnme nt ag ency . See, e .g., Epps v. Howes , No. 06-717 (RMC), 2007 WL 2248072, at *3 (D.D .C. J uly 31, 2007); see also Settles , 429 F.3d at 1106. The USPC is not a state a ctor subjec t to suit under 42 U .S.C. § 1983. See, e .g., W illiams v. United States , 396 F.3d 412, 415-16 (D.C. Cir. 2005). While claims for injunctive r elief ma y be brought ag ainst the USPC or its commissioners in their officia l capa cities under 42 U .S.C. § 1983, Ali , 2007 WL 902312, at *2 n.2 (“ A state off icial in his or her of

ficial c apac ity , when sue d for injunctive r elief, would be a pe rson under

§ 1983 beca

use off icial-c apac ity

actions for

prospec tive relief

are not treated as a ctions ag ainst the State.”) ( citations and interna l quotation marks omitted), plaintiff alre ady has sec ured the equitable r elief to whic h he would be e ntitled. I n addition, sovereign immunit y bars a claim for mone y

damag es ag ainst the USPC, and ag ainst its commis sioners in their off icial ca pacities be cause of the USPC’s status as a fe dera l gove rnment entity

. See Se ttles , 429 F.3d at 1106 (“De spite its role in administering pa role for D.C. Code offe nders, the [USPC] reta ins the immuni ty

it is due as an ar

m of the fe dera l sovereign.”); see also Epps , 2007 WL 2248072, at *3 (dismissing cla ims brought unde r 42 U.S.C. §1983 ag ainst the United States, the Depa rtment of Just ice, a

nd the USPC for lack of subje ct matter jurisdiction bec ause the se entities

wer e prote cted f

rom suit by

sovere ign immunity).

9For these re asons, the Court will deny plaintiff’s motion to amend the complaint. An Orde r ac companies this Memora ndum Opinion. Signed this 12th day

of Mar ch, 2010. /s/

RI CHARD W. R OB ERTS United States District J udg e

10