Summary
concluding that Privacy Act claim stemming from purportedly inaccurate information in BOP records resulting in assignment to higher security level concerns prison conditions and, therefore, prisoner plaintiff must exhaust Administrative Remedy Program procedures before filing Privacy Act suit
Summary of this case from Djenasevic v. Executive U.S. Attorney's OfficeOpinion
Civil Action No. 04-1845 (ESH).
July 20, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment. Having reviewed defendants' motion, plaintiff's opposition, and the entire record of the case, the Court grants the motion to dismiss.
BACKGROUND
Plaintiff is a federal prisoner currently incarcerated at the United States Penitentiary in Coleman, Florida ("USP Coleman"). Compl. at 2. Although plaintiff sets forth six separate counts in the complaint, a fair reading of the pleading makes clear that he brings this action against the United States Department of Justice, of which the Federal Bureau of Prisons ("BOP") is a component, under the Privacy Act, 5 U.S.C. § 552a.
While incarcerated at the Federal Correctional Institution in Talladega, Alabama ("FCI Talladega"), plaintiff and another inmate allegedly planned an escape. Compl. at 4; see Pl.'s Opp., Ex. O (Request for Transfer/Application of Management Variable dated August 16, 2002). Although investigators found evidence sufficient to suggest plaintiff's participation in an escape effort, there was not sufficient evidence to support disciplinary action against him. Compl. at 5 Ex. B. BOP staff sought and obtained approval for plaintiff's transfer to a maximum security facility. Id. In addition, plaintiff was placed in the High Accountability Monitoring Program, which required him to report to a corrections officer at 2-hour intervals. Id. at 6 Ex. C.
The Court refers to plaintiff's Memorandum of Points and Authorities in Support of Plaintiff['s] Reply To Defendants['] Motion to Dismiss Or, To The Defen[d]ants['] Motion for Summary Judgment [Dkt. #18] as "Pl.'s Opp."
Plaintiff alleges that FCI Talladega staff placed false information in his institutional file regarding an escape plot. Compl. at 8-9. Defendants' reliance on this false information, plaintiff contends, caused BOP staff to make adverse determinations regarding his custody level and vocational training opportunities, among other things. See id. at 11. Plaintiff demands amendment and expungement of the records and monetary damages. Id. at 13.
The Court presumes that plaintiff specifically is referring to an investigative report, dated July 18, 2002, which BOP maintains in the inmate's Central File. See Compl., Ex. A (redacted excerpt of investigative report containing plaintiff's statement); Def.'s Mot., Ex. 2 (hereinafter "First Greene Decl."), ¶¶ 7-8. Both parties refer to this report, but it is not part of the record of this case.
I. ANALYSIS
1. Standard of Review
A. The Court Will Grant Defendants' Motion to Dismiss.
A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The ruling on a motion under Rule 12(b)(6) does not test a plaintiff's likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The factual allegations of the complaint are presumed to be true and are construed liberally in plaintiff's favor. See, e.g., United States v. Phillip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2001). The Court is not obligated, however, to draw factual inferences that are not supported by the facts alleged. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
2. The complaint fails to state a cause of action under the Privacy Act against the individual defendants.
Generally, the Privacy Act provides a means by which an individual may access a federal government agency's records pertaining to him, and may request amendment of such records. See 5 U.S.C. § 552a(d). An individual may bring a civil action against an agency which refuses access to its records, refuses to amend its records upon request, or fails to maintain its records with the requisite level of accuracy and completeness. See 5 U.S.C. § 552a(g); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992) (subsection (g) provides civil remedies for violations of accuracy provision of subsection (e)(5)).
The proper defendant to a Privacy Act suit is the agency, in this case, the Department of Justice of which BOP is a component. See 5 U.S.C. § 552a(g) (jurisdiction only to enjoin an agency or hold agency liable for damages). The Privacy Act does not authorize a suit against subordinate agency officials. Armstrong v. Bureau of Prisons, 976 F. Supp. 17, 23 (D.D.C. 1997), aff'd, No. 97-5208, 1998 WL 65543 (D.C. Cir. Jan. 30, 1998). The complaint, then, fails to state a Privacy Act claim against defendants McKelvy, Jenkins, Smith and Jordan.
