McNair v. Smoot

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JIMMIE McNAIR, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-0404 (TSC)
)
U.S. PAROLE COMMISSION, et al., )
)
Defendants. )

MEMORANDUM OPINION

This matter is before the court on Defendants’ Motion to Dismiss Second Amended

Complaint (ECF No. 42), Plaintiff’s Motion in Opposition to Defendants[’] Answer to

Plaintiff[’s] Amended Complaint (ECF No. 45) and his Motion under Writ Madam[us] to Have

Prompt Evidentiary Hearing on the Matters at Hand That Can Be Viewed By Transcripts (ECF

No. 46). For the reasons discussed below, the court grants Defendants’ motion, dismisses

Plaintiff’s Second Amended Complaint in its entirety, and denies Plaintiff’s motions as moot.

I. BACKGROUND

A. Plaintiff’s Criminal Conviction, Sentence, and Supervised Release

On October 5, 2010, police arrested Plaintiff for unlawful distribution of a controlled

substance (cocaine). (See Mem. of P. & A in Support of Defs.’ Mot. to Dismiss (“Defs.’

Mem.”), Ex. 1 at 2.) A jury found Plaintiff guilty, and on December 6, 2011, the Superior Court

of the District of Columbia imposed a 48-month term of imprisonment followed by a five-year

term of supervised release. (Id., Ex. 2 at 1.) The supervised release term commenced on May

12, 2014, and Plaintiff was to remain under the supervision of the Court Services and Offender

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Supervision Agency for the District of Columbia (“CSOSA”), see D.C. Code § 24-133(c)(2),

through May 11, 2019, (Defs.’ Mem. Ex. 2 at 1.) Barely four months passed when Plaintiff

committed the first of many violations of the conditions of supervised release. (See generally id.,

Ex. 3 at 1-2.)

On August 5, 2015, Jequan S. Jackson, Case Analyst with the United States Parole

Commission (“USPC”), recommended that a supervision revocation warrant be issued, (id., Ex.

3 at 2.) The USPC charged Plaintiff with seven violations of the conditions of his supervised

release based on the reports of Kyndall Johnson, Plaintiff’s supervision officer (“CSO”).1 (See

id., Ex. 3 at 1-2.) For example, Plaintiff’s urine specimens tested positive for alcohol on two

occasions and for cocaine on 10 occasions, (id., Ex. 3 at 1-2,) and he failed to comply with a

graduated sanction, use of a global positioning system tracking device, when he “failed to charge

his GPS as directed by his supervising officer,” prior to his “remov[al] from the GPS program as

a result of a master tamper alert on 7/15/2015,” (Id., Ex. 3 at 2.)

Commissioner Charles Masserone signed the warrant on August 19, 2015. (Id., Ex. 3 at

3.) A deputy United States Marshal executed the warrant on October 7, 2016 at the D.C. Jail

where Plaintiff was detained, (id., Ex. 4 at 1,) following his arrest in the District of Columbia on

October 4, 2016, for distribution of a controlled substance (crack cocaine) and possession of a

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According to the Warrant Application, Plaintiff violated a special condition of his release
(drug aftercare) as evidenced by two urine specimens testing positive for alcohol (Charge No. 1);
used dangerous and habit forming drugs as evidenced by 10 urine specimens testing positive for
cocaine (Charge No. 2); failed to submit to drug testing by [NOT?] submitting urine specimens
on 17 occasions (Charge No. 3); failed to comply with graduated sanctions (global positioning
systems, Charge No. 4); failed to report to his supervising officer (Charge No. 5); and violated a
special condition of his release (drug aftercare, Charge Nos. 6 and 7) by refusing to participate in
the Halfway Back 60-day drug aftercare program and the Re-Entry and Sanction Center drug
aftercare program. (See Defs.’ Mem., Ex. 3 at 1-2.)
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controlled substance (crack cocaine), (see id., Ex. 5 at 1.) Jackson supplemented the warrant

application by adding an eighth charge, a law violation, arising from Plaintiff’s arrest. (Id., Ex.

6.)

Hearing examiner Kelley conducted Plaintiff’s probable cause hearing on October 14,

2016, and he found probable cause to detain Plaintiff pending a supervision revocation hearing.

