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Kennedy v. United States Parole Commission

United States District Court, Fourth Circuit

August 23, 2013

MICHAEL E. KENNEDY,
v.
UNITED STATES PAROLE COMMISSION, et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Now pending before the court is a motion to dismiss filed by the United States Parole Commission ("Commission"), and Parole Commissioners Michael Fulwood, Jr., Cranston J. Mitchell, Patricia K. Cushwa, and Patricia Wilson Smoot (collectively, the "defendants") in this suit brought by pro se plaintiff Michael E. Kennedy ("Kennedy"). Kennedy alleges the defendants violated the Parole Commission and Reorganization Act of 1976 ("Parole Act"), 18 U.S.C. §§ 4201 et seq., the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-06, and his right to procedural due process under the Fifth and Fourteenth Amendments by failing to provide him with an in-person parole termination hearing. Kennedy seeks compensatory and punitive damages as well as an order compelling the Commission to hold a parole termination hearing.

BACKGROUND

On January 15, 1981, plaintiff Michael E. Kennedy was sentenced to a life term of imprisonment for murder while perpetrating rape and carnal knowledge of a female against her will. Kennedy was paroled from his sentence on January 25, 2000, and was to remain under parole supervision for the remainder of his sentence. (ECF No. 7, Exs. 1 & 2.)

Because Kennedy was convicted before November 1, 1987, his parole is governed by the Parole Act, which provides that:

(1)(c)(1) Five years after each parolee's release on parole, the Commission shall terminate supervision over such parolee unless it is determined, after a hearing conducted in accordance with the procedures prescribed in section 4214(a)(2), that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law.
(2) If supervision is not terminated under subparagraph (1) of this subsection the parolee may request a hearing annually thereafter, and a hearing, with procedures as provided in subparagraph (1) of this subsection shall be conducted with respect to such termination of supervision not less frequently than biennially.

18 U.S.C. § 4211 (emphasis added).[1]

On May 9, 2005, the Commission conducted a five-year parole termination hearing pursuant to § 4211(1)(c)(1). They ordered supervision to continue as they found a likelihood that Kennedy would engage in conduct violating criminal law. (ECF No. 7, Ex. 5.)

On November 2, 2007, a second termination hearing was conducted, and supervision was again ordered to continue. While Kennedy appealed this decision, the National Appeals Board affirmed the continuance. (ECF No. 7, Exs. 7 & 8.)

On December 22, 2008, a third termination hearing was conducted, and supervision was again ordered to continue. On appeal, the National Appeals Board modified a factual finding by the Commission, but affirmed the continuance of supervision. (ECF No. 7, Ex. 11.)

On October 18, 2010, the probation officer supervising Kennedy sent a letter to the Commission requesting a hearing for early termination of parole. (ECF No. 7, Ex. 12.) On November 2, 2010, the probation office placed a call to the Commission to inform the Commission that Kennedy had registered to vote in the state of Maryland.[2] (ECF No. 7, Exhibit 13.) On February 9, 2011, the Commission received a report from Kennedy's probation officer requesting a hearing for early termination of parole. (ECF No. 7, Ex. 14.) On March 26, 2012, a Commission case analyst reviewed the case and recommended against termination of supervision, but also recommended that the case be scheduled for an early termination hearing. (ECF No. 7, Ex. 15.) On March 27, 2012, Parole Commissioner Cushwa ordered that supervision be continued. ( Id. )

On January 2, 2013, Kennedy filed this action. Subsequently, on January 10, 2013, Kennedy's probation officer received a letter that the Commission had ordered an early termination hearing. (ECF No. 7, Ex. 16.) On January 15, 2013, Kennedy indicated that he would not waive his right to a parole termination hearing and that it would be improper to hold a hearing given his pending Bivens and FTCA actions. Kennedy also requested the hearing be scheduled after the civil actions are adjudicated. (ECF No. 7, ...


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