MORGAN v. UNITED STATES PAROLE COMMISSION et al

Filing 28

MEMORANDUM OPINION GRANTING 15 Motion to Dismiss and DISMISSING case. Signed by Judge Ketanji Brown Jackson on 04/04/2016. (lckbj1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BOBBY D. MORGAN,
Plaintiff,
v.
UNITED STATES PAROLE
COMMISSION, et al.,
Defendants.

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No. 14–cv-0770 (KBJ)

MEMORANDUM OPINION
Pro se plaintiff Bobby D. Morgan, a prisoner who is currently incarcerated at the
Hazelton Federal Correctional Institution in Bruceton Mills, West Virginia, has filed
the instant action against the United States Parole Commission (“the Commission”) and
Commission Hearing Examiner Paul R. A. Howard (“Howard,” and collectively,
“Defendants”) under 42 U.S.C. § 1983. In 2008, the Commission revoked the parole
period that Morgan had been serving upon his release from prison for two 1988 District
of Columbia convictions for armed robbery and carrying a pistol without a license.
Howard was the official who presided over Morgan’s parole revocation hearing; the
Commission adopted Howard’s recommendation that Morgan’s parole be revoked
following new convictions for weapons offenses in North Carolina, and the presumptive
reparole date was set based on the Commission’s then-current revocation guidelines.
Morgan’s complaint claims, in essence, that the Commission violated the Ex Post Facto
Clause of the U.S. Constitution by applying the parole guidelines that were in effect in
2008, when Howard conducted the revocation hearing, rather than guidelines that were

in effect in 1988, when Morgan committed the underlying offenses. (Compl., ECF No.
1, at 3.) Morgan seeks money damages against the Commission and against Howard (in
his official and individual capacities) for “subject[ing] him to a longer period of
incarceration” upon revocation than would have been the case if the 1987 regulations
had been applied, as well as an order that the Commission afford him “a new parole
hearing with instructions to the [Commission] to exercise its discretion within the
framework created by the 1987 Regulations[.]” (Compl. at 3; Pl.’s Mem. of Law in
Supp. of Compl. (“Pl.’s Compl. Mem.”), ECF No. 1-2, at 5; Am. & Suppl. Compl., ECF
No. 13, at 1.) 1
Before this Court at present is Defendants’ motion to dismiss Morgan’s
complaint. (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 15.) In this motion,
Howard and the Commission argue, among other things, that they are immune from the
claims for monetary damages that Morgan has brought in this action, and that the
doctrine of res judicata bars all of Morgan’s claims relief because, in the context of a
habeas action that he filed in federal district court in West Virginia, he previously
litigated (and lost) the legal argument that his parole sentence violates the Ex Post
Facto Clause. (Defs.’ Mot. at 10-11.) For the reasons explained below, this Court has
concluded that Defendants are, indeed, immune from Morgan’s damages claims, and
that res judicata bars all of his claims, including those for injunctive relief. Therefore,
as set forth in the Order that this Court issued on March 31, 2016, Defendants’ motion

1

Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.

to dismiss has been GRANTED, and Morgan’s complaint has been DISMISSED in its
entirety.
I.

BACKGROUND
A.

Morgan’s District Of Columbia Sentence And Parole Violations

In September of 1998, the Superior Court of the District of Columbia convicted
Morgan of armed robbery and carrying a pistol without a license and sentenced him to
consecutive terms of imprisonment of 15 years to life on the robbery charge and one
year on the firearms charge. (Pl.’s Compl. Mem. at 7.) Morgan was released on parole
in March of 2003 to the Western District of North Carolina, and in 2007, while under
supervision in North Carolina, he was arrested for and charged with discharging a
weapon into occupied property and assault with a deadly weapon causing serious injury.
(Id. at 8.) Shortly thereafter, the Commission submitted an application for a parole
violation warrant, alleging that Morgan had violated the conditions of his parole as a
result of these new offenses and also that he had used illegal narcotics while under
supervision. See Morgan v. Berkebile, No. 09-cv-0966, 2011 WL 5040432, at *1 (S.D.
W. Va. Sept. 7, 2011) (Morgan I), adopted by 2011 WL 5040435 (S.D. W. Va. Oct. 21,
2011) (Morgan II). 2 Morgan was arrested on the Commission’s parole violation
warrant on December 7, 2007. (Pl.’s Compl. Mem. at 8.)
On August 19, 2008, the Commission held a parole revocation hearing in
Morgan’s case, over which Howard presided. See Morgan I, 2011 WL 5040432, at *1.
As a result of the hearing, Howard found that Morgan had violated the conditions of his

