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

) J AMES F. JOHNSON, ) ) Plaintiff, )

) v. ) Civil Action No. 05-2315 ( RBW) ) ANTHO NY WI L L I AMS, et al. , ) ) Def endants. ) )

MEMORAN DUM OP INION This matter is befor e the Court on a motion to dismiss or, in the alter native, for

summary judgme nt, filed on beha lf of Paul Quande r, Paul Br ennan, Anthony Hinton, and J ohn Tabe rski. 1 For the re asons discussed be low, the def endants’ motion will be g rante d, and this civil action will be dismissed in its entirety

. I . BA CKGROUND In November

1976, the plaintiff wa s sentence d in the Superior Court of the D istrict of Columbi a to an a g g reg ate ter m of six to 30 y ear s incarc eration for burg lary while ar med, ra pe while ar med, assault with a da

ng erous we apon, and c arr ying a pistol wit hout a license . United States Parole Commissi on’s Opposition to P etitioner’s Petition for a Writ of Ha beas Corpus, Johnson v. H

arrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2006) (Ex. G (J une 16, 2005 Alleg ed

Anthony Wil liams, former Ma

y or of the D istrict of Columbia, has been dismissed 1 as a pa rty defe ndant. See J

ohnson v. W

illiams , No. 05-2315 (RB W) (D.D.C. Sept. 26, 2006) (Memora ndum Opinion and Orde r). 1Violation(s) Report) a t 1). Appar ently

the plaintiff had be en re lease d on parole for the 1976 2 conviction, and while on pa role c ommitt ed new

offe nses that re sulted in the imposit ion of a prison sentenc e in Fe bruar y 1997 of 40 months to 10 y ear s for c arr ying a pistol wit hout a license , and one year

for possessingan unre g istered f irea rm. Id. The United States Par ole Commiss ion (“USPC”) re lease d the plaintiff on par ole from his 1997 sentenc e on Oc tober 10, 2003. Memor andum of Points and Authorities in Support of Def endants’ Motion to Dismiss or, in the Alternative, f or Summary

J udg ment (“D efs.’ Mem.”), Dec laration of Paul S. Brenna n (“B renna

n Dec l.”), Ex. 4 (Certificate of Parole) at 1. The Court 3 Service s and Off

ender Supervision Ag ency

(“CSOSA”) w as re sponsible for super vising the plaintiff’s par ole and f

or ca rry ing out the c onditions of relea se imposed by the USPC. SeeD.C. Code § 24-133(c )(4) (2001). John Taberski (“ Tabe rski”) initially was a ssigne d as the plaintiff’ s community

supervision offic er ( “CSO”), a nd when their

relationship soured, Anthony Hinton (“H inton”) wa s assig ned to supervise the plaintiff. De fs.’ Mem. at 4; Complaint (“Compl.”) ¶ 8. Paul Bre nnan, a Super

visory CSO, supervised both CSO Taberski and CSO Hinton. Def s.’ Mem. at 4; see id. , Br ennan D ecl. ¶ 2. Among the conditions of the plaintiff’ s parole w ere the following : 4. You shall make a complete and truthful written repor t ( on a form provided for that purpose) to y our [C SO] betwee n the first and third day of eac h month, and on the fin al d ay o f parole

. You shall also

The Court take s judicial notice of the pa pers f iled in Johnson v. H

arrison , No. 2 05cv2504 (D .D.C. filed April 3, 2006). See, e .g., Rimkus v. I slamic Republic of Iran , 575 F. Supp. 2d 181, 194 (D.D.C. 2008) (takingjudicial notice of f indings made in two prior ca ses befor e the same cour

t); Does I through II

I v. D istrict of C

olumbia , 238 F. Supp. 2d 212, 216-17 (D.D.C. 2002). Ex hibits 1-3, 5, and 8 to the Br ennan D ecla ration have been f

iled under se al. 3 2repor t to y our [C SO] at other times as y our [C SO] direc ts, providing complete a

nd truthful information. 5. You shall not violate any law. You shall not as s o ciate with persons eng ag ed in criminal activity

. You s hall g et i n t o u ch within 2 day s with y ou r [C SO if y ou are ] arr ested or questioned by a law enfor ceme nt office r. 6. You shall not associate with persons who have a criminal re cord without the permission of y our [CS O]. 14. You shall cooper ate fully with those responsibl e for y our supervision. You shall car ry out the instructions of your [CS O] a nd repor t a s direc ted, knowing that failure to do so may be sufficie nt to cause your re turn to the institut ion. 16. I f y ou have been convicted of any sexual offe nse, . . . y ou must repor t fo r reg istration with y our state (including the District of Columbi a) sex offe nder reg istration ag ency as direct ed by y our [C SO]