(See generally id., Ex. 7.) Rebecca Vogel of the Public Defender Service represented Plaintiff at

the probable cause hearing. (See id., Ex. 7 at 1.) In anticipation of a supervision revocation

hearing, Plaintiff had an opportunity to request the attendance of adverse witnesses. (Id., Ex. 7 at

6-7.) Notwithstanding notice that his “failure to make a request for the attendance of any

adverse witness is a waiver of [his] opportunity to confront and cross-examine that witness at a

revocation hearing,” (id., Ex. 7 at 6,) Plaintiff did not request an adverse witness.

Hearing examiner Joseph M. Pacholski conducted Plaintiff’s revocation hearing on

November 30, 2016, (id., Ex. 8 at 1,) at which CSO Kerri Guest-Uzzle testified, (see generally

id., Ex. 8 at 1-4.) Plaintiff waived counsel and represented himself. (Id., Ex. 8 at 1.) Pacholski

noted Plaintiff’s assertion that the USPC lacked jurisdiction over the matter and Plaintiff’s

objection to the absence of adverse witnesses, particularly the lab technician who tested

Plaintiff’s urine specimens and the technician who would have monitored his GPS device. (Id.,

Ex. 8 at 2.) Pacholski “pointed out to [Plaintiff] that he did not request . . . witnesses at the

Probable Cause hearing,” (id., Ex. 8 at 2,) and that he waived counsel, (id., Ex. 8 at 1,) for the

revocation hearing. Based largely on the CSO Guest-Uzzle’s testimony and reports prepared by

CSO Johnson, Pacholski found that Plaintiff violated seven supervised release conditions

(Charge Nos. 1-7). (Defs.’ Mem., Ex. 8 at 4.) The police officer who arrested Plaintiff on

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October 4, 2016 did not appear at the revocation hearing, and Pacholski made no finding with

respect to Charge No. 8 due to the lack of evidence. (Id., Ex. 8 at 4.)

Pacholski recommended revocation of supervised release and Plaintiff’s return to custody

for a term of 22 months from the date of the warrant’s execution. (Id., Ex. 8 at 5.) His

recommendation exceeded the ordinary guideline range of 12 to 16 months for the following

reasons:

Our subject argued every point and did not take responsibility for
any of his behavior. Our subject did not provide any information as
to why he was able to have 4 months of satisfactory compliance and
then not comply with any terms other than he was sick and he feared
for his safety. Our subject did not explain what steps he took to
resume satisfactory compliance and did not feel he needed to explain
other than he was sick. The subject’s sickness was not an extended
stay at a hospital and did not hinder his ability to contact his
[community supervision officer]. Our subject did not appear he was
amenable for supervision. Our subject did excuse his [Public
Defender Service] attorney and wanted to represent himself. Our
subject was upset that he did not receive a Probable Cause hearing
within 5 days but did not explain how this delay hindered his ability
to defend himself against the charges. Our subject is a poorer risk
because he has 24 convictions and 10 commitments that are not fully
accounted for in the SFS.
Our subject after the hearing became irate and called the Examiner
a number [of] racial terms. The subject then slammed a hearing
room door and caused a security issue at the institution [prompting]
staff to respond. Some of the incident could be heard in the hearing
room and the record was activated again to secure the evidence[.]
(Id., Ex. 8 at 5.)

Executive reviewer Lynne Jenkins, after listening to the last 20 minutes of the recording

of the hearing, agreed that revocation was warranted and recommended a slightly higher

sanction: a 26-month term of imprisonment. (Id., Ex. 8 at 5.) She noted Plaintiff’s October 4,

2016 arrest, and the “very poor attitude” Plaintiff exhibited “during and after the hearing,”

indicating that “he is not amenable to supervision.” (Id., Ex. 8 at 5.) The USPC concurred: it
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revoked Plaintiff’s supervised release and ordered his return to custody for 26 months.2 (Id., Ex.

9 at 1.) Plaintiff sent four submissions to the National Appeals Board, which ultimately affirmed

the USPC’s decision. (Id., Ex. 10 at 1.)

B. Plaintiff’s Second Amended Complaint

Plaintiff filed his original complaint in the Superior Court on December 7, 2016. (ECF

No. 1-1.) Defendants removed the case on March 7, 2017. (ECF No. 1.) This court construed

the complaint as raising constitutional challenges to the supervision revocation proceedings,

demanding monetary compensation for Plaintiff’s alleged unlawful incarceration, and demanding

Plaintiff’ immediate release from custody. Plaintiff amended his complaint, shifting focus from

the USPC’s actions to the validity of his underlying criminal conviction in the Superior Court.