2

As a D.C. Code offender who was still on parole at the time of the new offenses, Morgan was subject
to the Commission’s supervision pursuant to the National Capital Revitalization and Self–Government
Improvement Act of 1997, Pub. L. No. 105–33, §§ 11000–11723, 111 Stat. 251, 712–87 (1997). See
Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1100 (D.C. Cir. 2005).

parole and determined, under the Commission’s 2000 parole revocation guidelines, that
Morgan’s guideline range was 78–110 months of incarceration. Id. Accordingly,
Howard recommended that the Commission revoke Morgan’s parole and a set
presumptive reparole date of July 24, 2016, which would result in Morgan serving an
additional 110 months in prison. Id. On September 19, 2008, the Commission issued a
“Notice of Action,” in which it implemented Howard’s recommendations. Id. Morgan
subsequently appealed that determination, and the National Appeals Board affirmed the
Commission’s decision. Id. at *2.
B.

Morgan’s West Virginia Petition For A Writ Of Habeas Corpus

On August 25, 2009, Morgan filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of West Virginia. Id. His petition
included a claim that the Commission’s “retroactive application of new federal reparole guidelines” in his case established a “[p]rima facie ex post facto claim” because
there was “a significant risk that his punishment [was] increased” due to the application
of those guidelines, when compared to the reparole guidelines that were in effect when
he committed his original offenses in 1988. Id. The matter was referred to a magistrate
judge, who recommended that Morgan’s habeas petition be dismissed in its entirety.
See id. at *1. Regarding the ex post facto claim, the assigned magistrate judge found in
the first instance that Morgan “failed to establish[] that the 2000 Guidelines were
retroactively applied during his parole revocation proceedings.” Id. at *6. The
magistrate judge also found that, even if the Commission had improperly applied the
2000 Guidelines, this did not amount to an ex post facto violation because this
purported error “did not . . . create a significant risk of prolonging [Morgan’s]
incarceration.” Id. at *7; see also Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir.

2006) (holding that “a retroactively applied parole or reparole regulation or guideline
violates the Ex Post Facto Clause if it creates a significant risk of prolonging an
inmate’s incarceration[]”).
The West Virginia district court judge adopted the magistrate judge’s report and
recommendation, expressly rejecting Morgan’s objection to the magistrate judge’s
recommendation regarding his ex post facto claim, and dismissed Morgan’s petition.
See Morgan II, 2011 WL 5040435, at *4. The court explained that the Commission’s
application of year 2000 guidelines to evaluate the parole consequences of conduct that
Morgan has engaged in in 2007 was not a “retroactive” application of the guidelines,
and in any event, “[Morgan’s] objection that he was subjected to a significant risk of
prolonging his incarceration [through application of the 2000 Guidelines] is without
merit” because the 1987 Regulations afforded the parole board “discretion to depart
from the guidelines” and permitted it to set whatever reparole date that it deemed
appropriate. Id.
C.

