United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2016 Decided June 9, 2017
No. 15-5145
JESSE R. REDMOND, JR.,
APPELLANT
v.
ISAAC FULWOOD, JR., FORMER CHAIRMAN, UNITED STATES
PAROLE COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00308)
David C. Wolff, appointed by the court, argued the cause
as amicus curiae in support of appellant. With him on the
briefs was Kathryn L. Clune.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: ROGERS, BROWN and MILLETT, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Jesse Redmond, Jr. was
convicted of sexual assault under District of Columbia law. He
was twice denied parole by the United States Parole
Commission. Alleging that his denials of parole were infected
by unconstitutional decisionmaking, Redmond filed suit
against the then-Chair of the Commission, Isaac Fulwood, Jr.,
in his personal capacity. The district court dismissed the case
sua sponte, concluding that parole commissioners are entitled
to absolute immunity from such lawsuits. We affirm, albeit on
the ground that Fulwood is entitled to qualified immunity. We
leave for another day the question of whether parole
commissioners merit absolute immunity as a matter of law.
I
Jesse R. Redmond, Jr. was convicted in the District of
Columbia in 1996 of one count of first-degree sexual assault,
and acquitted of one count of oral sodomy and one count of
anal sodomy. He was sentenced to serve fifteen years to life in
prison. Fifteen years after his conviction, in 2011, Redmond
became eligible for parole. He was denied parole both at his
2010 pre-eligibility hearing and in a subsequent hearing held in
2011. The 2011 denial occurred despite the Hearing
Examiner’s finding that Redmond should be paroled under the
applicable parole guidelines.
Dissatisfied with his parole denials and without any option
to appeal, Redmond brought suit against the then-Chairman of
the United States Parole Commission, Isaac Fulwood, Jr., in his
personal capacity, pursuant to Bivens v. Six Unknown Named
3
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1
The district court sua sponte dismissed Redmond’s complaint
under the Prison Litigation Reform Act, 28 U.S.C.
§§ 1915(e)(2)(B)(iii), 1915A(b)(2), holding that Fulwood is
absolutely immune from suit for acts taken in the course of his
duties as Chairman of the United States Parole Commission.
Redmond appealed to this court, and we now affirm. We
do so, however, because Fulwood is entitled to qualified
immunity for each of the claims in Redmond’s complaint.
Accordingly, we need not and do not reach the question of
whether Fulwood is entitled to absolute immunity for actions
taken during his tenure as Chairman of the United States Parole
Commission. See Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C.
Cir. 2012) (“Because we conclude that the [Parole
Commission] defendants are entitled to qualified immunity, we
do not address the issue of absolute immunity.”); see also
Radtke v. Caschetta, 822 F.3d 571, 573 n.2 (D.C. Cir. 2016)
(“[W]e are free to affirm the lower court on alternative
grounds.”) (citing RSM Prod. Corp. v. Freshfields Bruckhaus
Deringer U.S. LLP, 682 F.3d 1043, 1045 n.2 (D.C. Cir. 2012)).
1
The United States Parole Commission exercises parole jurisdiction
not only over federal offenders, but also over individuals convicted
of crimes under District of Columbia law. However, unlike federal
offenders, those who were convicted of violating District law (like
Redmond) are not entitled to appeal parole denials to the National
Appeals Board. See DEPARTMENT OF JUSTICE, U.S. PAROLE
COMM’N, Frequently Asked Questions: Is it possible to appeal the
parole decision?, https://www.justice.gov/uspc/frequently-asked-
questions#q7 (last accessed May 30, 2017) (“Decisions granting or
denying parole for prisoners sentenced under the District of
Columbia Code may not be appealed to the Commission. D.C.
offenders may appeal decisions revoking their parole or supervised
release.”).
4
II
Courts are required to dismiss complaints in civil actions
“in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” and the
complaint “seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A; see also id.
§ 1915(e)(2)(B)(iii). Accordingly, a prisoner’s civil complaint
is properly dismissed sua sponte if the person the prisoner
seeks to sue is protected by either qualified or absolute
immunity. See, e.g., Reynolds v. Morrison, No. 16-5151, 2016
WL 7438665, at *1 (D.C. Cir. Dec. 22, 2016) (affirming
dismissal under 28 U.S.C. § 1915A(b) because defendants
were entitled to judicial immunity); cf. Thompson v. Drug
Enforcement Admin., 492 F.3d 428, 435 (D.C. Cir. 2007)
(noting that qualified immunity is a basis for dismissal of
prisoner complaints under 28 U.S.C. § 1915A).
Qualified immunity shields federal and state officials from
suits for money damages unless a plaintiff shows both that
(i) the official violated a statutory or constitutional right, and
(ii) that right was “clearly established at the time of the
challenged conduct.” Taylor, 685 F.3d at 1113 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). We can
begin—and often end—our qualified immunity analysis with
either prong of the test. Taylor, 685 F.3d at 1113.
Because Redmond has proceeded pro se, we construe the
allegations of his complaint liberally. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be
liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.’”) (citations omitted).
However, because Redmond brought suit against Fulwood
only in his personal capacity, Redmond’s suit must be limited
5
to actions taken specifically by Fulwood or by the Commission
with Fulwood’s involvement. That is to say, Fulwood cannot
be held personally responsible for all of the Commission’s
actions, in particular those decisions in which he did not take
part. Accordingly, because the only decision with respect to
Redmond that Fulwood participated in was the 2011 decision
denying Redmond’s request for reconsideration of the adverse
parole determination, our review is limited to that decision.