(See generally ECF No. 5.) Subsequently Plaintiff filed documents (ECF Nos. 6, 8) purporting

to add new parties and claims, and on June 19, 2017, Plaintiff filed a motion for leave to amend

his complaint. (ECF No. 7.)

Defendants filed their first motion to dismiss on September 29, 2017. (ECF No. 16.)

Because Plaintiff’s amendments and other submissions had strayed so far from the claims set

forth in his original complaint, the court denied Defendants’ motion to dismiss without prejudice,

as it appeared to be moot. (ECF No. 21.) In addition, the court allowed Plaintiff to file a second

amended complaint encompassing all the claims he intends to bring, all the defendants against

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The USPC imposed a term of imprisonment calculated from the date of the warrant’s
execution, without regard to “street time.” Upon revocation of supervised release, Plaintiff
“receive[d] no credit for time spent on supervised release, including any time spent in
confinement on other sentences (or in a halfway house as a condition of supervised release) prior
to the execution of the [USPC’s] warrant.” 28 C.F.R. § 2.218(c).

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whom he makes his claims, and all the relief he demands. On February 16, 2018, Plaintiff filed a

document titled:

Motion to bring Clarity to Plaintiff Allegations Under & or pursuant
to 28 U.S.C. 1651 & or 42 U.S.C. § 1983. Plaintiff claims fall under
either 28 U.S.C. 1651 & or 42 U.S.C. § 1983 or Both Declaratory
Relief & or monetary gains for purpose of one or the other & or both
& or the improper handling & wrongdoing of U.S.P.C. et al
employees, illegal detention/unlawful detention, invalid conviction
& or sentence & or invalid conviction & or sentence & or ineffective
assistance of Appeal Counsel under Williams
(ECF No. 27 at 1.) The court construes this document as Plaintiff’s Second Amended Complaint

(“2d Am. Compl.”) against the following defendants:

Rebecca Vogel Charles T. Massarone Patricia K. Cushwa
Olinda Moyd J. Kelly Gary N. Kashurba
Jequan S. Jackson District of Columbia CSOSA
Joseph M. Pacholski Patricia Smoot
Kyndall Johnson USPC

(See 2d Am. Compl. at 5-6.) The individual defendants are sued in both their official and

individual capacities. (See id. at 5.) Notwithstanding the Second Amended Complaint’s vague,

rambling and disorganized presentation, it appears that Plaintiff:

• challenges his Superior Court conviction;
• alleges prosecutorial misconduct;
• raises ineffective assistance of trial and appellate counsel claims; and
• contends that the USPC, its Commissioners and employees violated his
constitutionally-protected rights.
Among other relief, Plaintiff demands monetary damages of $100 million.3 (See id. at 4, 6.)

3
Plaintiff also demanded his release from custody, (see 2d Am. Compl. at 5,) and declaratory
relief, (see id. at 4.) In recent filings, Plaintiff notified the Clerk of Court of his release from
FCI Fairton on July 20, 2018, (ECF No. 48,) and his current address at the Piedmont Regional
Jail in Farmville, Virginia (ECF No. 49.) Because it appears that Plaintiff has served all the time
attributable to the revocation of supervised release, the Court denies these claims as moot.
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II. DISCUSSION

A. Legal Standards

1. Dismissal Under Rule 12(b)(1)

Federal courts are courts of limited jurisdiction, see Gen. Motors Corp. v. EPA, 363 F.3d

442, 448 (D.C. Cir. 2004), and the law presumes that “a cause lies outside [the court’s] limited

jurisdiction” unless the plaintiff establishes otherwise, Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). In response to a motion to dismiss a complaint for lack of

subject matter jurisdiction, a plaintiff must establish jurisdiction by a preponderance of the

evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l

Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). In evaluating a motion to dismiss under Rule

12(b)(1), the court must “assume the truth of all material factual allegations in the complaint and

‘construe the complaint liberally, granting Plaintiff the benefit of all inferences that can be

derived from the facts alleged[.]’” 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)).