3. The complaint fails to state cognizable constitutional claims or claims under the Administrative Procedure Act.
Even if plaintiff has raised cognizable constitutional claims, the Privacy Act is the proper vehicle for their resolution. All the constitutional violations arise from BOP's alleged maintenance of and reliance upon inaccurate records, and thus "are encompassed within the Privacy Act's comprehensive remedial scheme." Griffin v. Ashcroft, No. 02-5399, 2003 WL 22097940, *2 (D.C. Cir. Sept. 3, 2003) (per curiam); Chung v. U.S. Dep't of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003) (affirming dismissal of constitutional claims). Similarly, plaintiff's claim under the Administrative Procedure Act fails. Because there is an adequate remedy available to plaintiff under the Privacy Act, he cannot resort to the APA for relief. See Mittleman v. U.S. Treasury, 773 F. Supp. 442, 448-49 (D.D.C. 1991) (dismissing APA claim in light of statutory scheme and remedy available under Privacy Act).
As defendants correctly argue (Def.'s Mot. at 10; Def.'s Reply at 5-6), plaintiff cannot raise a procedural due process claim under Supreme Court caselaw, because none of the actions plaintiff complains of "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. 472, 483-84 (1995); see also Wilkinson v. Austin, 125 S. Ct. 2384, 2394 (2005). Moreover, there is absolutely no legal basis for any of plaintiff's other constitutional claims under the First, Fifth, or Sixth Amendments.
Even if plaintiff's Bivens claims against the individual defendants were cognizable, this Court lacks personal jurisdiction over them. Defendants McKelvey, Jenkins, Smith and Jordan are BOP officials at USP Coleman. None is alleged to reside or to conduct business in the District of Columbia. See First Greene Decl., ¶ 9. Nor have these defendants been served personally. See, e.g., Meyer v. Federal Bureau of Prisons, 940 F. Supp. 9, 12 (D.D.C. 1996) (dismissing BOP employee sued in individual capacity for lack of jurisdiction); Huskey v. Quinlan, 785 F. Supp. 4, 5-6 (D.D.C. 1992) (dismissing individual defendant for lack of personal delivery of the summons and complaint as is required under Fed.R.Civ.P. 4(d)(1)).
4. Plaintiff fails to state a Privacy Act claim upon which relief can be granted for amendment or expungement of the relevant records.
An agency may promulgate regulations to exempt any system of records within the agency from any part of the Privacy Act, except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i), if the system of records is:
maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including . . . correctional, probation, pardon, or parole authorities, and which consists of . . . reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.5 U.S.C. § 552a(j)(2) (emphasis added). Pursuant to this authority, the BOP exempted the Inmate Central Record System (JUSTICE/BOP-005) from the Privacy Act. See 28 C.F.R. § 16.97(a)(4). Records maintained in BOP's Inmate Central Record System, including plaintiff's central file, are exempt from the Privacy Act's amendment provisions. See White v. United States Probation Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (exemption from Privacy Act amendment provision barred plaintiff from seeking amendment of presentence report); Sellers, 959 F.2d at 309 (citing Deters v. United States Parole Comm'n, 85 F.3d 655, 658 n. 2 (D.C. Cir. 1996)). Injunctive relief, then, is not available. See Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997).
The investigation report relating to plaintiff's alleged escape plot is maintained by BOP in plaintiff's Central File. First Greene Decl., ¶ 7.
5. Plaintiff failed to exhaust administrative remedies as to his Privacy Act damages claim
Citing 42 U.S.C. § 1997e(a), defendants argue that plaintiff's failure to exhaust administrative remedies is grounds for dismissal of any remaining Privacy Act damages claim. This provision of the Prison Litigation Reform Act (" PLRA") states:
No action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a).
