Beryl A. Howell, CHIEF JUDGE.
The pro se plaintiff, Oliver M. Boling, a District of Columbia prisoner currently incarcerated at the Federal Correctional Institution in Estill, South Carolina, instituted this lawsuit against six employees of the United States Parole Commission ("Commission") and a case manager at the Bureau
Pending before the Court is the defendants' motion to dismiss the complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defs.' Mot. to Dismiss, ECF No. 14. Upon consideration of the defendants' motion and reply, ECF No. 18, and the plaintiff's opposition, ECF No. 16, and surreply, ECF No. 20, the Court finds that most of the plaintiff's claims are barred by sovereign immunity and res judicata, and the remaining personal-capacity claims are frivolous. Accordingly, for the reasons explained more fully below, the defendants' motion is granted on those grounds and this case is dismissed.
The allegations in the prolix complaint are sketchy and difficult to follow but nevertheless make clear that the claims pertain to events beginning in January 2005, when the Commission, as the authority over D.C. parolees and supervisees, rescinded the plaintiff's presumptive parole date of April 9, 2005, and rescheduled him for parole reconsideration in December 2018 ("15-year setoff"). See Not. of Action, ECF No. 14-1 at 4; Compl. at 8-11, ECF No. 1. These events underlying the plaintiff's instant complaint also prompted his prior actions. Thus, the detailed history set out below by the United States Court of Appeals for the Tenth Circuit in the plaintiff's appeal from the District of Kansas' denial of his 2007 habeas petition is pertinent background to the Commission's actions challenged in the instant complaint.
Boling v. Mundt, 261 Fed.Appx. 133, 135-36 (10th Cir. 2008).
The Tenth Circuit considered the merits of the plaintiff's claims grounded upon "the decision of [the] Commission to revoke his parole and defer reconsideration of parole beyond the length of time recommended under the Commission's guidelines." Id. at 135. Agreeing with the district court, the
The plaintiff filed this civil action in October 2015 against the following individuals in their individual and official capacities: Pamela Posch and Helen H. Krapels, both identified as "Gen. Counsel, USPC"; Steve Husk, Rob Haworth, Kathleen A. Piner and Jeffery Kosbar, all identified as "USPC Examiner"; and Michael Gray, identified as "BOP-Lev. Worth Case Man." Compl. at 7 (Caption).
In addition, the plaintiff accuses Examiner Kosbar of carrying out "a fraudulent scheme" when he allegedly introduced at the parole reconsideration hearing conducted in July 2004 "an audio tape taken the morning of the hearing by Plaintiff's wife." Compl. at 3-4. After the plaintiff objected to Kosbar's use of "the phony tape taken the day of the hearing," he claims that Kosbar postponed the hearing. Id. at 4. Four months later, in November 2004, Examiner Haworth allegedly "illegally conducted a hearing without Plaintiff present and Ordered that [he] do a 15 year reconsideration pursuant to 28 U.S.C. 2.28(f) § 2.12(b) until 2018 with interim hearings." Id. The plaintiff accuses the defendants generally of "fraud, fraudulent
To survive a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of demonstrating the court's subject-matter jurisdiction over the claims asserted. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). "`Federal courts are courts of limited jurisdiction,' possessing `only that power authorized by Constitution and statute.'" Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Indeed, federal courts are "forbidden ... from acting beyond our authority," NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have "an affirmative obligation `to consider whether the constitutional and statutory authority exist for us to hear each dispute,'" James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Fed. R. Civ. P. 12(h)(3) (requiring dismissal of action "at any time" the court determines it lacks subject matter jurisdiction).
When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and "`construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged' and upon such facts determine jurisdictional questions." Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Moreover, in evaluating subject matter jurisdiction, the court "may consider materials outside the pleadings." Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016); Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); Herbert, 974 F.2d at 197 (in disposing of motion to dismiss for lack of subject matter jurisdiction, "where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.").