2. Dismissal Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” and “the grounds for the court’s jurisdiction” so that each defendant has

fair notice of the claim and the ground upon which it rests. Fed. R. Civ. P. 8(a); see Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing cases). Rule 12(b)(6) permits a defendant to

move for dismissal on the ground that the complaint has failed “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a motion “tests the legal sufficiency of a

complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a Rule

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12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks and citation omitted). “A claim has facial plausibility when the Plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. A complaint containing only “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” cannot survive a motion

to dismiss. Id. In addition, the presumption of truth accorded factual allegations at this stage

does not apply to legal conclusions in a complaint, including those “couched” as factual

allegations. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

B. Claims Arising from Proceedings in the District of Columbia Courts

1. Ineffective Assistance of Trial Counsel

Plaintiff’s ineffective assistance of trial counsel claim arises from counsel’s alleged

failure to call a witness whose “substantial material and exculpatory testimony . . . could [have]

influence[d] the court determination on the probable cause factor,” such that Plaintiff “would not

have been held under charges to stand trial.” (2d Am. Compl. at 1; see id. at 5.) Plaintiff also

contends that “the key . . . drug evidence was not contain[ed] in the evidence bag,” and that the

prosecutor used “inflammatory” language “and promised/mislead the jury by evidences that was

not supported by facts & or introduce during . . . trial.” (Id.) His ineffective assistance of

appellate counsel arises from counsel’s alleged failure to raise meritorious arguments on appeal.

(See id. at 1-2, 5.)

D.C. Code § 23-110 provides:

A prisoner in custody under sentence of the Superior Court claiming
the right to be released upon the ground that (1) the sentence was
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 imposed in violation of the Constitution of the United States or the
laws of the District of Columbia, (2) the court was without
jurisdiction to impose the sentence, (3) the sentence was in excess
of the maximum authorized by law, (4) the sentence is otherwise
subject to collateral attack, may move the [Superior Court] to vacate,
set aside, or correct the sentence.
D.C. Code § 23-110(a). A plaintiff has no recourse in federal district court “if it appears that

[he] has failed to make a motion for relief under this section or that the Superior Court has

denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to

test the legality of his detention.” D.C. Code § 23-110(g); see Williams v. Martinez, 586 F.3d

995, 998 (D.C. Cir. 2009) (“Section 23-110(g)’s plain language makes clear that it only divests

federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable

claims pursuant to [§] 23-110(a).”); Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir.), cert.

denied, 479 U.S. 993 (1986).

A claim that trial counsel was ineffective is the sort of claim “routinely brought pursuant

to § 23-110.” Rahim v. U.S. Parole Comm’n, 77 F. Supp. 3d 140, 146 (D.D.C. 2015) (citations

omitted); see Reed v. Thomas, 287 F. Supp. 3d 6, 10 (D.D.C. 2018). And a claim arising from

alleged prosecutorial misconduct is cognizable under D.C. Code 23-110. Graham v. FCC

Coleman USP II Warden, No. 14-CV-1567, 2016 WL 2962190, at *3 (D.D.C. May 20, 2016)

(quoting Saunders v. United States, 72 F. Supp. 3d 105, 109 (D.D.C. 2014)), certificate of

appealability denied, No. 16-5179, 2017 WL 2728390 (D.C. Cir. Jan. 3, 2017); Briscoe v. Jarvis,

77 F. Supp. 3d 183, 186 (D.D.C. 2015), certificate of appealability denied, No. 15-5098 (D.C.

Cir. June 3, 2016). “[T]o the extent that [Plaintiff] is seeking review of claims arising from

errors that occurred during his trial and trial counsel’s performance, those claims are indeed

foreclosed from federal court review by D.C. Code § 23-110 because [Plaintiff] has not

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demonstrated the inadequacy of that available remedy.” Coleman v. Ives, 841 F. Supp. 2d 333,

335 (D.D.C. 2012).

2. Ineffective Assistance of Appellate Counsel

A claim of ineffective assistance of appellate counsel falls outside the scope of D.C. Code

§ 23-110. See Williams, 586 F.3d at 998; Streater v. United States, 429 A.2d 173, 174 (D.C.

