BOLING v. UNITED STATES PAROLE COMMISSION et al

Filing 24

MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Chief Judge Beryl A. Howell on 11/30/17.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

OLIVER M. BOLING,
Plaintiff,
v.

UNITED STATES
PAROLE COMMISSION et al.,
Defendants.

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Civil Action No. 15-1623 (BAH)
Chief Judge Beryl A. Howell

MEMORANDUM OPINION
The pro se plaintiff, Oliver M. Boling, a District of Columbia prisoner currently
incarcerated at the Federal Correctional Institution in Estill, South Carolina, instituted this
lawsuit against six employees of the United States Parole Commission (“Commission”) and a
case manager at the Bureau of Prisons (“BOP”), alleging that they engaged in a conspiracy to
deprive him of certain constitutional rights and to commit fraud during parole proceedings in
January 2005. He seeks equitable relief and monetary damages.
Pending before the Court is the defendants’ motion to dismiss the complaint, pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defs.’ Mot. to Dismiss,
ECF No. 14. Upon consideration of the defendants’ motion and reply, ECF No. 18, and the
plaintiff’s opposition, ECF No. 16, and surreply, ECF No. 20, the Court finds that most of the
plaintiff’s claims are barred by sovereign immunity and res judicata, and the remaining personal-

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capacity claims are frivolous. Accordingly, for the reasons explained more fully below, the
defendants’ motion is granted on those grounds and this case is dismissed. 1
I. BACKGROUND
A. Factual History and Prior Adjudication of the Plaintiff’s Claims
The allegations in the prolix complaint are sketchy and difficult to follow but
nevertheless make clear that the claims pertain to events beginning in January 2005, when the
Commission, as the authority over D.C. parolees and supervisees, rescinded the plaintiff’s
presumptive parole date of April 9, 2005, and rescheduled him for parole reconsideration in
December 2018 (“15-year setoff”). See Not. of Action, ECF No. 14-1 at 4; Compl. at 8-11, ECF
No. 1. These events underlying the plaintiff’s instant complaint also prompted his prior actions.
Thus, the detailed history set out below by the United States Court of Appeals for the Tenth
Circuit in the plaintiff’s appeal from the District of Kansas’ denial of his 2007 habeas petition is
pertinent background to the Commission’s actions challenged in the instant complaint.
Mr. Boling was convicted of sodomy in the District of Columbia in 1976. In
1983, he was convicted of assault with a dangerous weapon. At that time, a
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Resolution of the pending motion on these grounds renders unnecessary consideration of the defendants’ more
nuanced arguments that the complaint “is untimely” because, “[b]y his own admission, Plaintiff’s claims accrued in
2005.” Mem. of Pts. & Auth. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”), at 2, ECF No. 14. This defense of
untimeliness is predicated on federal and local statutes of limitations set out at 28 U.S.C. § 2401 and D.C. Code § 12301, respectively. See Defs.’ Mem. at 8-10. Although the federal statute of limitations bars civil actions against the
United States not “filed within six years after the right of action accrues,” the filing time is tolled for “any person
under [an undefined] legal disability . . . at the time the claim accrues” by “three years after the disability ceases.” 28
U.S.C. § 2401(a). In addition, the defendants assert that the plaintiff’s “purported individual-capacity constitutional
tort claims” are barred under the District of Columbia’s statute of limitations because these claims “were brought more
than three years after the events giving rise to them.” Defs.’ Mem. at 8 (citing D.C. Code § 12-301(8)). The defendants,
however, have not addressed either statute’s tolling provision. In this regard, the District’s provision specifically lists
“imprisoned” as a disability that entitles a plaintiff to maintain an action once the disability is removed. D.C. Code §
302(a)(3). From all indications in the record, the plaintiff has been incarcerated since 2005. At least as to the personalcapacity claims, then, the “statute of limitations . . . has not yet begun to run[.]” Jones v. Kirchner, 835 F.3d 74, 82
(D.C. Cir. 2016); see id. at 81 (“[T]he District tolls the statute of limitations for causes of action that accrue while a
plaintiff is imprisoned, beginning at the time of his or her arrest. . . . Tolling stops when the plaintiff is released[.]”)
(citations omitted)).

