Michael D. Hurd , J R . v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2024 Decided August 5, 2025
No. 23-7176
M ICHAEL D. HURD , J R .,
APPELLANT
v.
DISTRICT OF C OLUMBIA ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00666)
Douglas Friend Gansler argued the cause for appellant.
With him on the briefs was John B. Howard Jr.
Caroline S. Van Zile, Solicitor General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellee. With her on the brief were Brian L. Schwalb,
Attorney General, Ashwin P. Phatak, Principal Deputy
Solicitor General, Carl J. Schifferle, Deputy Solicitor General,
and Sean Frazzette, Assistant Attorney General.
Before: R AO and P AN , Circuit Judges, and GINSBURG ,
Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge R AO .
R AO , Circuit Judge: Michael Hurd, Jr., was mistakenly
released from prison after serving 15 months of a 42-month
sentence. The District of Columbia Department of Corrections
discovered this mistake four years later when Hurd was serving
a sentence for a different crime. The Department of Corrections
detained Hurd so that he could serve the remaining 27 months
of his original sentence. Hurd alleges his reincarceration
following an erroneous release was a violation of his
substantive and procedural due process rights, and he seeks
damages from the District of Columbia under 42 U.S.C.
§ 1983. The district court granted summary judgment to the
District on both claims. We affirm.
I.
In 2005, Hurd pled guilty to one felony firearm charge and
four misdemeanor firearm and drug possession charges. For the
felony charge, he was sentenced to 15 months of imprisonment
and a three-year term of supervised release. For the
misdemeanor charges, Hurd was sentenced to an aggregate 27
months of imprisonment. Hurd was first placed in the custody
of the Federal Bureau of Prisons to serve his felony sentence.
When that sentence was complete, the Bureau of Prisons was
supposed to transfer Hurd to the D.C. Jail to serve his
misdemeanor sentence. Instead of transferring Hurd, however,
the Bureau of Prisons mistakenly released him. Hurd
completed his three years of federal supervised release in July
2010.
Less than one year later, he pled guilty to misdemeanor
possession of marijuana, for which he was sentenced to nine
days of incarceration in the D.C. Jail. While preparing to
release Hurd, a Department of Corrections employee
discovered that Hurd had never served the misdemeanor

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portion of his 2006 sentence. The employee checked with his
supervisor and confirmed that the appropriate action was to
continue to detain Hurd to serve the remainder of his sentence.
The Department of Corrections informed Hurd that his release
from prison was erroneous and that he still had 27 months to
serve for the 2006 misdemeanor convictions. Hurd was not
provided a hearing to contest his reincarceration.
Soon thereafter, Hurd filed a petition for a writ of habeas
corpus in D.C. Superior Court. He argued his 2006 sentence
was satisfied when he was released from federal prison and
discharged from supervised release. The court denied the
petition, and Hurd appealed. Before the appeal could be heard,
he finished serving the remainder of his sentence and was again
released, at which point his appeal was dismissed as moot.
In May 2015, Hurd sued the District under 42 U.S.C.
§ 1983, alleging wrongful deprivation of liberty under the Fifth
Amendment. Hurd maintained that the District deprived him of
substantive due process “[b]ecause the actions of the District
officials were egregious” and their “treatment of [him]
shock[ed] the conscience.” Hurd also claimed a violation of
procedural due process because, by reincarcerating him
without notice or a hearing, the District had followed “a custom
and practice of over-detention of prisoners.”
This is the third time this court has heard an appeal of
Hurd’s section 1983 action, and we need not recount the full
procedural history again.1 In the most recent remand, the
1 In Hurd’s first appeal, we reversed the district court’s dismissal of
Hurd’s complaint, holding that his section 1983 action was not
precluded by his prior habeas petition because damages were not
available in his habeas proceeding and, further, that a prisoner
released from prison early may have a protected liberty interest in
certain circumstances. Hurd v. District of Columbia, 864 F.3d 671,