Where, as here, a defendant files a motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6), the Rule 12(b)(1) grounds for dismissal are examined first "as subject matter jurisdiction presents a threshold question." El Paso Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C. Cir. 2014) (citing Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) and Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)); see also Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d 59, 64 (D.D.C. 2011) (noting that "court must first examine the Rule 12(b)(1) challenges" because a dismissal for lack of subject matter jurisdiction may render "the [other]
To survive a motion to dismiss under Rule 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Wood v. Moss, ___ U.S. ___, 134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than "`merely consistent with' a defendant's liability," but "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact, and construe all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) ("We assume the truth of all well-pleaded factual allegations and construe reasonable inferences from those allegations in a plaintiff's favor." (citing Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014))). The Court "need not, however, `accept inferences drawn by [a] plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.'" Nurriddin, 818 F.3d at 756 (alteration in original) (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
When res judicata bars a claim, it is subject to dismissal under Rule 12(b)(6). See RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F.Supp.2d 182, 189 (D.D.C. 2011) ("Res judicata is an affirmative defense that is usually pled in a defendant's answer, but courts have also allowed parties to assert the defense in a 12(b)(6) motion to dismiss." (citation omitted)). A defendant may raise the res judicata defense in a Rule 12(b)(6) motion "where [it] can be established from the face of the complaint, matters fairly incorporated within it, and matters susceptible to judicial notice." Lewis v. DEA, 777 F.Supp.2d 151, 159 (D.D.C. 2011) (internal quotations and citations omitted). When ruling on a motion to dismiss under Rule 12(b)(6) on res judicata grounds, a court may take judicial notice of its own record, public records from other proceedings, and documents attached as exhibits or incorporated by reference in the complaint, including administrative complaints and orders. See Laughlin v. Holder, 923 F.Supp.2d 204, 209 (D.D.C. 2013) (taking judicial notice of documents attached to or incorporated into the complaint, including administrative complaints and documents); Hemphill v. Kimberly-Clark Corp., 605 F.Supp.2d 183, 186 (D.D.C. 2009) (taking judicial notice of public records from other proceedings (citation omitted)); Sieverding v. U.S. Dep't of Justice, 847 F.Supp.2d 75, 81 (D.D.C. 2012) (taking judicial notice of a court's own records (citation omitted)).
The defendants contend that the plaintiff's claims should be dismissed on the grounds, inter alia, of sovereign immunity, res judicata, and lack of personal jurisdiction. Mem. of Pts. & Auth. in Supp. of
Sovereign immunity bars lawsuits against the United States, its agencies and its employees sued in their official capacities, absent an unambiguous waiver by the federal government. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government [from suit] ...."); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (noting that suit against a government official in his official capacity "generally represent[s] only another way of pleading an action against an entity of which an officer is an agent," such that "an official capacity suit is, in all respects other than name ... a suit against the entity"); Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) (holding that "no Bivens claim is available against [IRS employees] in their official capacities ...."); Perkins v. Ashcroft, 275 Fed.Appx. 17 (D.C. Cir. 2008) ("to the extent appellant was attempting to sue the former Attorney General in his official capacity, the action is barred by sovereign immunity"). This means that a waiver of sovereign immunity "must be unequivocally expressed in statutory text, and [it cannot] be implied." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations omitted).
In his complaint, the plaintiff invokes the Constitution, provisions of the Civil Rights Act, and two federal criminal statutes, see Compl. at 5, as the legal basis for seeking compensatory monetary damages from the Commission and the named government officials. Yet, none of these laws relied on by the plaintiff provides a waiver of sovereign immunity for the plaintiff's claims for monetary relief against the Commission and the individual defendants in their official capacity.