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D.C. court sentenced Mr. Boling to a prison term of 23 years and 8 months
to 71 years and 6 months. In February 1999, the District of Columbia Board
of Parole (D.C. Board) released Mr. Boling, subject to a 48-year period of
supervision, until June 2047. Within months of Mr. Boling's release, D.C.
authorities arrested Mr. Boling after he allegedly struck his wife with a cane
and hit her with his fists. Assault charges against Mr. Boling were ultimately
dismissed. However, on April 13, 1999, the D.C. Board issued a parole
violation warrant, citing Mr. Boling’s alleged assault on his wife and failure
to abide by all laws as a violation of the conditions of his parole.
Mr. Boling’s wife moved to Connecticut and obtained a temporary protective
order that prevented Mr. Boling from visiting her. Authorities in Connecticut
arrested Mr. Boling later in April 1999 after he initiated another encounter
with his wife. As a result of that incident, Mr. Boling was convicted of
violating a protective order and disorderly conduct, and a Connecticut court
sentenced Mr. Boling to a term of imprisonment of approximately one year.
Per the terms of the D.C. Board’s April 13, 1999, parole violation warrant,
the United States Marshals Service transported Mr. Boling back to the
District of Columbia after he completed his Connecticut sentence in February
2000. In July 2000, the D.C. Board revoked Mr. Boling’s parole and set a
hearing date for reconsideration of Mr. Boling’s parole. In July 2001, the
D.C. Board transferred Mr. Boling to the custody of the Bureau of Prisons.
In December 2003, the Commission held a hearing at which it considered
whether to continue Mr. Boling's imprisonment. Among other things, the
Commission took note of Mr. Boling's assault of his wife within two months
of his release in 1999. After determining that Mr. Boling should not be
paroled at that time, the Commission was faced with the task of setting a new
date for reconsideration of Mr. Boling's parole status. The Commission’s
guidelines calculation yielded a recommended reconsideration date of 48-60
months. However, the Commission concluded that Mr. Boling’s return to
violent criminal activity indicated that he posed a more serious risk than its
guidelines calculations suggested. Accordingly, the Commission's decision,
rendered in a Notice of Action dated December 19, 2003 (December 2003
Notice of Action), set a reconsideration date of 72 months.
In March 2004, Mr. Boling filed a petition for a writ of habeas corpus under
28 U.S.C. § 2241. His petition challenged the December 2003 Notice of
Action. In November 2004, while Mr. Boling’s petition was pending before
the district court, the Commission held another hearing to reconsider the
December 2003 Notice of Action. The Commission considered newly
received reports that Mr. Boling had threatened to kill or harm his wife and
harm her family on numerous occasions. The Commission also took into
consideration the newly reported fact that Mr. Boling had previously
attempted to kill his wife by physically attacking her on more than one
occasion. In light of this information, the Commission entered a Notice of
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Action, dated January 5, 2005 (January 2005 Notice of Action), which
extended Mr. Boling’s parole reconsideration date to December 2018. The
January 2005 Notice of Action voided the December 2003 Notice of Action.
Boling v. Mundt, 261 Fed. App’x 133, 135-36 (10th Cir. 2008).
The Tenth Circuit considered the merits of the plaintiff’s claims grounded upon “the
decision of [the] Commission to revoke his parole and defer reconsideration of parole beyond the
length of time recommended under the Commission’s guidelines.” Id. at 135. Agreeing with the
district court, the Tenth Circuit found no merit to the plaintiff’s argument that the Commission
had violated the ex post facto clause by applying its guidelines “rather than the appropriate laws
in effect when [Plaintiff] committed his first offense in 1976.” Id. at 137. That court further
found “no legal support” for the plaintiff’s argument that the Commission had impermissibly
departed upwardly from its guidelines “by considering conduct that did not result in a criminal
conviction,” and no factual support for the plaintiff’s argument that the Commission had
“impermissibly ‘double counted’ his offenses” by using the same information “to make two
distinct determinations.” Id. at 138. The Tenth Circuit suggested that the Commission’s finding
of a pattern of behavior to warrant a longer re-incarceration period necessarily required
consideration of overlapping events, and agreed with the district court “that, in this case, ‘[t]he
Commission [had properly] departed from its guidelines based on the extent, nature, repetition,
and timing of [Mr. Boling]’s assaultive and threatening behavior which was not adequately taken
into consideration by the calculation of [Mr. Boling]’s guideline range.” Id. (record citation
omitted; alterations in original). 2