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district court addressed the merits of Hurd’s underlying
constitutional claims. The court granted summary judgment to
the District on the substantive due process claim, concluding
that requiring Hurd to serve a lawfully imposed sentence did
not “shock the conscience.” The court also granted summary
judgment to the District on Hurd’s procedural due process
claim. The court concluded, inter alia, that even if Hurd had a
liberty interest that entitled him to a hearing before his
reincarceration, his claim for damages was barred by the
Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477
(1994). Hurd now appeals.
This court has jurisdiction under 28 U.S.C. § 1291. We
review grants of summary judgment de novo. Summary
judgment is appropriate only if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
II.
Hurd brings his Fifth Amendment due process claims
under 42 U.S.C. § 1983, which provides a cause of action for
individuals whose federal constitutional rights have been
violated by a state or municipal actor. To succeed on his section
1983 claim against the District, Hurd must prove both “a
violation of his rights under the Constitution or federal law,”
679–82 (D.C. Cir. 2017). On remand, the district court granted
summary judgment to the District on the separate ground that Hurd
had failed to establish a municipal custom or policy as required for
liability under section 1983. Hurd v. District of Columbia, 427 F.
Supp. 3d 21, 30–34 (D.D.C. 2019). In Hurd’s second appeal, we
again reversed, finding a genuine dispute of material fact as to
whether the District had an unconstitutional policy that caused
Hurd’s reincarceration without due process. Hurd v. District of
Columbia, 997 F.3d 332, 337, 341 (D.C. Cir. 2021).

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and “that the [District’s] custom or policy caused the
violation.” Warren v. District of Columbia, 353 F.3d 36, 38
(D.C. Cir. 2004). Because Hurd has not demonstrated an
underlying violation of his substantive due process rights and
his procedural due process claim is barred by Heck v.
Humphrey, we affirm the district court’s grant of summary
judgment.
A.
Hurd first claims that the District violated his substantive
due process rights because his abrupt reincarceration after
several years at liberty was an egregious, conscience-shocking
act.
As relevant here, the Supreme Court has held that the
substantive component of the Due Process Clause “bars certain
arbitrary, wrongful government actions regardless of the
fairness of the procedures used to implement them.” Foucha v.
Louisiana, 504 U.S. 71, 80 (1992) (citation omitted). The
Constitution, however, does not “impos[e] liability whenever
someone cloaked with state authority causes harm.” County of
Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Instead, only
action that is “so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience” qualifies as
“arbitrary in the constitutional sense.” Id. at 847 n.8; id. at 846
(cleaned up). “[N]egligently inflicted harm is categorically
beneath the threshold of constitutional due process.” Id. at 849.
“It is, on the contrary, behavior at the other end of the
culpability spectrum that would most probably support a
substantive due process claim; conduct intended to injure in
some way unjustifiable by any government interest is the sort
of official action most likely to rise to the conscience-shocking
level.” Id.

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While our court has not previously considered a
substantive due process challenge to erroneous release and
subsequent reincarceration, the courts of appeals that have
addressed the issue since Lewis have uniformly concluded that
reincarceration in these circumstances generally does not
violate substantive due process. See Hawkins v. Freeman, 195
F.3d 732, 746–47 (4th Cir. 1999) (en banc); Bonebrake v.
Norris, 417 F.3d 938, 943 (8th Cir. 2005); Vega v. United
States, 493 F.3d 310, 317 (3d Cir. 2007); González-Fuentes v.
Molina, 607 F.3d 864, 885–86 (1st Cir. 2010); Hughes v.
Oliver, 596 F. App’x 597, 599 (10th Cir. 2014). As the en banc
Fourth Circuit explained, the “erroneous release … of
prisoners is a surprisingly widespread and recurring
phenomenon,” and “the routine, seemingly invariable,
executive practice has been to incarcerate” the individual once
the error is discovered. Hawkins, 195 F.3d at 742–43 (referring
to Gabriel J. Chin, Getting Out of Jail Free: Sentence Credit
for Periods of Mistaken Liberty, 45 Cath. U. L. Rev. 403
(1996)). Because these administrative errors are “too
frequently made ... to raise any presumption of arbitrariness ‘in
the constitutional sense,’” rectifying the error by requiring a
prisoner to serve the remainder of a lawful sentence does not
“shock the conscience.” Id. at 744 (quoting Lewis, 523 U.S. at
846).
We join our sister circuits in holding that there ordinarily
is no violation of substantive due process when the government
reincarcerates a person who was erroneously released from
prison before completion of his sentence. See Hawkins, 195
F.3d at 746; Bonebrake, 417 F.3d at 943. That general principle
applies here where Hurd’s initial release was the result of an
ordinary mistake by the Federal Bureau of Prisons. When the
Department of Corrections employee discovered a facially
valid judgment showing Hurd had not served the remainder of
his 2006 sentence, the employee contacted his supervisor to

