                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

                                            )
RICHARD FISHER,                             )
                                            )
       Plaintiff,                           )
                                            )
              v.                            )   Civil Case No. 09-1910 (RJL)
                                            )
ISAAC FULWOOD, JR., et al.,                 )
                                            )
      Defendants.                           )
                                            )rft,--
                             MEMORANDUM OPINION
                               (March 2:), 2011) [# 15]

      Plaintiff, a state prisoner currently imprisoned at United States Penitentiary Lee

("USP Lee"), has commenced this action against two commissioners and two employees

of the United States Parole Commission ("Commission" or "USPC") under 42 U.S.C. §

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

eligibility, or "grid," score either by applying Commission guidelines, implemented in

2000, instead of regulations of the District of Columbia Parole Board, implemented in

1987 and interpreted by policy guidelines implemented in 1991, or by applying the 1987

regulations but not the 1991 guidelines. Plaintiff has moved for summary judgment on

all claims. For the reasons set forth below, plaintiffs motion is DENIED.

      The background and facts of this case have been set forth in this Court's

memorandum opinion, issued contemporaneous with the instant opinion, in relation to

defendants' motion to dismiss [#13]. In light of that memorandum opinion, which grants
in part and denies in part defendants' motion, the only claim remaining in this case is

plaintiffs claim arising under the Ex Post Facto Clause of the Constitution.

       The Court will grant plaintiff s motion for summary judgment if the pleadings and

the discovery and disclosure materials on file, together with any affidavits or

declarations, "show[] that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a), (c). The

moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). "A fact is 'material' if

a dispute over it might affect the outcome of a suit under governing law." Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). "[A] material fact is 'genuine' ... if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at

248. Factual assertions in the moving party's affidavits or declarations may be accepted

as true unless the opposing party submits his own affidavits, declarations, or documentary

evidence to the contrary. See Neal v. Kelly, 963 F.2d 453,456 (D.C. Cir. 1992).

       "The Ex Post Facto Clause of the United States Constitution prohibits retroactive

increases in punishment for a crime after its commission." Sellmon v. Reilly, 551 F.

Supp. 2d 66, 84 (D.D.C. 2008) (citing U.S. Const. art. I, § 9, cl. 3; Collins v. Youngblood,

497 U.S. 37,42-43 (1990)). "The Supreme Court has held that a retroactively applied

parole regulation, guideline, or policy statement may violate the Ex Post Facto Clause if

it creates' a significant risk' of' a longer period of incarceration than under the earlier

rule.'" Id. (quoting Garner v. Jones, 529 U.S. 244,255 (2000)).

                                               2
       In his motion, plaintiff contends that "defendants violated his Constitutional rights

under the Ex Post Facto Clause by applying their own parole procedures and policies"-

the 2000 guidelines-"to his case, rather than those of the D.C. Parole Board"-the 1987

regulations and 1991 guidelines-"and significantly increases the risk of a longer period

[of] incarceration." PI. 's Mot. in Opp'n to Defs.' Mot. to Dismiss, and for Summ. J., at 3,

13-14 ("PI.' s Mot."). Plaintiff supports this contention with reliance on exhibits attached

to his complaint. In the summary of plaintiff s parole hearing, defendant Howard notes

that plaintiff, through his attorney, argued that the "hearing should be conducted under

the DC Board of Parole guidelines"-Le., the 1987 regulations and 1991 guidelines.

Hearing Summary, at 4,jiled as Compi. Ex. A at 4. Mr. Howard's summary does not

specify whether the he did so conduct the hearing, see id., but the worksheets used to

calculate plaintiffs parole eligibility, each titled "2.80 Guideline Worksheet," seem to

refer to 28 C.F.R. § 2.80-the 2000 guidelines, see 2.80 Guideline Worksheet,jiled as

Compi. Ex. A at 6-10.

       Defendants, on the other hand, argue that plaintiffs initial parole hearing was

conducted according to the 1987 regulations and 1991 guidelines, Defs.' Opp'n to PI.'s

Mot. for Summ. J. and Reply to PI.'s Opp'n to Defs.' Mot. to Dismiss, at 2, and provide

as support the Commission's notice of action, which specifies that the "Commission is

applying the DC Board of Parole's 1987 guidelines to the initial parole decision in

[plaintiffs] case." Notice of Action, at l,jiled as Compi. Ex. B at 1. Plaintiff, naturally,

disagrees: "Even though the defendants have allege[ d] 'in their notice of action' they



                                             3
applied the 1987 [r]egulation[ s] to the plaintiff1' s] case, such is not the case." PI.' s Mot.

at 11.

         There is, therefore, a dispute between the parties about whether, as a matter of

fact, the 1987 regulations and 1991 guidelines were actually applied. Because that fact

forms the entire basis of plaintiff's claim, it is material. Because both sides have

documentary evidence to support their argument, the dispute about this material fact is

genuine. Plaintiff is therefore not entitled to judgment as a matter of law.

         Accordingly, for the foregoing reasons, the Court DENIES plaintiff's motion for

summary judgment. An order consistent with this decision accompanies this

Memorandum Opinion.




                                                    United States District Judge




                                                4