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The defendants point out that “Plaintiff has litigated this claim in almost too many other cases to count throughout
the Country,” Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss (“Defs.’ Reply”) at 5, ECF No. 18, noting, in
addition to the Tenth Circuit case, the plaintiff’s cases in Boling v. Williamson, 305 Fed. App’x. 7, 8 (3d Cir. 2008)
(citing Boling v. Smith, 277 Fed. App’x 174, 176 n.1. (3d Cir. 2008)), Boling v. Rivera, 2011 U.S. Dist. Lexis 143212
(D.S.C. Dec. 13, 2011) (surveying the plaintiff’s habeas filings in different jurisdictions since 2004 and dismissing
the case “as an abuse of the writ”)), Defs.’ Mem. at 4 n.4, and Boling-Bey v. United States Parole Comm’n, 2006 U.S.

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B. The Instant Lawsuit
The plaintiff filed this civil action in October 2015 against the following individuals in
their individual and official capacities: Pamela Posch and Helen H. Krapels, both identified as
“Gen. Counsel, USPC”; Steve Husk, Rob Haworth, Kathleen A. Piner and Jeffery Kosbar, all
identified as “USPC Examiner”; and Michael Gray, identified as “BOP-Lev. Worth Case Man.”
Compl. at 7 (Caption). 3 The plaintiff alleges that the individual defendants “each knowingly and
intentionally conspired together to violate [his] Fifth, Fourteenth, and Eighth Amendment
Constitutional Rights in violation of 42 U.S.C. Section 1985(3) [and] Section 1986[,]” as well as
“18 U.S.C. [§] 241 and 242[.]” Compl. at 5.
In addition, the plaintiff accuses Examiner Kosbar of carrying out “a fraudulent scheme”
when he allegedly introduced at the parole reconsideration hearing conducted in July 2004 “an
audio tape taken the morning of the hearing by Plaintiff’s wife.” Compl. at 3-4. After the
plaintiff objected to Kosbar’s use of “the phony tape taken the day of the hearing,” he claims that
Kosbar postponed the hearing. Id. at 4. Four months later, in November 2004, Examiner
Haworth allegedly “illegally conducted a hearing without Plaintiff present and Ordered that [he]
do a 15 year reconsideration pursuant to 28 U.S.C. 2.28(f) § 2.12(b) until 2018 with interim
hearings.” Id. The plaintiff accuses the defendants generally of “fraud, fraudulent concealment,
forgery, falsifying evidence, perjury, [and] obstruction of justice.” Compl. at 25. He seeks,
among other equitable relief, “to be placed on the next parole docket,” and compensatory
damages totaling $50,000,000. Id. at 24-27.

Dist. Lexis 21038 (D.D.C. 2006) (transferring Plaintiff’s habeas action alleging the identical claim raised here against
the same Defendants to the District of Kansas), Defs.’ Mem. at 4 n.5.
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The defendants indicate that “that Defendant Posch employment with the USPC ended in approximately 2006;
Defendant Haworth in 2010; Defendant Pinner in 2007; Defendant Kostbar in 2008; and Michael Green in
approximately 2004.” Defs.’ Reply at 4 n.4.

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II.

APPLICABLE LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(1)
To survive a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of

demonstrating the court’s subject-matter jurisdiction over the claims asserted. Arpaio v. Obama,
797 F.3d 11, 19 (D.C. Cir. 2015). “‘Federal courts are courts of limited jurisdiction,’ possessing
‘only that power authorized by Constitution and statute.’ ” Gunn v. Minton, 568 U.S. 251, 256
(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed,
federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC,
548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider
whether the constitutional and statutory authority exist for us to hear each dispute,’ ” James
Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v.
Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over
a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006); Fed. R.
Civ. P. 12(h)(3) (requiring dismissal of action “at any time” the court determines it lacks subject
matter jurisdiction).
When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
all uncontroverted material factual allegations contained in the complaint and “ ‘construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
(D.C. Cir. 2005)). The court need not accept inferences drawn by the plaintiff, however, if those
inferences are unsupported by facts alleged in the complaint or amount merely to legal
conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

