AMY BERMAN JACKSON, District Judge.
This case presents the question of whether the District of Columbia can be held liable under 42 U.S.C. § 1983 for a parole revocation decision made by the District of Columbia Board of Parole that violated plaintiff's right to due process under the Fifth Amendment to the U.S. Constitution. For the reasons set forth below, the Court concludes that the municipality can be held liable for the unconstitutional revocation of Mr. Singletary's parole. Therefore, plaintiff's motion for summary judgment will be granted, and the defendant's cross motion will be denied.
In 1990, plaintiff Charles Singletary was released on parole after serving more than seven years of a nine to twenty-seven year
Singletary remained in prison for ten more years, Singletary Decl. ¶ 8, as he challenged the parole revocation in habeas proceedings first in Superior Court and then in federal court. Id. ¶ 10. The D.C. Superior Court denied Singletary's first petition for writ of habeas corpus in 1997 and that denial was upheld by the D.C. Court of Appeals. Id. In 2000, Singletary again sought habeas relief in Superior Court but the court denied his claim and the D.C. Court of Appeals affirmed that decision. Id. ¶ 11. Singletary represented himself in both of these proceedings. Id. ¶ 12.
With the assistance of a federal public defender, Singletary petitioned for a writ of habeas corpus in the U.S. District Court for the District of Columbia. Singletary Decl. ¶ 13. That petition was denied, Singletary v. D.C. Bd. of Parole, No. 00-1263, 2003 WL 25258497 (D.D.C. Dec. 16, 2003), and Singletary appealed the decision. Singletary Decl. ¶ 14. On July 7, 2006, ten years after the plaintiff's parole had been revoked, the U.S. Court of Appeals for the District of Columbia finally granted relief. The Court held that the Board's decision did not comport with due process because the parole revocation was based on such a "shoddy" record that it violated Singletary's constitutional right to due process. Singletary v. Reilly, 452 F.3d 868, 869 (D.C.Cir.2006). The court ordered that Singletary be provided with a new parole revocation hearing. Singletary, 452 F.3d at 873-75.
In reaching its decision, the Court of Appeals noted that in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court ruled that a parolee is entitled to a hearing before a final decision on revocation can be made, and it set out the minimum due process requirements for such a hearing:
Id. at 489, 92 S.Ct. 2593. According to the Court of Appeals:
Singletary, 452 F.3d at 872 (internal quotation marks and citations omitted). Thus, in a parole revocation hearing, hearsay evidence must be "both sufficient in quantity and reliability to ensure fundamental due process rights." Id., citing Crawford v. Jackson, 323 F.3d 123, 128 (D.C.Cir.2003). The court concluded that in Singletary's case, while the quantity of the evidence was not an issue, "the hearsay presented at the hearing was not demonstrated to be reliable," and "the Board's decision to revoke Singletary's parole was therefore `totally lacking in evidentiary support.'" Id., quoting Crawford, 323 F.3d at 129. The Court made it clear that it was not overturning the Board's decision because it had been based on hearsay; rather, it held that "the government has not established that the hearsay deemed adequate by the Board was sufficient in reliability to ensure fundamental due process rights." Id. at 874 (internal quotation marks omitted).
Singletary's new parole revocation hearing was held on October 30, 2006 before the United States Parole Commission. Singletary Decl. ¶ 16. The Parole Commission determined that there was insufficient evidence to permit a finding of a parole violation and reinstated Singletary to supervised release, which he has successfully completed. Id. ¶ 19.
Plaintiff filed this lawsuit on April 23, 2009, seeking money damages from the District of Columbia under 42 U.S.C. § 1983 for the Board's unlawful revocation of his parole. Compl. at 9 (demand for relief). The District filed a motion to dismiss [Dkt. # 6], which the Court denied on February 18, 2010, because "the District has not shown on the present record and based on the arguments presented in its Motion to Dismiss and supporting briefing that Singletary cannot succeed on his claim." Singletary, 685 F.Supp.2d at 93. Now pending before the Court are the parties' cross motions for summary judgment [Dkt. #30 and #32]. The Court heard oral argument on these motions on June 20, 2011.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
"The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Washington Post, 871 F.2d 1144, 1148 n. 4 (D.C.Cir.1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982). In assessing each party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C.2010), citing Anderson, 477 U.S. at 247, 106 S.Ct. 2505.