First, the law is well established that Congress has not waived the United States' immunity with respect to tort claims arising under the Constitution. Meyer, 510 U.S. at 478, 114 S.Ct. 996 ("the United States simply has not rendered itself liable ... for constitutional tort claims"). Second, "§ 1985 does not waive the federal government's sovereign immunity, so federal employees acting in their official capacities are immune from liability for alleged violations of § 1985," and any other provision of the Civil Rights Act. Roum v. Bush, 461 F.Supp.2d 40, 46 (D.D.C. 2006) (citing U.S. v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) (other citation omitted)); see also In re Rodriguez, 2005 U.S. App. LEXIS 22400 (D.C. Cir. Oct. 14, 2005) (holding that Congress did not "waive the United States's sovereign immunity with respect to [plaintiff's]... statutory civil rights claims" under 42 U.S.C. §§ 1985(3) and 1986); Davis v. U.S. Dep't of Justice, 204 F.3d 723, 726 (7th Cir. 2000) ("Sovereign immunity ... bars §§ 1985(3) and 1986 suits brought against the United States and its officers acting in their official capacity."). Third, the criminal statutes the plaintiff cites, 18 U.S.C. §§ 241 and 242, do not provide a private cause of action. See Jackson v. Donovan, 856 F.Supp.2d 147, 149 (D.D.C. 2012) ("Plaintiff's claim of a criminal conspiracy fails because `18 U.S.C. § 241 is a criminal statute that provides no basis for an individual to bring a private, civil action'") (quoting Alexander v. Wash. Gas Light Co., 481 F.Supp.2d 16, 32 (D.D.C. 2006)); Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F.Supp.2d 17, 23 (D.D.C. 2003) ("[T]he plaintiff is precluded from asserting any claims pursuant to 18 U.S.C. §§ 242 and 371 because,
The plaintiff's official-capacity conspiracy claim predicated on alleged fraud and other deceitful acts fares no better. Although Congress has waived the United States' immunity for certain torts under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, the waiver applies only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The FTCA does not authorize the plaintiff's claim, however, since "[u]nder both federal and District of Columbia law, civil conspiracy is not actionable in and of itself. Rather, its purpose is to serve as a device through which vicarious liability for the underlying wrong may be imposed upon all who are a party to it, where the requisite agreement exists among them." Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989) (citations omitted). This is consistent with the "important civil conspiracy principle [] that no conspiracy can exist without `some underlying tortious act.'" Pencheng Si v. Laogai Research Found., 71 F.Supp.3d 73, 89 (D.D.C. 2014) (quoting Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)). The underlying tortious acts alleged here involve fraud and deception, but the FTCA expressly "exempts fraud and misrepresentation from the general waiver of sovereign immunity." Maxberry v. Dep't of the Army, Bd. of Correction of Military Records, 952 F.Supp.2d 48, 52 (D.D.C. 2013) (citing 28 U.S.C. § 2680(h) (other citation omitted)).
Accordingly, as to the claims for monetary damages against the Commission and the individual defendants in their official capacity, the defendants' motion to dismiss on sovereign immunity grounds must be granted.
Construed liberally, the plaintiff also seeks monetary damages from the individual defendants in their personal capacities, as well as declaratory and injunctive relief, all of which claims the defendants contend must be dismissed for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). Defs.' Mem. at 13-20. Again, the Court agrees, for the reasons explained below.
"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as `res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Claim preclusion "forecloses `successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.'" Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). At the same time, issue preclusion, which was "once known as `collateral estoppel' and `direct estoppel,'" bars "successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim." Id. at 892 & n.5, 128 S.Ct. 2161 (internal citations and quotation marks omitted); see also U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 696
The doctrine of res judicata serves to "protect against `the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.'" Nat'l Ass'n of Home Builders v. EPA, 786 F.3d 34, 41 (D.C. Cir. 2015) (brackets in original) (quoting Taylor, 553 U.S. at 892, 128 S.Ct. 2161 (quoting Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)). "The objective of the doctrine of issue preclusion ... is judicial finality; it fulfills `the purpose for which civil courts had been established, the conclusive resolution of disputes within their jurisdiction.'" Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 467 n.6, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)).
The D.C. Circuit has established a three-part standard "for establishing the preclusive effect of a prior holding." Yamaha Corp. of Am., 961 F.2d at 254.
Id. (citations omitted). "Significantly for present purposes, courts regularly find that the resolution of a constitutional claim [within] the context of a petition for a writ of habeas corpus can have a preclusive effect on a subsequent section 1983 action that raises the same constitutional claim." Morgan v. United States Parole Comm'n, No. 14-cv-0770, 2016 WL 1312001, at *4 (D.D.C. Apr. 4, 2016) (citing Wilson v. Fulwood, 772 F.Supp.2d 246, 264 (D.D.C. 2011)).