Exhaustion is normally not required for damages actions under the Privacy Act, 5 U.S.C. § 552a(g)(1)(C). See, e.g., Nagel v. HEW, 725 F.2d 1438, 1441 n. 2 (D.C. Cir. 1984). However, in the instant context the PLRA imposes additional procedural requirements with respect to prisoners.
There is no doubt that plaintiff's Privacy Act claim relates to prison conditions. The Supreme Court has identified two basic types of prisoner suits: "(1) those challenging the fact or duration of confinement itself; and (2) those challenging the conditions of confinement." Porter v. Nussle, 534 U.S. 516, 526 (2002) (internal quotation marks and citations omitted). Section 1997e's exhaustion requirement applies to the latter, for the Supreme Court has read the exhaustion requirements broadly to include "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532. Here, plaintiff contends that, as a direct result of the purportedly inaccurate information in defendants' records that he challenges via the Privacy Act, he has suffered injury by being assigned improperly to high levels of custody and to the High Accountability Monitoring Program. See Compl. ¶¶ 33-39; see also Def.'s Ex. 7 at 15 (describing Accountability Program procedures). This falls well within the broad scope of "prison conditions" claims to which § 1997e(a)'s exhaustion requirement applies. "Prison intrusions on a prisoner's privacy, legitimate or not, are obviously prison conditions." Krilich v. Fed. Bureau of Prisons, 346 F.3d 157, 159 (6th Cir. 2003) (holding also that Administrative Procedure Act claim concerning purported illegality of prison drug detection program not submitted for notice and comment was a "prison conditions" claim subject to § 1997e(a)).
Further, administrative remedies required by § 1997e to be exhausted need not provide for the type of relief sought by the prisoner. See Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) (holding that a claim for money damages must proceed through administrative grievance mechanisms even if they do not provide for damages) ("an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues"). Here, defendants provide for a three-step administrative remedy process if informal efforts to resolve a grievance fail. First, a prisoner must file a Request for Administrative Remedy (a "BP-9") at the institution where he is held. If that request is denied, he may appeal to the applicable Regional Office. If that office denies the petitioner relief, he may finally appeal to the BOP Central Office's General Counsel. See 28 C.F.R. § 542.10, et seq. See also First Greene Decl., ¶ 4.
This administrative grievance process is available "to process any request or appeal related to an inmate's conditions of confinement under the Administrative Remedy Program. . . . [It] provide[s] the inmate with maximum opportunity to seek review of any issue related to his or her confinement." See BOP Program Statement 1330.13 (Aug. 6, 2002) (italics added). A prisoner may thereby lodge "complaints pertaining to information contained in [defendants'] systems of records." 28 C.F.R. § 16.97(i). Only where, during the course of such administrative review, defendants determine that a prisoner has raised an issue that cannot be resolved through the BOP Administrative Remedy Program will the matter be referred to the statutory procedures applicable to certain Privacy Act claims. 28 C.F.R. § 542.10(c). See also Porter, 534 U.S. at 524 ("All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." (citations and internal quotation marks omitted)).
Thus, because Reid's Privacy Act claim concerns prison conditions and because defendants' Administrative Remedy Program was "available" to consider plaintiff's claims, the BOP process must have been properly exhausted. This, however, plaintiff failed to do.
Defendants concede that plaintiff properly exhausted his claim that he was wrongfully assigned to the High Accountability Monitoring Program. However, any basis for plaintiff's Privacy Act damages claim, which requires willful or intentional government action in maintaining inaccurate records about plaintiff, see 5 U.S.C. § 552a(g), is nowhere to be found in those exhausted complaints. Rather, in his initial complaint to the Warden, plaintiff focused not on BOP records, but rather contended that defendants denied him due process by placing him in the High Accountability Monitoring Program without a hearing. He argued that the program itself was punitive, and he sought two particular forms of relief: 1) release from participation in the Accountability Program, and 2) information concerning Accountability Program procedures. Def.'s Ex. 5 (plaintiff's BP-9 appeal to Warden received 1/15/03). The Warden granted in part and denied in part plaintiff's requests, providing him with information about the Program, but refusing to release plaintiff from participation in it, because he had been found to have formulated an escape plan. Id. (Warden's 1/28/03 response). Plaintiff appealed this denial to both the BOP Regional Director, and to the National Inmate Appeals Administrator, who deemed the appeals procedurally proper but denied plaintiff's request to be removed from the Accountability Program. Thus, the only exhausted complaint brought by plaintiff concerns the purported denial of due process in designating him for participation in the Program, but as noted supra in note 3, plaintiff cannot, as a matter of law, establish a due process claim. Moreover, plaintiff did not even mention the basis for his damages claim.