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Moreover, in evaluating subject matter jurisdiction, the court “may consider materials
outside the pleadings.” Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016);
Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); Herbert, 974 F.2d at 197
(in disposing of motion to dismiss for lack of subject matter jurisdiction, “where necessary, the
court may consider the complaint supplemented by undisputed facts evidenced in the record, or
the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”).
Where, as here, a defendant files a motion to dismiss under both Rule 12(b)(1) and Rule
12(b)(6), the Rule 12(b)(1) grounds for dismissal are examined first “as subject matter
jurisdiction presents a threshold question.” El Paso Natural Gas Co. v. United States, 750 F.3d
863, 874 (D.C. Cir. 2014) (citing Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) and
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)); see also Schmidt v. U.S.
Capitol Police Bd., 826 F. Supp. 2d 59, 64 (D.D.C. 2011) (noting that “court must first examine
the Rule 12(b)(1) challenges” because a dismissal for lack of subject matter jurisdiction may
render “the [other] accompanying defenses and objections [ ] moot[.]”) (citations and internal
quotation marks omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Wood v. Moss, ––– U.S. ––––, 134 S.Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is
more than “‘merely consistent with’ a defendant's liability,” but “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)); see also Rudder v.

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Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). In considering a motion to dismiss for failure to
plead a claim on which relief can be granted, the court must consider the complaint in its
entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact, and
construe all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555; Nurriddin
v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (“We assume the truth of all well-pleaded factual
allegations and construe reasonable inferences from those allegations in a plaintiff's favor.”
(citing Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014))). The
Court “need not, however, ‘accept inferences drawn by [a] plaintiff[ ] if such inferences are
unsupported by the facts set out in the complaint.’ ” Nurriddin, 818 F.3d at 756 (alteration in
original) (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
When res judicata bars a claim, it is subject to dismissal under Rule 12(b)(6). See RSM
Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d 182, 189 (D.D.C.
2011) (“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.” (citation
omitted)). A defendant may raise the res judicata defense in a Rule 12(b)(6) motion “where [it]
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)
(internal quotations and citations omitted). When ruling on a motion to dismiss under Rule
12(b)(6) on res judicata grounds, a court may take judicial notice of its own record, public
records from other proceedings, and documents attached as exhibits or incorporated by reference
in the complaint, including administrative complaints and orders. See Laughlin v. Holder, 923 F.
Supp. 2d 204, 209 (D.D.C. 2013) (taking judicial notice of documents attached to or
incorporated into the complaint, including administrative complaints and documents); Hemphill

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v. Kimberly–Clark Corp., 605 F. Supp. 2d 183, 186 (D.D.C. 2009) (taking judicial notice of
public records from other proceedings (citation omitted)); Sieverding v. U.S. Dep't of Justice,
847 F. Supp. 2d 75, 81 (D.D.C. 2012) (taking judicial notice of a court’s own records (citation
omitted)).
III.

DISCUSSION
The defendants contend that the plaintiff’s claims should be dismissed on the grounds,

inter alia, of sovereign immunity, res judicata, and lack of personal jurisdiction. Mem. of Pts. &
Auth. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”), at 9-15, ECF No. 14. These defense
arguments are discussed seriatim.
A. Sovereign Immunity
Sovereign immunity bars lawsuits against the United States, its agencies and its
employees sued in their official capacities, absent an unambiguous waiver by the federal
government. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver,
sovereign immunity shields the Federal Government [from suit] . . . .”); Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (noting that suit against a government official in his official
capacity “generally represent[s] only another way of pleading an action against an entity of
which an officer is an agent,” such that “an official capacity suit is, in all respects other than
name . . . a suit against the entity”); Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011)
(holding that “no Bivens claim is available against [IRS employees] in their official capacities . .
. .”); Perkins v. Ashcroft, 275 Fed. App’x. 17 (D.C. Cir. 2008) (“to the extent appellant was
attempting to sue the former Attorney General in his official capacity, the action is barred by
sovereign immunity”). This means that a waiver of sovereign immunity “must be unequivocally