Section 1983 of the Civil Rights Act provides:
In Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that local governments are not immune from liability under section 1983, but it specified that "a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be liable under § 1983 on a respondeat superior theory." Id. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. 2018. The Supreme Court subsequently explained: "while Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others." Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (emphasis in original). "The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible." Id.
In determining whether a plaintiff has established municipal liability under Monell, the court must first determine whether there has been a constitutional violation. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003). In this case, despite the District's protests to the contrary, see note 1, supra, that decision has already been made by the D.C. Circuit. Singletary v. Reilly, 452 F.3d at 868. Thus, the sole question before this Court is whether the decision made by the Board to revoke the plaintiff's parole in the absence of due process was an act of the District itself to which liability can attach.
To answer that question after Monell, courts have considered it necessary to determine whether it was the execution of a governmental policy that caused the constitutional injury. According to the D.C. Circuit:
Baker, 326 F.3d at 1306 (citations omitted). Plaintiff is not seeking to establish here that the Board customarily premised revocation on unreliable hearsay, or that it regularly disregarded the requirements of due process when considering the fate of parolees; nor does he suggest that the
In Pembaur, the Supreme Court stated: "We hold that municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." 475 U.S. at 483, 106 S.Ct. 1292. Thus, plaintiff has approached this issue by arguing that the Board was "the body responsible for establishing final policy" with respect to parole, and therefore, its decision on a parole matter could form the basis for municipal liability under Monell. The Court summarized the positions of the parties when it ruled on the District's motion to dismiss under Fed.R.Civ.P. 12(b)(6):
Singletary, 685 F.Supp.2d at 90 (emphasis in original). See also id. at 93 ("[A]s noted previously, the District has
At the summary judgment stage, though, the District appears to have reversed course once again, see, e.g., Singletary, 685 F.Supp.2d at 93, and it devotes the bulk of its briefing to its present contention that the Board was not the final policy maker for the District on issues of parole. Def.'s Mem. at 6-20. The Court finds the District's arguments to be unpersuasive.
The determination of whether an individual or a government body is a final policymaker with respect to a particular topic is a matter of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), citing Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. Plaintiff points to several circumstances that support a finding that at the time of the decision in question, the Board had the final word within city government on matters of parole policy under D.C. law.
The Parole Board shall:
Under the terms of this provision, it was the Board that had broad and exclusive authority to grant, condition, oversee, or revoke parole. The statute also granted the mayor authority to promulgate rules regarding parole, and the mayor, in turn, delegated that authority to the chairman of the Parole Board. D.C.Code § 24-201.03, redesignated as D.C.Code § 24-401.03; Mayor's Order 89-10 (Jan. 6, 1989), 36 D.C. Reg. 1254 (Feb. 10, 1989). The Board's rules and regulations have the force and effect of law. Cosgrove v. Thornburgh, 703 F.Supp. 995, 1001-03 (D.D.C.1988). Finally, plaintiff points out that there was no administrative or executive review within the D.C. government for a decision by the Board to revoke parole. D.C. Sec. Supp. Answer to Singletary Interrog. at No. 4 (Ex. 2 to Plaintiff's Cross Motion for Partial Summary Judgment on the Issue of Liability) ("Pl.'s Mem.").
