United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Jamaal Lewis, Sr. is an inmate confined at the United States
Penitentiary (“USP”)-Big Sandy in Inez, Kentucky.
Proceeding without an attorney, Lewis has filed a pro se
civil rights complaint regarding his parole eligibility. [R.
18] Defendant has filed a motion to dismiss Lewis's
complaint pursuant to Fed.R.Civ.P. 12(b) for failure to state
a claim. [R. 25] Lewis has filed a response [R. 27] and
Defendant has filed a reply [R. 28] Thus, this motion has
been fully briefed and is ripe for review.
October 6, 2006, Lewis was sentenced by a Department of the
Army, General Court-Martial to a life term of confinement
with the possibility of parole for his convictions of the
following: 1) attempted robbery in violation of 10 U.S.C.
§ 880; 2) murder in violation of 10 U.S.C. § 918;
and 3) aggravated assault with a firearm in violation of 10
U.S.C. § 928. [R. 18, 25-1] While he was serving this
sentence, Lewis was again court martialed and sentenced on
December 16, 2011 to a 4-year term of confinement for his
convictions of: 1) willfully disobeying a superior
non-commissioned officer in violation of 10 U.S.C. §
890; 2) mutiny in violation of 10 U.S.C. § 894; 3)
damaging military property in violation of 10 U.S.C. §
908; 4) assault and battery in violation of 10 U.S.C. §
928; and 5) kidnapping in violation of 10 U.S.C. § 934.
[R. 18-4, 25-1]
Lewis began serving his sentence in Army custody at the
United States Disciplinary Barracks (“USDB”) at
Ft. Leavenworth, Kansas, he was transferred to the custody of
the federal Bureau of Prisons (“BOP”) in July
2012. [R. 18, 25-1] On October 30, 2014, Lewis applied to the
United States Parole Commission (“USPC”) for an
initial parole hearing. [R. 25-1] Lewis states that the BOP
initially calculated his parole eligibility date as September
6, 2015, which coincided with his service of 10 years on his
life sentence. [R. 18; 25-1 at p. 3] According to Lewis,
although he signed paperwork to appear before the USPC, his
case manager at FCI-Hazelton did not turn in the paperwork
because she did not believe that Lewis' parole
eligibility date was correct. [R. 18] According to
Defendant's motion, as the USPC prepared to conduct
Lewis' parole hearing, a USPC employee contacted USDB to
obtain Lewis' records, at which time a USDB employee
informed the USPC employee that, because Lewis was serving a
life sentence, he should not be eligible for parole until he
has served 20 years of his life sentence. [R. 25; 25-1 at p.
11] Thus, according to the USDB employee, Lewis' parole
eligibility date should be changed to September 5, 2025.
the BOP changed its computation to correct Lewis' parole
eligibility date to September 5, 2025. [R. 18-4 at p. 4]
Lewis claims that the BOP is now wrongfully denying him
parole privileges because it is enforcing an allegedly
inaccurate parole eligibility date. Lewis filed this lawsuit
as a civil rights action seeking declaratory judgment and
injunctive relief. [R. 1]
it is not entirely clear that Lewis may raise his claims in a
civil rights action filed pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
To the extent that Lewis' civil complaint seeks an
earlier or immediate release from physical custody, his only
remedy is to seek a writ of habeas corpus; he may not use a
civil action to directly or indirectly undermine or impugn
the validity of his criminal conviction. A habeas corpus
proceeding is the only mechanism available for him to do so.
Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). In
Wilkinson v. Dotson, 544 U.S. 74 (2005), the United
States Supreme Court held that a state prisoner may challenge
the constitutionality of state parole procedures in
an action filed under 42 U.S.C. § 1983 seeking
declaratory and injunctive relief and, accordingly, was not
limited to seeking relief exclusively under the federal
habeas corpus statute. Id. However, Lewis' claim
is that the BOP's enforcement of the September 2025
parole eligibility date violates Lewis' rights under 10
U.S.C. § 858 and 18 U.S.C. § 4205(a). Indeed, his
amended complaint makes no reference to his constitutional
rights at all.
even assuming that Lewis' claims do somehow implicate his
constitutional rights, they are without merit. A motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. Gardner v.
Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views
the complaint in the light most favorable to the plaintiff
and accepts as true all ‘well-pleaded facts' in the
complaint. D'Ambrosio v. Marino, 747 F.3d 378,
383 (6th Cir. 2014). Because Lewis is proceeding without the
benefit of an attorney, the Court reads his complaint to
include all fairly and reasonably inferred claims. Davis
v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
Department of Defense (“DOD”) policy regarding
parole eligibility provides that “[i]n cases in which a
prisoner is convicted of an offense committed after February
15, 2000, and has been sentenced to confinement for life, the
prisoner must have served at least 20 years of
confinement” before being eligible for release on
parole. [R. 25-2 at p. 28, Attachment 2: Department of
Defense Instructions (DoDI) 1325.07, Enclosure 2, §
18(a)(2)(c) (March 11, 2013)] Lewis does not dispute that: 1)
he was sentenced by a military court after February 15, 2000;
and 2) he was sentenced to confinement for life. Thus,
pursuant to DOD policy, he must serve 20 years of confinement
before being eligible for parole.
does Lewis dispute that, had he remained in military custody
for the duration of his sentence, the DOD policy would
regarding parole eligibility would have applied to him and he
would not be eligible for release on parole until he had
served at least 20 years of confinement. However, according
to Lewis, after he was transferred to BOP custody, the USDB
ceased to be the controlling authority under 10 U.S.C.
§§ 4202, 4203 with respect to the determination of
his parole eligibility date. [R. 18 at p. 2] Thus, Lewis
argues that the BOP may not rely on the parole eligibility
date provided by the USDB (determined pursuant to the DOD
policy), but instead must apply the federal parole statutes
to determine his parole eligibility date. According to Lewis,
he should be eligible for parole after serving only 10 years
of his sentence in accordance with 18 U.S.C. §4205(a),
which provides that “[w]henever confined and serving a
definite term or terms of more than one year, a prisoner
shall be eligible for release on parole after serving
one-third of such term or terms or after serving ten years of
a life sentence or of a sentence of over thirty years, except
to the extent otherwise provided by law.” 18 U.S.C.
as noted by Defendant, § 4205 was repealed by the
Sentencing Reform Act of 1984, and since the repeal, only
applies in cases where the crimes were committed before
November 1, 1987, the effective date of the repeal.
See 18 U.S.C. §§ 4201 to 4218, Repealed,
Pub.L. 98-473, Title II, § 218(a)(5), Oct. 12, 1984, 98
Stat. 202718 U.S.C. § 4202. See also 18 U.S.C.
§ 3551. Since Lewis was sentenced by a military court in
2006, well after the federal parole statutes were repealed,
§ 4205 simply does not apply to him.
arguing that he is, nonetheless, entitled to have his parole
eligibility determined by § 4205, Lewis relies partly
upon 10 U.S.C. § 858(a), which provides that
a sentence of confinement adjudged by a
court-martial…may be carried into execution by
confinement…in any penal or correctional institution
under the control of the United States, or which the United
States may be allowed to use. Persons so confined in a penal
or correctional institution not under the control of one of
the armed forces are subject to the same discipline and
treatment as persons confined or committed by the courts ...