Plaintiff did lodge various other administrative complaints, but each of these was rejected for procedural reasons. See Def.'s Reply, Ex. 8 (Second Greene Decl.), ¶ 4. Plaintiff's BP-9 complaint to the Warden was rejected because it addressed issues that had not been raised through the informal process, and the Warden therefore directed plaintiff to resubmit his "complaint and request for remedy" wherein he should raise only issues that had been addressed informally. See Compl., Ex. F (Administrative Remedy Rejection Notice dated 12/6/02). Rather than complying with this directive and resubmitting his complaint in proper form, plaintiff instead appealed this procedural rejection all the way to the National Administrator. At each level, plaintiff added new claims to his appeals, including a Privacy Act and related allegations raised for the first time at the National level, but BOP officials consistently rejected these appeals on procedural grounds because plaintiff had not complied with the requirements of the BOP Administrative Remedy Program. See, e.g., id., Ex. H (Regional Director rejection of plaintiff's appeal) ("You must first file a BP-9 request through the institution for the Warden's review and response before filing an appeal at this level."). Therefore, plaintiff has not exhausted as to any of the many issues he raised in this alternative round of appeals, and the Court may not consider these questions, including plaintiff's Privacy Act claim.
This case is substantially similar to McGee v. Federal Bureau of Prisons, 118 Fed. Appx. 471, 476 (10th Cir. 2004). There, a prisoner also at USP Coleman invoked the Privacy Act to challenge defendants' purportedly incorrect classification of the plaintiff in prison files as a member of the Aryan Brotherhood ("AB"). Plaintiff claimed injury based on placement in a high level of custody, transfer to a more secure facility, and physical injuries he suffered in an attack when his AB designation became known among the prison population. Id. at 473-74. Plaintiff had lodged several administrative grievances, but had done so improperly by bypassing lower levels of review. Id. at 476. Further, plaintiff had failed to timely allege a violation of the Privacy Act, but instead generally challenged the purportedly incorrect AB classification. Id. n. 2. The circuit court affirmed the dismissal without prejudice of the Privacy Act claim for failure to exhaust as required by § 1997e(a).
Likewise, here plaintiff failed to exhaust his Privacy Act damages claim, and it is therefore dismissed without prejudice.
The Court notes that even if plaintiff's claim survives, he will face "daunting problems of proof. . . . In order to prevail, he will have to establish, not only that the records were inaccurate [— and a record that accurately sets forth observations made and opinions held, is an accurate record, even if the observations are faulty and the opinions disputed], but that it was the inaccuracy of the records — rather than the underlying events — that caused his alleged injury." Murphy v. United States, 121 F. Supp. 2d 21, 28 (D.D.C. 2000) (footnote consolidated into text). See also Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002) (to state a Privacy Act claim for monetary damages, "a plaintiff must assert that an agency failed to maintain accurate records, that it did so intentionally or willfully, and consequently, that an 'adverse' 'determination [wa]s made' respecting the plaintiff" (quoting 5 U.S.C. § 552a(g)(1)(C))).)
Accordingly, defendants' motion is granted, and, for the reasons stated, this case is hereby dismissed.
For the reasons stated above, it is hereby
ORDERED that defendant's motion to dismiss [Dkt. #14] is GRANTED; and it is
FURTHER ORDERED that defendant's motion for summary judgment [Dkt. #14] is DENIED AS MOOT; and it is FURTHER ORDERED that this case is DISMISSED WITHOUT PREJUDICE on exhaustion grounds.
SO ORDERED.