Yahweh v. U.S. Parole Com'n, No. 01 2848 CIV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtK. Michael Moore
Citation428 F.Supp.2d 1293
PartiesYahweh Ben YAHWEH, Plaintiff, v. UNITED STATES PAROLE COMMISSION, Defendant.
Decision Date25 April 2006
Docket NumberNo. 01 2848 CIV.

Page 1293

428 F.Supp.2d 1293
Yahweh Ben YAHWEH, Plaintiff,
v.
UNITED STATES PAROLE COMMISSION, Defendant.
No. 01 2848 CIV.
No. 01 2848 CIV.
United States District Court, S.D. Florida.
April 25, 2006.

Page 1294

Steven M. Potolsky, Esq., Jayne C. Weintraub, Esq., Miami, FL, for Plaintiff.

Marlene Rodriguez, Assistant United States Attorney, Miami, FL, for Defendant.

ORDER REJECTING MAGISTRATE'S REPORT AND RECOMMENDATION

K. MICHAEL MOORE, District Judge.


THIS CAUSE came before the Court upon Plaintiff's Emergency Complaint for Declaratory Judgment and/or Similar Relief (DE # 30) and Plaintiff's Emergency Motion for Preliminary Injunction (DE # 31).

THE MATTERS were referred to the Honorable Barry L. Garber, United States Magistrate Judge, pursuant to 28 U.S.C. § 636 (DE # 33). A Report and Recommendation was entered in which Magistrate Judge Garber recommended that Plaintiff's Emergency Complaint for Declaratory Judgment and/or Similar Relief (DE # 30) and Plaintiff's Emergency Motion for Preliminary Injunction (DE # 31) be granted (DE # 37). Defendant objected to Magistrate Judge Garber's Report and Recommendation (DE # 38).

I. Statement of Facts

Plaintiff Yahweh Ben Yahweh ("Yahweh" or "Plaintiff") is currently on mandatory release (referred to as "parole" by Defendant's Objections to the Magistrate Judge's Report and Recommendation) from an eighteen (18) year prison sentence. See Def. Obj. to the Mag. Judge's Rep. & Recom. ("Def. Obj. to R & R") at 3. Plaintiff is a seventy (70) year old male and was convicted by a federal jury of conspiracy to engage in a pattern of racketeering activity and racketeering (including the predicate acts of homicide, attempted homicide, and arson). Id.; see also Mag. Judge Garber's Rep. & Recom. ("Mag. R & R") at 1. Plaintiff's sentence expires May 9, 2008: See Def. Obj. to R & R at 4.

Plaintiff is under the control and supervision of Defendant the United States Parole Commission ("U.S.P.C." or "Defendant") until May 9, 2008. See id., Ex. A. at 2. As this crime occurred prior to the federal sentencing guidelines, the U.S.P.C. retains jurisdiction over parolees until it ceases to exist which will occur, at the

Page 1295

earliest, in late 2008. See United States Parole Commission Extension and Sentencing Commission Authority Act of 2005, Pub.L. No. 109-76, § 2, 119 Stat.2035. Thus, the U.S.P.C. will retain jurisdiction over Plaintiff for the remainder of his sentence. See id.; see also Def. Obj. to R & R at 4.

In an evidentiary ruling during the original criminal case against Plaintiff and his codefendants, Chief Judge Roettger stated that the matter was "arguably the most violent case ever tried in a federal court: the indictment charges the sixteen defendants on trial with 14 murders by means such as beheading, stabbing, occasionally by pistol shots, plus severing of body parts such as ears to prove the worthiness of the killer." United States v. Yahweh, 792 F.Supp. 104, 105 (S.D.Fla.1992) ("Yahweh I".) Plaintiff was sentenced on September 4, 1992. See Def. Obj. to R & R, Ex. A. Since his release from incarceration on September 25, 2001, he has been in the custody of the U.S.P.C. See id., Ex. C.

Plaintiff's parole carried with it special conditions, including a restriction on association with members of the Nation of Yahweh a.k.a. Black Hebrew group, that was the subject of prior litigation before the Court. See Yahweh v. United States Parole Comm'n, 158 F.Supp.2d 1332, 1335 (S.D.Fla.2001) ("Yahweh II".) Due to Plaintiff's activities while on parole, which his Case Analyst, Lynne Jackson, labeled as "questionable," he was required to keep a daily activity log and mail these each week. See Def. Obj. to R & R, Ex. E. The U.S.P.C. has documented numerous inconsistencies between his activity logs and his actual whereabouts. See id. Further, Plaintiff has admittedly failed to answer his cellular telephone and answer his door when U.S. Probation officers have attempted to contact him. See id.

Due to repeated non-compliance with the terms of Plaintiff's parole and the U.S.P.C.'s determination that Plaintiff violated his parole by submitting incomplete and untruthful information to his probation officer, Probation Officer Viviana Bibliowicz contacted the U.S.P.C., requesting action. See id. at 9. The U.S.P.C. found no excuse for Plaintiff's untruthful submissions and followed Probation Officer's Bibliowicz's recommendation that Plaintiff participate in the Home Confinement Program with electronic monitoring for a period of 120 days. See id., Ex. G. Plaintiff was further ordered to maintain a telephone at his home without call forwarding, call waiting, call back/call block, a modem or a portable cordless telephone. Id. Plaintiff objected to this determination and claimed to be in "complete and total compliance with each and every condition of parole." Id., Ex. F. Despite Plaintiff's objection, U.S.P.C. decided to impose the new restrictions. See id. Plaintiff has since filed these relevant motions and proffered the testimony of Dr. Wynne Steinsnyder who has stated, inter alia, that Plaintiff has terminal cancer, that a reduction in Plaintiff's stress level "would improve his immune responses," and that home confinement would add further stress to Plaintiff Pl. Mot. for Dec. Judgment and/or Similar Relief at 4.

II. Plaintiff's Complaint Seeking a Declaratory Judgment or Other Relief (DE # 30)

1. Legal Standard

The Court's jurisdiction over this issue is limited and its standard of review of Defendant's decision is to...

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