The Instant Lawsuit

Proceeding pro se, on May 5, 2014, Morgan filed a lawsuit in this Court under 42
U.S.C. § 1983 against Howard—in his personal and official capacities—and the
Commission. (See Compl.). See also 42 U.S.C. § 1983 (permitting suit against any
“person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects . . . any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws”). 3 As he did in the habeas petition that he filed in West

3

The D.C. Circuit has held that individual members of the Commission may be sued under
section 1983 for actions taken with respect to D.C. Code offenders, despite the Commission’s general

Virginia, Morgan’s initial complaint claimed that Defendants violated the Ex Post Facto
Clause of the Constitution by applying the year 2000 parole regulations during his
parole revocation proceedings, which, according to Morgan, had the effect of
“subject[ing] him to a longer period of incarceration” than if Defendants had applied
the former D.C. Board of Parole’s 1987 regulations. (Compl. at 3.) The complaint also
alleged that Howard further violated the Ex Post Facto Clause “by incorrectly imposing
a term of imprisonment exceeding the sanction imposed for the crime that occurred in
North Carolina.” (Id.) 4 As relief, the complaint requested “a rehearing with
reconsideration of his parole eligibility” under the former D.C. Board of Parole’s 1987
regulations. (Compl. at 3.)
In December of 2014, Defendants moved to dismiss Morgan’s complaint based
on res judicata (Defs.’ Mot. to Dismiss, ECF No. 7); this Court denied the motion
without prejudice after Morgan requested leave to file a supplemental and amended
complaint—a request that the Court granted. (See Min. Order of Mar. 3, 2015.) In the
new pleading, Morgan continued to press the core ex post facto allegation; the only

status as a federal agency, and therefore, it appears that Morgan has properly invoked section 1983 for
his individual capacity claims against Howard. See Settles, 429 F.3d at 1104. Whether or not the
Commission is a “person” acting under color of state law, for the purpose of Morgan’s suit against the
Commission, appears to be an unsettled question in this Circuit. See id. at 303. However, in the
context of the instant Memorandum Opinion, the Court will assume that the Commission qualifies as
such a person.
4

Morgan also asserted that Howard had “violated 28 C.F.R. [§] 2.219(a)(1) by revoking his parole for
more than five years.” (Compl. at 3.) That provision is contained in a C.F.R. subpart that applies to
D.C. Code offenders who are on supervised release following completion of a term of imprisonment
that the Superior Court orders. See 28 C.F.R. Ch. I, Pt. 2, Subpt. D. A separate subpart—Subpart C—
applies to D.C. Code offenders such as Morgan who have been released on parole, see 28 C.F.R. Ch. I,
Pt. 2, Subpt. C, and that section does not contain an equivalent provision.

substantive addition was a demand for $250,000 in monetary damages as a result of the
alleged violation of his constitutional rights. (Am. & Suppl. Compl. at 1.) 5
On March 20, 2015, Defendants filed the instant motion to dismiss in which they
argue that res judicata bars Morgan’s complaint in its entirety because Morgan
previously litigated the question of whether or not his parole sentence violates the ex
post facto clause in the context of his West Virginia habeas suit. (Id. at 10–16.)
Defendants also contend that they are immune to lawsuits for money damages under the
circumstances presented here. (See id. at 16–18 (asserting sovereign immunity); id. at
25–29 (asserting quasi-judicial immunity)). They further assert that Morgan has failed
to state a claim upon which declaratory or equitable relief can be granted (id. at 29–30),
and that this action is otherwise plagued by a number of procedural defects including a
failure to effect proper service (id. at 18–19), lack of personal jurisdiction (id. at 19–
23), and improper venue (id. at 23–24). Morgan has filed a brief in opposition to the
motion to dismiss and a surreply (see Pl.’s Opp’n to “2d” Mot. to Dismiss, ECF No. 20;
Pl.’s Traverse to Defs.’ Reply, ECF No. 22), and Defendants’ motion is now ripe for
this Court’s consideration.
II.

LEGAL STANDARDS
A.

