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Hurd v. District of Columbia, Government

United States Court of Appeals, District of Columbia Circuit

July 28, 2017

Michael D. Hurd, Jr., Appellant
District of Columbia, Government, Appellee

          Argued September 9, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00666)

          Eric C. Rowe argued the cause for appellant. With him on the briefs was C. Allen Foster.

          Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

          Before: Pillard, Circuit Judge, and Edwards and Randolph, Senior Circuit Judges.


          Pillard, Circuit Judge

         In 2007, the Federal Bureau of Prisons released Michael Hurd from prison after he had served roughly 13 months of a 42-month sentence. If that release were mistaken and quickly recognized as such, a prompt arrest and re-incarceration would seem unproblematic. But the Bureau of Prisons discharged Hurd under circumstances that he reasonably believed reflected a deliberate sentence reduction. Indeed, Hurd remained in the District of Columbia and for three years submitted to supervision by the U.S. Parole Commission and the Court Services and Offender Supervision Agency (CSOSA) for the District of Columbia before the Parole Commission recommended his release from federal custody. Federal authorities discharged Hurd from supervised release in March of 2010. In 2011, Hurd pleaded guilty to marijuana possession in D.C. Superior Court and was sentenced to three consecutive weekends in the D.C. jail. After his second weekend duly serving this sentence, the D.C. Department of Corrections-without explanation or opportunity to be heard-disregarded the Superior Court order specifying that Hurd was "to be released on Sunday, October 2, 2011, at 7 p.m." and instead kept him imprisoned for an additional 27 months, apparently the remainder of his original sentence. Thus, more than four years after his release from federal prison, Hurd's weekend stint for marijuana possession stretched into two years in jail.

         On November 16, 2011, Hurd filed a habeas petition against the United States in the D.C. Superior Court challenging his confinement as a violation of procedural and substantive due process. The court denied his petition from the bench in July 2012. Hurd appealed that decision to the D.C. Court of Appeals, but the court failed to act for another year and a half. By that point, Hurd had served the balance of his initial sentence and been released. The Court of Appeals dismissed his appeal as moot.

         Hurd then filed in federal district court this damages action against the District of Columbia under 42 U.S.C. § 1983, again pursuing both procedural and substantive due process claims. The district court dismissed his substantive due process claim as precluded by the D.C. Superior Court's 2012 decision denying his habeas petition against the United States, and dismissed both claims under Federal Rule of Civil Procedure 12(b)(6). See Hurd v. D.C., 146 F.Supp.3d 57 (D.D.C. 2015).

         We conclude that the Superior Court's 2012 decision lacks the preclusive effect the district court perceived. Because Hurd was unable to obtain a decision on his habeas appeal once he was no longer in custody, and because section 1983 claims cannot be joined in a habeas proceeding, the Superior Court's unreviewed bench ruling was not the result of a full and fair opportunity to litigate.

         On the merits, Hurd's complaint states a legally actionable procedural due process claim. His liberty interest sufficed to require that he be afforded some kind of process before he was locked up again. As for Hurd's substantive due process claim, the district court erred in dismissing that claim based on material beyond the complaint, and not incorporated by reference in it, without converting the motion to dismiss into one for summary judgment as contemplated by Federal Rules of Civil Procedure 12(d) and 56. We accordingly remand the case to the district court for further proceedings.

         I. Background

         On appeal from an order granting a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the relevant facts are those alleged in the complaint, taken in the light most favorable to the plaintiff and with all reasonable inferences drawn in his favor. Accordingly, except as otherwise noted, this factual background is based on the complaint.

         Hurd was an active duty Marine from 1997 to 2001, and a Marine Corps reservist from 2001 to 2005. In 2006, after he pleaded guilty to possessing cocaine and an unregistered firearm in violation of D.C. law, the D.C. Superior Court sentenced Hurd to 42 months' imprisonment with a three-year term of supervised release. Hurd began serving his sentence at a federal prison in West Virginia on September 21, 2006. If Hurd had served the entirety of that term, he would have been released from prison in March of 2010.

         The federal prison released Hurd in June 2007 without explanation. "At the time of his release, he apparently believed that his motion for a sentence reduction had been successful." Hurd, 146 F.Supp.3d at 59-60. Hurd then served his three-year term of supervised release. During that period, as the District acknowledges, Hurd remained in the District of Columbia and regularly submitted to monitoring and drug tests. Hurd failed several drug tests and he was arrested three times but never convicted. Def.'s Mot. Dismiss Ex. 5, at 2, 27. Despite those violations of the terms of supervised release, the Parole Commission decided that letters of reprimand sufficed, id. at 29, 37-39, and the court did not revoke Hurd's supervised release. The three-year period after Hurd's June 2007 discharge from prison-years that all parties then believed constituted his post-imprisonment term of supervision- expired on July 18, 2010. By that time, the conduct of the federal prison that released him, the halfway house where he lived during his first few weeks out of prison, the Parole Commission, and the Court Services and Offender Supervision Agency that regularly monitored him all reinforced Hurd's belief that he had been deliberately released from prison and had fully served his 2006 sentence.

         Hurd pleaded guilty to possession of marijuana almost a year later, in September 2011, when possession of less than two ounces of marijuana was still a crime under D.C. law. Compare D.C. Code Ann. § 48-904.01(d)(1) (2010) (making marijuana possession a misdemeanor punishable by up to 180 days in jail), with D.C. Code Ann. § 48-904.01(a)(1)(A) (2015) (legalizing possession of two ounces or less). The Superior Court allowed Hurd, who had stable employment at the time, to serve his nine-day sentence in a local jail over the course of three weekends. He reported to D.C. jail on a Friday night and was released two days later. He returned the following weekend. But on Sunday, October 2, 2011, the D.C. Department of Corrections refused to release him. Prison personnel informed Hurd more than 50 months after his release from prison that he had 27 months of imprisonment still to serve on his 2006 sentence.[1] He was not given any prior notice or opportunity for a hearing to contest his re-incarceration. Without any assertion by federal authorities of an interest in taking Hurd back into federal custody, the D.C. Department of Corrections continued to hold Hurd for almost two years.

         Hurd spent the ensuing years challenging his imprisonment. In November 2011, a few weeks after the District re-imprisoned him, Hurd petitioned the D.C. Superior Court on substantive and procedural due process grounds for habeas corpus relief against the United States (on behalf of which the District appeared to be holding him). The Superior Court sought and timely received responses from the United States and the District of Columbia, but Hurd's petition then languished. After almost seven more months, Hurd filed a second petition requesting emergency relief.

         The Superior Court held argument on the petition in July 2012. Hurd's attorney attempted to put into evidence certain D.C. Department of Corrections documents that, she claimed, falsely stated that the Superior Court re-sentenced Hurd on October 2 and gave him a hearing on October 3, 2011, i.e., when it kept him incarcerated at the end of the second weekend of his marijuana sentence. Hurd's counsel proffered the documents as a fabrication, and evidence of the District's groundless, post hoc effort to paper over its error. See Suppl. App. 39 (defense counsel arguing that "the jail then went back into the record and made up that he had had another hearing on October 3rd, 2011, which never occurred, and that he was sentenced on October 2nd, 2011, which is not a date that . . . appears anywhere on Mr. Hurd's records"), id. at 54 (Court asking the District to respond to proffered documents and to "the argument . . . that the Department of Corrections overstepped its bounds and did that which is the exclusive purview of the Court"). When the prosecutor argued that the documents were unauthenticated, id. at 56, Hurd's attorney requested an opportunity to authenticate them at an evidentiary hearing, id. at 59. The Superior Court denied the request, expressing its desire to conclude the matter that day. Id.; see id. at 72 (stating that there was "no foundation" for the documents and "no witness here to address" them, but that "the Court is not going to delay this ruling in order to bring [witnesses] into court"). At the close of the argument, the court denied Hurd's habeas petition from the bench. See id. at 65-80.

         Hurd appealed, but the D.C. Court of Appeals did not act for 17 months. Hurd's appeal remained unresolved even after he was released on September 30, 2013.[2] Hurd argued that he retained a live interest in that appeal because a successful habeas petition was a prerequisite to a civil claim challenging his re-incarceration. Hurd v. United States, No. 12-CO-1364, slip op. at 2 (D.C. Dec. 18, 2013) (available at Joint App. 128). The Court of Appeals rejected that argument and dismissed Hurd's appeal as moot. Id. The Court of Appeals cited passages of the Supreme Court's decision in Spencer v. Kemna, 523 U.S. 1, 17 (1998), and Justice Souter's concurring opinion, id. at 20-21, both of which concluded that a person released from prison before a ruling on his habeas petition would not necessarily be foreclosed from pursuing a section 1983 claim.

         Hurd then filed this suit in the district court against the District of Columbia under 42 U.S.C. § 1983, seeking damages for a period of re-incarceration that he claimed violated both procedural and substantive due process. The District moved to dismiss, first on the ground that the Superior Court's denial of Hurd's habeas petition was res judicata. The District argued that the Superior Court had rejected the same constitutional claims "on the merits" and that that decision was entitled to full faith and credit, and thus preclusive of Hurd's damages claim. Alternatively, the District contended that Hurd's complaint failed plausibly to allege a violation of procedural or substantive due process. In support of its motion, the District attached as exhibits its brief and some of the accompanying sentencing and supervision documents that it had filed before the Superior Court in opposition to Hurd's habeas petition.

         The district court dismissed Hurd's substantive due process claim as precluded and rejected both the substantive and procedural due process claims for failure to state a claim. First, the district court determined that "the Superior Court resolved the merits of [Hurd's] substantive due process claim, " precluding Hurd's parallel section 1983 claim. Hurd, 146 F.Supp.3d at 63. Proceeding to the merits, the district court, following the parties' lead, considered Hurd's substantive due process claim with reference to United States v. Merritt, 478 F.Supp. 804 (D.D.C. 1979). The district court gleaned from Merritt and other cases four factors that help determine "whether re-incarceration is so unfair as to implicate [substantive] due process concerns." Id. at 66. These factors were "(1) the length of mistaken release; (2) the government's level of culpability; (3) the prisoner's knowledge of, or contribution to, the mistake; and (4) the prejudice caused by re-incarceration, i.e., how well the prisoner has readjusted to society." Id. The district court found re-incarceration non-prejudicial to Hurd on the ground that he had failed to readjust to society, and therefore held that his complaint did not make out a substantive due process violation under Merritt. Id. at 69-70. Finally, the district court dismissed Hurd's procedural due process claim on the ground that he lacked any protected liberty interest-even after the date on which his original sentence of imprisonment, had it been served continuously, would have expired-"because, unlike a parolee, a mistakenly released prisoner does not have a 'legitimate claim of entitlement' to freedom." Id. at 71 (quoting Henderson v. Simms, 223 F.3d 267, 274 (4th Cir. 2000)) (alterations omitted); see also Jenkins v. Currier, 514 F.3d 1030, 1035 (10th Cir. 2008) ("Appellant had no due process right to a hearing when he was taken back into custody to complete his previously imposed sentence.").

         II. Discussion

         A. Standard of Review

         We review de novo the district court's grant of the government's Rule 12(b)(6) motion to dismiss. Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1128 (D.C. Cir. 2015). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would 'allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Banneker Ventures, 798 F.3d at 1129 (alteration omitted) (quoting Iqbal, 556 U.S. at 678). The court must "accept all the well-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in the plaintiff's favor." Id. "In determining whether a complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). If the district court considers other facts, it must convert the motion to dismiss into a motion for summary judgment and "provide the parties with notice and an opportunity to present evidence in support of their respective positions." Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011); see Fed. R. Civ. P. 12(d).

         B. Claim and ...

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