. United States Parole Commission’s Oppositi on to Petiti oner’ s Petiti on for a Writ of Habea s Corpus, Johnson v. H

arrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2006) (Ex. D (Certificate of Parole) at 3-4). A. The Plaintiff ’s Status as a Sex Offende r Since April 2003, the plaintiff ha s been r eg istered in the District of Columbi a as a

sex offe nder. D efs.’ Mem., Br ennan D ecl., Ex. 2 (Sex Offe nder Reg istry Information). In May 2003, CSO Taberski orde red the plaintiff to underg o a psychosexual assessment by Dr. Micha el L avin. SeeCompl. ¶¶ 1-2; Def s.’ Mem., B renna

n Dec l., Ex . 3 (Psy chosexual Evaluation of J ames Johnson). Dr. L avin place d the plaintiff “in the me dium-high r isk categ ory of sexual offe nders, ba sed on [an] assessment . . . completed on F ebrua ry 24, 2004,” United States Parole Commi ssion’s Opposition t o Petitioner’s Petition for a Writ of Habe as Corpus, Johnson v.

3Harrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2006) (Ex. E (Request for Modification(s) of

Release Conditi ons) at 1), a nd rec ommended that the plaintiff unde rg o sex offender treatment,

seeDef s.’ Mem., B renna

n Dec l., Ex . 5 (James J ohnson Trea tment Recommendation). In making his assessment, Dr. L avin consider ed the r esults of polyg raph a nd plethy smogr aph tests, as we ll as information from CSO Taberski re g ardingthe plaintiff’s plans to have his teena g e daughter spend we ekends w ith him at his residenc e. Id ., Ex . 5 at 1. B ased on D r. L avin’s

rec ommendation and “othe r . . . beha vior on the [plaintiff’s] part that sugg est[ed] that he prese nt[ ed] [ a] gr ave thr eat to the c ommunity , namely minors,” United States Parole Commi ssion’s Opposition t o Petitioner’s Petition for a Writ of Habe as Corpus, Johnson v. Harrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2006) (Ex. E at 1), the USPC i mposed the following additional conditions on the plaintiff’s par ole:

You shall not have any association or contac t of any kind with minor children, whether in y our residenc e, employ ment, social, or o t her activities, without the approva l of y our [CS O]. In addition, y ou shall be subject to the Special Sex Offe nder After car e Conditi on. You shall participate in an in- patient or out-patient mental health prog ram as direc ted by y our [C SO] , with specia l emphasis on long- term sex offe nder testing and tr ea t m en t

. You are expected to acknow ledg e y our need for treatment and to participate in g ood faith in achievingthe program g oals that will be established for y ou. Special Searc h Conditi on to allow CSOS A to conduct sear ches of y our person, proper

ty and abode, at a rea sonable time and manner by y our CSO, in order to deter mine if y ou continue to have contac t with minor[s ] or possess items used to groom minors. Def s.’ Mem., B renna

n Dec l., Ex . 6 (Mar ch 1, 2004 Notice of Ac tion). Notwithstanding these conditions, the plaintiff continued to have contac t with minors, including his teena g e daughter. See id ., Ex . 5 at 5-8; United States Parole Commi ssion’s Opposition t o Petitioner’s Petition for a

4Writ of Habea s Corpus, Johnson v. H arrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2006) (Ex. L (September

13, 2005 Supplement to W arr ant Application) at 1). B. The Plaintiff ’s Association with Persons W ho Have Criminal Records The plaintiff ha d become a ce rtified drugaddiction counse lor and a Criminal J ustice Ac t (“CJA”) investig ator. Compl. ¶ 4. On April 15, 2005, CSO Br ennan e ncounter ed the plaintiff a t the Superior Court, and obse rved that the plaintiff was w ear ing a badg e indicating

his status as a CJ A Investig ator. De fs.’ Mem., B renna n Dec l., Ex . 1 (Alleg ed Violation(s) Repor t, J une 16, 2005) at 9; seeUnited States Parole Commission’s Oppositi on to Petiti oner’ s Petiti on for a Writ of Ha beas Corpus, Johnson v. H arrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2006) (Ex. G at 9). After lear ning f rom the De puty

Chief of the D istrict of Columbia Publ ic Def ender Service ’s Investig ations Division that the plaintiff should not have bee n issued an investig ator’s ba dg e due to his criminal backg round, CSO Hinton confiscate d the badg e. De fs.’ Mem., B renna n Dec l., Ex . 1 at 9. A sea

rch of the plaintiff’s r esidenc e on Apr il 29, 2005, uncovere d Superior Court witness voucher s and evide nce “ sug g esting that the [plainti ff wa s] associating with per sons who have c riminal rec ords and pe rfor med work a s an investig ator[.] ” Id. In addition, CS O Hinton obtained docume nts from the District of Columbia J ail which conf irmed that the plaintiff ha d visited inmates both in his capa city as a CJA I nvestig ator a

nd in his personal ca

pacity , notwithstanding the Warde n’s Fe bruar y 5, 2004 memorandum instructingstaff to ba r the plaintiff’s entr

y . Id. Fr om this i nformation, CSO Hinton determined that the pla intiff had violated the condition of pa role that he not associate w ith persons who have criminal re cords. Id. C. The Plainti

ff’s May 18, 2005, Arrest The plaintiff w as ar

rested on Ma

y 18, 2005, and cha

rg ed with oper ating a motor vehic le

5afte r suspension of his driver ’s license

. Id ., Ex . 1 at 10. The pla intiff failed to re port his arre st to

his CS O, and only

admitted the ar

rest whe n “he w as conf

ronted a bout it on 6/8/ 05, despite havingrepor

ted to [hi s CSO] on 5/18/05 and 5/24/05[ .]” Id.