Motions To Dismiss For Lack Of Subject Matter Jurisdiction
Under Rule 12(b)(1)

A motion to dismiss based on sovereign immunity or Eleventh Amendment
immunity is evaluated under Federal Rule of Civil Procedure 12(b)(1) as a motion to

5

Morgan indicates that his supplemental pleading is an addition to (not a substitution for) the original
complaint. (See Am. & Suppl. Compl. at 1.) Consistent with Richardson v. United States, 193 F.3d 545,
548 (D.C. Cir. 1999), this Court reads the supplemental pleading and the original pleading together as
the operative complaint.

dismiss for lack of subject matter jurisdiction. The plaintiff bears the burden of
establishing subject matter jurisdiction by a preponderance of the evidence. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Halcomb v. Office of the Senate
Sergeant-at-Arms of the U.S. Senate, 209 F. Supp. 2d 175, 176 (D.D.C. 2002). Indeed,
it is ordinarily “‘presumed that a cause lies outside [the federal courts’] limited
jurisdiction,’ unless the plaintiff establishes by a preponderance of the evidence that the
Court possesses jurisdiction[.]” Muhammad v. FDIC, 751 F. Supp. 2d 114, 118 (D.D.C.
2010) (first alteration in original) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)).
When a defendant files a motion to dismiss asserting Rule 12(b)(1) grounds in
addition to other bases for dismissal, “this Circuit has held that the court must first
examine the Rule 12(b)(1) challenges . . . because if it must dismiss the complaint for
lack of subject[-]matter jurisdiction, the accompanying defenses and objections become
moot and do not need to be determined[.]” Schmidt v. U.S. Capitol Police Bd., 826 F.
Supp. 2d 59, 64 (D.D.C. 2011) (first alteration in original) (citations omitted); see also
Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited
jurisdiction, we begin, and end, with an examination of our jurisdiction.” (citation
omitted)). Moreover, “the court must scrutinize the plaintiff’s allegations more closely
when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under . . .
Rule 12(b)(6).” Schmidt, 826 F. Supp. 2d at 65 (citing Macharia v. United States, 334
F.3d 61, 64, 69 (D.C. Cir. 2003)). Still, the court must accept as true all of the factual
allegations in the complaint and draw all reasonable inferences in favor of the plaintiff,
Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008); however, it need

not “accept inferences unsupported by the facts alleged or legal conclusions that are
cast as factual allegations[,]” Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001).
B.

Motions To Dismiss Under Rule 12(b)(6) Based On Res Judicata

The res judicata doctrine bars relitigation of claims or issues that were or could
have been litigated in a prior action. Alford v. Providence Hosp., 60 F. Supp. 3d 118,
124 (D.D.C. 2014). “Res judicata is an affirmative defense that is usually pled in a
defendant’s answer, but courts have also allowed parties to assert the defense in a
12(b)(6) motion to dismiss.” RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S.
LLP, 800 F. Supp. 2d 182, 189 (D.D.C. 2011) (citation omitted). A defendant may raise
the res judicata defense in a Rule 12(b)(6) motion “where [its applicability can be]
established from the face of the complaint, matters fairly incorporated within it, and
matters susceptible to judicial notice.” Lewis v. DEA, 777 F. Supp. 2d 151, 159 (D.D.C.
2011) (citations omitted). In the context of a Rule 12(b)(6) res judicata motion, a court
may take judicial notice of its own records, public records from other proceedings, and
documents attached as exhibits or incorporated by reference in the complaint. See, e.g.,
Laughlin v. Holder, 923 F. Supp. 2d 204, 209 (D.D.C. 2013); Hemphill v. Kimberly–
Clark Corp., 605 F. Supp. 2d 183, 186 (D.D.C. 2009).
Significantly for present purposes, courts regularly find that the resolution of a
constitutional claim in with the context of a petition for a writ of habeas corpus can
have a preclusive effect on a subsequent section 1983 action that raises the same
constitutional claim. See, e.g., Wilson v. Fullwood, 772 F. Supp. 2d 246, 264 (D.D.C.
2011) (applying issue preclusion to bar prisoner’s section 1983 claim against former
parole commissioner relating to calculation of his release date where prisoner had
raised and lost this issue in a prior habeas action and “there is no reason to think that

Plaintiff lacked a strong incentive to litigate this issue in the habeas proceeding; it was
the entire basis of his claim[]”).
C.