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confirm that continued incarceration was the proper course of
action. The employee acted diligently to correct an error in the
enforcement of an unserved sentence. Hurd’s reincarceration in
these circumstances does not come close to a violation of
substantive due process.2
To support his claims, Hurd maintains that a mechanical
application of Lewis is inappropriate in this context and that
instead we should look to the reasoning of United States v.
Merritt, 478 F. Supp. 804 (D.D.C. 1979). Merritt was grounded
in a now outdated credit-for-time-at-liberty or “waiver of
jurisdiction theory,” a judicially created doctrine under which
the government could, through inaction, forfeit its authority to
reincarcerate a prisoner. Id. at 806. In Merritt, the court
explained that “when a prisoner is released prior to service or
expiration of his sentence through no fault or connivance of his
own, and the authorities make no attempt over a prolonged
period of time to reacquire custody,” the government may
“waive[] [its] jurisdiction” over him. Id. After such a waiver,
any subsequent reincarceration for the same sentence is without
authority and violates due process.
Merritt is of course not binding on this court, and we
decline to adopt its reasoning, which is irreconcilable with the
2 We have no occasion to consider whether in some extraordinary
circumstances an individual might be able to demonstrate that
reincarceration is “either a substantial infringement of state law
prompted by personal or group animus, or a deliberate flouting of the
law that trammels significant personal or property rights.” Elkins v.
District of Columbia, 690 F.3d 554, 562 (D.C. Cir. 2012) (cleaned
up). There are no such extraordinary circumstances here, and nothing
in the record suggests the District acted with animus or deliberate
indifference to the law.

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Supreme Court’s subsequent decision in Lewis.3 Merritt held
that government action amounting to “more than simple
neglect” could trigger a constitutional violation. 478 F. Supp.
at 807. This standard is squarely at odds with the Supreme
Court’s holding in Lewis that “negligently inflicted harm is
categorically beneath the threshold of constitutional due
process.” Lewis, 523 U.S. at 849. The framework from Merritt
is built on degrees of carelessness, but the Lewis standard
requires a different showing entirely: an abuse of power. As the
Fourth Circuit explained when rejecting this same theory, even
a higher standard of grossly negligent inaction, “fails to
embody the full stringency” of Lewis’s “shocks the
conscience” test because to shock the conscience, “an
executive act must be not only ‘wrong,’ but egregiously so by
reason of its abusive or oppressive purpose and its lack of
justification by any government interest.” Hawkins, 195 F.3d
at 743–44 (reviewing history and demise of the doctrine
espoused in Merritt). Merritt’s much less stringent standard is
plainly foreclosed by Lewis.
Moreover, Merritt’s vague, multi-factor test, which hinges
on an undefined “prolonged period of time” at liberty, is highly
indeterminate and fails to provide government actors with clear
notice of what conduct is prohibited. 478 F. Supp. at 806. Such
indeterminacy would cause “standards of official conduct … to
remain uncertain, to the detriment both of officials and
individuals.” Lewis, 523 U.S. at 841 n.5. The “shocks the
conscience” test serves as a crucial threshold to preserve the
3 In a previous appeal we merely assumed without deciding that the
Merritt test applied for purposes of reviewing the district court’s
application of that test. Hurd, 864 F.3d at 686. We are not bound by
that assumption here.

