                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

    JESSE R. REDMOND,
           Plaintiff,

           v.                                            Civil Action No. 18-2214 (CKK)
    UNITED STATES PAROLE
    COMMISSION,
           Defendant.


                                       MEMORANDUM OPINION
                                          (September 4, 2019)

          Plaintiff Jesse R. Redmond, proceeding pro se, alleges that Defendant United States Parole

Commission (“Commission”) has infringed on his Fifth Amendment rights in various ways

relating to the Commission’s past denials of parole for Redmond. Pending before the Court is

Defendant’s [10] Motion to Dismiss, which argues in part that this Court lacks subject-matter

jurisdiction to hear this case on sovereign immunity grounds.           Upon consideration of the

pleadings, 1 the relevant legal authorities, and the record as a whole, the Court will GRANT

Defendant’s Motion to Dismiss.2


1
    The Court’s consideration has focused on the following documents:

      •   Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 10;
      •   Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 16;
      •   Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Def.’s Reply”), ECF No. 21; and
      •   Pl.’s Surreply to Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Surreply”),
          ECF No. 23.

In an exercise of its discretion, the Court finds that holding oral argument in this action would not
be of assistance in rendering a decision. See LCvR 7(f).
2
  Redmond argues that the Commission has failed to file an answer during the period provided by
Federal Rule of Civil Procedure 12(a)(1)(A). See Pl.’s Opp’n at 1–3. However, under Rule
12(a)(4), serving a motion to dismiss under Rule 12(b), as the Commission has done here, extends
the time period for filing an answer.
                                                   1
                                       I. BACKGROUND

       Redmond was convicted in 1996 of first-degree sexual assault in the Superior Court of the

District of Columbia. See Redmond v. United States, 829 A.2d 229, 230 (D.C. 2003) (affirming

conviction), cert. denied, 543 U.S. 914 (2004). Redmond became eligible for parole in 2011.

Redmond v. Holland, No. 16-6521, 2017 U.S. App. LEXIS 20556, at *2 (6th Cir. Aug. 10, 2017).

At his initial hearing in July 2010, despite the applicable guidelines indicating that Redmond

should be granted parole, the Commission denied parole. Id. It explained its departure by

reasoning that there was a “reasonable probability” that Redmond would “not obey the law if

released” and that his “release would endanger the public safety.” Id. (internal quotation marks

omitted). The Commission stated that he was “a more serious parole risk than” the guidelines

indicated because the victim of the crime for which he had been convicted was a “74 year old

woman [with] who[m] [he] engaged in sodomy and intercourse.” Id. (alterations in original)

(internal quotation marks omitted). The Commission also based its decision on the grounds that

Redmond had not completed any rehabilitative programs. Id. It denied his request to reconsider

the denial of his parole. Id.

       At his second parole hearing on July 28, 2011, Redmond presented testimony indicating

that he had completed a rehabilitative program, Moral Recognition Therapy. Id. at *2–3. The

Commission once again denied parole, notwithstanding the hearing examiner’s recommendation

that parole be granted. Id. The Commission relied on the recommendation of an executive

reviewer who emphasized that Redmond continued to insist on his innocence and thus had not

accepted responsibility for his crime. Id. It denied Redmond’s request for reconsideration and

suggested he participate in either a sex offender treatment program or another comprehensive

rehabilitative program. Id. at *3–4.



                                               2
       Redmond’s third parole hearing occurred on July 30, 2014. Id. at *4. Redmond presented

testimony that he had participated in the Moral Recognition Therapy program for almost two years,

had mentored other participants in the program, and had attended an anger management class. Id.

at *4–5. Additional testimony indicated that he had not participated in a sex offender treatment

program because none were available at his prison, and because he was ineligible for transfer to

another prison with such a program. Id. The hearing examiner recommended parole, the executive

reviewer disagreed, and the Commission again denied Redmond parole. Id. at *5. It based its

decision on the “extreme cruelty to [Redmond’s] victim,” which it described as including not only

“forcible vaginal rape” but also “rectal and oral sodomy,” even though Redmond had been

acquitted of the latter charges in 1996. Id. at *5–6 (alteration in original) (internal quotation marks

omitted). The Commission also found that denial was warranted because the Moral Recognition

Therapy program was inadequate to reduce the risk that Redmond posed and because he continued

to claim that he was innocent, which indicated that he was “not fully rehabilitated.” Id. at *6

(internal quotation marks omitted).