1980) (per curiam). “[B]ecause the Superior Court lacks authority to entertain a [§] 23-110

motion challenging the effectiveness of appellate counsel, that section is, by definition,

inadequate to test the legality of [Plaintiff’s] detention.” Williams, 586 F.3d at 998. Ordinarily,

an ineffective assistance of appellate counsel claim is litigated in the District of Columbia Court

of Appeals on a motion to recall the mandate. See Watson v. United States, 536 A.2d 1056,

1060-61 (D.C. 1987) (en banc). This Court may review a “federal habeas petition asserting

ineffective assistance of appellate counsel,” but only after a petitioner has “moved to recall the

mandate in the [District of Columbia] Court of Appeals.” Williams, 586 F.3d at 999. Plaintiff

does not indicate whether he sought to recall the Court of Appeals’ mandate, and absent any

showing that he has done so, his ineffective assistance of appellate counsel claim is not properly

before this court. Richardson v. United States, 999 F. Supp. 2d 44, 49 (D.D.C. 2013) (“Only a

petitioner who has moved to recall the mandate may proceed with an ineffective assistance of

appellate counsel claim in this Court.”); Chase v. Rathman, 765 F. Supp. 2d 1, 2-3 (D.D.C. 2011)

(noting that petitioner’s “apparent failure to seek recall of the mandate does not allow this court

to entertain his petition, and it does not render his remedy in the District of Columbia Court of

Appeals inadequate or ineffective.”).

C. Plaintiff’s Civil Rights Claims

In relevant part, 42 U.S.C. § 1983 provides:

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 Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (emphasis added). “The District of Columbia is considered a ‘person’ for

purposes of § 1983.” Jordan v. District of Columbia, 113 F. Supp. 3d 278, 281 (D.D.C. 2015)

(citations omitted). However, § 1983 does not apply to federal government entities or “to federal

officials acting under color of federal law.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104

(D.C. Cir. 2005) (citations omitted); Rush v. Samuels, 82 F. Supp. 3d 470, 480 (D.D.C. 2015)

(dismissing § 1983 claims against Federal Bureau of Prisons and its Director).

A viable § 1983 claim against a government official in his or her individual capacity

requires that a plaintiff “allege the violation of a right secured by the Constitution and laws of the

United States, and . . . show that the alleged deprivation was committed by a person acting under

color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). A complaint must

allege that the official was personally involved in the asserted constitutional violation. See Iqbal,

556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a Plaintiff must

plead that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.”).

While “personal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,” Kentucky v. Graham, 473 U.S. 159, 165-66

(1985), suits against a government official in his official capacity “‘generally represent only

another way of pleading an action against an entity of which an officer is an agent,’” id. (quoting

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). In other words,

11
“[a] section 1983 suit for damages against municipal officials in their official capacities is thus

equivalent to a suit against the municipality itself.” Atchinson v. District of Columbia, 73 F.3d

418, 424 (D.C. Cir. 1996) (citing Kentucky v. Graham, 473 U.S. at 165-66). A § 1983 claim

against a municipality may proceed “only if ‘the complaint states a claim that a custom or policy

of the municipality caused the violation[.]’” Pollard v. District of Columbia, 191 F. Supp. 3d 58,

79 (D.D.C. 2016) (quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C .Cir. 2003)),

aff’d, 698 F. App’x 616 (D.C. Cir. 2017). “Respondeat superior liability does not apply.”

Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (citing Monell, 436 U.S. at

694).

1. Rebecca Vogel and Olinda Moyd

Although Plaintiff mentions Vogel and Moyd in his Second Amended Complaint, (see 2d

Am. Compl. at 5, 6,) he fails to allege facts sufficient to state a plausible claim against them. For

example, following Vogel’s name is an assertion that Plaintiff’s probable cause hearing was

untimely. (Id. at 5.) Plaintiff does not fault Vogel for the timing of a probable cause hearing,

and it is unclear whether or how Vogel could have been liable for any constitutional violation

Plaintiff might have suffered as a result of the delay. Plaintiff provides an address for purpose of

service on Moyd, but his complaint sets forth no factual allegations with respect to Moyd’s role

in Plaintiff’s criminal case or supervision proceedings. And in light of their affiliation with the

D.C. Public Defender Service, it does not appear that a § 1983 claim against either Vogel or

Moyd could survive because a public defender is not considered a “state actor.” See Polk County

v. Dodson, 454 U.S. 312, 325 (1981); Harris v. Fulwood, 947 F. Supp. 2d 26, 29 (D.D.C. 2013)

(dismissing § 1983 claims against former attorney with the Public Defender Service for the

District of Columbia and law student who represented Plaintiff at probable cause and parole

12
revocation hearings), aff’d on other grounds, 611 F. App’x 1 (D.C. Cir. 2015). The court

concludes that Plaintiff’s Second Amended Complaint fails to state a claim against Vogel and

Moyd upon which relief can be granted.