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“constitutional proportions of constitutional claims, lest the
Constitution be demoted to … a font of tort law.” Id. at 847 n.8.
The District’s conduct does not rise to the conscience-
shocking level required to establish a violation of substantive
due process. Viewing the evidence in the light most favorable
to Hurd, his reincarceration to serve a lawful sentence was not
“arbitrary in the constitutional sense” and his substantive due
process claim fails. Id. at 846 (cleaned up).
B.
Hurd next contends the District violated his procedural due
process rights by reincarcerating him without notice and a
hearing. Hurd claims that he was prejudiced by this denial of
process because if he had been given a hearing, he could have
advanced several theories of overincarceration to show he was
entitled to release or, at a minimum, to a shorter period of
confinement. This alleged overincarceration, he contends,
entitles him to damages.
“A procedural due process claim consists of two elements:
(i) deprivation by state action of a protected interest in life,
liberty, or property, and (ii) inadequate state process.” Reed v.
Goertz, 143 S. Ct. 955, 961 (2023). An individual claiming a
liberty or property interest protected by the Due Process Clause
“must have a legitimate claim of entitlement to it.” Ky. Dep’t
of Corrections v. Thompson, 490 U.S. 454, 460 (1989). In
general, a person with a valid conviction lacks a protected
liberty interest in being free from confinement because “the
conviction, with all its procedural safeguards, has extinguished
that liberty right.” Greenholtz v. Inmates of Neb. Penal &
Correctional Complex, 442 U.S. 1, 7 (1979).
In a previous appeal of this case, we stated that “[a]
prisoner who is released from prison early does in certain

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circumstances have a protected liberty interest.” Hurd, 864
F.3d at 682. But we ultimately left open the questions of
whether a liberty interest exists in these circumstances or
whether such a liberty interest would require a pre-deprivation
hearing. We need not decide those questions here. Even
assuming arguendo that Hurd possessed a liberty interest, his
procedural due process claim is barred by Heck and is not
cognizable under section 1983.
The favorable-termination rule announced in Heck
provides that a plaintiff seeking damages under section 1983
for an “allegedly unconstitutional conviction or
imprisonment,” must first “prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal … , or
called into question by a federal court’s issuance of a writ of
habeas corpus.” 512 U.S. at 486–87. This rule prevents
“collateral attacks on criminal judgments through civil
litigation.” McDonough v. Smith, 139 S. Ct. 2149, 2156–57
(2019). If “a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence,”
and the sentence has not “already been invalidated,” the claim
“is not cognizable under [section] 1983.” Heck, 512 U.S. at
487.
Hurd’s claim for damages is entirely dependent on his
theories that he was overincarcerated.4 Even if one of those
legal theories were valid, a judgment in Hurd’s favor would
necessarily imply the invalidity of his confinement. Hurd
maintains that he is not challenging his original conviction or
4 As the district court explained, Hurd’s theories that the lack of a
pre-deprivation hearing prevented him from getting his affairs in
order and caused emotional distress were underdeveloped and
therefore forfeited.

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sentence, only his reincarceration. But this is a distinction
without a difference. The reincarceration was for the purpose
of serving his original, lawful sentence. To recover damages
for his confinement, Hurd must show that the original
sentence—or at least the duration of confinement imposed by
it—has been set aside. He has not done so. Indeed, his habeas
petition challenging the reincarceration was denied. Because
Hurd cannot satisfy the favorable termination requirement, his
claim is not cognizable under section 1983.5
* * *
Hurd was undoubtedly disadvantaged by his mistaken
release and subsequent reincarceration. But the Due Process
Clause does not impose liability whenever the government
causes some harm, and it does not prevent the government from
reincarcerating an individual to serve a lawful sentence. For the
foregoing reasons, we affirm the judgment of the district court.
So ordered.
5 Hurd cannot sidestep Heck’s favorable-termination rule by
requesting nominal damages. Edwards v. Balisok, 520 U.S. 641, 648
(1997) (explaining that a claim for damages attributable to an
unconstitutional procedure, even if only nominal damages, is not
cognizable under section 1983 if it necessarily implies the invalidity
of the confinement).

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