2nd Circuit Reverses Parole Case
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Scribd Government Docs2nd Circuit Reverses Parole Case
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Scribd Government Docs189 F.3d 284 (2nd Cir.
1999)
EUGENE T. KING, JR., Plaintiff-Appellant,
v.
JOHN R. SIMPSON, Eastern Regional Commissioner, United
States Parole Commission, Defendant-Appellee.
Docket No. 98-6282
August Term, 1998
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
Argued June 29, 1999
Decided Aug. 20, 1999
Appeal from judgment of the United States District Court for the Eastern
District of New York (Amon, Judge) granting defendant's motion to
dismiss plaintiff's civil rights complaint for failure to state a claim upon
which relief may be granted. Because the record below is incomplete
regarding defendant's actions and functions in the underlying proceedings
and his resulting entitlement, if any, to immunity from suit, we reverse
and remand for additional development of the record.
Reversed and remanded.
EUGENE T. KING, JR., pro se, Brooklyn, NY, for Plaintiff-Appellant.
DAVID L. GOLDBERG, Assistant United States Attorney, (ZACHARY
W. CARTER, United States Attorney, Eastern District of New York,
DEBORAH B. ZWANY, Assistant United States Attorney, on the brief)
Brooklyn, NY, for Defendant-Appellee.
Before: KEARSE, STRAUB and POOLER, Circuit Judges.
POOLER, Circuit Judge:
Eugene T. King, appearing pro se, appeals from the November 4, 1998,
judgment of the United States District Court for the Eastern District of New
York (Carol Bagley Amon, Judge) dismissing his civil rights complaint against
defendant John R. Simpson.
BACKGROUND
2
Plaintiff filed this civil rights lawsuit on January 3, 1997, in the United States
District Court for the Eastern District of New York. King, who was formerly in
federal prison, contends generally that Simpson, who is Eastern Regional
Commissioner of the United States Parole Commission, violated his Fifth
Amendment due process rights and liberty interests when Simpson delayed for
five months King's release on parole. According to the complaint, King was in
pre-release custody at Le Marquis Community Corrections Center in New York
City in May 1996, and parole officials had granted him an "effective parole
date" of May 16, 1996. Pursuant to relevant regulations, the parole commission
approves effective dates of parole after conducting an in-person hearing or
reviewing the prisoner's records. 28 C.F.R. 2.1(h) (1998). Before King's
parole date, prison officials on May 8, 1996, remanded King to federal custody
at the Metropolitan Detention Center ("MDC") in Brooklyn because they
alleged that King violated a condition of the Le Marquis program when he
refused to pay subsistence. Prison officials issued an institutional incident
report regarding the alleged violation.
King was in MDC on May 16, 1996, but prison officials did not release him on
parole. According to King, "the Commission ordered the Bureau of Prisons not
to release plaintiff from custody until the [Disciplinary Hearing Officer
("DHO")] rendered a decision on the incident report which led to plaintiff's
remand to federal custody." Compl. 7. King wrote a letter dated June 12,
1996, to defendant Simpson requesting King's immediate release on parole. Id.
11. King claimed that Simpson violated 28 C.F.R. 2.34(a), which set two
conditions for rescinding parole, neither of which applied to his case.1 By letter
dated June 19, 1996, Patricia D. Vines, a case analyst for the Parole
Commission, informed King that "once you have a DHO hearing your case
manager must submit the report to this office. At that time, we will review the
case and a decision made [sic] as to whether your parole should be rescinded."
Id. 12.
Dissatisfied with this response, King filed a petition for a writ of habeas corpus
in federal district court on July 3, 1996. On September 27, 1996, the district
court issued an order to show cause directing the United States Attorney
General or United States Attorney for the Eastern District of New York to
demonstrate why King should not be released. The order to show cause was
returnable on November 18, 1996. Because of subsequent events, however,
King voluntarily withdrew the petition.
King's hearing before the prison's DHO took place on August 14, 1996. Compl.
14. The hearing officer found King guilty of violating a condition of the
community program and sanctioned him with the loss of 30 days of good time.
Then, on October 16, 1996, prison officials released King from custody and
gave him a certificate of parole stating that King was "PAROLED nunc pro
tunc on July 14, 1996." King alleges that "[n]o explanation has been given
plaintiff why he was given a Certificate of Parole stating that plaintiff was
paroled on July 14, 1996 but only released on October 16, 1996, 'nunc pro
tunc.'" Compl. 16.
