Razzoli v. Fed. Bureau of Prisons, 99-5289

• Decision Date: 07 November 2000
• Docket Number: No. 99-5289,99-5289
• Parties: (D.C. Cir. 2000) Kevin Razzoli, Appellant v. Federal Bureau of Prisons and United States Parole Commission, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 371

230 F.3d 371 (D.C. Cir. 2000)

Kevin Razzoli, Appellant v. Federal Bureau of Prisons and United States Parole Commission, Appellees

No. 99-5289

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2000

Decided November 7, 2000

Appeal from the United States District Court for the District of Columbia(No. 99cv01711)

Anthony F. Shelley, appointed by the court, argued the cause as amicus curiae for appellant. With him on the briefs was John D. Bates.

Kevin Razzoli, appearing pro se, was on the briefs for appellant.

Madelyn E. Johnson, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge:

This appeal puts in question the relationship between an en banc decision of this court and two recent Supreme Court cases. The latter require a prisoner to succeed in a habeas action before bringing a claim that challenges, even indirectly, the duration of his custody--for example a damages claim for due process violations made in the course of a decision revoking good time credit. See Edwards v. Balisok, 520 U.S. 641 (1997). Balisok has been read as mandating the use of habeas only when the claim, if successful, will inevitably necessitate invalidation of a decision creating, extending, or refusing to curtail custody. But in Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988), we found that habeas was the exclusive remedy even where a claim's impact on custody was only probabilistic. Chatman- Bey itself involved a decision on parole eligibility, a necessary but not sufficient step toward the actual grant of parole. Concluding that there is no inescapable conflict between Chatman-Bey and the later Supreme Court decisions, we adhere to Chatman-Bey: for a federal prisoner, habeas is indeed exclusive even when a non-habeas claim would have a merely probabilistic impact on the duration of custody.

* * *

Appellant Kevin Razzoli is a federal prisoner serving a sentence for attempted murder. He challenges an order by the district court dismissing his claims against the Federal Bureau of Prisons ("BOP") and the United States Parole Commission for declaratory relief and damages under the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA").

Razzoli's current troubles started when a prison official at the Allenwood Federal Correctional Institution claimed that on July 23, 1995 he had found cocaine and a razor blade in Razzoli's cell. After a Unit Disciplinary Committee hearing, Razzoli received a sanction that included the loss of 60 days statutory good time credit. A report on the incident was forwarded to the FBI for investigation, but no new criminal charges were brought against Razzoli. After the Disciplinary Committee action, but based on the same events, the United States Parole Commission withdrew Razzoli's recommended parole release date and established a new date twenty-four months later, in effect delaying his eligibility for parole by two years.

Razzoli filed a pro se complaint in district court here, alleging that the BOP staged the incident on which the actions of the Disciplinary Committee and Parole Commission were based. Although the complaint does not highlight the difference, it suggests that the Disciplinary Committee found him guilty only of possession and that the Parole Commission found him guilty of possession with intent to distribute. It further alleges that the Parole Commission conspired with the BOP and knowingly used false information against Razzoli. The complaint says that Razzoli never received a copy of any FBI report and suggests that the report must not have supported the Parole Commission's determination.

Before the complaint was served on either of the federal defendants, the district court dismissed the case sua sponte for failure to state a claim on which relief could be granted. The court found that Razzoli's claims amounted to collateral attacks on the actions of the Disciplinary Committee, and that under Balisok and the key predecessor cases of Heck v. Humphrey, 512 U.S. 477 (1994), and Preiser v. Rodriguez, 411 U.S. 475 (1973), "the sole federal remedy for challenging the loss of good time credit is a petition for habeas corpus."Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C. July 30, 1999). Under Balisok, a non-habeas civil action by a prisoner is not cognizable where " 'a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,' unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated."Balisok, 520 U.S. at 643 (quoting Heck, 512 U.S. at 487).

We review the district court's dismissal for failure to state a claim de novo. See Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998). Dismissal under Rule 12(b)(6) is proper if, taking all the material allegations of the complaint as admitted and construing them in plaintiff's favor, we find that he has failed to allege each of the material elements of his cause of action. See Taylor v. Federal Deposit Insurance Corp., 132 F.3d 753, 761 (D.C. Cir. 1997); see also Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In addition, we are bound to read the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). The application of Preiser, Heck, and Balisok complicates our task, for we must find allegations that are not only sufficient to make out claims under the statutes, but that also do not trigger the habeas-channeling rule. We appointed amicus curiae to argue the issues for appellant.

The theory of Razzoli's Privacy Act claim is that BOP and the Parole Commission violated 5 U.S.C. § 552a(e)(5) by maintaining in their files and using a false record, the report of the drug possession incident, even though they knew it to be false. We read the Privacy Act part of the complaint as having two dimensions, one clearly running afoul of Balisok, the other not so clearly.

What clearly runs afoul of Balisok is his apparent claim in relation to the recision of good time. If BOP knowingly preserved and acted upon a totally invented record of drug possession, plainly the recision of good time would have to be overturned, thus accelerating Razzoli's release. Indeed, Razzoli has already brought such a claim in the Middle District of Pennsylvania in the form of an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Third Circuit has found it barred under the Balisok doctrine. See Razzoli v. Swinson, No. 97-7558, slip op. at 4-6 225 F.3d 650 (3rd Cir. June 1, 2000).

But the amicus contends that Razzoli frames a second attack that implicates only the determination by the Parole Commission to postpone his parole eligibility. Under this reading, Razzoli is arguing that the Parole Commission decision was based on addtional inaccuracies in his record--the absence of the FBI report and the addition of "intent to distribute" to the possesion charge. The government resists this interpretation, but we think it within the range of plausible interpretations given the alleged absence of the FBI report from the record, the complaint's explicit attacks on the decision of the Parole Commission, and the distinction (slightly submerged, to be sure) between the Disciplinary Committee's charge of possession and the Parole Commission's finding of possession with intent to distribute.

The Supreme Court's trilogy addressing the relation between petitions for habeas corpus and other prisoner claims began with Preiser v. Rodriguez, 411 U.S. 475 (1973). State inmates who had been deprived of good time credit in prison disciplinary proceedings brought actions under 42 U.S.C. § 1983 seeking injunctive relief to compel restoration of the credit. The Court saw "the essence" and "traditional function" of habeas as being "to secure release from illegal custody." Id. at 484. The Court found that an attack on revocation of good time qualified as an attempt to secure such release. Such an attack is "just as close to the core of habeas corpus as an attack on the prisoner's conviction, for it goes directly to the constitutionality of his physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration." Id. at 489. More critically, the Court found that the habeas remedy was exclusive. Comparing the general language of § 1983 with the specificity of the habeas statute and focusing on Congress's clear intent to assure exhaustion of state remedies in the latter, it found a congressional intent to provide only one remedy for attacks on physical confinement. Id. at 489-92.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court extended Preiser to cover a prisoner's § 1983 claim for damages for alleged constitutional violations in his arrest and conviction, observing that "establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction." Id. at 481-82. The Court went on to hold that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been [overturned]." Id. at 486-87.Finally, Balisok extended Preiser and Heck to cover a § 1983 damages action for procedural violations allegedly committed in a prison disciplinary hearing that deprived the plaintiff prisoner of good time credits. The Court rejected any distinction between procedural and substantive claims, saying that any such distinction ...