Bailey v. Fulwood, Civil Action No. 10–463 (RMC).

• Citation: 780 F.Supp.2d 20
• Decision Date: 15 February 2011
• Docket Number: Civil Action No. 10–463 (RMC).
• Parties: Ari BAILEY, Plaintiff,v.Isaac FULWOOD, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

780 F.Supp.2d 20

Ari BAILEY, Plaintiff,

v.Isaac FULWOOD, Jr., et al., Defendants.

Civil Action No. 10–463 (RMC).

United States District Court, District of Columbia.

Feb. 15, 2011.

Ari Bailey, White Deer, PA, pro se.Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.I. Introduction.

Plaintiff is currently imprisoned at United States Penitentiary (USP) Allenwood in Allenwood, Pennsylvania. Plaintiff sues the chairman, several individual commissioners, and the case operations administrator of the United States Parole Commission (“Commission” or USPC), alleging ex post facto application of parole regulations to determine his parole suitability, as well as Privacy Act violations regarding allegedly incorrect information in the Commissions's file on Plaintiff. Defendants urge the Court to construe Plaintiff's ex post facto claims as a petition for a writ of habeas corpus and move to dismiss this entire action with prejudice under Federal Rule of Civil Procedure 12(b)(1)-(2) for lack of jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Because the statute of limitations of the Privacy Act is not jurisdictional, Defendants' arguments under Rule 12(b)(1) will be construed as if made under Rule 12(b)(6). Because Defendants refer to matters outside the pleadings with respect to their statute-of-limitations argument, the Court will construe that part of Defendants' motion as a motion for summary judgment under Federal Rule of Civil Procedure 56. In the memorandum accompanying their motion, Defendants alternatively suggest that Plaintiff's habeas claim may be transferred to a court with proper jurisdiction, which suggestion the Court will accept.II. Standards of Review.

Defendants seek dismissal of Plaintiff's habeas claims under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted, and dismissal of Plaintiff's Privacy Act claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See Defs.' Mot to Dismiss [Dkt. # 21] (hereinafter Mot.); Mem. of P. & A. in Supp. of Defs.' Mot to Dismiss [Dkt. # 21] (hereinafter Mem.). Alternatively, Defendants seek transfer of Plaintiff's habeas claims “to the federal district of Plaintiff's incarceration.” Mem. at 8.

A. Lack of Subject–Matter Jurisdiction, Construed as Failure to State a Claim.

Defendants seek dismissal of Plaintiff's Privacy Act claims under Rule 12(b)(1) because they allege Plaintiff brought such claims after the expiration of the relevant statute of limitations. Mem. at 17. However, in this Circuit, “the statute of limitations period set forth in 5 U.S.C. § 552a(g)(5) is not a jurisdictional bar.” Kursar v. Transportation Sec. Admin., No. 07–cv–2001, 2010 WL 4721304, *7 (D.D.C. Nov. 22, 2010) (citing Chung v. U.S. Dep't of Justice, 333 F.3d 273, 278 n. * (D.C.Cir.2003)) (emphasis added). Instead, “the appropriate ‘procedural mechanism for considering [the defendant's] statute of limitations argument at this stage of the proceedings is Rule 12(b)(6).’ ” Id. (quoting Williams v. Chu, 641 F.Supp.2d 31, 34 (D.D.C.2009)) (alteration in original). Accordingly, the Court will consider Defendants' Rule 12(b)(1) arguments as though made under Rule 12(b)(6).

B. Lack of Personal Jurisdiction.

On a motion to dismiss under Rule 12(b)(2), a plaintiff bears the burden of establishing a factual basis for the court's exercise of personal jurisdiction over a defendant. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). A plaintiff must allege specific acts connecting a defendant with the forum. 2d Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001). Bare allegations and conclusory statements are insufficient. Id.

In determining whether a factual basis for personal jurisdiction exists, a court resolves factual discrepancies appearing in the record in favor of the plaintiff. Crane, 894 F.2d at 456. However, the court need not treat all of the plaintiff's allegations as true. United States v. Philip Morris Inc., 116 F.Supp.2d 116, 120 n. 4 (D.D.C.2000). Instead, the court “may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” Id.

C. Failure to State a Claim, Construed as Summary Judgment

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Fed.R.Civ.P. 12(b)(6). Defendants include with their motion to dismiss several exhibits relating to their arguments made under Rule 12(b)(1), see Mot. Exs. A–D [Dkt. # 21–1], which the Court will construe as made under Rule 12(b)(6), see Discussion supra Part. II.A. “If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment ....” Fed.R.Civ.P. 12(d). The Court cannot exclude Exhibits B or C, upon which Defendants' base their argument that Plaintiff's Privacy Act claims are untimely. See Discussion infra Part IV.B. The Court therefore construes Plaintiff's motion under Rule 12(b)(6) (and arguments ostensibly made under Rule 12(b)(1)) as a motion under Federal Rule of Civil Procedure 56.

Under Rule 56, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted).

D. Transfer.

“Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed....” 28 U.S.C. § 1631.

III. Petition for a Writ of Habeas Corpus.

Plaintiff's ex post facto claims constitute a petition for a writ a habeas corpus. Summary judgment will be entered in favor of individual Commission defendants on Plaintiff's habeas claim, but Warden Martinez will be added as the respondent. The petition will be severed from Plaintiff's other claims. The resulting separate habeas action will be transferred.

A. Plaintiff's Ex Post Facto Claims Are a Petition for a Writ of Habeas Corpus.

Plaintiff is currently imprisoned at USP Allenwood, where he is serving a sentence imposed by the Superior Court for the District of Columbia. See Bailey v. United States, 699 A.2d 392 (D.C.1997).¹ Plaintiff claims that Defendants, when evaluating whether or when to release Plaintiff on parole, “impermissibly rel[ied] upon ... federal standards and/or the 2000 USPC guidelines [and] capriciously us[ed] ‘other’ reasons to depart from the 1987 D.C. Board of Parole and 1991 guidelines.” Compl. ¶ 17 [Dkt. # 1]. In other words, says Plaintiff, Defendants unconstitutionally applied newer guidelines ex post facto, when they should have used guidelines from 1987 or 1991. The alleged result: “to deny Plaintiff A. Bailey parole.” Id. ¶ 4. Plaintiff therefore asks the Court to grant him a “parole date of September 6, 2010.” Id. ¶ 1.

In effect, Plaintiff seeks his immediate release and thus challenges the duration of his present confinement. Such is the province of habeas corpus. In Chatman–Bey v. Thornburgh, the Court of Appeals for the District of Columbia Circuit directly considered the question of “whether a federal prisoner challenging the determination of a parole eligibility date is required to bring his claim in habeas.” 864 F.2d 804, 808 (D.C.Cir.1988). The Circuit concluded that because “a prisoner's challenge to the determination of his eligibility for parole ... attack[s] the ‘fact or duration’ of [the prisoner's] confinement,” such a challenge must be made in a petition for a writ of habeas corpus. Id. at 810, 810 n. 5. The Court therefore construes Plaintiff's ex post facto claims as a petition for a writ of habeas corpus.

B. Plaintiff's Warden Is the Proper Respondent.

The proper respondent in a habeas corpus case is the petitioner's warden or immediate custodian. Rumsfeld v. Padilla, 542 U.S. 426, 439, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004); Blair–Bey, 151 F.3d at 1039; see also Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986) (noting that although “the Parole Commission is responsible for the [prisoner's] continued detention [,] ......