In response, the District argues that the Parole Board was not a final policymaker because the mayor delegated his statutory rulemaking authority to the chairman of the Parole Board rather than to the Board as a whole. Def.'s Mem. at 17. According to the District, this means the Board was constrained by rules and regulations that were not of its making. Tr. at 18. But the delegation of rulemaking authority to the chairman instead of to the entire Board is a mere formality that does not change the fact that policymaking authority was located within the Board and not somewhere else in city government. As plaintiff characterizes it, "the power [to promulgate rules] was internal to the Board and not external." Pl.'s Mem. at 11. In fact, when the Court asked counsel for the District at oral argument which governmental entity promulgated the policies that were in place at the time of Singletary's revocation hearing, he stated: "it's an executive regulation, but it came through the parole board and went through review and comment." Tr. at 16-17. So the District has not shown that the Board was subject to rules devised for it by someone else.
The District relies on several cases to support its argument that municipal liability does not attach when "officials are constrained by policies not of the official's making even when the officials have significant discretionary authority in the area that is the subject of the lawsuit." Def.'s Mem. at 13. But those cases are distinguishable from the situation presented here. Triplett v. District of Columbia, 108 F.3d 1450 (D.C.Cir.1997), involved two correctional officers who caused serious injury when they used excessive force in handling a prisoner. The court ruled that they obviously did not possess final policymaking authority on the use of force in restraining D.C. prisoners, and therefore,
None of the other cases cited by the District involve municipal "actors" similar to the Parole Board either. See, e.g., Bolton v. City of Dallas, 541 F.3d 545, 550 (5th Cir.2008) (finding that city manager was not a final policymaker with respect to an employment decision); Rasche v. Village of Beecher, 336 F.3d 588, 600 (7th Cir.2003) (determining that a code enforcement office, whose duties included identifying zoning violations and issuing tickets, was not a final policymaker); Jett v. Dallas Ind. Sch. Dist., 7 F.3d 1241, 1249-50 (5th Cir.1993) (finding that superintendent of school district was not a policymaker because he was following policy decisions set by the district's board of trustees). The District cites Banks v. District of Columbia, 377 F.Supp.2d 85 (D.D.C.2005) but that case does not support its position. In Banks, the Court determined that the Director of the Department of Mental Health was a final policymaker who could establish municipal liability because of her "vast responsibilities and expansive authority" and because as a director of her department, she was "responsible for promulgating rules to run" that department. Id. at 91-92. Like the Director of Mental Health in Banks, the Parole Board held the authority to promulgate its own rules.
The District argues next that the Board lacked policymaking authority because whatever authority it exercised had been delegated to it by the mayor. This argument is without merit because the Supreme Court's decision in Pembaur specifically recognized that final policy making authority "may be granted directly by legislative enactment or may be delegated by an official who possesses such authority." Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. The District's point is that if the mayor granted the authority, he could also revoke it at any time. But the possibility that the Board's authority could hypothetically be revoked does not mean that the Board did not possess it at the time in question. If the District's argument were to prevail, no authority delegated to any individual or governmental body could ever be considered final, and that would be inconsistent with the Supreme Court's statement in Pembaur.
The District also contends that the Board lacked final policymaking authority because its policies could be legislatively overruled and its revocation decisions were subject to habeas review. If the availability of judicial or legislative review meant that an entity was not a policymaker for Monell purposes, then no one in the executive branch would ever be considered a final decision maker under section 1983. This is clearly not the result contemplated by the Supreme Court. See Pembaur, 475 U.S. at 479, 106 S.Ct. 1292. Indeed, the District seemed to recognize this when it wrote: "[F]inal policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Def.'s Mem. at 18, citing Scala v. Winter Park, 116 F.3d 1396, 1401 (11th Cir.1997) (emphasis added). While the availability of administrative review within the executive branch would be a factor that would weigh against a finding that the initial decisionmaker lacked policymaking authority, that argument by its terms does not include the possibility of court review or a legislative override.