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expressed in statutory text, and [it cannot] be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996)
(citations omitted).
In his complaint, the plaintiff invokes the Constitution, provisions of the Civil Rights Act,
and two federal criminal statutes, see Compl. at 5, as the legal basis for seeking compensatory
monetary damages from the Commission and the named government officials. Yet, none of
these laws relied on by the plaintiff provides a waiver of sovereign immunity for the plaintiff’s
claims for monetary relief against the Commission and the individual defendants in their official
capacity.
First, the law is well established that Congress has not waived the United States’
immunity with respect to tort claims arising under the Constitution. Meyer, 510 U.S. at 478 (“the
United States simply has not rendered itself liable … for constitutional tort claims”). Second,
“§ 1985 does not waive the federal government’s sovereign immunity, so federal employees
acting in their official capacities are immune from liability for alleged violations of § 1985,” and
any other provision of the Civil Rights Act. Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C.
2006) (citing U.S. v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) (other citation omitted)); see
also In re Rodriguez, 2005 U.S. App. LEXIS 22400 (D.C. Cir. Oct. 14, 2005) (holding that
Congress did not “waive the United States’s sovereign immunity with respect to [plaintiff’s] . . .
statutory civil rights claims” under 42 U.S.C. §§ 1985(3) and 1986); Davis v. U.S. Dep’t of
Justice, 204 F.3d 723, 726 (7th Cir. 2000) (“Sovereign immunity . . . bars §§ 1985(3) and 1986
suits brought against the United States and its officers acting in their official capacity.”). Third,
the criminal statutes the plaintiff cites, 18 U.S.C. §§ 241 and 242, do not provide a private cause
of action. See Jackson v. Donovan, 856 F. Supp. 2d 147, 149 (D.D.C. 2012) (“Plaintiff's claim
of a criminal conspiracy fails because ‘18 U.S.C. § 241 is a criminal statute that provides no

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basis for an individual to bring a private, civil action’ ”) (quoting Alexander v. Wash. Gas Light
Co., 481 F. Supp. 2d 16, 32 (D.D.C. 2006)); Rockefeller v. U.S. Court of Appeals Office, for
Tenth Circuit Judges, 248 F. Supp. 2d 17, 23 (D.D.C. 2003) (“[T]he plaintiff is precluded from
asserting any claims pursuant to 18 U.S.C. §§ 242 and 371 because, as criminal statutes, they do
not convey a private right of action.”). Thus, the defendants are correct that, under Federal Rule
of Civil Procedure 12(b)(1), these claims must be dismissed for lack of subject matter
jurisdiction since the United States has not waived its sovereign immunity. See Defs.’ Mem. at
9-10.
The plaintiff’s official-capacity conspiracy claim predicated on alleged fraud and other
deceitful acts fares no better. Although Congress has waived the United States’ immunity for
certain torts under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, the waiver applies
only “under circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). The FTCA does not authorize the plaintiff’s claim, however, since “[u]nder both
federal and District of Columbia law, civil conspiracy is not actionable in and of itself. Rather,
its purpose is to serve as a device through which vicarious liability for the underlying wrong may
be imposed upon all who are a party to it, where the requisite agreement exists among them.”
Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989) (citations omitted).
This is consistent with the “important civil conspiracy principle [ ] that no conspiracy can exist
without ‘some underlying tortious act.’ ” Pencheng Si v. Laogai Research Found., 71 F. Supp.
3d 73, 89 (D.D.C. 2014) (quoting Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)).
The underlying tortious acts alleged here involve fraud and deception, but the FTCA expressly
“exempts fraud and misrepresentation from the general waiver of sovereign immunity.”