Application Of The Pleading Rules To Pro Se Parties

Finally, when applying the legal framework discussed above to evaluate the
pending motions to dismiss, this Court must be mindful of the fact that Morgan is
proceeding in this matter pro se. It is well established that a court must “liberally
construe” the pleadings of pro se parties and hold such pleadings “to less stringent
standards than formal pleadings” that lawyers draft. Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (citations omitted); see also Haines v. Kerner, 404 U.S. 519,
520–21 (1972). But it is also quite clear that “[t]his benefit is not . . . a license to
ignore the Federal Rules of Civil Procedure.” Sturdza v. United Arab Emirates, 658 F.
Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted); see also McNeil v. United States,
508 U.S. 106, 113 (1993).
Thus, even a pro se plaintiff must meet his burden of proving subject matter
jurisdiction if his complaint is to survive a Rule 12(b)(1) motion to dismiss. See, e.g.,
Green v. Stuyvesant, 505 F. Supp. 2d 176, 177 (D.D.C. 2007) (dismissing complaint
where pro se plaintiff failed to prove subject matter jurisdiction). Likewise, although a
pro se complaint “must be construed liberally, the complaint must still present a claim
on which the Court can grant relief[.]” Budik v. Dartmouth-Hitchcock Med. Ctr., 937 F.
Supp. 2d 5, 11 (D.D.C. 2013) (citation omitted); see also Moore v. Motz, 437 F. Supp.
2d 88, 90 (D.D.C. 2006) (noting that “[e]ven a pro se plaintiff’s inferences . . . need not
be accepted” if they “are unsupported by the facts set out in the complaint” (citation
omitted)); Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981) (noting that a pro
se complaint must state a claim upon which relief can be granted).

III.

ANALYSIS
Morgan seeks monetary damages and injunctive relief against the Commission

and against Howard (in his official and individual capacities), on the basis of two
alleged Ex Post Facto Clause violations. He alleges (1) that both the Commission and
Howard improperly applied parole regulations from the year 2000 when his parole was
revoked in 2008, rather than the regulations in effect at the time of his underlying
offense, and (2) that Howard “incorrectly impos[ed] a term of imprisonment exceeding
the sanction imposed for the crime [that led to revocation of his parole].” (Compl. at
3.) However, as explained below, this Court concludes that Morgan’s damages claims
cannot proceed because both defendants are entitled to immunity, and furthermore that
all of the claims that Morgan has brought in this action are entirely precluded based on
the doctrine of res judicata. Therefore, Morgan’s complaint must be dismissed for lack
of subject matter jurisdiction and/or failure to state a claim, as Defendants request.
A.

Sovereign Immunity Bars Morgan’s Claims Against The
Commission And Howard In His Official Capacity

“It is axiomatic that the United States [and its agencies] may not be sued without
its consent and that the existence of consent is a prerequisite for jurisdiction.” United
States v. Mitchell, 463 U.S. 206, 212 (1983); see also FDIC v. Meyer, 510 U.S. 471, 475
(1994) (“Sovereign immunity is jurisdictional in nature.”). Under the established law
of this circuit, when “administering parole for D.C. Code offenders, the Commission
retains the immunity it is due as an arm of the federal sovereign[,]” Settles v. U.S.
Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005), and thus, Morgan’s claims for
monetary damages against the Commission qualify as claims against the United States
that can only survive upon a showing that there has been an applicable waiver of the