The District takes the position that even if the Board was the ultimate policy maker with respect to parole for the municipality, it can only be held liable under section 1983 for an injury caused by an unconstitutional policy it promulgated, and not for one of its individual decisions. But the Supreme Court has expressly rejected that distinction. Monell held that a governmental body may be sued if it caused a constitutional violation through "a policy statement, ordinance, regulation, or decision. . ." 436 U.S. at 690, 98 S.Ct. 2018 (emphasis added), and the Court subsequently stated: "it is plain that municipal liability may be imposed for a single decision by municipal policy makers under appropriate circumstances." Pembaur, 475 U.S. at 480, 106 S.Ct. 1292.
In Pembaur, the Court determined that a County Prosecutor "was acting as the final decisionmaker for the county" when he directed the County Sheriff to take the action deemed to be unconstitutional—the forcible entry of a medical clinic in an effort to serve capiases on third parties. 475 U.S. at 485, 106 S.Ct. 1292 (emphasis added). See also id., at 484, 106 S.Ct. 1292 ("The Prosecutor made a considered decision based on his understanding of the law and commanded the officers to forcibly enter the clinic."). Indeed, the entire thrust of the Pembaur decision was to explain that even isolated decisions could constitute "policy" for purposes of imposing section 1983 liability on municipalities under Monell.
Id. at 481, 106 S.Ct. 1292. Applying that principle, a decision by the Board, which was the District's final decisionmaker with respect to parole and parole policy, was an act of official government policy to which section 1983 applies. See Meyers v. City
The District relies heavily upon Praprotnik, but that case does not change the result here. Like most of the cases cited by the District, the case involved whether liability could be imposed based upon employment actions taken by the plaintiff's supervisors. The Court found that the municipality could not be liable because it concluded, as a matter of state law, that the city officials who made the challenged decisions were not the makers of municipal policy for matters of personnel administration. Praprotnik, 485 U.S. at 128, 108 S.Ct. 915. So the Praprotnik opinion did not directly address the issues presented in this case.
The key sentence in Praprotnik upon which the District relies—("Aware that governmental bodies can act only through natural persons, the Court concluded that those governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights")—does appear in the introductory section of the opinion where the Court reviews the holding in Monell and recounts its rejection of respondeat superior. 485 U.S. at 122, 108 S.Ct. 915. But then the Court goes on to state:
Id. at 123, 108 S.Ct. 915.
What Praprotnik teaches is that the authority to make municipal policy that is the linchpin for liability must be the authority to make final policy. Id. at 127, 108 S.Ct. 915.
Id. Thus, even under Praprotnik, since the parole revocation was "a single decision taken by the highest officials responsible for setting policy in that area of the government's business," and since the Board was not constrained by policies made by a higher body and its decisions were not subject to review by other city officials, the decision can form the basis for liability under section 1983.
Several weeks after the hearing on the cross motions in this case, the District focused in more closely on the issue of
The case, Dick v. Watonwan County, 738 F.2d 939 (8th Cir.1984), must have caught the District's attention because it referred to the defendant as the "Board." But the case did not involve a quasi-judicial board making a flawed decision—it involved the actions of a few overzealous social workers who were employed by an agency called the Tri-County Human Services Board. The case addressed the question of whether the employer—in this case, the "Board"—and the county involved could be held liable for the individual employees' questionable exercise of judgment. The case set forth the principle that a policy that permits individual municipal officers to exercise their own discretion is not necessarily an unconstitutional policy or one that can be deemed to be the "moving force" behind a constitutional violation for purposes of Monell. Id. at 943. The other Eighth Circuit cases cited by the government applied this principle.
