                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



  DANIEL ROY,

           Plaintiff,
                                                             Civil Action No. 09-463 (HHK)
             v.

  ISAAC FULWOOD, Jr.,

           Defendant.




                                  MEMORANDUM OPINION

       Plaintiff Daniel Roy, a prisoner in federal custody under sentences imposed by the

Superior Court for the District of Columbia, has filed a pro se complaint under 42 U.S.C. § 1983

against the Chairman of the United States Parole Commission for alleged due process violations.

Roy seeks prospective and declaratory relief only. The Chairman has filed a motion to dismiss

that is fully briefed and ripe for decision. Because the complaint fails to state a claim upon

which relief may be granted, the Chairman’s motion will be granted and the case will be

dismissed.

                                       I. BACKGROUND

       Now incarcerated under two sentences imposed on him in 1988, Roy has repeatedly been

denied parole, the last time in 2009 after a parole hearing on November 19, 2008. Roy contends

that in reaching the most recent denial, the Chairman1 violated his due process rights by

       1
          In his Opposition, Roy asserts that he “bought his [§ 1983] motion/civil complaint
against the Commission[er] Isaac Fulwood, Jr. in his ‘Offic[ia]l and Individual’ capacity . . . .”
Opp’n at 2. This assertion is problematic in multiple respects. First, the complaint contains no
“continuing to rely on the nature of his offense to deny parole,” by “impermissibly double-

counting disciplinary infractions to depart upward from the guidelines,” and “by failing to follow

D.C. law in requiring him to serve an additional 60 months before parole reconsideration.”

Compl. at 2. Acknowledging that to assert “a due process claim [he] must demonstrate the

existence of a protected liberty interest in parole,” id. at 4, Roy relies on case law interpreting

other states’ statutes, id. at 4-8, to reach the conclusion that “the District of Columbia’s parole

scheme creates a cognizable liberty interest in release on parole because 28 D.C. [Mun. Reg.]

§ 204.21 uses mandatory language,” id. at 8. Roy seeks an order requiring the Commission to

reconsider its most recent decision. Id. at 12. In his defense, the Chairman argues, among other

things, that the complaint fails to state a claim upon which relief may be granted because Roy has

no cognizable liberty interest in being released on parole. Def.’s Mem. of P. & A. at 10.

                                          II. DISCUSSION

       A court may dismiss all or part of a complaint that fails to state a claim upon which relief

may be granted. Fed. R. Civ. P. 12(b)(6). A court considering such a motion to dismiss must

assume that all factual allegations are true, even if they are doubtful. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994) (noting that a court must construe the complaint “liberally in the plaintiffs’

favor” and “grant plaintiffs the benefit of all inferences that can be derived from the facts

alleged”). A court need not, however, “accept inferences drawn by plaintiffs if such inferences


suggestion that any defendant is sued in an individual capacity. Second, one cannot add a
defendant in an opposition to a dispositive motion. Third, the complaint was filed against
Edward F. Reilly, the past Chairman of the Commission. Clearly, Roy did not sue Fulwood in
his individual capacity. Even under the liberal standard of Haines v. Kerner, 404 U.S. 519, 520
(1972), the Court does not infer an individual capacity suit in this complaint.

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are unsupported by the facts set out in the complaint. Nor must [a] court accept legal conclusions

cast in the form of factual allegations.” Kowal, 16 F.3d at 1276. In deciding a motion brought

under Rule 12(b)(6), a court is limited to considering “the facts alleged in the complaint,

documents attached as exhibits or incorporated by reference in the complaint, and matters about

which [a court] may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196

(D.D.C. 2002) (citations omitted). A pro se complaint is entitled to liberal construction and is

not held to the same standards as is a formal pleading drafted by a person trained in law. Haines

v. Kerner, 404 U.S. 519, 520 (1972).

        As an initial matter, a court must satisfy itself that it may properly exercise jurisdiction

over a case. When the Chairman of the United States Parole Commission is acting pursuant to

his authority under the National Capital Revitalization and Self Government Improvement Act of

1997, Pub.L. 105-33, 111 Stat. 712 (“D.C. Revitalization Act”), he is acting under color of a

statute of the District of Columbia and, therefore, is subject to suit in his official capacity for

prospective injunctive and declaratory relief under 42 U.S.C. § 1983. Fletcher v. District of

Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004) (“Because the D.C. Revitalization Act is . . . a

statute [of the District of Columbia], we have no doubt the defendant members of the United

States Parole Commission are amenable to suit under § 1983 for actions taken pursuant to that

Act.”); Fletcher v. District of Columbia, 481 F. Supp. 2d 156, 162 (D.D.C. 2007) (“[P]laintiff

may pursue prospective injunctive and declaratory relief against the present individual

Commissioners in their official capacities.”); Sellmon v. Reilly, 551 F. Supp. 2d 66, 83 & n.12

(D.D.C. 2008) (same). Accordingly, this Court has subject matter jurisdiction over this case.

Furthermore, there can be no genuine debate that this Court has long-arm personal jurisdiction


                                                  -3-
over the Chairman in cases involving disputes arising with respect to his duties under the D.C.

Revitalization Act, and that venue in this district is proper. See Fletcher v. District of Columbia,

481 F. Supp. 2d at 169-71 (finding venue proper and that it had long-arm personal jurisdiction

over Commissioners in their personal capacities).

       Roy’s due process claim, however, must be dismissed because the Roy has not

established that he has a cognizable liberty interest in the award of parole and, therefore, has not

stated a due process claim upon which relief may be granted. A liberty interest in an award of

parole does not exist except where state regulations require release if certain necessary

prerequisites exist. Ellis v. District of Columbia, 84 F.3d 1413, 1417 (D.C. Cir. 1996). As a

D.C. Code offender convicted in 1988 for offenses committed when the 1987 Guidelines were in

effect, Roy has been considered for parole under those guidelines. It is well-settled that those

guidelines and regulations do not confer a constitutionally cognizable liberty interest.2 See id., 84

F.3d at 1420 (holding that “the regulations do not give any prisoner a liberty interest in parole”);

Brandon v. D.C. Board of Parole, 823 F.2d 644, 647 (D.C.Cir.1987); Hall v. Henderson, 672

A.2d 1047 (D.C.1996); Jones v. Braxton, 647 A.2d 1116 (D.C.1994). Accordingly, Roy has no

constitutional liberty interest in parole and his due process claim must be dismissed.

       A separate order of dismissal accompanies this memorandum opinion.


                                              HENRY H. KENNEDY, JR.
Date: February 22, 2010                       United States District Judge


       2
         Later guidelines and regulations have also been found not to confer a constitutionally
cognizable liberty interest. See Skinner v. United States Parole Comm’n, Civil Action No. 01-
277 (JMF), 2002 WL 458993, at *2 (D.D.C. Mar. 25, 2002) (finding that, as to guidelines that
came into effect after the Parole Commission became responsible for the parole determinations
for D.C. Code offenders, the “broad grant of discretion does not confer a liberty interest”).

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