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Maxberry v. Dep’t of the Army, Bd. of Correction of Military Records, 952 F. Supp. 2d 48, 52
(D.D.C. 2013) (citing 28 U.S.C. § 2680(h) (other citation omitted)).
Accordingly, as to the claims for monetary damages against the Commission and the
individual defendants in their official capacity, the defendants’ motion to dismiss on sovereign
immunity grounds must be granted.
B. Failure to State a Claim
Construed liberally, the plaintiff also seeks monetary damages from the individual
defendants in their personal capacities, as well as declaratory and injunctive relief, all of which
claims the defendants contend must be dismissed for failure to state a claim, under Federal Rule
of Civil Procedure 12(b)(6). Defs.’ Mem. at 13-20. Again, the Court agrees, for the reasons
explained below.
1. The Plaintiff’s Claims Are Barred By Res Judicata
“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,
which are collectively referred to as ‘res judicata.’ ” Taylor v. Sturgell, 553 U.S. 880, 892
(2008). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or
not relitigation of the claim raises the same issues as the earlier suit.’ ” Id. (quoting New
Hampshire v. Maine, 532 U.S. 742, 748 (2001)). At the same time, issue preclusion, which was
“once known as ‘collateral estoppel’ and ‘direct estoppel,’ ” bars “successive litigation of an
issue of fact or law actually litigated and resolved in a valid court determination essential to the
prior judgment, even if the issue recurs in the context of a different claim.” Id. at 892 & n.5
(internal citations and quotation marks omitted); see also U.S. Postal Serv. v. Am. Postal
Workers Union, 553 F.3d 686, 696 (D.C. Cir. 2009) (“Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation

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of the issue in a suit on a different cause of action involving a party to the first case.” (internal
quotation marks and citation omitted)). Thus, “ ‘[r]es judicata . . . bars relitigation not only of
matters determined in a previous litigation but also ones a party could have raised.’ ” Capitol
Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 491 (D.C. Cir. 2009)
(quoting NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C. Cir. 1988)).
The doctrine of res judicata serves to “protect against ‘the expense and vexation
attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action
by minimizing the possibility of inconsistent decisions.’ ” Nat'l Ass'n of Home Builders v. EPA,
786 F.3d 34, 41 (D.C. Cir. 2015) (brackets in original) (quoting Taylor, 553 U.S. at 892 (quoting
Montana v. United States, 440 U.S. 147, 153-54 (1979)). “The objective of the doctrine of issue
preclusion . . . is judicial finality; it fulfills ‘the purpose for which civil courts had been
established, the conclusive resolution of disputes within their jurisdiction.’ ” Yamaha Corp. of
Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Kremer v. Chem. Constr.
Corp. 456 U.S. 461, 467 n.6 (1982)).
The D.C. Circuit has established a three-part standard “for establishing the preclusive
effect of a prior holding.” Yamaha Corp. of Am., 961 F.2d at 254.
First, the same issue now being raised must have been contested by the parties
and submitted for judicial determination in the prior case. Second, the issue
must have been actually and necessarily determined by a court of competent
jurisdiction in that prior case. . . . Third, preclusion in the second case must
not work a basic unfairness to the party bound by the first determination. An
example of such unfairness would be when the losing party clearly lacked
any incentive to litigate the point in the first trial, but the stakes of the second
trial are of a vastly greater magnitude.
Id. (citations omitted). “Significantly for present purposes, courts regularly find that the
resolution of a constitutional claim [within] 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
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constitutional claim.” Morgan v. United States Parole Comm’n, No. 14-cv-0770, 2016 WL
1312001, at *4 (D.D.C. Apr. 4, 2016) (citing Wilson v. Fulwood, 772 F. Supp. 2d 246, 264
(D.D.C. 2011)).
All three requirements are satisfied here and preclude the plaintiff’s claims. Since the
plaintiff filed his prior habeas petition while incarcerated at the United States Penitentiary in
Leavenworth, Kansas, see Boling v. Rivera, 2011 WL 6182124, at *6 n.11 (D.S.C. Dec. 13,
2011), the Tenth Circuit and the district court in Kansas were “court[s] of competent
jurisdiction” to adjudicate the petition. See Rooney v. Sec’y of Army, 405 F.3d 1029, 1032 (D.C.
Cir. 2005) (habeas “jurisdiction is proper only in the district in which the immediate . . .
custodian is located”) (internal citations and quotation marks omitted)). Those courts addressed
the merits of the same issues surrounding the Commission’s 2005 decision that the plaintiff
raises here.
The Tenth Circuit identified the claims as arising from the Commission’s January 5, 2005
Notice of Action, “which extended Mr. Boling’s parole reconsideration date to December 2018”
and “voided the December 2003 Notice of Action.” Boling, 261 Fed. App’x at 136; see id. at
137 (concluding that “Mr. Boling’s claims effectively attack the January 2005 Notice of Action,
even if they do not explicitly refer to it”). The court then proceeded to address the merits of the
plaintiff’s claims:
First, . . . that the Commission’s application of D.C. law in effect at the time
of his parole revocation (as opposed to the time at which he committed his
crimes) violated the Ex Post Facto Clause of the United States Constitution.
Second, . . . that the Commission’s upward departure from its own guidelines
in setting his parole reconsideration date violated his right to due process of
law. Third, . . . that the Commission erred in relying on the same factors to
establish his guidelines range and to depart from that range.
Boling, 261 Fed. App’x at 137.

