Hurd v. Dist. of Columbia, No. 20-7003

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Millett, Circuit Judge
• Citation: 997 F.3d 332
• Parties: Michael D. HURD, Jr., Appellant v. DISTRICT OF COLUMBIA, Government, Appellee
• Docket Number: No. 20-7003
• Decision Date: 14 May 2021

997 F.3d 332

Michael D. HURD, Jr., Appellant
v.
DISTRICT OF COLUMBIA, Government, Appellee

No. 20-7003

United States Court of Appeals, District of Columbia Circuit.

Argued November 16, 2020
Decided May 14, 2021

Eric C. Rowe argued the cause for appellant. With him on the briefs were C. Allen Foster and Erik D. Bolog, Washington, DC.

Caroline S. Van Zile, Principal Deputy Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General.

Before: Srinivasan, Chief Judge, Henderson and Millett, Circuit Judges.

Millett, Circuit Judge:

This appeal is the result of a series of unfortunate events that left Michael D. Hurd, Jr. suddenly incarcerated for a sentence he believed he had already served and for which he had completed supervised release. The narrow question in this case is whether Hurd has stated a claim that the District of Columbia itself can be held liable for his loss of liberty without due process. Because the answer to that question turns on substantial questions of disputed fact, we hold that the district court erred in granting summary judgment for the District, and we remand for further proceedings.

I

A

In August 2005, Hurd, an honorably discharged veteran, was stopped while driving in the District of Columbia. Hurd immediately informed the officer that he had a firearm in his glove compartment that he was licensed to carry in North Carolina. Hurd's permit, however, did not license him to carry the firearm in the District of Columbia. The District charged Hurd with carrying a firearm without a license, which at the time was a felony offense under D.C. CODE § 22-3204(a)(1) (1994) (codified as amended at D.C. CODE § 22-4504 ).

Following the arrest, police from the Metropolitan Police Department searched Hurd's residence in the District. They found a small amount of cocaine and more firearms there. The District then charged Hurd with four misdemeanors, in addition to the initial felony. On January 23, 2006, Hurd pled guilty to all five charges—one count of carrying a pistol without a license, one count of possessing a prohibited weapon, two counts of possessing unregistered firearms, and one count of possessing cocaine. At the sentencing hearing, the District of Columbia Superior Court sentenced Hurd to a total of 45 months’ imprisonment. The court, though, suspended Hurd's term of imprisonment and placed him on supervised probation. After a probation violation later that year, the court revoked Hurd's probation and ordered that he serve 42 months of imprisonment, followed by a three-year term of supervised release.

At the time of Hurd's sentence, the District of Columbia Department of Corrections and the Federal Bureau of Prisons had a policy under which people convicted in the District of felonies served their sentence in federal prison, while those convicted

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of misdemeanors served their sentence in the District jail. People who had both felony and misdemeanor sentences, like Hurd, commonly served their felony sentence first within the Federal Bureau of Prisons and, once that sentence was completed, served their remaining misdemeanor sentence in the District jail.

Hurd served his 15-month felony sentence in a federal prison in West Virginia. While he was there, Hurd wrote a letter to the court, requesting pro se that the court reduce his sentence by either allowing his misdemeanor sentences to run concurrently with his felony sentence or allowing him to serve the sentences on probation. While the district court denied Hurd's motion, it mailed the order to the District jail, rather than the prison in West Virginia. So Hurd was unaware that the court had denied his motion for sentence reduction.

Less than nine months after being sent to prison, the Bureau of Prisons released Hurd to the Hope Village Halfway House in the District of Columbia. Because he was not sent to a District jail to serve the misdemeanor sentence, Hurd concluded that his motion for sentence reduction must have been granted. Hurd served one month at the halfway house and then was discharged to begin his period of supervised release.

