Harrison v. Federal Bureau of Prisons et al

MOTION to Dismiss , MOTION for Summary Judgment

D.D.C.July 11, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) WILLIAM HENRY HARRISON, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00819-RDM ) FEDERAL BUREAU OF PRISONS, et al., ) ) Defendants. ) ____________________________________) DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT The United States Department of Justice, Federal Bureau of Prisons (“BOP”) , and the individually named Defendants who have been sued in their individual and official capacities, Warden Eric Wilson, Associate Warden Allia Lewis, Unit Manager Jennifer Vukelich, and Case Manager Luchia King, (collectively referred to as “Defendants”) , by and through the undersigned counsel, hereby move to dismiss and/or for summary judgment on claims brought by William Henry Harrison (“Harrison” or “Plaintiff”). Pro se Plaintiff should take notice that any factual assertions contained in the affidavits and other attachments in support of Defendants’ motion will be accepted by the Court as true unless the Plaintiff submits his own affidavits or other documentary evidence contradicting the assertions in the Defendants’ attachments. See Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992), Local Civil Rule 7(h) and Fed. R. Civ. P. 56(e), which provides as follows: “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may… consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). A proposed order granting Defendants the relief requested is Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 1 of 18 2 attached. July 11, 2016 Respectfully submitted, CHANNIING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 2 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) WILLIAM HENRY HARRISON, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00819-RDO ) FEDERAL BUREAU OF PRISONS, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT The United States Department of Justice, Federal Bureau of Prisons (“BOP”) , and the individually named Defendants who have been sued in their individual and official capacities, Warden Eric Wilson, Associate Warden Allia Lewis, Unit Manager Jennifer Vukelich, and Case Manager _Luchia King, (collectively referred to as “Defendants”) , by and through the undersigned counsel, hereby submits its Memorandum of Points and Authorities in support of its Motion to Dismiss and/or for Summary Judgment on claims brought by William Henry Harrison (“Harrison” or “Plaintiff”). Plaintiff, William Henry Harrison, commenced this action alleging that Defendants violated his First and Fifth Amendment constitutional rights, the Administrative Procedures Act and the Privacy Act, when BOP and the individual defendants placed Harrison in low security instead of minimum security camp due to the placement of a Public Safety Factor (“PSF”) while incarcerated at the FCC Petersburg facility from January to May 2016. Defendants move to dismiss or for summary judgment on several grounds. First, this Court lacks jurisdiction over Plaintiff’s claims because he failed to exhaust his administrative Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 3 of 18 2 remedies. Second, to the extent that Plaintiff appears to seek money damages from the Defendants in their official capacities pursuant to Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), that claim is barred by sovereign immunity. Finally, Plaintiff fails to state a claim that Defendants violated his constitutional rights when the conditions of his incarceration were not modified because he does not possess a liberty interest in not being labeled a potential sex offender and even if he did, the Defendants afforded him all of the due process required by the law. I. FACTUAL BACKGROUND Plaintiff William Henry Harrison was most recently incarcerated at the Federal Correctional Complex (“FCC”) in Petersburg, Virginia on a four month sentence. See Complaint (“Comp.”), (ECF No. 1) at ¶¶ 1, 8. Plaintiff was previously incarcerated from 2003 to 2008. Id. at ¶9. Plaintiff’s instant lawsuit stems from his most recent incarceration. Specifically, Plaintiff alleges that Defendants failed to place him at the camp facility under minimum custody “due to the placement of the Sex Offender PSF.” Id. at ¶17. Plaintiff further alleges that the Public -- Safety Factor as a sex offender was