sovereign immunity bar. See Meyer, 510 U.S. at 475 (1994) (“Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.”);
Cornish v. United States, 885 F. Supp. 2d 198, 205 (D.D.C. 2012) (same). The same is
true of Morgan’s damages claims against Howard, because a suit against a federal
government employee “in his official capacity” qualifies as a suit against the United
States. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Brandon v. Holt, 469
U.S. 464, 472–73 (1985).
The D.C. Circuit has long held that “sovereign immunity blocks a § 1983 claim
against the Commission[,]” Settles, 429 F.3d at 1106—and this holding plainly dooms
the claims for monetary damages that Morgan has brought against the Commission and
against Howard in his official capacity in this case. Morgan’s only response is to argue
that the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680 (“FTCA”) contains
a waiver of sovereign immunity that should be deemed to apply. (See Pl.’s Opp’n to
“2d” Mot. to Dismiss, at 18–19 (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994).) But
insofar as Morgan has asserted a constitutional tort (see, e.g., Compl. at 3 (arguing that
Defendants “violated the Ex Post Fact[o] Clause of the United States Constitution”)), it
is clear that he cannot rely upon that particular waiver. See Meyer, 510 U.S. at 478
(holding that constitutional tort claims are not cognizable under the FTCA). Morgan
has not identified any other applicable waiver of the sovereign immunity bar, and thus
he has clearly failed to carry his burden of establishing that this Court has subject
matter jurisdiction over his claims for monetary damages from the Commission and
from Howard in his official capacity.

In other words, even construing the complaint’s claims liberally, this Court
agrees with Defendants that Morgan’s claims for monetary damages implicate the
sovereign immunity doctrine and are ultimately barred because Morgan has failed to
demonstrate that there has been a waiver of sovereign immunity for the claims he seeks
to maintain here.
B.

Howard Is Entitled To Quasi-Judicial Immunity With Respect
To Morgan’s Individual Capacity Claim Regarding His Parole
Recommendation

In addition to his claims for monetary damages against the Commission and
against Howard in his official capacity, Morgan has also claimed entitlement to
monetary damages against Howard in his individual capacity. (See Am. & Suppl.
Compl. at 1.) Howard moves to dismiss the individual capacity claims on several
grounds, but this Court finds that it need go no further than his contention that Howard
is entitled to absolute immunity because he performed the alleged wrongful acts in the
context of his role as a Commission hearing officer. (Defs.’ Mot. at 24–25.)
Members of the judiciary are entitled to absolute immunity for acts performed in
their judicial capacities, and the Supreme Court has extended this immunity to certain
officials who perform quasi-judicial functions. Courts in this district readily find that
parole hearing officers are “‘federal agents performing a quasi-judicial function in
making a parole determination in [plaintiff’s] specific case[s],’” and that quasi-judicial
immunity therefore protects them from civil suits arising from those parole
determinations. Nelson v. Williams, 750 F. Supp. 2d 46, 52 (D.D.C. 2010) (quoting
Anderson v. Reilly, 691 F. Supp. 2d 89, 92 (D.D.C. 2010) (alteration in original)), aff’d,
No. 10-5429, 2011 WL 2618078 (D.C. Cir. June 23, 2011); accord Harris v. Fulwood,
989 F. Supp. 2d 64, 73 (D.D.C. 2013) (citing cases extending absolute immunity to

parole hearing examiners who perform “quasi-judicial functions”), aff’d on other
grounds, 611 F. App’x 1 (D.C. Cir. 2015). This Court sees no reason to believe that
such a designation should not apply to Howard, whose parole-related decision Morgan
seeks to challenge here.
Morgan acknowledges that courts typically extend judicial immunity to the
officials who make decisions about whether to grant or deny parole (see Pl.’s Opp’n at
22), but he argues that this Court should reach a different result because Howard has
since retired (id. at 23), and because Howard “was acting in an administrative capacity,
took off his official hat, and acted personally negligent[ly] in his recommendation of
parole revocation” (id at 25). There appears to be no factual basis for Morgan’s
conclusory assertion that Howard was wearing some other “hat”—something other than
one worn by a parole hearing officer—when he decided to recommend revocation of
Morgan’s parole, and he provides no support for his contention that negligence divests
judicial officers of immunity. Indeed, to the contrary, it is precisely because judicial
officers are immune to suit for negligence with respect to their decision making that
absolute (quasi-judicial) immunity ordinarily applies. See Imbler v. Pachtman, 424
U.S. 409, 427 (1976) (absolute immunity protects officials who make negligent or even
malicious decisions); cf. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) (qualified
immunity protects only those officials who have acted in an objectively reasonable
manner).
Thus, Morgan has failed to convince this Court that it should depart from the
long line of precedent that establishes that quasi-judicial immunity protects hearing
officers with respect to claims for monetary damages arising from their parole