2. Johnson and CSOSA

Plaintiff’s allegations regarding Johnson are limited to the decision she and her

supervisor made requiring Plaintiff to submit to urine testing three times per week and to

perform community service during his term of supervised release. (2d Am. Compl. at 4.) He

mentions CSOSA apparently for the sole purpose of identifying Johnson’s affiliation and role as

Plaintiff’s CSO. (See 2d Am. Compl. at 6.) Absent from the Second Amended Complaint,

however, are any factual allegations to support a plausible claim against CSOSA or against

Johnson in either her official or individual capacity.

3. District of Columbia

A § 1983 claim against the District may proceed only if there exists a municipal custom

or policy, the implementation of which caused the violation of constitutionally-protected rights.

See Elkins v. District of Columbia, 690 F.3d 554, 564 (D.C. Cir. 2012) (“Case law has

established that a municipality can be held liable only for constitutional violations committed by

an employee who acted according to a city ‘policy or custom’ that was ‘the moving force’ behind

the violation.”) (citing Monell, 436 U.S. at 694)). The fatal pleading defect of Plaintiff’s Second

Amended Complaint is its failure to allege facts describing or suggesting the existence of a

municipal custom or policy resulting in the violation of a constitutional right. See, e.g., Hampton

v. Comey, 139 F. Supp. 3d 1, 6 (D.D.C. 2015) (dismissing § 1983 claim against Prince George’s

County, Maryland because complaint “is devoid of any allegation that the unidentified officer’s

13
alleged misconduct grew out of a custom, policy, or practice of the County”). The absence of

factual allegations regarding the District of Columbia warrants dismissal of any claim Plaintiff

purports to raise against it.

4. Massarone, Kelley, Smoot, Cushwa, Kashurba and Jackson

Based on a careful review of the Second Amended Complaint, the court identifies no

factual allegations to support a legal claim against Massarone, Kelley, Smoot, Cushwa,

Kashurba, or Jackson. While each of these defendants may have played a minor role in

Plaintiff’s supervision revocation proceedings, Plaintiff does not identify what action each

individual took or how each action violated Plaintiff’s constitutional rights. Therefore, the court

dismisses any claim Plaintiff purports to raise against these defendants in their individual

capacities. See, e.g., Haight v. O’Bannon, 102 F. Supp. 3d 179, 181 (D.D.C. 2015) (dismissing

individual capacity claims brought against Chief of Police “[b]ecause the complaint lacks any

allegations that [she] was personally involved in the single incident at issue”); James v. District

of Columbia, 869 F. Supp. 2d 119, 122 (D.D.C. 2012) (dismissing sua sponte § 1983 claim

against police sergeant in his individual capacity where “nothing in the complaint suggests that

[the sergeant] was involved in the acts underlying the Plaintiff’s claims,” leading the Court to

conclude “that the Plaintiff has not stated a plausible claim for relief” as against him).

To the extent that Plaintiff brings a claim against these defendants and Pacholski in their

official capacities, the court treats the claims as if Plaintiff had brought them against the USPC

itself. “It is elementary that ‘the United States, as sovereign, is immune from suit save as it

consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting

United States v. Sherwood, 312 U.S. 584, 586 (1941)). Sovereign immunity extends to

14
government agencies and to their employees sued in their official capacities. See FDIC v.

Meyer, 510 U.S. 471, 475 (1994); Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir.

1984) (“Sovereign immunity . . . bar[s] suits for money damages against officials in their official

capacity absent a specific waiver by the government.”). And the United States has not waived its

immunity for alleged constitutional violations. See Meyer, 510 U.S. at 483-86.

Plaintiff would be no more successful in his demand for monetary damages as against

any Commissioner or employee in his official capacity, or against the USPC itself. See, e.g., Ray

v. Smoot, 168 F. Supp. 3d 111, 114 (D.D.C. 2016) (dismissing § 1983 complaint against Parole

Commission Chairperson in her official capacity as barred under doctrine of sovereign

immunity). There is no clear waiver that renders the USPC subject to liability under §

1983. “Despite its role in administering parole for D.C. Code offenders, the Commission retains

the immunity it is due as an arm of the federal sovereign.” Settles, 429 F.3d at 1106.