false. Id. at ¶9. Plaintiff filed an informal request to resolve his complaint with his case manager and a request to his unit Manager, grieving his placement and application of the Sex Offender PSF. Id. at ¶¶17, 18. On March 14, 2016, Plaintiff filed a formal administrative complaint with the Warden appealing the Public Safety Factor of Sex Offender that was applied to his case. See Exhibit 1, Declaration of Christina Kelley (“Kelley Decl.”) at ¶4. On April 15, 2016, the Warden responded to Plaintiff’s complaint and closed the matter. Id. Specifically, the Warden stated that the PSF of Sex Offender was removed from Plaintiff’s file as he requested but because he would be released on May 2, 2016, Plaintiff would not be transferred to the camp facility. See Exhibit 2, Warden’s Response. On April 26, 2016, Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 4 of 18 3 Harrison appealed the Warden’s response to the BOP Mid-Atlantic Regional Director, who affirmed the Warden’s decision. Id. at ¶5. The Regional Director confirmed that the PSF was removed but noted that there was not enough time to process Plaintiff’s transfer request in light of his imminent release date. See Exhibit 3, Regional Director Response. Finally, the letter advised Plaintiff, that if he is dissatisfied with the response, he may appeal to the Office of General Counsel of BOP within thirty days. Id. BOP has no record of Plaintiff appealing the Regional Director’s response to the BOP National Appeals Coordinator. Kelley Decl. at ¶6. Plaintiff filed the instant complaint on May 2, 2016. II. STANDARD OF REVIEW A. Fed. R. Civ. P. 12(b)(1) Rule 12(b)(1) gives a plaintiff the burden of establishing that the Court has jurisdiction to review his or her claim(s). Public Warehousing Co. KSC v. Defense Supply Ctr. Phila, 489 F.Supp.2d 30, 35 (D.D.C. 2007). The plaintiff bears the burden of persuasion, and must establish jurisdiction “by a preponderance of the evidence.” Thompson v. Capitol Police Bd., 120 F.Supp.2d 78, 81 (D.D.C. 2000) (citations omitted). A motion under 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “In reviewing a motion to dismiss for lack of subject matter jurisdiction under 12(b)(1), the court must accept the complainant’s well-pled factual allegations as true and draw all reasonable inferences in the plaintiff’s favor.” Thompson v. Capitol Police Board, 120 F.Supp.2d at 81. “The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.” Rann v. Chao, 154 F.Supp.2d 61, 64 (D.D.C. 2001), affd, 346 F.3d 192 (D.C. Cir. 2003), cert. denied, 543 U.S. 809 (2004). A court may look beyond the complaint in resolving a motion to dismiss for lack of Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 5 of 18 4 subject matter jurisdiction under Rule 12(b)(1). Herbert v. Nat’l Academy of Science, 974 F.2d 192, 197 (D.C. Cir. 1992). B. Fed. R. Civ. P. 12(b)(6) On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the Court should dismiss a claim if Plaintiff's complaint fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (clarifying the standard from Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also In re Sealed Case, 494 F.3d 139, 145 (D.C. Cir. 2007) (citing Twombly). Hence, the focus is on the language in the complaint, and the requirement that the “plain statement possess enough heft to [sho[w] that the pleader is entitled to relief.” Twombly, supra, at 557 (citing Fed. R. Civ. P. 8(a)(2)); Pac. Bell Tel. Co. v. linkLine Communs., Inc., 129 S. Ct. 1109, 1123 (2009) (concluding that the allegations failed to satisfy the Twombly standard because even if plaintiff pled the required facts a duty was not owed under antitrust laws). C. Summary Judgment and the Administrative Procedure Act When a party seeks review of agency action under the Administrative Procedure Act (“APA”) “[t]he entire case on review is a question of law, and only a question of law,” and can be resolved on the administrative record in the context of a motion for summary judgment. Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); see Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083-84 (D.C. Cir. 2001); Univ. Med. Ctr v. Shalala, 173 F.3d 438, 440 n.3 (D.C. Cir. 1999). In such record review cases, the district court generally does not resolve factual issues or duplicate agency fact-finding efforts, but instead functions as an appellate court addressing a legal issue. James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996). For this reason, the normal standard of review for a Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 6 of 18 5 summary judgment motion, which requires a district court to decide whether there is any “genuine issue of material fact,” see Fed. R. Civ. P. 56(c), does not apply. Southeast Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010); Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006). Instead, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). Summary judgment, therefore, is the mechanism through which the Court decides whether as a matter of law the agency action under review is supported by the administrative record and is otherwise consistent with the APA standard of review. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). III. ARGUMENT A. Plaintiff’s Constitutional Claims Against Defendants Should Be Dismissed Based Upon His Failure to Exhaust His Administrative Remedies as Required by the Prison Litigation Reform Act. Plaintiff failed to exhaust mandatory and available administrative remedies with regard to his claim that he was placed in low level security because inaccurate Public Safety Factor was in his file before filing the instant complaint. Consequently, his entire claim should be dismissed on that basis alone. The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life.” Porter v Nussle, 534 U.S. 516, 532 (2002). The PLRA mandates exhaustion of all available administrative remedies prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) (PLRA requires exhaustion of all Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 7 of 18 6 available administrative remedies); Jones v. Bock, 549 U.S. 199, 211 (2007) (“[U]nexhausted claims cannot be brought in court”); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (PLRA requires exhaustion prior to filing suit). The PLRA precludes exhaustion during the pendency of a lawsuit. See Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) (holding PLRA requires dismissal of prisoner suit filed prior to exhaustion of administrative remedies, even if exhaustion occurs during lawsuit); Jackson v. District of Columbia, 254 F.3d 262, 268 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (same); Perez v. Wisconsin Dept. Of Corr., 182 F.3d 532, 535 (7th Cir. 1999) (same); Johnson v. Ozmint, 567 F. Supp. 2d 806, 815 (D.S.C. 2008) (same). Exhaustion under the PLRA requires “proper exhaustion”, and “[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90-91. Title 28 C.F.R. § 542.10, et seq., sets forth the Bureau of Prisons’ Administrative Remedy Program, which provides formal administrative review of any Complaint that relates to any aspect of the inmate’s confinement. Under this process, inmates are encouraged to attempt resolution of their Complaints informally, by discussing the matter with a member of the Unit Team. See 28 C.F.R. § 542.13. If the attempt at informal resolution does not resolve the matter, the inmate may file a formal complaint with the Warden within twenty days of the date on which the basis of the complaint occurred. 28 C.F.R. § 542.13-14. If the inmate is not satisfied with the Warden’s response to his formal complaint, he may appeal the response to the Regional Director. 28 C.F.R. § 542.15(a). If the inmate is dissatisfied with the regional response, he may file an appeal with the National Appeals Administrator at the Bureau of Prisons’ Central Office, in Washington, D.C. See, 28 C.F.R. § 542.13-15. The Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 8 of 18 7 Central Office appeal is the final level of administrative review in the Bureau of Prisons’ administrative remedy process. Id. An inmate must complete all stages of the administrative remedy process before the process is considered properly exhausted. Woodford, 548 U.S. at 90-91; Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir. 1997), cert. denied, 522 U.S. 906 (1997). Inmates cannot deliberately bypass the PLRA’s administrative remedy requirement by abandoning the process or by failing to file a grievance in the specified time or manner. Wright, 111 F.3d at 417 n.3. Moreover, the Supreme Court has refused to read a futility exception, or any other exception, into the PLRA’s administrative remedy requirement. Booth, 532 U.S. at 741 n.6. “Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process.” Kaemmerling v. Lappin, 553 F.3d 669, 674 (D.C. Cir. 2008)(citing Booth, 531 U.S. 739, 741 n.6)). The Fourth Circuit has noted that a prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are. Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citing Woodford, 548 U.S. 81 (2006)). Rather, to be entitled to bring suit in federal court, a prisoner must have utilized all available remedies in accordance with the applicable procedural rules, so that prison officials have been given an opportunity to address the claims administratively. Id. (quoting Woodford, 548 U.S. at 87). Here, Plaintiff filed his formal complaint to the Warden in March 2016. See Kelley Decl. at ¶4. He filed his appeal of the Warden’s response to the Regional Director. Id. at ¶5. The Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 9 of 18 8 Regional Director affirmed the Warden’s response on April 26, 2016 and advised him to appeal this decision to the BOP Office of General Counsel. See Exhibit 3. 3. However, BOP does not have any record of Plaintiff appealing the Regional Director’s decision. See Kelley Decl. at ¶ 6. Instead, Plaintiff filed the instant complaint on May 2, 2016. Because Plaintiff failed to appeal the Regional Director’s decision within 30 days from April 26, 2016, he failed to exhaust his administrative remedies as required under PLRA. Although, Plaintiff argues that “exhaustion of administrative remedies was not available to Harrison” due to delays in responding to his complaint, he was still required to exhaust his administrative remedies. Comp. at ¶ 30. However, Plaintiff is not excused nor is exhaustion of administrative remedies waived. “A plaintiff's belief that pursuing his administrative remedies would be futile does not excuse him from the PLRA's exhaustion requirement since a prisoner is required to exhaust regardless of the value of the relief offered through administrative avenues. Tereshchuk v. Bureau of Prisons, 2007 WL 474179 at *2 (D.D.C. Feb. 9, 2007)(citing Booth, 532 U.S. at 741)). Accordingly, Plaintiff’s complaint should be dismissed for failure to exhaust pursuant to 12(b)(6) for a failure state a claim. Id. B. Sovereign Immunity Bars Plaintiff’s Constitutional Claims Plaintiff asserts a claim for damages under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), against the Individual Defendants for violation of due process guaranteed by the Fifth Amendment and violation of his First Amendment right to Petition the government. Comp. at ¶¶31, 34. To the extent that Plaintiff is alleging a claim for damages against the Individual Defendants in their official capacities, the claim fails because the Individual Defendants are protected by sovereign immunity. To the extent that the Court construes Plaintiff’s claim for damages against the Individual Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 10 of 18 9 Defendants as a claim against the federal govenment, dismissal is proper under Fed. R. Civ. P. 12(b)(1). A party bringing a claim against the federal government must identify not only the source of his substantive right but also a specific waiver of sovereign immunity that permits his claim to be heard. United States v. Mitchell, 445 U.S. 535, 538 (1980). “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Absent clear congressional consent to entertain a claim against the United States, a District Court lacks authority to grant relief. United States v. Testan, 424 U.S. 392, 399 (1976); FDIC v. Meyer, 510 U.S. 471, 475 (1994) (Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit); Epps v. U.S. Atty. Gen., 575 F.Supp.2d 232, 238 (D. D.C. 2008) (“[U]nder the doctrine of sovereign immunity, the United States government ‘can only be sued insofar as it has agreed to be sued.’”). Congressional consent to suit, a waiver of the government's traditional immunity, must be explicit and is strictly construed. Library of Congress v. Shaw, 478 U.S. 310, 318 (1986). It is equally settled that a suit against a government official in his official capacity “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent, such that an official capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Perkins v. Ashcroft, 275 Fed.Appx. 17, 17 (D.C. Cir. 2008) (“To the extent appellant was attempting to sue the former Attorney General in his official capacity, the action is barred by sovereign immunity”); Ballard v. Holinka, 601 F. Supp. 2d 110, 121 (D.D.C. 2009) (“Sovereign immunity extends to government agencies such as the BOP and to their employees where such employees are sued in the official capacities”)(internal citation omitted). Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 11 of 18 10 There has been no waiver of sovereign immunity for claims against federal employees in their official capacities in this case. FDIC v. Meyer, 510 U.S. 471, 478 (1994) (a constitutional tort claim is not cognizable under the FTCA); Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005) (sovereign immunity bars Section 1983 claims against a federal government agency); Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994); Clark v. Library of Congress, 750 F.2d 89, 102-104 (D.C. Cir. 1984) (sovereign immunity acts as a bar to damages against a federal employee in an official capacity). In addition, § 1983 applies to actions arising under state law. 42 U.S.C. § 1983. Thus, § 1983 does not apply to federal officials acting under color of federal law. Settles, 429 F.3d 1098 at 1104; See also Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Rather, by its terms, § 1983 applies only to actions under color of state law and does not ordinarily provide a basis for claims against federal officials. Not only has there been no waiver of sovereign immunity, as made clear in Settles, but the Federal Government and its officials in their official capacities are not even “persons” within the meaning of the Section 1983. Section 1983 permits suit against a “person” acting under color of law of any state. The only exception to this rule is that individual defendants subject to suit in their official capacity for prospective injunctive and declaratory relief only under 42 U.S.C. § 1983 when acting under color of a statute of the District of Columbia. Fletcher v. District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004); Fletcher v. District of Columbia, 481 F. Supp. 2d 156, 162 (D.D.C. 2007) (same); Sellmon v. Reilly, 551 F.Supp.2d 66, 83 & n.12 (D.D.C. 2008) (same). Nevertheless, Plaintiff is not entitled to money damages because such a claim is barred by sovereign immunity. Thus, for the foregoing reasons, Plaintiff’s purported claim for money damages against the Individual Defendants in their official capacities for an alleged violation of Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 12 of 18 11 his due process rights is barred by sovereign immunity. C. Defendants Are Entitled To Qualified Immunity To the extent the Individual Defendants are being sued in their personal capacities and so are not entitled to sovereign immunity, they are still entitled to qualified immunity from damages based on any constitutional claims plaintiff apparently intends to assert. See Forrester v. White, 484 U.S. 219, 230 (1988). The framework for application of qualified immunity to such claims is set out in Harlow v. Fitzgerald, 457 U.S. 800 (1982). In that case, the Supreme Court confirmed that government officials are shielded from liability for civil damages for constitutional violations insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. Id. at 818. Moreover, under Harlow this determination requires an objective, not subjective, analysis. Davis v. Scherer, 468 U.S. 183, 191 (1984); Krohn v.United States, 742 F.2d 24 (1st Cir. 1984); McSurley v. McClellan, 697 F.2d 309, 316 (D.C. Cir. 1982). Harlow thus places squarely on the plaintiff the burden of showing a "prima facie case of defendants' knowledge of impropriety, actual or constructive." Krohn, 742 F.2d at 31-32; Davis v. Scherer, 468 U.S. 183, 191 (1984). Furthermore, as the Supreme Court has held: Unless the plaintiffs' allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).1 The paramount point to keep in mind in analyzing claims such as the plaintiff's, therefore, is that neither the Court nor the plaintiff can engage in an inquiry into the state of mind of 1A defendant's right is to "immunity from suit" not a "defense to liability." Id.., See also Cleavinger v. Saxner, supra, 474 U.S. at 207-208. Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 13 of 18 12 defendants in resolving the "threshold" resolution of qualified immunity claims. Harlow, supra, 457 U.S. at 818. Subjective inquiries are legally irrelevant. The only inquiry of any import is whether the defendants' alleged actions violated clearly established law or were objectively reasonable. Anderson v. Creighton, 483 U.S. 635, 639 (1987); Martin v. Malhoyt, supra. As to the "clearly established" inquiry, the defendants need not demonstrate that "the law was established in [their] favor at the time [they] acted." Rather, "[i]t is only necessary for [defendants] to show that the law was unsettled . . . not . . . that a Supreme Court opinion had specifically approved their actions." Zweibon v. Mitchell, 720 F.2d 162, 173-74 n. 19 (D.C. Cir. 1983), cert. denied, 469 U.S. 880 (1984), reh. denied, 469 U.S. 1068 (1984). "[O]nce the trial judge determines the law was not clearly established at the time the contested conduct occurred, the inquiry ceases." Id. at 168 (citing Harlow). It is irrelevant that the Court may conclude that a complaint otherwise states a claim upon which relief may be granted, or even that the plaintiff's rights were in fact violated. "The decisive fact is not that a defendant's position turned out to be incorrect, but that the question was open at the time he acted." Mitchell v. Forsyth, 472 U.S. at 535; see Butz v. Economu, 438 U.S. 478 (1978) (quoting Scheurer v. Rhodes, 416 U.S. 232, 244- 245 (1974)); Anderson v. Creighton, supra; Martin v. Malhoyt, supra at 253. Furthermore, as the Supreme Court and the Court of Appeals have explained, [t]he contours of the rights [the official is alleged to have violated] must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right. Anderson v. Creighton, supra; Martin v. Malhoyt, 830 F.2d at 253. Thus, the Supreme Court held in Anderson that even though plaintiff's Fourth Amendment rights were violated in that case, the defendant officers were entitled to qualified immunity from suit individually because they acted reasonably. Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 14 of 18 13 Here, the Defendants acted reasonably when they removed the Sex Offender PSF from Plaintiff’s record but decided not to transfer him due to his imminent release. Moreover, Plaintiff does not have a constitutional right to be placed in minimum security. “The decision to transfer a prisoner to minimum security is committed to the sound discretion of [BOP] based upon the facts of the individual inmate's case.” Franklin v. Barry, 909 F. Supp. 21, 29 (D.D.C. 1995)(finding that transfer to minimum security is not a protected liberty interest.) For these reasons, defendants are entitled to immunity from all causes of action asserted against them in their individual capacities. Review of the applicable law demonstrates that the defendants neither violated any clearly established right of plaintiff nor acted unreasonably in regard to the matters about which plaintiff complains. Thus, qualified immunity requires dismissal of any personal capacity constitutional claims against defendants. D. The Administrative Record Demonstrates that the Defendants Acted Reasonably Under the APA standard of review, a court must only hold unlawful and set aside agency action, findings, and conclusions when they are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, 5 U.S.C. §706(2)(A), in excess of statutory authority, id. § 706(2)(C), or without observance of procedures required by law,” id. § 706(2)(D). The scope of review is “narrow,” and “[t]he court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfgrs Assn v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983). The arbitrary and capricious standard is “[h]ighly deferential, and presumes the validity of agency decisions.” AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C. Cir. 2000). Deference is especially appropriate in areas that are “complex and highly technical.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991); Am. Farm Bur. Fed. v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009); Am. Radio Relay, Inc. v. FCC, 524 F.3d 227, 233 (D.C. Cir. 2008). Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 15 of 18 14 In order to satisfy the APA standard of review, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfgrs Assn, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); accord Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006). The administrative record, however, need not include explicit discussion of every factor that is relevant to the agency’s decision so long as the bases for the agency’s policy choices are otherwise clear from the nature and context of the challenged action. See Domtar Maine Corp. v. FERC, 347 F.3d 304, 311-12 (D.C. Cir. 2003), cert. denied, 541 U.S. 1029 (2004). “While [the court] may not supply a reasoned basis for the agency’s action that the agency itself has not given, [the court should] uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974). Here, Defendants did not violate the APA and acted reasonably in their decision not to transfer Plaintiff to minimum security when he had less than a month left on his sentence, despite removing the PSF. Nor did the Defendants acts in an arbitrary or capricious manner where they were active within their discretion. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (prison officials have discretion over prisoner classifications and prisoners have no legitimate due process concerns in them); Fox v. Lappin, 409 F. Supp. 2d 79, 88-89 (D. Mass. 2006)(no liberty interest implicated by sex offender PSF). In Fox, the Court also found that BOP did not abuse its discretion or act in an arbitrary or capricious manner, when it excluded inmate from community camp due to sex offender PSF. Moreover, BOP had the discretion to apply the sex offender PSF in this case, even if Plaintiff was not convicted of a sex offense. See Exhibit 4, BOP Program Statement, 5100.08, stating ““[a] conviction is not required for application of this Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 16 of 18 15 PSF if the Presentence Investigation Report (PSR), or other official documentation, clearly indicates the following behavior occurred in the current term of confinement or prior criminal history.” PS 5100.09, Chap. 5, p. 8. Therefore, the fact that Plaintiff had the Sex Offender PSF does not violate the APA, even though Defendants removed the PSF after receiving additional information. Further, Defendants acted reasonably after removing the PSF in their decision to not transfer Plaintiff to minimum security. Accordingly, Plaintiff’s APA claims should be dismissed. E. Plaintiff’s Privacy Act Claims Should be Dismissed Plaintiff alleges that BOP violated the Privacy Act (“PA”) by failing to remove the false1 PSF and failing to provide him access to the requested documents. See Comp. at ¶¶ 20, 25, 36- 37. Here, Plaintiff’s claims under the PA must fail for two reasons. First, the correction Plaintiff sought was made, namely to remove the sex offender PSF. Second, the BOP regulations exempt the Inmate Central Records System from subsection (d) of the Privacy Act, there Plaintiff does not have a right to the relief he sought, amendment of the PSF itself. Additionally, because regulations exempt the Inmate Central Records System from subsection (e)(5) of the Privacy Act, see 5 U.S.C. § 552a(j)(2); 28 C.F.R. § 16.97(j), (k)(2), Plaintiff effectively is barred from obtaining any remedy, including damages, for BOP's alleged failure to maintain records pertaining to him with the requisite level of accuracy. Brown v. Bureau of Prisons, 498 F. Supp.2d 298, 302-303 (D.D.C. 2007)(internal citations and footnote omitted). Therefore, Plaintiff’s Privacy Act claim must be dismissed. IV. CONCLUSION Wherefore, for the reasons described above in support of its Motion to Dismiss, and/or 1 Plaintiff also claims that Defendants are all liable to Plaintiff for libel for “maintaining the false label of a sex offender.” Comp. at ¶39. However, Plaintiff’s claim for libel are barred under the FTCA exception for libel and slander. Edmonds v. U.S., 436 F. Supp. 2d 28, 36-37 (D.D.C. 2006). Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 17 of 18 16 for Summary Judgment, Defendants United States Bureau of Prisons, and individually named Defendants respectfully request that the Court dismiss this action pursuant to Rules 12(b)(1) , 12(b)(6), and 56(c) of the Federal Rules of Civil Procedure. Plaintiff simply fails to state a claim upon relief can be granted, this Court lacks jurisdiction over Plaintiff’s constitutional claims concerning the PSF and his placement at FCC Petersburg. Respectfully submitted, CHANNIING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:16-cv-00819-RDM Document 9 Filed 07/11/16 Page 18 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) WILLIAM HENRY HARRISON, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00819-RDM ) FEDERAL BUREAU OF PRISONS, et al., ) ) Defendants. ) ____________________________________) DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS Defendant, Federal Bureau of Prisons, et al., per Local Civil Rule 7(h), submits that the following material facts are not in genuine dispute: 1. Plaintiff William Henry Harrison was most recently incarcerated at the Federal Correctional Complex (“FCC”) in Petersburg, Virginia on a four month sentence. See Complaint (“Comp.”), (ECF No. 1) at ¶¶ 1, 8. 