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With respect to the ex post facto claim, the Tenth Circuit agreed with the district court
that the plaintiff had failed “‘to demonstrate that the Commission’s application of [its own]
guidelines subjected [him] to any significant risk of prolonging his incarceration.’” Id. (record
citation omitted). With respect to the due process claim, the Tenth Circuit held, as did the
district court, that the plaintiff had provided “no legal support” for his argument that the
Commission had erroneously considered “conduct that did not result in a criminal conviction” to
support the upward departure. Id. at 138. Finally, the Tenth Circuit rejected the third claim
alleging “double counting” and agreed with the district court “that, in this case, ‘[t]he
Commission departed from its guidelines based on the extent, nature, repetition, and timing of
[Mr. Boling]’s assaultive and threatening behavior which was not adequately taken into
consideration by the calculation of [Mr. Boling]’s guideline range.” Id. (record citation omitted;
alterations in original).
The sheer number of opportunities that the plaintiff has had to litigate the issues at hand
undermines any notion that preclusion at this juncture would “work a basic unfairness.”

4

Yamaha Corp. of Am., 961 F.2d at 254. Therefore, the defendants’ motion to dismiss the
plaintiff’s claims for equitable relief on res judicata grounds is granted.

4

In 2016, while addressing yet another of the plaintiff’s attempts for review through a motion under Federal Rule
of Civil Procedure Rule 60(b), the Tenth Circuit rejected the plaintiff’s argument that the Supreme Court’s decision
in Peugh v. United States, –– U.S. ––, 133 S.Ct. 2072, 2078 (2013), “changed the law, rendering our decision incorrect
and the district court’s decision void.” Boling v. Maye, No. 16-3192, 2016 WL 6087650, at *1 (10th Cir. Oct. 18,
2016). The Tenth Circuit explained: “On the contrary, [Peugh] endorsed the Supreme Court precedent on which our
prior decision relied. [It] repeated its already existing standard, stating that when determining whether there has been
an Ex Post Facto Clause violation, ‘[t]he relevant question is whether the change in law creates a ‘sufficient’ or
‘significant’ risk of increasing the punishment for a given crime.’” Id. (quoting Peugh at 2083 n.4) (other citations
omitted).

15

2. The Plaintiff’s Personal-Capacity Claims for Monetary Relief
Monetary relief is not available in habeas corpus proceedings and, consequently,
resolution of the plaintiff’s prior habeas petition does not appear to have preclusive effect with
regard to his claims, under several provisions of the Civil Rights Act and certain criminal
statutes, for damages against the named defendants in their personal capacities. Nevertheless,
these claims are simply untenable.
In the form complaint filed under 42 U.S.C. § 1983, the plaintiff alleges that the
individual defendants “each knowingly and intentionally conspired together to violate [his] Fifth,
Fourteenth, and Eighth Amendment Constitutional Rights, in violation of 42 U.S.C. § 1985(3)
[and] § 1986[,]” as well as 18 U.S.C. § 241 and 242[.]” Compl. at 5. The defendants argue
correctly that no claim has been stated under § 1985 because the plaintiff has not pled any facts
establishing that he was discriminated against on the basis of his race or some other recognized
protected class. Defs.’ Mem. at 19-20 (citing Melton v. D.C., 85 F. Supp. 3d 183, 195 (D.D.C.
2015) and Bush v. Butler, 521 F. Supp. 2d 63, 67-68 (D. D.C. 2007)); see Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971) (holding that under § 1985(3) “there must be some racial,
or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’
action”); Hoai v. Vo, 935 F.2d 308, 314 (D.C. Cir. 1991) (“The scope of section 1985(3) is
limited . . . by the condition that such conspiracies be ‘motivated by some class-based,
invidiously discriminatory animus.’”) (quoting Hobson v. Wilson, 737 F.2d 1, 14 (D.C. Cir.
1984)). Further, “[s]ince § 1986 imposes liability upon a person who ‘neglects or refuses’ to
prevent a wrong under § 1985, [the] plaintiff’s § 1986 claim also fails.” Jackson, 856 F. Supp.
2d at 150. Moreover, as already explained supra in Part III.A., the cited criminal statutes do not