The District has recast its position a number of times, but there is some merit to its concern that a parole revocation decision does not fall neatly into the rubric set out in Pembaur and Praprotnik. Under that approach, the court determines first whether the individual or entity that caused the constitutional deprivation was the final municipality's final policymaker for a particular subject matter area. If so, then any decision it made related to that
But this Court has wrestled with this opinion because the policy maker analysis seems better suited to a situation where a high ranking municipal employee, as in Pembaur, issues an isolated directive ("Round up the usual suspects!") or makes a policy choice with broad general application, rather than when a quasi-judicial body—one that is charged with making multiple, regular, individual decisions—goes about making one of them unlawfully. The policy analysis seems particularly unsuited to the case before the Court since the parole revocation policy promulgated by the Board—which was followed in this instance—did not itself violate the Constitution. As the District points out, there is broad language in some of the cases that have elaborated on Monell that suggests that the Court must find that it was the municipal policy—and not an individual decision made pursuant to that policy—that was unconstitutional before liability can be imposed on a municipality. See, e.g., Praprotnik, 485 U.S. at 123, 108 S.Ct. 915 ("[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business."); id. at 128, 108 S.Ct. 915 ("[T]he city cannot be held liable under § 1983 unless respondent proved the existence of an unconstitutional municipal policy.").
In response, plaintiff correctly states that Pembaur and Baker permit this Court to hold that the Board was executing "policy" when it was making one of its "decisions." This approach has its drawbacks, though, as it seems to strip the word "policy" of its ordinary meaning.
But that does not mean that the plaintiff is not entitled to judgment in this case. In the Court's view, it can grant summary judgment for the plaintiff without wading into the muddy waters of the policy maker analysis, because a more straightforward answer can be found if one returns to the Supreme Court's opinion in Monell. The cases distinguishing policy makers from others grew out of that decision, but the distinction was not what the case was about. What the Supreme Court held was:
Monell, 436 U.S. at 690, 98 S.Ct. 2018 (emphasis added). Thus, the overarching principle established in Monell was that there could be municipal liability for an official governmental action, whether it comes in the form of a policy, regulation, or "decision."
"Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts `of the municipality'—that is, acts which the municipality has officially sanctioned or ordered." Pembaur, 475 U.S. at 480, 106 S.Ct. 1292. In the years after Monell, if the decision in
Plaintiff approached this case from that angle when he argued: "There is . . . nothing exceptionable in holding a municipality liable for acts undertaken by final policymakers (even those holding authority by virtue of delegation) provided only that that area of the city's business has been delegated to them and that there is no practical right of administrative review of their decisions." Pl's Opp. to Def's Mem. [Dkt. # 31] at 16. What the Court understands the plaintiff to be saying is that when the Board made a decision concerning parole revocation, in essence, it was the District. The Board was issuing the District's final word on the subject within its purview, and therefore, liability can be imputed to the District. The Court agrees. See Hampton Co. Nat. Sur., LLC v. Tunica County, Miss., 543 F.3d 221, 227 (5th Cir.2008) (reversing district court determination that county was not liable for sheriff's actions because "the sheriff's decision. . . is the kind of single decision by the relevant policymaker that can be the basis of liability"); Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir.2000) (stating that school district was subject to liability where it had delegated authority to football coach to make final decisions regarding team membership).
What the Supreme Court did in Monell was review the legislative history of the Civil Rights Act in detail and overturn the opinion in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that Congress intended municipalities to be absolutely immune from suit under section 1983. The Court was quite clear that there were limits to what it was announcing at that time: "Since this case unquestionably involved official policy as the moving force of the constitutional violation found by the District Court . . . we must reverse the judgment below. In doing so, we have no occasion to address and do not address what the full contours of municipal liability under § 1983 may be." 436 U.S. at 694-95, 98 S.Ct. 2018. So the court did not hold that unless municipal policy was the moving force behind the violation, liability will not attach—it held that because in that case municipal policy was the moving force behind the violation, liability did attach. It follows then that if in a later case, it is determined that an official "ordinance, regulation, or decision" caused the injury, see id. at 690, 98 S.Ct. 2018, that too could be grounds for liability.
