                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

ARNETT COBB,                                  )
                                              )
                    Plaintiff,        )
                                              )
               v.                             )       Civ. Action No. 14-0700 (ABJ)
                                              )
UNITED STATES OF AMERICA,                     )
                                              )
                Defendant.                    )
_________________________________             )


                                 MEMORANDUM OPINION

       Plaintiff, proceeding pro se, sues the United States “to stop the [United States Parole

Commission] from continuing [its] decade-long practice of applying” its parole guidelines

retroactively, in violation of the Constitution’s ex post facto clause. Compl. ¶¶ 1-2, ECF No. 1.

Defendant moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Def.’s Mot. to Dismiss the Compl., ECF No. 10. Defendant argues that res judicata

applies and, alternatively, that no claim for relief has been stated since the Commission has indeed

applied the desired parole guidelines. Plaintiff has filed an opposition, ECF No. 13, defendant

has replied, ECF No. 14, and plaintiff has filed a surreply, ECF No. 15. For the reasons explained

below, the Court finds that plaintiff’s prior litigation in the Northern District of West Virginia

precludes this action. Therefore, defendant’s motion to dismiss will be granted.

I. BACKGROUND

       Plaintiff’s documented criminal history is as follows:

                On January 18, 1980, the Superior Court of the District of Columbia
         sentenced the petitioner to 9½ years for burglary, destruction of property, and


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         drug possession. On February 28, 1984, the D.C. Superior Court sentenced the
         petitioner to 35 years, consecutive to the 1980 sentence, for assault with intent
         to rape, robbery, and unauthorized use of a vehicle. The aggregated total term of
         the 1980 and 1984 sentences was 44½ years. The D.C. Board of Parole initially
         denied parole on June 1, 1992 but granted it by order dated October 20, 1992.

                 On September 7, 1993, the petitioner was arrested and charged with rape
         while armed, kidnaping and sodomy. The D.C. Parole Board issued a warrant
         charging the petitioner with violating his parole by committing the new offenses
         and failing to report his arrest. The warrant was placed as a detainer.
         Subsequently, the petitioner was convicted of rape and unauthorized use of a
         vehicle for the 1993 incident. On September 13, 1994, the Superior Court of
         the District of Columbia sentenced the petitioner to 12-36 years.

Cobb v. Warden, FCI Gilmer, No. 5:10cv66, 2010 WL 6339850, at *1 (N.D.W.Va. Dec. 20, 2010)

report and recommendation adopted, No. 5:10Cv66, 2011 WL 1137304 (N.D.W.Va. Mar. 25,

2011), cert. of appealability den. and appeal dismissed sub nom. Cobb v. Fulwood, 446 F. App'x

593, 594 (4th Cir. 2011) (record citations omitted).

       The United States Parole Commission (“Commission” or “USPC”) assumed responsibility

over District of Columbia offenders in 1998 as a result of the National Capital Revitalization and

Self-Government Improvement Act of 1997, Pub.L. No. 105-33, 111 Stat. 712, 734-37 (codified

at D.C. Code §§ 24-101-42. See Fletcher v. Reilly, 433 F.3d 867, 870 (D.C. Cir. 2006) (discussing

“Changes to Parole and Reparole Regulations for D.C. Code Offenders”). Plaintiff had his first

hearing before the Commission in April 2001, but was denied parole and scheduled for a rehearing

in 36 months. Cobb, 2010 WL 6339850, at *1. Subsequent hearings were held in August 2004,

July 2007, and January 2010. See id. at *2.

       The latter hearing was scheduled to consider “new adverse information” regarding

plaintiff’s withdrawal from a residential sex offender treatment program “after only 32 days.”   Id.

Following the hearing, the Commission rescinded plaintiff’s presumptive parole date of May 7,


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2010 (set following the July 2007 hearing) and “reevaluated [plaintiff’s] case under the 1987

guidelines of the D.C. Board of Parole,” id., which utilized “a numerical scoring system . . . to

guide the Board in making the [discretionary] decision to grant or deny parole.” McRae v. Hyman,

667 A.2d 1356, 1360 (D.C. 1995). The Commission scored plaintiff at zero, which “ordinarily

would have indicated [that] parole should have been granted.” Cobb, 2010 WL 6339850, at *2.

However, the Commission found “a reasonable probability” that plaintiff “would not obey the law

if released[,] [that] his release would endanger the public safety,” and that plaintiff needed to

complete a sex offender treatment program “to reduce the risk that he poses to the community.”