revocation determinations. See Nelson, 750 F. Supp. 2d at 52; Harris, 989 F. Supp. 2d
at 73; see also Farrish v. Miss. State Parole Bd., 836 F.2d 969, 973–74 (5th Cir. 1988)
(“[I]t appears that every circuit that has considered the issue has uniformly adopted
[the] view” that “officials deciding whether to grant or deny parole enjoy absolute
immunity while engaging in their official duties.”).
C.

Res Judicata Bars Plaintiff From Relitigating His Claims For
Injunctive Relief

Defendants insist that Morgan’s claim for declaratory relief in the form of “a
rehearing with reconsideration of his parole eligibility under the 1987 Regulations to
his D.C. Code violations[]” (Compl. at 3) is also subject to dismissal on procedural
grounds. (Defs.’ Mot. at 11–12.) Specifically, it is undisputed that, in a prior action
that Morgan filed in the Southern District of West Virginia, Morgan litigated the
precise ex post facto claim that he raises in the instant suit. Morgan I, 2011 WL
5040432, at *2 (alleging, in Count 6 of the habeas petition, that his revocation sentence
violated the Ex Post Facto Clause because the Commission retroactively applied federal
reparole guidelines); Morgan II, 2011 WL 5040435, at *4 (overruling Morgan’s
objections to the magistrate judge’s finding that his reparole sentence did not violate
the Ex Post Facto Clause). In that prior case, which Morgan brought under 28 U.S.C.
§ 2241, the court determined that (1) no ex post facto violation had occurred because
the Commission’s application of the year 2000 guidelines to evaluate conduct that
allegedly violated the parole conditions when Morgan engaged in it in 2007 was not a
retroactive application of the guidelines for purposes of establishing the first element of
an ex post facto claim, and (2) even if the Commission had applied the guidelines
retroactively, Morgan could not show that he was subjected to a significant risk of

prolonged incarceration (the second element of an ex post facto claim) because the 1987
guidelines authorized the imposition of the same sentence he received, since “the parole
board had discretion to depart” from the recommended guideline sentence under those
guidelines. See Morgan II, 2011 WL 5040435, at *4. Defendants point to this habeas
decision and argue that res judicata prevents Morgan from raising his ex post facto
claim in the instant case. (Defs.’ Mot. at 10–16.)
This Court agrees. The doctrine of res judicata includes the principle of issue
preclusion, which generally prevents a litigant from relitigating “‘an issue of fact or law
necessary to [a] judgment’” where that issue was previously adjudicated on the merits
“‘in a suit on a different cause of action involving a party to the first case.’” Ficken v.
Golden, 696 F. Supp. 2d 21, 31-32 (D.D.C. 2010) (quoting Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (other citation omitted)). As noted
above, and contrary to Morgan’s assertions, issue preclusion undoubtedly applies when
the prior action was a habeas proceeding. See, e.g., Wilson, 772 F. Supp. 2d at 264.
And issue preclusion arises in circumstances in which three factors exist: (1) the issue
was “actually litigated” in the prior litigation; (2) the prior litigation was “actually and
necessarily determined by a court of competent jurisdiction”; and (3) “preclusion in the
second [case] [does] not work an unfairness.” Id. at 261 (quoting Otherson v. Dep’t of
Justice, 711 F.2d 267, 273 (D.C. Cir. 1983) (first alteration in original) (other citation
omitted)). One circumstance in which “[i]ssue preclusion can work an unfairness [is]
where ‘the party to be bound lacked an incentive to litigate’ in the first action the issue
to be precluded in the second.” Id. (quoting Otherson, 711 F.2d at 273).