       After the Commission’s denial of parole in 2011, Redmond filed a suit in federal court

seeking damages and claiming that the denial had deprived him of his rights under the First and

Fifth Amendments. Redmond v. Fulwood, No. 14-cv-0308, 2014 U.S. Dist. LEXIS 54300, at *1

(D.D.C. Apr. 18, 2014), aff’d on other grounds, 859 F.3d 11 (D.C. Cir. 2017). The district court

dismissed the suit and the D.C. Circuit affirmed on the basis that the former Chairman of the

Commission, Isaac Fulwood, Jr., enjoyed qualified immunity as to each of Redmond’s claims.

Redmond v. Fulwood, 859 F.3d at 14.

       Subsequently, on August 7, 2015, Redmond filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241, alleging that the Commission lacked a rational basis to deny him



                                                  3
parole in 2014 based on several grounds. Redmond v. Holland, No. 15-141-KKC, 2016 U.S. Dist.

LEXIS 106716, at *1 (E.D. Ky. Aug. 12, 2016), rev’d, 2017 U.S. App. LEXIS 20556; see Compl.

¶ 3. The district court denied his petition and found that the Commission’s denial had “satisfie[d]

the highly deferential standard of review accorded to parole determinations.” Redmond v. Holland,

2016 U.S. Dist. LEXIS 106716, at *2; see Compl. ¶ 4. On appeal, the Sixth Circuit reversed,

finding that the Commission did lack a rational basis to deny Redmond parole. Redmond v.

Holland, 2017 U.S. App. LEXIS 20556, at *11; see Compl. ¶¶ 5–7.

       The Commission conducted a new parole hearing for Redmond on April 13, 2017. Compl.

¶ 8. He was granted parole on July 7, 2017 and released on December 2, 2017. Id. Redmond

subsequently filed this suit against the Commission on September 25, 2018.

                                    II. LEGAL STANDARD

       A motion to dismiss under Rule 12(b)(1) challenges a court’s jurisdiction to hear the case.

“Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court—plaintiff in

the present action—bears the burden of establishing that the court has jurisdiction.” Wright v.

Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 169–70 (D.D.C. 2007), aff’d, No. 07-5328,

2008 U.S. App. LEXIS 6642 (D.C. Cir. Mar. 17, 2008). In determining whether the court has

jurisdiction, “the court need not limit itself to the allegations of the complaint,” and “may consider

such materials outside the pleadings as it deems appropriate to determine whether it has

jurisdiction over the case.” Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002).

       “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to

be construed with sufficient liberality to afford all possible inferences favorable to the pleader on

allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). “The

court need not, however, accept inferences unsupported by the facts alleged or legal conclusions



                                                  4
that are cast as factual allegations.” Chandler, 215 F. Supp. 2d at 168. And because a court has

an affirmative obligation to determine whether it has subject-matter jurisdiction, “plaintiff[’s]

factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion

than in resolving a 12(b)(6) motion for failure to state a claim.” 3 Wright, 503 F. Supp. 2d at 170

(internal quotation marks omitted).

                                       III. DISCUSSION

       Courts construe pro se pleadings liberally and must hold pro se complaints “to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (internal quotation marks omitted). Construed in this light, Redmond’s Complaint

brings claims against the Commission under 42 U.S.C. § 1983 on the basis that the Commission

infringed on Redmond’s Fifth Amendment rights, 4 and specifically his “liberty interest” in parole,

in five ways: (1) by denying his parole despite the Commission’s lack of a rational basis, Compl.

¶ 9; (2) by referring to his actions as including rectal and oral sodomy when Redmond was

acquitted of such charges, Compl. ¶ 10; (3) by denying his parole because he had not completed a

sex offender treatment program despite his participation in the Moral Recognition Therapy



3
  The Commission also moved to dismiss for failure to state a claim under Rule 12(b)(6). Because
the Court concludes that it lacks subject-matter jurisdiction over Redmond’s claims, it need not
reach the Commission’s arguments under Rule 12(b)(6).
4
  While the Commission is a federal entity, pursuant to the National Capital Revitalization and
Self-Government Improvement Act of 1997, it “assume[d] the jurisdiction and authority of the
Board of Parole of the District of Columbia to grant and deny parole, and to impose conditions
upon an order of parole, in the case of any imprisoned felon who is eligible for parole or reparole
under the District of Columbia Code.” D.C. Code § 24–131(a)(1) (2019). The Court thus
construes Redmond’s references to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), see, e.g., Pl.’s Opp’n at 6–7, 10, as indications that he intends to
bring this suit under § 1983, the equivalent when the Commission acts under color of District of
Columbia law.

