                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

ERIC LEWIS,                                  :
                                             :
                      Plaintiff,             :
                                             :
       v.                                    :       Civil Action No. 10-0605 (RWR)
                                             :
U.S. PAROLE COMMISSION, et al.,              :
                                             :
                      Defendants.            :

                               MEMORANDUM AND ORDER

       This matter is before the Court on the plaintiff’s renewed Motion for Reconsideration

[Dkt. #37].1 For the reasons discussed below, the motion will be denied.

                                       I. BACKGROUND

       The plaintiff alleges that the United States Parole Commission (“Commission”), among

other entities, violates the Privacy Act, see 5 U.S.C. § 552a, by maintaining incorrect information

in its records pertaining to him on which it relied to deny him parole in 2002, 2005 and 2008. 2

According to the plaintiff, the Commission’s records erroneously reflect:

               (1) that the plaintiff was convicted in 1980 for carrying a
               dangerous weapon and subsequently held for 200 days; (2) that the
               plaintiff was “under [probation’s] supervision in 1981” for a heroin
               possession conviction; (3) that the plaintiff was convicted of
               robbery and use of a dangerous weapon in 1992 and (4) that the
               plaintiff had committed six bank robberies.



1
       The plaintiff’s Motion for Leave to Amend [Dkt. #43], which requests correction of the
caption of his renewed Motion for Reconsideration [Dkt. #37] to include the initials of the judge
to whom this case was reassigned on April 23, 2012, will be granted.
2
       The plaintiff’s civil rights claims under 42 U.S.C. § 1983, construed as claims under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), have been dismissed. See
Lewis v. U.S. Parole Comm’n, 770 F. Supp. 2d 246, 251-52 (D.D.C. 2011), recons. denied, 841
F. Supp. 2d 56, 63 (D.D.C. 2012).


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Lewis v. U.S. Parole Comm’n, 770 F. Supp. 2d 246, 247 (D.D.C. 2011). The Commission’s

parole decisions indicate that the plaintiff’s criminal history, including the 1992 armed robbery

and the six bank robberies, was a significant factor in denying parole. See Compl., Ex. J-1-J.2

(Hearing Summary dated February 13, 2008), L.1-L.3 (Reconsideration Hearing (converted to

2.80 GL) Prehearing Assessment dated January 25, 2005), & P.1-P.2 (D.C. Initial Prehearing

Assessment dated December 12, 2001).

       It appeared that the plaintiff’s Privacy Act claims were based on the notion that the

Commission’s reliance on the alleged erroneous information led to the denial of parole, such that

correction of the information, in effect, would reduce the length of time he spent in prison.

Lewis, 770 F. Supp. 2d at 250. The plaintiff’s success, then, would have had a “probabilistic

impact” on the duration of his custody. Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 373

(D.C. Cir. 2000). Under these circumstances, the plaintiff’s claims should have been brought in

a petition for a writ of habeas corpus, see Davis v. Fed. Bureau of Prisons, 334 Fed. App’x 332,

333 (D.C. Cir. 2009) (per curiam), not in a civil action under the Privacy Act, see Wilson v.

Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (noting that the Privacy Act precludes creation of a

remedy where the Act already provides “a comprehensive remedial scheme”). “Because the

plaintiff’s . . . claim should have been brought as a petition for writ of habeas corpus, the court

determine[d] that the plaintiff has failed to state a cognizable claim and dismisse[d] the

plaintiff’s Privacy Act claim without prejudice.” Lewis, 770 F. Supp. at 250-51.

       Plaintiff now moves for reconsideration under Rule 60(b)(5) of the Federal Rules of Civil

Procedure. The plaintiff was released from prison in November 2011, and now argues that he

may assert his Privacy Act claims because his success on these claims no longer would have a




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probabilistic effect on the length of his custody. In consideration of the plaintiff’s motion and

defendant’s opposition, the motion will be denied.

                                         II. DISCUSSION

        “On motion and just terms, the court may relieve a party . . . from a final judgment,

order, or proceeding . . . [if]. . . applying [the judgment] prospectively is no longer equitable.”

Fed. R. Civ. P. 60(b)(5). A party may be entitled to relief under Rule 60(b)(5) if he shows that

there has been “a significant change either in factual conditions or in law.” Rufo v. Inmates of

Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992). The plaintiff relies on his release from

imprisonment as a significant change in factual conditions. He appears to argue that application

of the judgment dismissing his Privacy Act claims is no longer equitable because the claims have

not been addressed on the merits, see Mot. for Recons. at 2, and because the Commission may

rely on the same inaccurate information in the future if he “end[s] up being a parole violator,” id.

at 3. The Commission argues that the plaintiff’s claims are moot or, alternatively, that the

plaintiff fails to justify relief under Rule 60(b)(5). See generally Defs.’ Opp’n to Pl.’s Renewed

Mot. for Recons. [Dkt. #40].

       A claim is moot if “there is no reasonable expectation . . . that the alleged violation will

recur,” and “interim relief or events have completely and irrevocably eradicated the effects of the

alleged violation.” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 632 (1979) (citations omitted).

The plaintiff “was given an effective parole date of 11-28-11,” Mot. for Recons. [Dkt. #28] ¶ 13,

and, according to the BOP’s Inmate Locator, see http://www.bop.gov/iloc2/InmateInmate.jsp, he

was indeed released on that date. Notwithstanding any alleged inaccuracy in the Commission’s

records pertaining to the plaintiff and his criminal history, it cannot be said that the Commission

used that information as a basis for reaching a decision adverse to plaintiff, that is, to deny his



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most recent application for parole. The plaintiff no longer suffers, nor stands to suffer, an actual

injury traceable to the Commission that can be redressed by a favorable judicial decision. See

Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992) (stating that an

appeal must be dismissed “if an event occurs while a case is pending on appeal that makes it

impossible for the court to grant any effectual relief whatever to a prevailing party”) (internal

quotation marks and citation omitted); Kimberlin v. U.S. Parole Comm’n, No. 03-5017, 2004

WL 885215 at *1 (D.C. Cir. Apr. 22, 2004) (finding moot a habeas petition challenging

Commission’s decisions to revoke parole and to delay reparole because petitioner had been

“released from the confinement imposed as a result of those decisions”). The plaintiff has

achieved his principal goal – release on parole – and his release renders his claims moot. See

Gibbs v. Brady, 773 F. Supp. 454, 457 (D.D.C. 1991) (dismissing employee’s claim for

reinstatement to Senior Executive Service position by agency’s “voluntary corrective action”

which provided her “with the same relief as court-ordered reinstatement would have provided”).

                                            III. ORDER

       Accordingly, it is hereby

       ORDERED that the plaintiff’s Motion to Amend [Dkt. #43] is GRANTED; and it is

       FURTHER ORDERED that the plaintiff’s renewed Motion for Reconsideration [Dkt.

#37] is DENIED.

       SO ORDERED.

       Signed this 31st day of August, 2012.




                                                      /s/_____________________
                                                      RICHARD W. ROBERTS
                                                      United States District Judge

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