16

provide a private cause of action. This leaves § 1983, to which the Court now turns but rejects as
a source of liability.
Section 1983 creates a private right of action against a “person” who is alleged to have
violated the plaintiff’s constitutional rights while acting “under color of . . . any State or
Territory or the District of Columbia.” 42 U.S.C. § 1983. Such claims are properly brought
against the person in his or her individual capacity. See Iqbal, 556 U.S. at 676 (“Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). The defendants argue that they are not subject to suit in their personal capacity
under § 1983 because they are not state actors. See Defs.’ Mem. at 18-19. They are mistaken.
The D.C. Circuit has held that while the Commission itself is not subject to suit under § 1983, “a
cause of action . . . will lie against the individual members of the Commission when acting
pursuant to the Revitalization Act § 11231, 111 Stat. at 745.” Settles, 429 F.3d at 1104 (citing
Fletcher v. District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004)).
The simple fact here, however, is that the Tenth Circuit has ruled against the plaintiff on
the merits of his constitutional and statutory claims, and that ruling has preclusive effect.
Therefore, no basis exists either in law or in fact to support an award of monetary damages under
§ 1983, and this is the textbook definition of a frivolous claim. See Abiodun v. Holder, 86 F.
Supp. 3d 11, 13 (D.D.C. 2015) (“A complaint is ‘frivolous where it lacks an arguable basis either
in law or in fact.’”) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Hence, the Court
will dismiss the plaintiff’s personal-capacity claims pursuant to 28 U.S.C. § 1915. 5

5

The defendants argue correctly that the plaintiff has failed to carry his burden of establishing this Court’s personal
jurisdiction over the individually named defendants in their personal capacities, see Defs.’ Mem. at 11-12; U.S.
Marshal’s returns of service, ECF Nos. 7, 8, 9 (showing service of process upon all defendants at the Commission’s
address), since personal jurisdiction over government officials must be based on their personal contacts with the forum

17

IV.

CONCLUSION
For the foregoing reasons, the Court concludes: (1) that sovereign immunity bars the

plaintiff’s claims against the United States, its agency and the individual defendants in their
official capacities for monetary relief; (2) that collateral estoppel precludes the plaintiff’s claims
for equitable relief; and (3) that the plaintiff’s personal-capacity claims for monetary relief are
frivolous. Accordingly, the defendants’ motion to dismiss is granted.
A separate Order consistent with this Memorandum Opinion will be filed
contemporaneously.
/s/

Beryl A. Howell
CHIEF JUDGE

DATE: November 30, 2017

other than merely using a District of Columbia mailing address for the agency, see Pollack v. Meese, 737 F. Supp.
663, 666 (D. D.C. 1990) (concluding that the Court had no basis for asserting personal jurisdiction over the warden
of a BOP facility in Springfield, Missouri because he “surely does not transact any business in the District of
Columbia”); Akers v. Watts, 740 F.Supp.2d 83, 92 (D.D.C. 2010) (“The mere fact that they are federal government
employees, affiliated with agencies headquartered or maintaining offices in this district, does not render them subject
to suit in their individual capacities in the District of Columbia”); Gardner v. United States, 1999 U.S. Dist. Lexis
2195 *30 (D.D.C. 1999) (dismissing the plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(2) because the
defendants were IRS employees located outside the District and the plaintiff had not demonstrated that any of the
long-arm statute’s provisions applied to them). Even if jurisdictional discovery could cure this defect in the plaintiff’s
claims, see Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C. Cir. 1991) (finding abuse of
discretion in denial of jurisdictional discovery to establish personal jurisdiction), the claims would remain subject to
dismissal. Indeed, in an in forma pauperis proceeding such as this, a complaint should be dismissed as soon as feasible
upon determining that it is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from an immune defendant. See 28 U.S.C. § 1915(e)(2) and § 1915A (directly applicable to this
prisoner action).

18