Id. (internal citations and quotation marks omitted). As a result, the Commission departed from

the guidelines, denied parole, and set a presumptive parole date of January 7, 2013, after plaintiff’s

service “of an additional 32 months, contingent upon his participation in and completion of the

Bureau of Prison’s Sex Offender Treatment Program.” Id. at *7.

       Plaintiff filed this civil action in April 2014 from the Federal Correctional Institution in

Petersburg, Virginia. He asserts that he is “now nearly 60 years old [and] is a suitable candidate

for release, as determined by the 1987 Guidelines.” Compl. at 28. Plaintiff wants this Court to

“grant [his] immediate release on parole.” Id.

II. LEGAL STANDARD

       In evaluating a motion to dismiss under Rule 12(b)(6), the court must “treat the complaint's

factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be

derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.

Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations

omitted). Nevertheless, the court need not accept inferences drawn by the plaintiff if those


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inferences are unsupported by facts alleged in the complaint, nor must the court accept plaintiff's

legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); see Warren v.

District of Columbia, 353 F.3d 36, 39-40 (D.C. Cir. 2004) (differentiating unacceptable

conclusions of law from acceptable conclusions of fact).

        “To survive a [Rule 12(b)((6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face . . . . 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.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted); see Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (a plaintiff’s “[f]actual allegations must be enough to raise

a right to relief above the speculative level . . . .”) (citations omitted). While “[a] pro se complaint

. . . must be held to less stringent standards than formal pleadings drafted by lawyers . . . even a

pro se complaint must plead factual matter that permits the court to infer more than the mere

possibility of misconduct.” Atherton v. District of Columbia Off. of Mayor, 567 F.3d 672, 681-

82 (D.C. Cir. 2009) (internal quotations marks and citations omitted).

         In ruling on a Rule 12(b)(6) motion to dismiss, the court “may consider only the facts

alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and

matters of which . . . judicial notice” may be taken. EEOC v. St. Francis Xavier Parochial School,

117 F.3d 621, 624 (D.C. Cir. 1997). In addition, the court may take judicial notice of another

court’s proceedings. See Jenson v. Huerta, 828 F. Supp. 2d 174, 179 (D.D.C. 2011), quoting

Lewis v. Drug Enforcement Admin., 777 F.Supp.2d 151, 159 (D.D.C. 2011) (“The court may take

judicial notice of public records from other court proceedings.”); Akers v. Watts, 589 F. Supp. 2d


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12, 15 (D.D.C. 2008) (taking “judicial notice of the records of this Court and of other federal

courts”) (citations omitted).

III. ANALYSIS

        Defendant argues first that res judicata applies. See Defs.’ Mem. of P. & A. at 4-5.

“Under the doctrine of res judicata, a claim previously adjudicated on the merits by a court of

competent jurisdiction is foreclosed from being relitigated in a new action.” Duma v. JPMorgan

Chase, 828 F. Supp. 2d 83, 86 (D.D.C. 2011) aff'd sub nom. Duma v. JPMorgan Chase & Co.,

No. 11-7147, 2012 WL 1450548 (D.C. Cir. Apr. 20, 2012). “Specifically, ‘a subsequent lawsuit

will be barred if there has been prior litigation (1) involving the same claims or cause of action,

(2) between the same parties or their privies, and (3) there has been a final, valid judgment on the

merits, (4) by a court of competent jurisdiction.’ ” Id., quoting Smalls v. U.S., 471 F.3d 186, 192

(D.C. Cir. 2006).

        In the related doctrine of collateral estoppel, an issue previously adjudicated is foreclosed

in the following circumstances. “First, the same issue now being raised must have been contested

by the parties and submitted for judicial determination in the prior case. Second, the issue must

have been actually and necessarily determined by a court of competent jurisdiction in that prior

case . . . . Third, preclusion in the second case must not work a basic unfairness to the party bound

by the first determination.” Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir.

1992) (citations omitted). Basic unfairness may occur “when the losing party clearly lacked any

incentive to litigate the point in the first trial, but the stakes of the second trial are of a vastly greater

magnitude.” Id.