5. Pacholski

USPC hearing examiners “act under color of District of Columbia law when dealing with

D.C. Code violators and, when they do, “are amenable to suit under § 1983 in . . . their individual

capacities.” McIntyre v. Fulwood, 892 F. Supp. 2d 209, 216 (D.D.C. 2012) (citing Fletcher v.

District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004), judgment vacated on reh’g on other

grounds, 391 F.3d 250 (D.C. Cir. 2004). Plaintiff’s claim against Pacholski cannot survive,

however, because Pacholski is immune from suit.

“Members of the judiciary are entitled to absolute immunity for acts performed in their

judicial capacities, and the Supreme Court has extended this immunity to certain officials who

perform quasi-judicial functions.” Morgan v. U.S. Parole Comm’n, 304 F. Supp. 3d 240, 248-49

15
(D.D.C. 2016). USPC hearing examiners fall into the category of officials. Thus, hearing

examiners like Pacholski are “federal agents performing a quasi-judicial function in making a

parole determination in [a] specific case, [and therefore] are protected by absolute quasi-judicial

immunity from such a suit.” Nelson v. Williams, 750 F. Supp. 2d 46, 52 (D.D.C. 2010) (citations

omitted), aff’d, No. 10-5429, 2011 WL 2618078 (D.C. Cir. June 23, 2011); accord Harris v.

Fulwood, 989 F. Supp. 2d 64, 73 (D.D.C. 2013), aff’d on other grounds, 611 F. App’x 1 (D.C.

Cir. 2015).

6. USPC

According to Plaintiff, USPC violated his constitutionally protected rights when it

exercised jurisdiction over him even though the underlying criminal conviction was invalid (see

2d Am. Compl. at 4), failed to conduct a timely probable cause hearing (see id.,), “denied his

right to confrontation of adverse witnesses” (id. at 3), and caused his return to custody after he

sanctions had been imposed by CSOSA for the same conduct (id. at 3.). None of these

challenges survives.

First, Plaintiff fails to demonstrate that his Superior Court conviction is unlawful. Nor

does Plaintiff show that he ever challenged his conviction in the District of Columbia courts.

The USPC is not obliged to verify the validity of an offender’s criminal conviction. See

Fardella v. Garrison, 689 F.2d 208, 211 (4th Cir. 1982). Thus, the USPC had before it what

appeared to be a valid judgment and commitment order, pursuant to which it exercised its

jurisdiction during Plaintiff’s five-year supervision term.

Second, Plaintiff’s challenge to the timeliness of his probable cause hearing has been

resolved by this court previously. See McNair v. U.S. Parole Comm’n, 253 F. Supp. 3d 280, 283

(D.D.C. 2017), appeal dismissed, No. 17-5153 (D.C. Cir. Dec. 6, 2017). Under 28 C.F.R.

16
§ 2.214(a), a probable cause hearing must occur within five days of the execution of the

warrant.4 (See 2d Am. Compl. at 4; Pl’s Opp’n at 3.) Defendants concede that Plaintiff’s

probable cause hearing was untimely – USPC conducted the hearing on October 14, 2016, or

seven days after execution of the warrant. (Defs.’ Mem. at 11-12.) Nevertheless, Plaintiff has

received the process he was due and he has not alleged that he suffered any prejudice as a result

of the delay. See McNair, 253 F. Supp. 3d at 283.

Third, with regard to adverse witnesses, the court notes that Plaintiff had an opportunity

to request witnesses and declined to do so. (See Defs.’ Mem., Ex. 7 at 6-8, ECF No. 42-1 at 21-

23.) Insofar as Plaintiff objects to Pacholski’s reliance on lab test results supporting Charge Nos.

1 and 2 (urine specimens testing positive for alcohol and cocaine, respectively) rather than lab

technicians’ live testimony, “[r]eliance on hearsay in parole revocation proceedings is not per se

impermissible.” Crawford v. Jackson, 323 F.3d 123, 128 (D.C. Cir. 2003) (citing Morissey v.