All three requirements are satisfied here and preclude the plaintiff's claims. Since the plaintiff filed his prior habeas petition while incarcerated at the United States Penitentiary in Leavenworth, Kansas, see Boling v. Rivera, 2011 WL 6182124, at *6 n.11 (D.S.C. Dec. 13, 2011), the Tenth Circuit and the district court in Kansas were "court[s] of competent jurisdiction" to adjudicate the petition. See Rooney v. Sec'y of Army, 405 F.3d 1029, 1032 (D.C. Cir. 2005) (habeas "jurisdiction is proper only in the district in which the immediate ... custodian is located") (internal citations and quotation marks omitted)). Those courts addressed the merits of the same issues surrounding the Commission's 2005 decision that the plaintiff raises here.
The Tenth Circuit identified the claims as arising from the Commission's January 5, 2005 Notice of Action, "which extended Mr. Boling's parole reconsideration date to December 2018" and "voided the December 2003 Notice of Action." Boling, 261 Fed.Appx. at 136; see id. at 137 (concluding that "Mr. Boling's claims effectively
With respect to the ex post facto claim, the Tenth Circuit agreed with the district court that the plaintiff had failed "`to demonstrate that the Commission's application of [its own] guidelines subjected [him] to any significant risk of prolonging his incarceration.'" Id. (record citation omitted). With respect to the due process claim, the Tenth Circuit held, as did the district court, that the plaintiff had provided "no legal support" for his argument that the Commission had erroneously considered "conduct that did not result in a criminal conviction" to support the upward departure. Id. at 138. Finally, the Tenth Circuit rejected the third claim alleging "double counting" and agreed with the district court "that, in this case, `[t]he Commission departed from its guidelines based on the extent, nature, repetition, and timing of [Mr. Boling]'s assaultive and threatening behavior which was not adequately taken into consideration by the calculation of [Mr. Boling]'s guideline range." Id. (record citation omitted; alterations in original).
The sheer number of opportunities that the plaintiff has had to litigate the issues at hand undermines any notion that preclusion at this juncture would "work a basic unfairness."
Monetary relief is not available in habeas corpus proceedings and, consequently, resolution of the plaintiff's prior habeas petition does not appear to have preclusive effect with regard to his claims, under several provisions of the Civil Rights Act and certain criminal statutes, for damages against the named defendants in their personal capacities. Nevertheless, these claims are simply untenable.
In the form complaint filed under 42 U.S.C. § 1983, the plaintiff alleges that the individual defendants "each knowingly and intentionally conspired together to violate [his] Fifth, Fourteenth, and Eighth Amendment Constitutional Rights, in violation of 42 U.S.C. § 1985(3) [and] § 1986[,]" as well as 18 U.S.C. § 241 and
Section 1983 creates a private right of action against a "person" who is alleged to have violated the plaintiff's constitutional rights while acting "under color of ... any State or Territory or the District of Columbia." 42 U.S.C. § 1983. Such claims are properly brought against the person in his or her individual capacity. See Iqbal, 556 U.S. at 676, 129 S.Ct. 1937 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). The defendants argue that they are not subject to suit in their personal capacity under § 1983 because they are not state actors. See Defs.' Mem. at 18-19. They are mistaken. The D.C. Circuit has held that while the Commission itself is not subject to suit under § 1983, "a cause of action ... will lie against the individual members of the Commission when acting pursuant to the Revitalization Act § 11231, 111 Stat. at 745." Settles, 429 F.3d at 1104 (citing Fletcher v. District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004)).
The simple fact here, however, is that the Tenth Circuit has ruled against the plaintiff on the merits of his constitutional and statutory claims, and that ruling has preclusive effect. Therefore, no basis exists either in law or in fact to support an award of monetary damages under § 1983, and this is the textbook definition of a frivolous claim. See Abiodun v. Holder, 86 F.Supp.3d 11, 13 (D.D.C. 2015) ("A complaint is `frivolous where it lacks an arguable basis either in law or in fact.'") (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). Hence, the Court will dismiss the plaintiff's personal-capacity claims pursuant to 28 U.S.C. § 1915.
For the foregoing reasons, the Court concludes: (1) that sovereign immunity bars the plaintiff's claims against the United States, its agency and the individual
A separate Order consistent with this Memorandum Opinion will be filed contemporaneously.