Liberally read, Redmond’s complaint alleges five claims
against Fulwood. The first four claims are allegations that
Fulwood violated Redmond’s rights under the Due Process
Clause of the Fifth Amendment by: (i) failing to consider that
Redmond was acquitted of sodomy charges at trial; (ii) denying
parole because Redmond had not completed certain
rehabilitative courses, even though those courses were not
offered at the facility in which Redmond was incarcerated; (iii)
failing to correct errors in Redmond’s parole guideline scores;
and (iv) exhibiting bias against Redmond due to the nature of
his offense.2 The fifth claim is an allegation that Fulwood
violated Redmond’s First and Fifth Amendment rights by
grounding the denial of parole in part on Redmond’s continued
profession of innocence.
As a matter of law, Fulwood enjoys qualified immunity for
each of those claims.
First, with respect to the alleged failure to consider that
Redmond was acquitted of the sodomy charges at trial,
2
Redmond frames his bias argument as a violation of his First
Amendment rights, but allegations of bias and unfair treatment more
accurately sound in due process. Given our obligation to construe
Redmond’s complaint liberally, we analyze his bias argument under
the Fifth Amendment’s Due Process Clause.
6
Redmond does not plausibly allege any constitutional violation
because Fulwood expressly acknowledged that acquittal in the
decision. See Appellee’s Br. Add. 2 n.1 (“Redmond was
convicted of sexual assault (vaginal intercourse), but acquitted
of oral and anal sodomy as was pointed out in a memo
addressing counsel’s request to schedule Redmond’s rehearing
earlier than ordered.”).
Second, regarding the importance attached by the
Commission to parole applicants’ participation in rehabilitative
programs, Fulwood did not leave Redmond in the impossible
position of having to take unavailable courses, as he alleges.
Instead, Redmond was advised to “volunteer for the
comprehensive residential sex offender treatment program so
that he could be transferred to a facility that conducts the
program” or “to participate in other comprehensive programs
that will reduce his risk level.” Appellee’s Br. Add. 3. There
is nothing plausibly unconstitutional about advising Redmond
to participate in certain programs that would best prepare him
for paroled release into society.
Third, with respect to the Commission’s improper reliance
on an erroneous salient factor score under the parole guidelines,
Fulwood candidly acknowledged that error in his
reconsideration letter. See Appellee’s Br. Add. 3. (“Counsel is
correct that the Commission should not have counted
[Redmond’s] convictions and commitments where there was a
period of more than 10 years between the last countable
conviction and the commencement of the current offense
conduct.”). That error is of no constitutional moment,
however, because either way the District’s parole guidelines
recommended that Redmond be granted parole. Id. The
Commission chose to override that recommendation, making
any errors in its calculation beside the point. See 28 C.F.R.
7
§ 2.74(b) (Commission may depart from the guidelines
recommendation).
Fourth, Fulwood is entitled to qualified immunity for
Redmond’s allegation of bias arising from the nature of his
crime because there is no clearly established right for parole-
eligible prisoners to be treated equally in the parole process
regardless of the nature or seriousness of their crimes. Indeed,
Parole Commissioners are expected to grant parole only when
there is a “reasonable probability” that (i) the prisoner “will live
and remain at liberty without violating the law,” (ii) “his or her
release is not incompatible with the welfare of society,” and
(iii) “he or she has served the minimum sentence imposed or
the prescribed portion of his or her sentence[.]” D.C. CODE
§ 24-404(a). The latitude granted to the Commission in
making that determination is broad, and some consideration of
the nature of the underlying crime makes sense. See McRae v.
Hyman, 667 A.2d 1356, 1357 (D.C. 1995) (“The District’s
parole scheme confers discretion to grant or deny parole[.]”);
see also Gooding v. Marberry, 341 F. App’x. 173, 174 (7th Cir.
2009) (“The District of Columbia’s parole regime * * * is
entirely discretionary[.]”).
Finally, no clearly established First or Fifth Amendment
law prohibited Fulwood’s consideration of Redmond’s refusal
to acknowledge culpability. Redmond cites no appellate or
Supreme Court case holding that the Constitution forbids
factoring a refusal to admit guilt into the length of
incarceration. Indeed, the Third Circuit has specifically held
that the requirement that a prisoner seeking parole first admit
guilt does not violate the prisoner’s First Amendment rights.
See Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010).
Moreover, a plurality of the Supreme Court has explained that
conditioning participation in certain rehabilitative programs for
prisoners on an admission of guilt is constitutionally
8
permissible because “[a]cceptance of responsibility is the
beginning of rehabilitation,” and “a recognition that there are
rewards for those who attempt to reform is a vital and necessary
step toward completion.” McKune v. Lile, 536 U.S. 24, 47
(2002) (plurality opinion of Kennedy, J.); cf. U.S.S.G.
§ 3E1.1(a) (“If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense level by
2 levels.”). Given that precedent, it was not clearly
unconstitutional in these circumstances for Fulwood to factor
Redmond’s refusal to admit guilt into his decisionmaking.
Because, under even the most generous reading of the
complaint, Fulwood is entitled to qualified immunity on each
of the claims against him, we affirm the district court’s
dismissal of Redmond’s complaint.
So ordered.