D. Parole Re vocation A USPC hearingexaminer conduc ted a pa role re vocation hea

ringon November

28, 2005, and he f ound that the plaintiff violated the c onditions of his release (1) by associatingwith persons having a

criminal re cord a

nd (2) by violating the spe cial condition of his re lease not to associate or have contac t with any minor as a r esult of havingcontac ted his minor daug hter without his C SO’s permission. United States Parole Commission’s Opposit ion to Petit ioner’s Petition for a Writ of Habea s Corpus, Johnson v. H arrison , No. 05cv2504 ( D.D.C. filed Apr il 3, 2000) (Ex. M (November 28, 2005 Hea

ringSummary) at 3-4) . Consequently , the USPC revoked the plaintiff’s pa

role a nd continued the matter

until Decembe r 16, 2006, his presumptive re

parole date a fter se rving16 months incarce ration. Def s.’ Mem., B renna

n Dec l., Ex . 7 (January 4 5, 2006 Notice of

Action) at 1. E. Allegations of the Plainti ff’s Complaint Gene rally , the plaintiff alleg es that the de fenda nts abused their a

uthority by order ing his assessment and tr eatment a s a sex offende r, notwithstanding the number of year s since the r ape conviction, and by

limit ing his c ontact with his daug hter. SeeCompl. ¶¶ 3, 7-9, 12. He br ings this action ag ainst CSOs Brenna n, Tabe rski and Hinton in both their offic ial capa cities and

Acc ordingto the Fe dera l Bure au of Prisons’ Inmate L ocator 4 (http://www.bop.g ov/iloc2/L ocate Inmate.jsp), the plaintiff w as re lease d from custody on October 15, 2007. The discr epanc y betwee n the pre sumptive re-pa role da te and the date of his re lease from the B urea

u of Prisons is not ex plained in the re cord. 6individual capac ities under Bivens v . Six Unknown Named A gents of Fed. Bureau of Narcotics ,

403 U.S. 388 (1971), and unde r 42 U.S.C. §§ 1983 and 1985 (2000), f or alleg ed violations of his rig hts protected unde r unspec ified provisions of the United States Constitution. See id. at 3-4. 5 The plaintiff de mands compensatory and punitive damag es. Id. at 10. I I . DI SCUS SI ON A. The Plaintiff ’s Claims Against t he De fendants in their Official C apacities Are Barred U

nder the Doc trine of Sovereign I mmunity 1. Dismissal Under Rule 12(b) (1) f or L ack of

Subject Matter Jurisdiction The de fenda

nts move to dismi ss under Rule 12(b) (1) of the Fe dera l Rules of Civil Procedur e on the g round that this Court lacks subject matter jurisdiction over the plaintiff’ s claims ag ainst CSOs Brenna n, Tabe rski and Hinton in their off icial ca pacities. SeeDef

s.’ Mem. at 10-12. Spec ifically , the def endants a rgue that the doc trine of sove reign immunit y bars the plaintiff’s cla ims. See id. I t is the plaintiff’s burden to e stablish that the Court has subject matter jurisdiction. Lujan v. Defende rs of W

ildlif e , 504 U.S. 555, 561 (1992). In decidingwhether dismiss al for la ck of jurisdiction is warra

nted, the Court must acc ept all fa ctual alleg ations in the complaint as true, and must g ive the plaintiff the be nefit of a ll reasona ble infer ence s from the fa cts alleg ed. Jerom e The Court summarily

dismiss es the plaintiff’ s claims under 18 U .S.C. §§ 241 and 5 242 (2000), a s there is no private rig ht of ac tion under these c riminal statutes. See Ke yter v

. Bush , No. 04-5324, 2005 WL375623, at *1 (D.C. Cir. Fe b 16, 2005) (pe r cur iam) (a ffirming dismiss al of c laims filed “pursua nt to 18 U.S.C . §§ 4, 241, and 242, bec ause, a s criminal statutes, these statutes do not conve y a private rig ht of ac tion”), cert. de nied, 546 U.S. 875 (2005); Rock efeller v . U.S. Court of Appeals Office for Tenth Ci rcuit Judges , 248 F. Supp. 2d 17, 23 (D.D.C. 2003) ( dismiss ing c laims broug ht pursuant to 18 U.S.C. §§ 242, 371 “beca use, as criminal statutes, they

do not convey

a private rig ht of ac tion”); see also Hunter v . District of Columbia , 384 F. Supp. 2d 257, 260 n.1 (D.D .C. 2005) (re jecting pro se plaintiff’s asse rtion of subject matter jur isdiction based on cr iminal statutes). 7Steve ns Pharm. Inc. v . Food &Drug Admin. , 402 F.3d 1249, 1253- 54 (D.C. Cir. 2005).

Howeve r, the Court may

consider materials outside the plea dings f or this purpose. See id. 2. Sovereig n I mmunity

Ba rs the Plaintiff’s Claims Ag ainst the Def endants In Their Of

ficial Capa cities In pertinent pa

rt, 42 U.S.C. § 1983 (2006) provides that: [e] very person who, under color of any statute, ordinanc e, regulation, custom, or usag e, of any State or Terr i t o ry or the District of Columbi a, subjects

... any citizen of the United States or other person within the jurisdiction there of to the deprivation of any righ t s, privileg es, or immunit ies secur ed by the Constit ution and laws, shall be liable to the party injured in an action at l aw, suit in equity , or other prope r proc eedingfor r edre ss[ .] Id . In order

to state a c laim under § 1983 for a violation of a c onstitut ional rig ht, a complaint must alleg e fa cts sufficie nt to support a rea sonable infe renc e that “( 1) a pe rson (2) a cting under color of state[, territorial, or District of Columbia law] (3) subjec ted the plaintiff or cause d the plaintiff to be subjec ted (4) to the de privation of a r ight se cure d by the Constitut ion or laws of the United States.” City of Oklahoma City v. Tuttle , 471 U.S. 808, 829 (1985). A c ivil action under Bivens “is the fe dera l analogto suits brought ag ainst state offic ials under . . . 42 U.S.C. § 1983.” Marshall v. Fed. Bure au of Prisons , 518 F. Supp. 2d 190, 193 (D.D .C. 2007) (quoting Hartman v. Moore , 547 U.S. 250, 254 n.2 (2006) (inter nal citation omitted)). A suit ag ainst a g overnme nt official in his offic ial capa city “g ener ally

repr esent[s] only another way of plea ding a

n action ag ainst an entity

of which a

n office r is an ag ent,” a

nd “an officia l capa city

suit is, i n all respe cts other than na me, to be tre ated a s a suit ag ainst the entity .” Kentucky v. Graham , 473 U.S. 159, 165-66 (1985) ( citations omitt ed). A ccor dingly , the plaintiff’s cla ims ag ainst Quande r and CSOs Br ennan, T aber ski and Hinton in their officia l

8capa cities are treated as if they wer e brought ag ainst CSOS A direc tly

. “It is ax iomatic that the United States may not be sued without its consent and that the exis tence of conse nt is a prer equisite for jurisdiction.” United States v. Mitche ll , 463 U.S. 206, 212 (1983). Such c onsent may not be implied, but mustbe “une quivocally expressed.” United States v. Nordic Village, Inc ., 503 U.S. 30, 33-34 (1992). The doctrine of sovere ign immunity , then, bar s suits aga inst the United States unless immuni ty specific ally

is waived by

statute. United States v. She rwood , 312 U.S. 584, 586 (1941). It follows that any claims for da

mag es ag ainst g overnme nt officials in their of ficial c apac ities are ba

rre d by the doctrine of sover eig n immunit y unless either the g overnme nt specifica lly waives the immunit y , or the g overnme nt ag ents’ ac tions fall within an exception to the imm unity doctrine. See Clark v . Library of Cong ., 750 F.2d 89, 103- 04 (D.C. Cir. 1984) (holdingthat the doctrine of sover eig n immunit y barr ed a claim for mone y

damag es ag ainst the L ibraria n of Cong ress in his officia l capa city beca use immunit y had not bee n waived a

nd the exceptions to imm unity did not apply). Notwithstanding CSOSA’s authority to “provide supe rvision . . . for off ender s on probation, par ole, and supe rvised re lease pursuant to the District of Columbia Off icial Code,” D.C. Code § 24-133(c )(1) (2001), CSOSA is a fede ral g overnme nt entity . D.C. Code § 24- 133(a) (2001) ( establishing CSOSA “within the executive bra nch of the Fe dera l Governme nt”);

see Epps v. U.S. Attorney Gene ral , 575 F. Supp. 2d 232, 234 n.1 (D.D .C. 2008) (noting that CSOS A is a fe dera l ag ency ); see also Ali v. D.C. Court Servs. and Offende r Supervision Agenc y , 538 F. Supp. 2d 157, 161 (D.D .C. 2008) (conc luding that sove reig n immunit y barr ed a suit ag ainst CSOS A and its employ ees in their of ficial c apac ities and dismissi ng the complaint broug ht by

a par olee a s to the individual defenda nts, including a

CSO and her supe rvisor).

9Be cause the suit ag ainst the defe ndants in their offic ial capa cities is treate d as if it wer e

broug ht ag ainst CSOS A direc tly , and bec ause CSOSA is a fede ral g overnme nt ag ency , § 1983 does not apply

and ca nnot be a ba sis for this Court’s jurisdiction. Moreover, a bsent a showingby the plaintiff that sover eig n immunit y has bee n waived, the Court concludes that sovereig n immunit y bars the pla intiff’s claims for damag es ag ainst these def endants in their of

ficial capa cities. B. The Complaint Fail s to State Clai ms Upon W hich Relief Can Be G ranted Against the Defendants in their Individual Capacities

1. Dismissal Under Rule 12(b) (6) The F eder al Rules of Civil P roce dure r equire that a complaint conta in “‘a short and plain statement of the c laim showing that the pleade r is entitled to relief,’ in order to ‘ g ive the defe ndant fa ir notice of what the . . . cla im is and the g rounds upon which it re sts[ .]’” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quotingConley v. G ibson , 355 U.S. 41, 47 (1957)). A motion under Rule 12(b)( 6) does not test a pla intiff’s likelihood of succe ss on the merits; rathe r, it tests whether a

plaintiff prope rly

has stated a

claim. See Sc heuer v . Rhodes , 416 U.S. 232, 236 (1974). “ [W ]hen ruling on a defe ndant’s motion to dism iss, a judge must acce pt as true a ll of the fac tual alleg ations contained in the c omplaint.” Atherton v. District of Columbia Office of the May or , 567 F.3d 672, 681 ( D.C. Cir. 2009) (quoting Erickson v . Pardus , 551 U.S. 89, 94 (2007)) (other c itations omi tted). Althoug h “deta iled fac tual alleg ations” ar e not re quired to withstand a Rule 12(b)( 6) motion, a plaintiff must offer “more than labels a

nd conclusions” to provide “ g rounds” of

“entitle[ment] to relief.” Twombly , 550 U.S. at 555. Or a s the Supreme Court more re cently

stated, “[t] o survive a motion to dismiss , a complaint must contain suffic ient

10fac tual matter, a cce pted as true , to ‘state a c laim to relief that is plausible on its fac e.’” Ashcroft

v. Iqbal , __ U.S. __, __, 129 S.C t. 1937, 1949 (2009) (quoting Twombly , 550 U.S. at 570). A claim is fac ially

plausible “whe n the plaintiff plea ds fac tual content that allows the c ourt to draw the re asonable infere nce that the defe ndant is liable for the misconduct alleg ed.” Id ., 129 S.Ct . at 1949 (quoting Twombly , 550 U.S. at 556). A c omplaint alleg ing f acts whic h are “‘me rely consistent with’ a de fenda nt’s liability

. . . ‘stops short of the line betwe en possibility and plausibilit y

of ‘e ntitlement to relief.’” Id. (quoting Twombly , 550 U.S. at 557) (br acke ts omitted). 2. The De fenda nts Are Protec ted B y

Qualified Immunity The de fenda

nts argue that absolute judicia l immuni ty protec ts them from suit because their func tions are qua si-judicial in nature. D efs.’ Mem. at 17-18. Absolute immunity extends to judge s for a cts perf

ormed within their judicial discre tion, Pierson v. Ray , 386 U.S. 547, 554 (1967), a nd to officials who pe rfor m functions closely

associate d with the judicial proce ss, Butz v. Ec onomou , 438 U.S. 478, 511-14 (1978). F or example, a proba tion officer

is absolutely immune from a suit arisingfrom the pr epar ation of a pr esente nce inve stigation report bec ause this task “is an integ ral pa rt of the judicial f

unction of sentenc ing.” Turner v. Barry , 856 F.2d 1539, 1540 (D.C. Cir. 1988) (pe r cur iam). In this circumstance , a probation officer “ac ts at the specific reque st of the cour t and submits the results of the investig ation to the sentenc ing c ourt for its eva luation,” and in doingso “probation officer s ty pically serve as an a

rm of the se ntencing judge .” Id. (citations and inter nal quotation marks omitted). Thus, the District of Columbia Circuit has held that “D istrict of Columbia probation office rs ar e absolutely immune from liability for da mag es in an a ction brought pursuant to 42 U.S.C. § 1983 for alleg ed er rors in the

11investigation and prepa ration of pr esente nce r eports.” Id. at 1541; Syke s v. Jam es , 13 F.3d 515, 521 (2d Cir. 1993) (c oncluding that a par ole offic er w as immune from suit under § 1983 a lleg ing that he submitted a fa lse aff idavit in a parole revoc ation hear ing) . Acc ording ly , when a parole office r per forms a qua si-judicial function, he is prote cted by absolute immunity

. See, e .g., Keller v. Pa. Bd. of Prob. and Parole , 240 Fe d. Appx. 477, 480 (3d Ci r. 2007) ( per c uriam) ( aff irming district court’s holdingthat a par ole boar d member who “intervie wed [the plaintiff] for re -par ole and took par

t in deciding whether

[t he plaintiff] should be g rante d re- parole in 2001 and 2002” took an ac tion that was “a djudicatory in nature,” entitling him to immuni ty from suit under § 1983); Loggins v. Franklin County, Ohio , 218 Fe d. Appx. 466, 476 (6th C ir. 2007) (unpublished table dec ision) (finding that a probation officer who obtained infor

mation and included it in a Statement of Violations on which the judg e’s de cision to issue an arr est war rant wa s based wa s protec ted by

absolute immunity

beca use “[a]ll of [ her] actions we re r elated to e nsuring [t hat the plaintiff] was complying w ith the terms of his probation”) ; Hunter v. Rodrigue z , 73 Fe d. Appx. 768, 769 (5th Cir. 2003) (pe r cur iam) (a ffirmingthe district court’s c onclusion that a super vising parole office r wa s entitled to absolute immunit y beca use she wa s a “pa

rticipant[] in the decision to revoke [t he plaintiff’ s] parole”); Anton v. Ge tty , 78 F.3d 393, 396 ( 8th Cir. 1996) (conc luding that parole office rs who found the plaintiff’s re lease plan unac cepta ble and who r ecommende d delay ing the plaintiff’s par ole re lease wer e per forming“tasks . . . similar to the ones pe rfor med by probation off

icer s when they

prepa re a prese ntence repor

t,” ac cordingthem protec tion by absolute immunity). In this case, howe ver, the plaintiff alleg es that these de fenda nts acted imprope rly

with respe ct to his parole supe rvision, the investigation of alleg ed violations of the conditions of his

12parole rele ase, a nd the pre paration of repor ts on which the USPC relied in issuing a pa role violation warra

nt and re voking his pa

role. It is not clear that these functions ar e adjudicatory in nature or otherw ise are integ ral to a judicia l proce ss. Rather, these acts a ppear to be investig atory in nature, a

nd there fore are analog ous to a law e nforc ement func tion. See, e .g., Dawson v. Newman , 419 F.3d 656, 662 ( 7th Cir. 2005) (findingthat parole officia ls “offe r[ed] no precede nt for the pr oposition t hat they should be entitled to absolute immunity for pe rfor

ming their day -to-day

duties in the supervision of a pa rolee [,] ” and c oncluding under the circ umstances of the ca se that they

wer e not protec ted by

absolute judicial immunity); Swift v. California , 384 F.3d 1184, 1191 (9th Cir. 2004) (holdingthat California pa role a g ents wer e not entitled to absolute immunit y in reg ards to the investig ation of the plaintiff’ s alleg ed par ole violations, as this activity is akin to a law e nforc ement, not a judicial, f unction); Scotto v. Alme nas , 143 F.3d 105, 110-13 (2d Cir. 1998) ( finding that a Ne w York State pa role off icer who re commended that a

war rant be issued for a

parole violation, but did nototherwise “ prosec ute” the pa role re vocation, was not entitled to absolute immunity); Russ v. Uppah , 972 F.2d 300, 303 ( 10th Cir. 1992) (findingthat a probation or parole of fice r’s de cisions involving re vocation of pr obation or par ole

are entitled to qualified, not absolute, immunity); W ilson v. Rackm ill , 878 F.2d 772, 776 ( 3d Cir. 1989) (c oncluding that probation off icer s who investigated alleg ations of par ole violations and prepa red a war rant a pplication perf

ormed e x ecutive a

nd investigative functions, and ther efor e

wer e not nec essar ily

entitled to absolute immunit y ); but see Moorev. Y

akima Cty. , 945 F.2d 409 (9th Cir. 1991) (unpublished table de cision) (c oncluding that alleg ations by probationer

that probation off

icer serve d him with a warr ant without due proc ess, threatened him, and

overc harg ed him probation fe es did not alleg e ac tions outsi de the sc ope of the probation off icer ’s

13officia l duties, and ac cording ly , probation off icer was prote cted by

absolute immunity). I t appea rs, then, that these defe ndants are not protecte d by absolute immunity

. In the alter

native, the de fenda

nts argue that they

are entitled to qualified immunity , which shields gove rnment off

icials from suit when pe rfor ming c erta in discretionar

y functions. See Def s.’ Mem. at 18-20. “ Gene rally , when a plaintiff sues a g overnme nt ag ent in his indivi dual capa city and the g overnme nt ag ent ra ises a qualifie d immunit y defe nse, the plaintiff must

overc ome the qualifie d immunit y defe nse in order

to survive a Rule 12(b) (6) motion to dismi ss.” Ennis v. Lott , 589 F. Supp. 2d 33, 36-37 (D .D.C. 2008). “[G]overnment officia ls perfor ming discr etionary

functions g ener ally

are shielded fr om liability for c ivil damag es insofar as their c onduct does not violate c lear ly established statutory