Here, the West Virginia habeas court’s decision with respect to Morgan’s
petition easily satisfies the first two prongs of the issue preclusion test—there is no
question that the ex post facto claim was actually adjudicated and that a court of
competent jurisdiction decided it. See Nelson, 750 F. Supp. 2d at 52 (holding that a
parolee claiming improper application of parole guidelines “cannot now relitigate an
issue that has been ‘actually and necessarily determined by a court of competent
jurisdiction [because its] determination is conclusive’”) (quoting Montana v. United
States, 440 U.S. 147, 153 (1979) (alteration in original) (other citations omitted)). As
for the third requirement, this Court concludes that preventing Morgan from relitigating
the ex post facto question is not obviously unfair because Morgan had every
opportunity—and incentive—to litigate this question fully before the West Virginia
court. Moreover, to the extent that Morgan is here asserting an unfairness-type
argument related to the fact that the West Virginia federal magistrate judge who
initially considered his habeas petition relied on authority “that predates the National
Capital Revitalization and Self-Government Improvement Act, which vested the
[Commission] with the sole authority to administer the District of Columbia Parole
system,” (Pl.’s Traverse to Defs.’ Reply to Pl.’s Reply to Defs.’ Mot. to Dismiss, ECF
No. 10, at 5), this Court sees nothing inherently unfair or untoward about the
application of past precedent to address a constitutional question; after all, adherence to
precedent is venerated practice of the state and federal courts. See, e.g., Kimble v.
Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (“Stare decisis—in English, the idea
that today’s Court should stand by yesterday’s decisions—is ‘a foundation stone of the

rule of law.’”) (quoting Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2036
(2014)).
The bottom line is that Morgan’s dissatisfaction with the West Virginia habeas
court’s ruling provides no basis for this Court to revisit the ex post facto question, and
to find otherwise would contravene core principles of res judicata. See, e.g., Allen v.
McCurry, 449 U.S. 90, 94 (1980) (“[R]es judicata and collateral estoppel relieve parties
of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by
preventing inconsistent decisions, encourage reliance on adjudication.”); Polsby v.
Thompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002) (“The purpose of res judicata is to
‘conserve judicial resources, avoid inconsistent results, engender respect for judgments
of predictable and certain effect, and to prevent serial forum-shopping and piecemeal
litigation.’” (quoting Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981)).
Accordingly, this Court easily concludes that Morgan’s claim for injunctive relief in the
form of new parole revocation hearing is precluded, and thus must be dismissed under
Rule 12(b)(6). 6

6

Notably, although recent case law developments call into question aspects of the West Virginia
court’s habeas decision, those developments do not affect this Court’s conclusion regarding the
preclusive effect of res judicata. The recent decision of the D.C. Circuit in United States v. Head, No.
14-3055, 2016 WL 1168591 (D.C. Cir. Mar. 25, 2016), for example, seemingly conflicts with the
habeas court’s determination that the Commission did not retroactively apply the parole guidelines in
Morgan’s case and that, even if it had, that any such application did not impact Morgan’s substantial
rights. Morgan I, 2011 WL 5040432, at *2; Morgan II, 2011 WL 5040435, at *4. However, it is well
established that “the res judicata consequences of a final, unappealed judgment on the merits [are not]
altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently
overruled in another case.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); see also
Harrison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“[C]ivil judgments, unlike criminal
convictions, cannot be collaterally attacked on the basis of subsequent judicial pronouncements.”).

IV.

CONCLUSION
The instant section 1983 action appears to be Morgan’s attempt to re-raise claims

that he has previously litigated and lost, against parties who are protected by either
sovereign or absolute immunity. These defects are incurable; accordingly, as set forth
in the Court’s prior order, the Defendants’ motion to dismiss the complaint has been
GRANTED, and this case has been DISMISSED.

Date: April 4, 2016

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge