The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
On March 19, 2004, Clarence E. Blair-Bey ("Blair-Bey"), an
inmate formerly housed at the Allenwood United States
Penitentiary, White Deer, Pennsylvania, filed this action
pursuant to 28 U.S.C. § 1331, asserting Freedom of Information
Act, Privacy Act and other claims surrounding the United States
Parole Commission's decision to deny him parole and set his
rehearing date in September 2007. Plaintiff proceeds pro se
and in forma pauperis.
Plaintiff essentially asserts the following claims in his
Complaint: (1) violation of the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, and Privacy Act, 5 U.S.C. § 552a with
respect to records produced and not produced by the Parole
Commision; (2) violations of applicable law governing the parole
decisionmaking process; and (3) an ex post facto violation
because the Parole Commission deferred parole beyond the time he
would have had to serve under parole guidelines and beyond the scheduled date for the
expiration of the Commission. (Dkt. Entry 1.) Blair-Bey seeks
injunctive and monetary relief for the alleged FOIA and Privacy
Act violations He also requests injunctive relief in the form of
a new parole hearing as a remedy for the alleged violations of
parole decisionmaking regulations and procedures. (Id.)
Named as Defendants are the U.S. Department of Justice; the
Parole Commission; former Attorney General John Ashcroft;
Commission Chairman Edward F. Reilly, Jr.; and Commission
employees Stephen J. Husk, Shelley Witenstein, Margaux G.
Jablonski, Deborah H. Dudley, Pamela A. Posch, and Rockne J.
Chicknell. He also purports to sue "John and Jane Doe, employees
of the U.S. Parole Commission. . . ." (Complaint, Dkt. Entry 1,
On November 1, 2004, a Motion to Dismiss, or in the
alternative, for Summary Judgment, was filed on behalf of all
Defendants with the exception of Jablonski, Dudley and John and
Jane Doe, who have not been served with process. (Dkt. Entry 32.)
In conjunction with their motion Defendants filed a statement of
fact, supporting brief and exhibits. (Dkt. Entries 35 and 36.)
Defendants contend Blair-Bey's FOIA claim should be dismissed as
moot as he received a list of the Commission's members and
hearing examiners in September of 2004. Likewise, they assert
Plaintiff fails to state a claim under the Privacy Act and is not
entitled to monetary damages. Defendants argue that the remainder
of Blair-Bey's action sounds in habeas, precluding the relief
requested. Alternatively, they argue that Plaintiff's claims lack
substantial merit. Plaintiff did not proffer a formal brief in opposition to
Defendants' motion, or file a response to Defendants' Statement
of Facts. However, on November 19, 2005, Plaintiff did file a
Motion for Partial Summary Judgment (Dkt. Entry 39), in which he
cites to Defendants' filings and arguments.*fn1 On December
16, 2004, Blair-Bey filed a 22-page brief, responding to
Defendants' arguments and asserting that he is entitled to
judgment in his favor on the liability of Defendants. (Dkt. Entry
Having carefully considered the parties' submissions, I find
that Blair-Bey's FOIA claim is moot, his Privacy Act claim is
meritless, and his challenges to the parole decisionmaking
process and decision to set his parole hearing date in September
of 2007 also lack merit. Accordingly, Defendants' Summary
Judgment Motion will be granted.
Blair-Bey has been litigating adverse parole determinations in
the federal court system for over a decade. This present action
concerns the latest adverse decision, reached in May of 2003. The pertinent background leading up to the latest
denial of parole was set out in Blair-Bey v. Mendez, Civ. A.
No. 3:CV-02-0052, slip op. at 2-9 (M.D. Pa. April 7, 2003),
cert. of appealability denied, No. 03-2414 (3d Cir. March 4,
2004), and, without references to the record of the earlier case,
is restated here:
Blair-Bey had a very troubled youth. See Blair-Bey v.
Quick, 151 F.3d 1036, 1037-38 (D.C. Cir. 1998) ("Blair-Bey
I".) By the age of 15, he had committed a number of serious
crimes, including rape, receiving stolen property, and
destruction of property. In 1975, at the age of sixteen, while on
escape from a juvenile detention facility where he had been
incarcerated for rape, Blair-Bey committed a murder. On February
13, 1976, Blair-Bey was sentenced by the District of Columbia
Superior Court to ten years to life for murder in the second
degree. Blair-Bey is currently serving this sentence.