or constitutional rights of whic h a re asonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Qua lified immunit y is designe d to shield public officials “f rom undue interfe renc e with their duties and f rom potentially

disabling thre ats of liability ,” id . at 806, and is desig ned to dispose of “ insubstantial lawsuits” on a motion to dis miss before the point at which the def endant is re quired to eng ag e in substantial litigation, id. at 808. Qualifie d immunit y is “an entitlement not to stand trial or fac e the other burdens of

litigation.” Mitchell v. Forsy th , 472 U.S. 511, 526 (1985). The privileg e is “a n immunity from suit rathe r than a mere defe nse to liability ; and . . . is eff

ectively lost if a case is errone ously permitted to g o to trial.” Id

. Acc ording ly , the Supreme Court “ repe atedly [has] stressed the importa nce of resolvingimmunit y questions at the ea

rliest possible stag e in litigation.” Hunter v. Bry ant , 502 U.S. 224, 227 (1991) (per curiam) (empha sis in original). By definition, qualified immunity is not absolute. Rather, it “is applica ble unless the

14officia l’s conduct violated a clea rly established constitutional rig ht.” Pearson v. Callahan , __ U.S. __, __, 129 S. C t. 808, 816 (2009). Howe ver, “ [a] plaintiff who see ks damag es for violation of constitutional or statutory rig hts may

overc ome the def

endant of ficial’s qua lified immunit y only by showingthat those rig hts were clea rly established at the time of the conduc t at issue.” Davis v. Sc herer , 468 U.S. 183, 197 (1984). Commenting on direc tions provided by the Supreme Court, the D istrict of Columbia Circuit noted that

[i ]n Saucier v. Katz , 533 U.S. 194[, 201] (2001), the Supreme Court enunciated a two-step analy sis for deter mining whether qualified i mmunity applies. First, the court must deter mine whether the [pl aintiff] alleg es violations of constitutional rig hts. I f constitutional violations are alleg ed, the court must next d e termine whether the rig ht alleg edly violated is clea

rly established. Arrington v. United States , 473 F.3d 329, 339 ( D.C. Cir. 2006) (interna l citations omit ted). “[T] he Saucier

proce dure should not be r eg arde d as an infle x ible require ment,” howe ver, Pearson , 129 S.Ct . at 813, and its sequenc e no long er is mandatory , id. at 818. This Court in its discretion ther efor e may

addre ss either of the two steps first “in lig ht of the circ umstances of the particula r ca se at ha

nd.” Id. The Court opts to consider f irst “this threshold question: Taken in the light most favor able to the pa rty asser ting the injury , do the fa cts alleg ed show the [defendants’] conduc t violated a constitutional rig ht? ” Saucier , 533 U.S. at 201. Notwithstanding the plaintiff’s re fer ence to the First Amendme nt, seeCompl. at 3, racial prejudice , id. ¶¶ 8, 11, a

nd vague asse rtions of the def endants’ a

buse of a uthority , id ., he articulates no particula

r constitutional violation or theory of his case . Absent fr om his complaint

are specific fac tual alleg ations showing that the defe ndants have committed a constitutional

15violation. Moreover , the plaintiff’s opposition to the defe ndants’ motion offer s no argument,

discussion, or explanation that challeng es the de fenda nts’ asser tion that they

proper ly supervised the plaintiff’s pa

role. In response to the defe ndants’ motion for summary judgme nt, the plaintiff appea rs to rest his ca se solely

on the alleg ations of his complaint, and utterly fails to alleg e any specific fac ts showing that a g enuine issue e x ists for trial with respe ct to his constituti onal claims. L ocal Civil Rule 7(b) of this Court provides: Wit hin 14 day s of the date of service or at such other time as the court may direc t, an opposing party shall serve and file a memorandum of p o i n t s and authorities in opposition to the motion. I f such a m em o randum is not filed within the presc ribed time, the court may treat the motion as conce ded. L CvR 7(b) (empha sis added); see FD IC v. Be nder , 127 F.3d 58, 67- 68 (D.C. Cir. 1997) (tre ating the plaintiff’s summary

judgme nt motion as concede d beca use the de fenda

nt filed its opposit ion late). Similarly , “whe n a plaintiff f iles a re sponse to a motion to dism iss but fails to address

cer tain arguments made by

the def endant, the c ourt may

treat those arguments as conc eded, e ven when the r esult is dism issal of the entire case .” Fox v . Am. Airlines, Inc. , No. 02-2069, 2003 WL 21854800, at *2 (D.D .C. Aug . 5, 2003) (c itations omi tted); Buggs v. Powell , 293 F. Supp. 2d 135, 141 (D.D.C. 2003) ( citing Bende r , 127 F.3d at 67-68); Stephenson v . Cox , 223 F. Supp. 2d 119, 121 (D.D.C. 2002). In this case, both the de ficienc ies in his pleading and the plaintiff’ s failure to oppose the def

endants’ a

rguments reg ardingthe constitutional claims ag ainst CSOs Br ennan, T aber ski and Hinton in their individual capac ities leave the Court no choice but to g rant the def endants’ motion as c oncede d. See, e .g., Slaby v. Fairbridge , 3 F. Supp. 2d 22, 30 (D.D .C. 1998) (dismissing the pro se plaintiff’s sex discrimination claim where she submitted only vague

16alleg ations of discrimination and “c ited no constitutional or statutory law to support her

claims”).