Brewer, 408 U.S. 471, 4890 (1972)).5 But if, for example, a revocation decision “were either

totally lacking in evidentiary support or were so irrational as to be fundamentally unfair,”

Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002) (citations omitted), a Plaintiff might

demonstrate a due process violation. Plaintiff makes no such claim or showing, however, and

4
“A supervised releasee who is retaken and held in custody in the District of Columbia on a
warrant issued by the Commission, and who has not been convicted of a new crime, shall be
given a probable cause hearing by an examiner of the Commission no later than five days from
the date of such retaking.” 28 C.F.R. § 2.214(a).

5
“For most purposes, supervised release is the functional equivalent of parole and the law
pertaining to the revocation of parole is applicable to the revocation of supervised release.”
Anderson v. U.S. Parole Comm’n, No. 10-CV-1451, 2010 WL 5185832, at *2 (D.D.C. Dec. 22,
2010) (citations omitted). Proceedings pertaining to supervised release and parole are
administrative matters apart from a criminal case, Smallwood v. U.S. Parole Comm’n, 777 F.
Supp. 2d 148, 150 (D.D.C. 2011) (citing Morissey v. Brewer, 408 U.S. 471, 480 (1972)).
17
does not undermine the validity of the decision reached on the basis of CSO Guest-Uzzle’s

testimony and supporting documentation.

Lastly, Plaintiff invokes the doctrine of collateral estoppel (see 2d Am. Compl. at 3; Pl.’s

Opp’n at 4-5), arguing that imposing additional conditions to the term of his supervised release

(i.e., submitting urine samples three times each week and performing community service) bar the

USPC and its examiners from imposing any additional sanction (i.e., his return to custody), for

the same underlying conduct which violated the conditions of his supervised release. Collateral

estoppel (issue preclusion) does bar the relitigation of issues previously tried and decided in a

court of competent jurisdiction involving the same parties. See Ashe v. Swenson, 397 U.S. 436,

443-44 (1970); Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992).

However, Plaintiff cites no authority, and the Court is not aware of any, for the proposition that

sanctions imposed by a CSO or by CSOSA have the same preclusive effect as court rulings. Nor

does Plaintiff support his assertion that a CSO’s determinations in any way undermine the

USPC’s authority to issue a warrant for a releasee’s apprehension if the “releasee is alleged to

have violated the conditions of his release,” 28 C.F.R. § 2.211(a)(2), to cause the warrant’s

execution, see 28 C.F.R. § 2.212, to conduct a probable cause hearing, 28 C.F.R. § 2.214(a), to

schedule a revocation hearing if the releasee requests one upon a hearing officer’s determination

of probable cause, 28 C.F.R. § 2.214(d), to conduct a revocation hearing, see 28 C.F.R. § 2.216,

to revoke supervision, see 28 C.F.R. § 2.218(a)(2), and to determine whether and for how long a

releasee shall be returned to prison, see 28 C.F.R. § 2.214(b).6

6
Plaintiff would fare no better were he to argue that the USPC violated the double jeopardy
clause by causing his return to custody. The double jeopardy clause applies only to criminal
prosecution and sentencing, not to supervision revocation matters. See Crowe v. Johnston, No.
11-2019, 2011 WL 5970881, at *1 (D.D.C. Nov. 29, 2011) (“[I]t is established that ‘jeopardy
18
 For the foregoing reasons, the court grants Defendants’ Motion to Dismiss Second

Amended Complaint, denies Plaintiff’s “Motion in Opposition to Defendants[’] Answer to

Plaintiff[’s] Amended Complaint and his “Motion under Writ Madam[us] to Have Prompt

Evidentiary Hearing on the Matters at Hand That Can Be Viewed By Transcripts, and dismisses

this civil action. An Order is issued separately.

DATE: March 6, 2019 /s/
TANYA S. CHUTKAN
United States District Judge

does not attach in probation or parole revocation proceedings because they are not new criminal
prosecutions but rather continuations of the original prosecutions which resulted in probation or
parole.’”) (quoting Hardy v. United States, 578 A.2d 178, 181 (D.C. 1990)); Brown v. U.S.
Parole Comm’n, 713 F. Supp. 2d 11, 14 (D.D.C. 2010) (noting that “the USPC’s decisions to
revoke petitioner’s parole do not implicate the Double Jeopardy Clause”).
19