In 1980, at the age of 21, while incarcerated on his first
murder conviction, Blair-Bey killed another inmate by stabbing
him in the back with a knife after the victim confronted him the
day earlier requesting the return of a sweater, allegedly stolen
from the decedent by Blair-Bey. After pleading guilty to second
degree murder in the United States District Court for the Eastern
District of Virginia, Blair-Bey was sentenced to a consecutive
term of ten years to life. He was then transferred to a federal
facility to begin serving his federal sentence.
The United States Parole Commission ("Commission") held
Petitioner's initial parole hearing in 1991. Because Blair-Bey
was serving a combined D.C. and federal sentence, or a "mixed sentence," pursuant to 28 C.F.R. § 2.65, the
Commission first determined an amount of time to be served on the
federal sentence, and then specified a date on which the D.C.
parole guidelines would be applied. The Commission decided that
the District of Columbia guidelines would be applicable as of
October 15, 1991, after Blair-Bey had served 200 months for his
Upon completion of his federal sentence, Blair-Bey was
transferred to a D.C. prison. In October 1993, a Commission
Examiner, "apparently in error," conducted a parole hearing,
denied parole and set a rehearing date in 24 months, or in
September of 1995. Blair-Bey I, 151 F.3d at 1038. Before the
Commission formally adopted these recommendations, the Commission
and the D.C. Board of Parole ("Board") determined that the Board,
and not the Commission, had jurisdiction over Blair-Bey. Id.
The Board then conducted a de novo initial parole hearing,
applying regulations that were promulgated in 1987. Finding
Blair-Bey ineligible for parole under the 1987 regulations, the
Board denied parole and set a rehearing date of October 29, 1998,
five years from the initial Board parole hearing. Id. The
Board, unlike the Commission, considered Petitioner's "numerous
juvenile offenses in making its calculations." Id. The Board
also considered his "extremely serious negative institutional
behavior" and noted that, for the same reasons, the five-year
set-off*fn3 was outside of the usual twelve month set-off. Id.
Blair-Bey then filed "a habeas corpus petition in the D.C.
Superior Court claiming the [Board] acted illegally in denying
him parole and establishing the five-year set-off." Id. The
D.C. Superior Court dismissed the petition sua sponte, and
the D.C. Court of Appeals summarily affirmed.
Blair-Bey then filed a § 2241 petition in federal district
court, claiming that the denial of parole lacked a rational basis
and that application of the 1987 regulations violated the ex
post facto clause of the United States Constitution,
Art. I, § 10. The petition was again summarily dismissed based on lack of
both jurisdiction and substantive merit. Blair-Bey I, 151 at
1038. Blair-Bey appealed the dismissal. The Circuit Court of
Appeals, after dispensing with the jurisdictional bar, addressed
the merits of the two claims raised by Blair-Bey. The appeals
court held that the D.C. parole guidelines "did not create a
liberty interest, because they do not limit which factors the
[Board] can consider, or how to weigh them." Id. at 1047-48.
Thus, the Board's identification of "some" basis for deviating
from the normal twelve month set-off period, and assigning a five
year set-off for Blair-Bey, did not violate due process. As to
the ex post facto claim, the court ruled that Blair-Bey
should be afforded the opportunity to establish a factual
foundation for his assertion that the 1987 regulations served to
increase the punishment for his 1976 murder. Id. at 1049-50.
The appellate court, on October 16, 1998, declined to reconsider
its direction to remand the matter for consideration of the ex
post facto issue. 159 F.3d 591 (D.C. Cir. 1998).
In August of 1998, while the petition for rehearing was still
pending with the Court of Appeals, Blair-Bey received a parole
review hearing. Although it was the Board that had made the
decision at issue in the Court of Appeals' ruling, it was the
Commission that conducted the review hearing.*fn4 Using the
D.C. 1987 parole guidelines, Commission Hearing Examiner Charles
Lyons gave Petitioner a "point assigned grid score," or "PAGS,"
of 2, but adjusted this number by one after considering
Blair-Bey's "positive program adjustment and participation,"
giving him an adjusted PAGS of 1, "which indicates parole could
be granted." But the Hearing Examiner did not recommend parole,
finding Blair-Bey "is a more serious risk ...