                                                 5
program, Compl. ¶ 11; (4) by denying his parole on the basis that he had not accepted responsibility

for his crimes, Compl. ¶ 12; and (5) by failing to “immediate[ly] release” Redmond following the

Sixth Circuit’s decision finding that the Commission lacked a rational basis to deny him parole,

Compl. ¶ 13. In its Motion to Dismiss, the Commission argues that this Court lacks subject-matter

jurisdiction over this suit because the Commission enjoys sovereign immunity from Redmond’s

§ 1983 claims. See Def.’s Mot. at 5–8. The Court agrees.

       “It is axiomatic that the United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,

212 (1983). “Sovereign immunity is jurisdictional in nature,” and unless there is an unequivocal

waiver of that immunity, it “shields the Federal Government and its agencies from suit.” Fed.

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Redmond appears to suggest that the

Federal Tort Claims Act’s waiver for discretionary functions might apply here, see Pl.’s Opp’n at

11–12; Pl.’s Surreply at 6, but insofar as his claims all arise under the Fifth Amendment and are

“constitutional torts,” see Pl.’s Opp’n at 12 (describing rights deprived as “constitutional rights

under the Fifth Amendment”); Pl.’s Surreply at 6 (describing claims as “constitutional claims

violations”), that waiver does not apply. See Meyer, 510 U.S. at 478 (“[T]he United States simply

has not rendered itself liable under [the Federal Tort Claims Act] for constitutional tort claims.”);

see also Morgan v. U.S. Parole Comm’n, 304 F. Supp. 3d 240, 248 (D.D.C. 2016) (finding that

Federal Tort Claims Act did not act as waiver for constitutional tort claims under § 1983 against

Commission).

       In fact, there is no “clear statement that would make the Commission itself subject to

liability under § 1983.” Settles, 429 F.3d at 1105. “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



                                                 6
sovereign.” Id. at 1106; see also Stoddard v. Wynn, 68 F. Supp. 3d 104, 112 (D.D.C. 2014) (“It is

true that the Commission itself is an arm of the Federal Government and thus is entitled to

sovereign immunity.”). Sovereign immunity therefore shields the Commission from Redmond’s

§ 1983 claims. See, e.g., Thomas v. Smoot, No. 16-5024, 2018 U.S. App. LEXIS 13045, at *1

(D.C. Cir. May 16, 2018) (affirming district court’s dismissal of suit against Commission on

sovereign immunity grounds); Carter-El v. D.C. Dep’t of Corr., No. 12-5357, 2013 U.S. App.

LEXIS 13971, at *1 (D.C. Cir. July 5, 2013) (same); Jones v. Fulwood, 860 F. Supp. 2d 16, 21

(D.D.C. 2012) (“The United States has not waived this immunity, and the plaintiff’s claims against

the [United States Parole Commission] are therefore barred.” (citation omitted)); Bolden-Bey v.

U.S. Parole Comm’n, 731 F. Supp. 2d 11, 14 (D.D.C. 2010) (“[T]he plaintiff’s claims against the

[United States Parole Commission] must be dismissed for lack of subject matter jurisdiction.”);

Ali v. U.S. Parole Comm’n, No. 06-0235, 2007 U.S. Dist. LEXIS 20777, at *4 (D.D.C. Mar. 23,

2007) (“[P]laintiff’s § 1983 claims against the Parole Commission are barred.”), aff’d, No. 07-

5134, 2007 U.S. App. LEXIS 27270 (D.C. Cir. Nov. 23, 2007). Accordingly, Redmond’s § 1983

claims against the Commission must be dismissed for lack of subject-matter jurisdiction.

       Redmond has not clearly brought any claims against individual Commissioners, in either

their official or personal capacities, although he has sometimes included “et al.” in the Defendant

portion of the caption in his pleadings. See, e.g., Compl. at 1; Pl.’s Opp’n at 1. But see Pl.’s

Surreply at 1 (listing United States Parole Commission as sole Defendant). His Complaint contains

no allegations against specific Commissioners. Moreover, he previously filed suit against prior

Commission Chair Isaac Fulwood, Jr., in his personal capacity, see Redmond v. Fulwood, 859 F.3d

at 12, which demonstrates that he has knowledge of how to sue individual Commissioners.

However, even if the Complaint were construed liberally to allege claims against individual



                                                7
Commissioners, see, e.g., Fletcher v. District of Columbia, 370 F.3d 1223, 1227 n.* (D.C. Cir.

2004) (construing pro se complaint liberally as alleging claims against both Commission and

individual Commissioners), judgment vacated on reh’g, 391 F.3d 250 (D.C. Cir. 2004),

Redmond’s suit would still be barred.