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       The Northern District of West Virginia addressed the merits of the claim presented here,

i.e., whether the Commission violated the ex post facto clause “by using the 2000 Regulations

rather than the 1987 Regulations.” Cobb, 2010 WL 6339850, at *6. It found:

         In this particular case, it is clear that all of the crimes for which the petitioner is
         incarcerated were committed prior to the adoption of the 2000 Regulations. It is
         equally clear that the USPC utilized the 2000 regulations in 2001, 2004, and
         2007, when it denied the petitioner parole. Moreover, it appears that the USPC’s
         actions may have created a significant risk of an increased period of
         incarceration. When applied to the petitioner’s circumstances, the 1987
         Regulations indicate that parole “shall be granted.” However, even if the
         petitioner has established an ex post facto violation, the petitioner is not entitled
         to an order granting him release on parole. At best, he would be entitled to a
         new parole hearing with instructions to the USPC to apply the 1987 Regulations.
         Moreover, it is clear that the petitioner has already received this precise relief
         [at the January 2010 hearing].

Id. That court indicated that the Commission had exercised the same “vast discretion” the former

D.C. Board of Parole could have exercised in departing from the 1987 guidelines and, as a

consequence, determined that the Commission’s decision based on “specific [permissible]

reasons” was not subject to judicial review. Id. at *7-8.

       Plaintiff counters that res judicata does not apply because his prior lawsuit was against his

warden and this lawsuit is against the United States. See Pl.’s Surreply at 1-2. He argues that

“the two parties mentioned are not in privity with one another because the warden was in his

official and individual capacity and the United States was in its official capacity.” Id. at 2. This

argument is unavailing since the prior action was brought in habeas and properly named plaintiff’s

warden in his official capacity as head of the Gilmer Federal Correctional Institution in West

Virginia. See 28 U.S.C. § 2243 (“The writ [of habeas corpus], or order to show cause shall be

directed to the person having custody of the person detained.”); Blair-Bey v. Quick, 151 F.3d 1036,

1039 (D.C. Cir. 1998) (“[T]he appropriate defendant in a habeas action is the custodian of the

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prisoner.”) (citation and internal quotation marks omitted) (alteration in original).        Plaintiff

“cannot avoid the preclusive effect of the habeas ruling simply by naming new parties, particularly

where the[] [d]efendants and the respondent to the habeas petition all are federal government

officials” or the government itself. McIntyre v. Fulwood, 892 F. Supp. 2d 209, 215 (D.D.C.

2012), quoting Sunshine Anthracite Coal v. Adkins, 310 U.S. 381, 402-03 (1940) (recognizing

“privity between officers of the same government” for purposes of res judicata).

       Plaintiff further argues that this lawsuit “deals with a[n] issue that has not been properly

addressed from a constitutional and lawful perspective.” Pl.’s Surreply at 2. But the district

court’s prior adjudication of the same constitutional issue underlying this action, i.e., the alleged

ex post facto violation, has preclusive effect under the collateral estoppel doctrine, and this Court

lacks jurisdiction to review the propriety of that decision. See 28 U.S.C. §§ 1331, 1332 (scope of

jurisdiction for all district courts); United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011)

(“[A]s a district court is a trial level court in the federal judicial system[,] [i]t generally lacks

appellate jurisdiction over other judicial bodies, and cannot exercise appellate mandamus over

other courts.”) (citations omitted).

       Even if the complaint is not procedurally barred, this Court cannot grant the requested relief

and, thus, order the Commission to release plaintiff to parole. Rather, the appropriate remedy for

a constitutionally defective parole proceeding “is a writ of mandamus to compel the Commission’s

compliance with the statute not a writ of habeas corpus to compel release on parole or to extinguish

the remainder of the sentence.” Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983); see

accord Davis v. United States Parole Comm’n, 47 F. Supp. 3d 64, 66-67 (D.D.C. 2014). And it

was “clear” to the district court in West Virginia that plaintiff “ha[d] already received” the desired


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parole hearing under the 1987 guidelines. 1 Cobb, 2010 WL 6339850, at *6.

III. CONCLUSION

       For the foregoing reasons, defendant’s motion to dismiss is granted. A separate order

accompanies this Memorandum Opinion.




                                                   AMY BERMAN JACKSON
                                                   United States District Judge
Date: May 19, 2015




1
   Plaintiff has not asserted a claim based on parole proceedings subsequent to the January 2010
hearing. Such a claim would not be precluded but would fail nonetheless if the Commission has
continued to apply the 1987 guidelines at plaintiff’s parole hearings.


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