On March 19, 1997, defendant moved to dismiss King's federal lawsuit on four
grounds: absolute immunity, qualified immunity, King's failure to allege
Simpson's personal involvement in the alleged violation of rights, and plaintiff's
failure to properly serve Simpson. By a memorandum and order dated October
30, 1998, Judge Amon granted defendant's motion on absolute immunity
grounds and dismissed King's complaint pursuant to Fed. R. Civ. P. 12(b)(6).
Specifically, Judge Amon held that "[b]ecause the law in this circuit is that
decisions made by parole board officials concerning the grant, denial, or
revocation of parole are considered quasi-judicial, defendant here enjoys
absolute immunity from this suit for money damages." King now appeals.
DISCUSSION
I. Standard of review
7
Appellate review of a grant of dismissal for failure to state a claim is de novo.
See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The court may not
dismiss a complaint under Fed. R. Civ. P. 12(b)(6) "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Id. (internal quotation marks and citation omitted).
In the course of our review, we accept as true all factual allegations in the
complaint and draw all reasonable inferences in favor of plaintiff. See id. "The
issue is not whether a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town
of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (internal quotation marks omitted).
With this generous standard in mind, we examine King's complaint.
II. Immunity
In its motion to dismiss King's complaint, the government argued in the
alternative that Simpson was entitled to either absolute or qualified immunity
from suit. Judge Amon concluded that absolute immunity applied. However, at
this stage of the proceedings, dismissal on either ground is premature absent
additional development of the record.
9
We note that on this appeal, King does not dispute that he seeks monetary
rather than injunctive relief. Rather, Kings argues that he did not intend for
Simpson himself to pay damages. Although such a limitation would seem to
obviate any absolute or qualified immunity defense, we have two difficulties
with this argument. First, it is contrary to the complaint, which states that King
is suing Simpson in both his individual and his official capacities. King is of
course entitled to withdraw his damages claim against Simpson in his
individual capacity, but we see no indication that he formally has done so.
Second, if in fact King seeks to assert his damages claim against Simpson not in
Simpson's individual capacity but only in his official capacity, then sovereign
immunity likely would bar King's lawsuit because a suit against a federal
employee in his official capacity is a suit against the government and Congress
has not waived the government's sovereign immunity, for example under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. 1346(b), 2671, et seq., from
lawsuits based on constitutional claims. See generally, 28 U.S.C. 1346(b);
FDIC v. Meyer, 510 U.S. 471, 477-78 (1994); Chen v. United States, 854 F.2d
622, 625-26 (2d Cir. 1988) (government's waiver of sovereign immunity under
FTCA does not extend to claims based on "direct violations of the Federal
Constitution . . . or of federal statutes or regulations standing alone").
A. Absolute immunity
10
The doctrine announced in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 397 (1971) permits individuals to recover
money damages from federal actors who have deprived them of Constitutional
rights. However, in "rare circumstances" public policy requires absolute
immunity to protect these actors. Scotto v. Almenas, 143 F.3d 105, 110 (2d Cir.
1998). It is well established, for example, that judicial actors enjoy absolute
immunity. See id. Government officials performing prosecutorial acts also are
absolutely immune from suit. See id. We have held that parole board officials,
too, are entitled to absolute immunity when they "'decide[] to grant, deny, or
revoke parole,' because this task is functionally comparable to that of a judge."
Id. at 111 (quoting Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981));
see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (per curiam)
(same). In a similar vein, "[p]arole officers also receive absolute immunity for
their actions in initiating parole revocation proceedings and in presenting the
case for revocation to hearing officers, because such acts are prosecutorial in
nature." Scotto, 143 F.3d at 112.
11
In determining whether an official is entitled to absolute immunity, we must
take a functional approach and look to the particular acts or responsibilities that
the official performed. See Montero, 171 F.3d at 761. Thus, in Scotto, no
absolute immunity attached to the actions of a parole officer who recommended
that a warrant be issued for a parolee's arrest because the function was
administrative rather than adjudicative or prosecutorial and was not integrally
related to the judicial process. See Scotto, 143 F.3d at 111-13. In Montero,
however, absolute immunity applied to the actions of a parole commissioner
serving the "quasi-adjudicative function" of revoking parole. Montero, 171
F.3d at 761. Our precedent therefore instructs us to examine the nature of the
actions that the parole officer performed before deciding what immunity, if
any, attaches to the actions. The court must conduct "[s]ome factual inquiry" to
determine if the duties of the defendants were judicial or prosecutorial, which
entitles them to absolute immunity, or administrative, which may entitle them to
qualified immunity. Stewart v. Lattanzi, 832 F.2d 12, 13 (2d Cir. 1987) (per
curiam).
12
In this case, Judge Amon conducted no discernible factual inquiry into the
nature of Simpson's responsibilities or alleged actions. The district court instead
held that although Simpson's decision to retard King's parole date did not
"precisely" describe a grant, denial or revocation of parole, what King alleged
was "functionally similar." We cannot agree and hold that the current record is
inconclusive. Taking the allegations of the complaint as true, which we must,
Simpson rescinded King's effective parole date even though relevant
regulations did not permit the delay of King's release under these
circumstances. Compl. 11-12. It is unclear whether Simpson's alleged action
in retarding, or delaying, King's effective parole date pending a hearing on the
institutional incident report filed against him was an adjudicative function like
denying or revoking parole or merely an administrative function like scheduling
or making a recommendation.
13
This case is distinguishable from Anton v. Getty, 78 F.3d 393 (8th Cir. 1996),
upon which the district court relied. The Eighth Circuit in Anton held that a
parole commissioner's decision to delay a prisoner's presumptive parole date
was adjudicative, but there was no question that the relevant regulation, 28
C.F.R. 2.12(d), permitted this action. See Anton, 78 F.3d at 396. In contrast,
King has alleged that relevant regulations did not permit Simpson's decision to
retard his effective parole date. Unlike an effective parole date, a presumptive
parole date is set far in advance of a prisoner's scheduled release and is
contingent upon the parole commissioner's finding of good conduct and
preparation of an adequate release plan. See 28 C.F.R. 2.12(d) (1998); see
also Green v. McCall, 822 F.2d 284, 292 (2d Cir. 1987) (holding that "the
liberty interest of the presumptive parolee occupies a lower place in the inmateliberty-interest continuum than does the interest of a parole grantee"). The
regulations do not, in this case, furnish any explanation for Simpson's action,
much less one that would establish that his decision to delay King's release was
adjudicative in nature.
14
Consequently, we vacate the Rule 12(b)(6) dismissal of King's complaint on
absolute immunity grounds and remand the matter to the district court for
additional development of the record in whatever form the court deems
appropriate.2 In the event that Simpson's acts or functions in this matter were
administrative, then the district court may address the issue of qualified
immunity, which we discuss briefly below.
B. Qualified immunity
15
A federal official performing administrative or discretionary functions may be
entitled to qualified immunity rather than absolute immunity. See Scotto, 143
F.3d at 110. Qualified immunity shields government officials "insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Id. (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). While we do not decide whether
Simpson is entitled to qualified immunity, we note that King alleged Simpson
violated federal regulations when he retarded King's effective parole date. This
allegation, if proved, might constitute a violation of King's right to due process
of law, and more facts may be necessary to resolve the qualified immunity
question. Cf. id. at 113 (noting that Rule 12(b)(6) dismissal would not be
appropriate where plaintiff alleged defendant violated plaintiff's right to be free
of arrest in the absence of probable cause).
16
Therefore, we remand this matter for additional proceedings consistent with
this opinion. Because Judge Amon dismissed the complaint on absolute
immunity grounds, she did not reach defendant's additional alternative
arguments that he was not personally involved in the alleged violation of King's
rights or that King failed to serve defendant properly. We decline to address
these issues for the first time on appeal, but the district court is free to consider
them on remand.
CONCLUSION
17
For the foregoing reasons, we reverse dismissal of King's complaint and
remand the matter to the district court.
Notes:
1
The regulation is entitled "Rescission of parole" and states in relevant part:
When an effective date of parole has been set by the Commission, release on
that date is conditioned upon continued satisfactory conduct by the prisoner. If
a prisoner granted such a date has been found in violation of institution rules by
a disciplinary hearing officer or is alleged to have committed a new criminal act
at any time prior to the delivery of the certificate of parole, . . . the Regional
Commissioner may reopen the case and retard the parole date for up to 90 days
without a hearing . . . .
28 C.F.R. 2.34(a) (1998).
Depending upon the manner in which Judge Amon conducts proceedings on
remand, she may elect to convert the Rule 12(b)(6) motion into one for
summary judgment and give all parties "reasonable opportunity to present all
[pertinent] material." Fed. R. Civ. P. 12(b)(6).
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