UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RICHARD FISHER, )

Plaintiff, §

v. § Civil Action No. 09-1910 (RJL)
ISAAC FULWOOD, JR. et al., g

Defendants. g

MEMORANDUM OPINION

March q ,2012

Plaintiff, a District of Columbia prisoner currently confined at the United States
Penitentiary Lee in Jonesville, Virginia, commenced this civil action against two commissioners
and two employees of the United States Parole Commission ("Commission") under 42 U.S.C.

§ 1983. Plaintiff alleges that the Commission erred when it initially calculated his parole-

eli gibility, or "grid," score under its guidelines implemented in 2000 instead of under the 1987
regulations of the defunct District of Columbia Parole Board as interpreted by the 1991 policy
guideline. Frarning his claim as a violation of the ex post facto and due process clauses of the
United States Constitution, plaintiff seeks as relief a rehearing under the 1987 regulations in
accordance with the 1991 policy guideline and a reduction in his grid score by one point.

In light of the Court’s ruling issued on March 27, 2011, only the ex post facto claim
against the Commission and defendant Paul R.A. Howard remains to be resolved. See Fz'sher v.
Fulwooa', 774 F. Supp. 2d 54, 58, 61 (D.D.C. 201l) (dismissing the due process claim and the
personal-capacity claim against defendant P. Denton). In their pending motion to dismiss,
defendants argue that this claim is moot because plaintiff has "twice received the relief he seeks."

Defs.’ Mem. of P. & A. in Support of Their Mot. to Dismiss Pl.’s Compl. [Doc. # 35] at l.

Indeed, the Commission’s Notice of Action dated July 2, 2009, states that "the Commission is
applying the DC Board of Parole’s 1987 guidelines to the initial parole decision in your case,"
Defs.’ Ex. A at 1, and its Notice of Action dated July 25, 2011, states "[y]ou continue to be
scored under the 1987 guidelines of the D.C. Board of Parole."' Defs.’ Ex. C at 1. Defendants
argue correctly that even if the initial hearing examiner, defendant Howard, relied on the 2000
guidelines as plaintiff alleges, plaintiff cannot prevail on his claim because the Commission did

not rely on Howard’s decision but rather adopted the recommendation of EXecutive Reviewer

Denton to "decide [plaintiff’s initial hearing] using the DC Board parole regulations." Defs.’ Ex.

E at 5; see Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss [Doc. # 38] at 3.

To the extent that plaintiff’s claim against Howard in his personal capacity has survived,
see Fz'sher, 774 F. Supp. 2d at 60-61, the Court now finds that the claim fails because plaintiff
carmot establish an injury for which Howard may be held personally liable. Even if Howard
erroneously applied the 2000 guidelines, his recommendation was overruled - and essentially
rendered moot - by the Commission’s adoption of Denton’s recommendation to apply the 1987

regulations.

‘ "In 1991, the D.C. Board of Parole adopted a policy guideline to define the terms used
in the appendices to the 1987 Regulations (the "1991 Policy Guideline").") Short v. Fulwooa',
742 F. Supp. 2d 133, 135 (D.D.C. 2010) (citing Sellmon v. Reilly, 551 F. Supp. 2d 66, 71
(D.D.C. 2008)) (parenthesis in original). To the extent that plaintiff is claiming that the
Commission "improperly applied [the 1987 regulations] without reference to the 1991
guidelines," Fz`sher, 774 F. Supp. 2d at 59, he states no claim under the ex post facto clause
because he "is seeking, not complaining about, the retroactive application of the 1991 Policy
Guideline." Short, 742 F. Supp. at 136; see id. (reasoning that "[t]o fall within the ex post facto
prohibition, a law must be retrospective_that is, ‘it must apply to events occurring before its
enactment’-and it ‘must disadvantage the offender affected by it."’) (quoting Lynce v. Mathis,
519 U.S. 433, 441 (1997)) (other citation omitted). Here, the ex post facto claim is necessarily
predicated on the alleged application of the Commission’s 2000 guidelines to plaintiff’s parole
proceeding.

Plaintiff counters that "[i]t is quite clear, the defendants . . . did not apply the 1987
Regulations and 1991 Policy Guideline in plaintiffs initial parole hearing determination . . . ,"
and he claims to "have provided factual evidence . . . ." Pl.’s Mot. in Opp’n to the Defs.’ Mot. to
Dismiss Pl.’s Compl. [Doc. # 36] at 8. He cites "Exhibit B," but there is no such designation in
the attachment to his opposition and plaintiffs claim is otherwise belied by the Commission’s
notices of action.

For the foregoing reasons, the Court finds that the remaining ex post facto claim is moot
and, therefore, grants defendants’ motion to dismiss under Rule 12(b)(1) of the F ederal Rules
Civil Procedure. See Hunter v. Reilly, 405 Fed. Appx. 514, 515 (D.C. Cir. 2011) ("Because
appellant obtained all the relief to which he was entitled when the United States Parole
Commission conducted a new parole hearing applying the D.C. Board of Parole’s 1987 and 1991
guidelines, the district court properly dismissed his case as moot."); Kaur v. Chertoff 296 Fed.
Appx. 80 (D.C. Cir. 2008) ("If this case is [rendered] moot, we are barred from reviewing it
under Article III's case or controversy requirement and therefore lack subject matter
jurisdiction.") (citation omitted); see also Short v. Fulwooa', 742 F. Supp. 2d 133, 135 (D.D.C.
2010) (If an ex post facto violation is found, "a prisoner would be entitled [only] to a new parole
hearing and a determination based on the 1987 Regulations."). ln addition, the Court, finding no
claim stated against Howard in his personal capacity, grants defendants’ motion to dismiss the
complaint against Howard under Rule 12(b)(6). A separate, final order accompanies this

0

Memorandum Opinion.

RICHAR§;.J.»I£EON
United States District Judge