During his period of supervised release, Hurd remained in the District of Columbia and regularly submitted to monitoring and drug tests. Hurd successfully completed his term of supervised release on July 18, 2010. For the entirety of those three years, "the conduct of the federal prison that released him, the halfway house where he lived during his first few weeks out of prison, the Parole Commission, and the Court Services and Offender Supervision Agency that regularly monitored him all reinforced Hurd's belief that he had been deliberately released from prison and had fully served his 2006 sentence[,]" including the misdemeanor components. Hurd v. District of Columbia , 864 F.3d 671, 676 (D.C. Cir. 2017).

In September 2011, Hurd pled guilty to possessing less than two ounces of marijuana and was sentenced to nine days in jail, to be served on weekends. Hurd served the first and second weekends of that sentence. But when he tried to leave the jail at the end of the second weekend, a Kafkaesque saga began.

The story starts with "legal instrument examiners," who are District employees whom the Department of Corrections tasks with reviewing an inmate's record and relevant databases "to determine if there are any outstanding warrants or charges" that should prevent the inmate's release from jail. J.A. 269. One of those examiners, Mark Sibert, concluded that Hurd had never completed the sentence for his 2006 misdemeanor convictions, and prevented Hurd's release after his second weekend sentence.

The examiner later emailed the Bureau of Prisons to ask why Hurd had been released in 2007 after completing only his felony sentence. Two weeks later, the Bureau responded that the paperwork it received on Hurd did not indicate that he was supposed to be remanded to the District jail to serve additional time. See J.A. 250 (noting that the Custody and Detention Form showed that there was no "consecutive misdemeanor term"); see also J.A. 252. On October 26, 2011, the District's Department of Corrections emailed Hurd to advise him that he had been "erroneously release[d]" from federal prison in 2007 because he "also had a consecutive misdemeanor to serve." J.A. 185. In other words—four years after his release from prison, and after completing three years of supervised release—Hurd was told he

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would have to serve another 27 months in jail.

In November 2011, Hurd filed a writ of habeas corpus in the District of Columbia Superior Court. That court, though, did not hold a hearing on the petition until July 27, 2012. At that time, the court ruled from the bench that Hurd must "serve the remainder of his sentence[.]" J.A. 155. Hurd appealed. But the District of Columbia Court of Appeals did not act on Hurd's appeal until December 2013, at which point it dismissed the petition as moot because Hurd had been "released from [jail] on September 30, 2013, upon completion of his sentence." Order Sua Sponte Dismissing Appeal, Hurd v. United States , No. 12-CO-1364, slip op. at 1 (D.C. Dec. 18, 2013).

B

In May 2015, Hurd filed suit against the District under 42 U.S.C. § 1983, alleging that his spontaneous incarceration deprived him of due process under the Fifth Amendment to the United States Constitution. Complaint, Hurd v. District of Columbia , No. 15-cv-666-ESH (D.D.C. May 1, 2015), ECF No. 1. The district court dismissed the case on the ground that, as a matter of claim preclusion, Hurd's prior unsuccessful habeas corpus action barred him from relitigating the legality of his incarceration in the Section 1983 lawsuit. Hurd v. District of Columbia , 146 F. Supp. 3d 57, 63–64 (D.D.C. 2015). The court also held that Hurd's surprise two-year incarceration violated neither substantive nor procedural due process protections. Id. at 64–72.

This court reversed. We first held that Hurd's prior habeas proceeding, which had become moot before his appeal was resolved, did not preclude Hurd's Section 1983 damages claim. Hurd , 864 F.3d at 679–680. We also held that Hurd had properly alleged a procedural due process claim because he possessed a liberty interest in not being incarcerated without warning. Id. at 683–684. We emphasized that the District's Department of Corrections had reincarcerated Hurd "without a warrant or a detainer despite the fact that the authority to detain him was statutorily committed to the Federal Bureau of Prisons." Id. at 684. "If Hurd had received notice and a hearing before his re-incarceration, he might have raised an ultra vires challenge to the District's authority to detain him." Id. We also held that the district court's substantive due process analysis was faulty in that it relied on material beyond the pleadings to determine that Hurd's incarceration could not have violated his substantive due process rights. Id. at 684–686.

On remand, following discovery, the district court granted summary...