       Generally, “a cause of action under § 1983 will lie against the individual members of the

Commission when acting pursuant to the Revitalization Act,” which authorized the Commission

to grant or deny parole for D.C. prisoners. Settles, 429 F.3d at 1104. To the extent that the

Commissioners or Chair could be sued in their official capacities here, such suits “generally

represent only another way of pleading an action against an entity of which an officer is an agent,”

and so such “an official-capacity suit is, in all respects other than name, to be treated as a suit

against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal quotation marks

omitted). As a result, those suits would similarly be barred on sovereign immunity grounds. See,

e.g., Boling v. U.S. Parole Comm’n, No. 17-5285, 2018 U.S. App. LEXIS 35642, at *1–2 (D.C.

Cir. Dec. 19, 2018) (affirming district court’s dismissal of official-capacity suit against Chair of

Commission on sovereign immunity grounds); Thomas, 2018 U.S. App. LEXIS 13045, at *1

(same); Ali, 2007 U.S. Dist. LEXIS 20777, at *5 (“Sovereign immunity thus bars plaintiff’s § 1983

claims for monetary damages against defendants Reilly and Haworth in their official capacities.”).

       And to the extent that the Complaint can be liberally read to allege claims against the Chair

or Commissioners in their personal capacities, such a suit would likewise be barred. The Chair

and Commissioners enjoy qualified immunity for each of Redmond’s claims. Cf. Redmond v.

Fulwood, 859 F.3d at 14–15 (affirming district court’s dismissal of suit brought by Redmond

against prior Commission Chair for similar claims on qualified immunity grounds). “Qualified

immunity shields federal and state officials from money damages unless a plaintiff pleads facts



                                                 8
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). Courts have discretion as to the order in which they consider the two prongs of the

qualified immunity analysis. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

        In the instant case, Redmond has not satisfied the first prong because he has failed to

sufficiently plead facts showing that a constitutional right was violated. He has consistently

identified the relevant right for each of his claims as his “liberty interest” in parole under the Fifth

Amendment. See, e.g., Compl. ¶¶ 1–3 (framing Commission’s actions as “violating plaintiff[’s]

liberty interest to be release[d] on parole”), 9–13 (same); see also Pl.’s Opp’n at 9 (describing

claims as implicating liberty interest in parole under Fifth Amendment); Pl.’s Surreply at 5–6

(framing Commission’s actions as “clear violation of the plaintiff[’s] constitutional rights under

the First and Fifth Amendment[s]”). However, “the Constitution itself does not create any liberty

interest in parole,” and “such an interest must emanate from state law, or in this case, District of

Columbia law.” Ellis v. District of Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996). The District

of Columbia Code creates “no ‘expectancy of release’ entitling a prisoner to due process

protections.” 5 Id. (internal quotation marks omitted) (quoting Price v. Barry, 53 F.3d 369, 371

(D.C. Cir. 1995) (per curiam)); see also Boling, 2018 U.S. App. LEXIS 35642, at *2 (“Appellant’s

due process claim fails because neither the Constitution nor D.C. law creates a due process liberty

interest in parole.”); Johnson v. District of Columbia, 67 F. Supp. 3d 157, 164 (D.D.C. 2014) (“[I]t

is established that D.C. prisoners do not have a constitutionally protected liberty interest in being



5
  Redmond cites to cases discussing due process rights in similar contexts, but they are inapplicable
here. For example, in Miller v. Or. Bd. of Parole and Post Prison Supervision, 642 F.3d 711 (9th
Cir. 2011), an Oregon parole statute was at issue, see id. at 715–16. Similarly, in McQuillion v.
Duncan, 306 F.3d 895 (9th Cir. 2002), the Ninth Circuit considered a California parole statute, see
id. at 900–03.
                                                   9
released to parole.”), aff’d, 927 F.3d 539 (D.C. Cir. 2019); Johnson v. United States, 590 F. Supp.

2d 101, 109 (D.D.C. 2008) (“It has been established that District of Columbia prisoners do not

have a constitutionally protected liberty interest in parole and therefore have no protections under

the due process clause with respect to parole determinations or procedures.”). Accordingly, this

Court lacks subject-matter jurisdiction over Redmond’s claims and this case must be dismissed.

Because the Court has determined that it does not have subject-matter jurisdiction over this case,

the Court does not address the Commission’s statute of limitations and preclusion arguments.

                                      IV. CONCLUSION

       For the foregoing reasons, the Court shall GRANT Defendant’s Motion to Dismiss and

DISMISS this case. An appropriate Order accompanies this Memorandum Opinion.



Dated: September 4, 2019

                                                            /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




                                                10