3. Quande r I s Not L iable F or the Ac tions of Bre nnan, Ta berski or H inton I t appea rs that the plaintiff pur

ports to hold former CSOSA Direc tor Paul Quande r responsible for

constitutional viol ations committed by his subordinates, CSOs Bre nnan, Ta berski and Hinton. In order

to hold Quander

liable for the actions of his subordinate s, the plaintiff must plead that he , “throug h [hi s] own indi vidual actions, has violated the Constit ution.” Iqbal , 129 S.Ct . at 1948; Monell v. D ep’t of Soc. Se rvs. of the City of New Y ork ., 436 U.S. 658, 690-94 (1978); Cameron v. Thornburgh , 983 F.2d 253, 258 ( D.C. Cir. 1993). Howeve r, the plaintiff does not alleg e that Qua

nder pe rsonally

participated in any

of the e vents alleg ed in the complaint. Rather, the only

leg al basis that could be a dvance d by the plaintiff for

holding Qua

nder liable would be base d on his responsibility for supe rvising the CSOS A staff . Be cause “vica

rious liability is inapplicable to Bivens . . . suits,” Iqbal , 129 S.Ct . at 1948, the plaintiff’ s constitutional claims ag ainst Quande r in his individual capac ity must fail. 4. The Complaint Fails to State a Conspirac y Claim Under 42 U.S.C. § 1985 There is a ca

use of a ction ag ainst two or more pe rsons who par ticipate in a c onspiracy motivated by

class-ba sed discriminatory animus. 42 U.S.C. § 1985(3); see also Griffin v. Breck enridge , 403 U.S. 88, 96-102 (1971) ( examining the mea ning of § 1985(3)) . “Among

other things, [a] section 1985 plaintiff[] must alleg e the e lements of civil conspira cy , including: ‘ an ag ree ment to take par

t in an unlawful a ction or a la wful ac tion in an unlawful manne r.’” Barr v. Clint on , 370 F.3d 1196, 1200 ( D.C. Cir. 2004) (quoting Hall v. Clinton , 285 F.3d 74, 83 ( D.C. Cir. 2002)).

17The plaintiff’ s complaint merely ref ere nces § 1985( 3) with a pa rtial quotation, see Compl. at 4, and surmises that he may be the victim of “ rac ial prejudice .” See id. ¶¶ 8, 11. These a ssertions, wholly

lackingin fac tual alleg ations to support them, neither mana g e to plead the eleme nts of a civil conspira cy nor ade quately

alleg e a c lass-base d animus. Acc ording ly , the Court dismi sses plaintiff’s § 1985(3) claim as insuffic iently pled. See, e .g., Grave

s v. United States , 961 F. Supp. 314, 320 (D.D .C. 1997) (dismissing a pro se litigant’s Sec tion 1985 claim for his fa ilure to “a lleg e that ther e wa s ever an agree ment or ‘mee ting of the minds’”). 5. The Plaintiff’s De mand for Compensation for Time Spent In Custody is Bar red. The plaintiff a

ppear s to demand monetar y damag es as c ompensation for the time he was in custody

pendinghis parole r evocation hearingin 2005. SeeCompl. ¶ 13. I n Hec k v. Humphrey , 512 U.S. 477 (1994), the Supre me Court held:

[I ]n order to rec over damag es for alleg edly unconst i tu tional conviction o r imprisonment, or for other harm cause d by actions whose unlawfulne ss would rende r a conviction or s entenc e invalid, a § 1983 plaintiff must prove that the conviction or sentenc e has been reve rsed on direc t appea l, expunged b y ex ecutive order , decla red invalid by a state tribunal authorized to make such deter mination, or called into question by a fede ral court' s issuance of a writ for habea s corpus. Id. at 486-87; see also Edwards v. Balisok, 520 U.S. 641, 648 (1997); accord W hite v. Bowie , 194 F.3d 175 ( D.C. Cir. 1999) (unpublished table de cision). Thus, abse nt a showingthat the plaintiff’s convic tion or sentence has bee n invalidated, or in this case , that his parole violation has bee n invalidated, which is lac king he re, the plaintiff ca nnot rec over da

mag es for the per iod of detention in question.

18I I I . CONCL USI ON

Be cause the plaintiff’s c omplaint fails to state claims upon which re lief ca n be g rante d, the Court will gr ant the def endants’ motion to dismiss or, in the alter native, for

summary judgme nt. An Orde r is issued separ ately

.

/s/ REGGI E B. WAL TON United States District J udg e DATE: Mar ch 30, 2010

19