The Monell opinion made it clear that it was not outlining the contours of municipal liability for all purposes. The Court declared that governmental bodies are not wholly immune, and it also established the important principle that liability could not be vicarious. "In particular, we conclude that municipality cannot be held liable solely because it employees a tortfeasor." Id. at 691, 98 S.Ct. 2018 (emphasis in original). The Court explained that such a
The purpose of the policymaker analysis, then, was to provide guidance for those cases, such as City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), or Praprotnik, 485 U.S. at 112, 108 S.Ct. 915, where it was necessary to differentiate the acts of a municipal employee from the acts of the municipality itself. "The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible." Pembaur, 475 U.S. at 479, 106 S.Ct. 1292.
As Justice Brennan wrote in his concurrence in Praprotnik:
485 U.S. at 139 n. 3, 108 S.Ct. 915.
The Court concludes that at bottom, in this case, the municipal policy inquiry is superfluous. There is no danger that finding the city to be responsible for the decision of its parole board would be imposing the kind of vicarious liability based "solely" on the acts of individual, rogue employees that was prohibited by Monell. In this case, the injury "was inflicted by . . . those whose edicts or acts may fairly be said to represent official policy," Praprotnik, 485 U.S. at 121-22, 108 S.Ct. 915 (internal quotation marks omitted), and the revocation of plaintiff's parole was therefore an "act[] `of the municipality,'—that is, [an act] which the municipality has officially sanctioned or ordered." Pembaur, 475 U.S. at 481, 106 S.Ct. 1292. So, even if the two step policy test is not perfectly apt in this case, plaintiff is entitled to judgment as a matter of law.
In the end, faced with a difficult question of first impression, this Court considered whether the Supreme Court had provided any direction on how close questions should be resolved in the future. On that point, the Court was unequivocal:
Monell, 436 U.S. at 700-01, 98 S.Ct. 2018. The Monell opinion quotes verbatim from the legislative history on this point:
Id. at 684, 98 S.Ct. 2018, quoting Cong. Globe, 42d Cong., 1st Sess., App. 335-336. The Court went on:
Id. at 685, 98 S.Ct. 2018. The fact that that Supreme Court explicitly underscored the need to construe the act broadly lends further support to this Court's conclusion that Mr. Singletary should prevail in his action.
Therefore, based on a thorough consideration of the cross motions for summary judgment, the oppositions, and the entire record of this case, the Court will deny the District's motion for summary judgment and grant plaintiff's partial motion for summary judgment. The only remaining issue is a determination of damages. A separate order will issue.
Defendant District of Columbia moves the Court to reconsider its decision denying the District's motion for summary judgment and granting plaintiff Charles Singletary's cross-motion for partial summary judgment on the issue of liability. Singletary v. District of Columbia, 800 F.Supp.2d 58, 2011 WL 3268093 (D.D.C. August 1, 2011); [Dkt. # 41]. For the reasons set forth below, the Court will deny the District's motion for reconsideration.
The District moves for reconsideration under Fed.R.Civ.P. 54(b), which governs reconsideration of orders that do not constitute final judgments in a case. Fed. R.Civ.P. 54(b). Relief under Rule 54(b) is available "as justice requires," which "amounts to determining, within the court's discretion, whether reconsideration is necessary under the relevant circumstances." Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005). Generally, "a court will grant the motion only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order." Zeigler v. Potter, 555 F.Supp.2d 126, 129 (D.D.C. 2008) (internal quotation marks and citations omitted). None of those circumstances are present here.
Although the Court set out the factual background of this case in great detail in both of its previous opinions, the essential facts for purposes of this motion include the following: plaintiff Charles Singletary was released on parole after serving more than seven years of his sentence. Singletary Decl. ¶ 2. Five years later, he was arrested as an alleged participant in murder but the charges were dropped at the preliminary hearing, and he was never indicted by a grand jury. Id. ¶ 4. Nonetheless, the District of Columbia Board of Parole revoked his parole based on unreliable hearsay evidence, sending him back to prison for ten more years. Id. ¶¶ 6-8. After plaintiff filed numerous habeas corpus petitions in both state and federal court, the U.S. Court of Appeals for the District of Columbia granted relief by holding that the Board's decision was based on such a "shoddy" record that it violated Singletary's constitutional right to due process. Singletary v. Reilly, 452 F.3d 868, 869 (D.C.Cir.2006).
The District makes two arguments in support of its motion. First, the District
The District asserts that the D.C. Circuit's decision was merely an "evidentiary ruling" that concluded that the "Parole Board's hearing process was flawed insofar as the Board relied on multi-layered hearsay." Def.'s Mem. at 4. This is such a mischaracterization that it troubles the Court that the District's attorneys would make it once, much less three times. Has the Attorney General's office failed to read the D.C. Circuit's opinion? Or is it simply unaware of what an "evidentiary ruling" consists of? An evidentiary ruling is a decision concerning the admission or exclusion of evidence. In Singletary's case, the Court of Appeals stated explicitly that it was not overturning the Board's decision because it was based on hearsay. Singletary, 452 F.3d at 875. Rather, it held that "the government had not established that the hearsay evidence deemed adequate by the Board was sufficient in reliability to ensure fundamental due process rights." Id. at 874 (internal quotation marks omitted).
Second, the District argues that the pre- and post-deprivation remedies available to Singletary, including the parole revocation hearing itself and the subsequent habeas corpus proceedings, satisfied his due process rights under the Fifth Amendment.
It is true that in certain circumstances, post-deprivation procedures may be considered adequate to satisfy the requirements of due process, see Sloan v. HUD, 231 F.3d 10, 19 (D.C.Cir.2000) ("procedures made available to suspended government contractors under agency regulations deemed "more than enough" to satisfy the requirements of procedural due process"), but those precedents do not govern this case. In Sloan, HUD contractors received a notice of suspension and intended debarment in August of 1995, and after being placed on notice of the grounds for the action, they were accorded a full hearing before an ALJ who rejected the government's allegations a year later. Sloan, 231 F.3d at 11. Singletary received no such full and prompt review, so the Court finds the language in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1983), to be more instructive. In that case, in which state procedures eliminated a plaintiff's right to a hearing to
Transcript of Motions Hearing ("Tr."), June 20, 2011, at 3-4. If the violation of Singletary's right to due process was not the "sum and substance" of the D.C. Circuit opinion, the Court cannot imagine what was. Neither of the District's arguments can be squared with even a cursory reading of the D.C. Circuit's opinion in Singletary v. Reilly, 452 F.3d at 868.
Bush v. St. Louis County, No. 10-cv-00544, 2010 WL 5071330 (E.D.Mo. Dec. 7, 2010) did not analyze the liability of quasi-judicial bodies either. The complaint in that case concerned the discharge of a public employee, who complained that the decision was made arbitrarily and without the necessary procedural safeguards. The court noted that the plaintiff had failed to allege that there was a custom or policy of unlawful employment practices, and it cited Zumwalt without more.
Finally, Moyle v. Anderson, 571 F.3d 814 (8th Cir.2009), dealt with a correctional officer's decision to assign a dangerous prisoner to be confined in the jail's general intake unit rather than in a separate cell. The Court relied on its decision in Dick to conclude that a policy that called for segregating high risk inmates, but afforded the officer the discretion to seek additional information before designating a prisoner, was not an unconstitutional policy. Id. at 818.
The Fourth Circuit case cited by the District, Hassell v. City of Chesapeake, Virginia, 64 F.Supp.2d 573 (E.D.Va.1999), aff'd 230 F.3d 1352 (4th Cir.2000), involved a decision made by a single supervisory employee to subject a subordinate to a drug test. The District describes the holding as "no municipal liability for discretionary function." But the Court made a factual finding in that case that the employee who ordered the plaintiff to submit to the test was not a final policymaker for substance abuse policy for the city, and it was on those grounds that it ruled that her decision—applying an existing policy to the facts before her—would not support municipal liability under Monell. Id. at 578.