2. Plaintiff was previously incarcerated from 2003 to 2008. Id. at ¶9. Plaintiff’s instant lawsuit stems from his most recent incarceration. 3. Specifically, Plaintiff alleges that Defendants failed to place him at the camp facility under minimum custody “due to the placement of the Sex Offender PSF.” Id. at ¶17. 4. Plaintiff further alleges that the Public --Safety Factor as a sex offender was false. Id. at ¶9. 5. Plaintiff filed an informal request to resolve his complaint with his case manager and a request to his unit Manager, grieving his placement and application of the Sex Offender PSF. Id. at ¶¶17, 18. Case 1:16-cv-00819-RDM Document 9-1 Filed 07/11/16 Page 1 of 3 2 6. On March 14, 2016, Plaintiff filed a formal administrative complaint with the Warden appealing the Public Safety Factor of Sex Offender that was applied to his case. See Exhibit 1, Declaration of Christina Kelley (“Kelley Decl.”) at ¶4. 7. On April 15, 2016, the Warden responded to Plaintiff’s complaint and closed the matter. Id. 8. Specifically, the Warden stated that the PSF of Sex Offender was removed from Plaintiff’s file as he requested but because he would be released on May 2, 2016, Plaintiff would not be transferred to the camp facility. See Exhibit 2, Warden’s Response. 9. On April 26, 2016, Harrison appealed the Warden’s response to the BOP Mid-Atlantic Regional Director, who affirmed the Warden’s decision. Id. at ¶5. 10. The Regional Director confirmed that the PSF was removed but noted that there was not enough time to process Plaintiff’s transfer request in light of his imminent release date. See Exhibit 3, Regional Director Response. 11. Finally, the letter advised Plaintiff, that if he is dissatisfied with the response, he may appeal to the Office of General Counsel of BOP within thirty days. Id. 12. BOP has no record of Plaintiff appealing the Regional Director’s response to the BOP National Appeals Coordinator. Kelley Decl. at ¶6. Plaintiff filed the instant complaint on May 2, 2016. Respectfully submitted, CHANNIING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Case 1:16-cv-00819-RDM Document 9-1 Filed 07/11/16 Page 2 of 3 3 Civil Chief By: /s/ BENTON G. PETERSON BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:16-cv-00819-RDM Document 9-1 Filed 07/11/16 Page 3 of 3 Exhibit 1 Case 1:16-cv-00819-RDM Document 9-2 Filed 07/11/16 Page 1 of 6 Case 1:16-cv-00819-RDM Document 9-2 Filed 07/11/16 Page 2 of 6 Case 1:16-cv-00819-RDM Document 9-2 Filed 07/11/16 Page 3 of 6 Attachment 1 Case 1:16-cv-00819-RDM Document 9-2 Filed 07/11/16 Page 4 of 6 BUHS1 *ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL * 06-29-2016 PAGE 001 OF 11:22:53 FUNCTION: L-P SCOPE: CASE EQ 855175 OUTPUT FORMAT: FULL -------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW---------- DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________ DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ EXTENDED: _ REMEDY LEVEL: _ _ RECEIPT: _ _ _ "OR" EXTENSION: _ _ _ RCV OFC : EQ ____ ____ ____ ____ ____ ____ TRACK: DEPT: __________ __________ __________ __________ __________ __________ PERSON: ___ ___ ___ ___ ___ ___ TYPE: ___ ___ ___ ___ ___ ___ EVNT FACL: EQ ____ ____ ____ ____ ____ ____ RCV FACL.: EQ ____ ____ ____ ____ ____ ____ RCV UN/LC: EQ __________ __________ __________ __________ __________ __________ RCV QTR..: EQ __________ __________ __________ __________ __________ __________ ORIG FACL: EQ ____ ____ ____ ____ ____ ____ ORG UN/LC: EQ __________ __________ __________ __________ __________ __________ ORIG QTR.: EQ __________ __________ __________ __________ __________ __________ G0002 MORE PAGES TO FOLLOW . . . Case 1:16-cv-00819-RDM Document 9-2 Filed 07/11/16 Page 5 of 6 BUHS1 *ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL * 06-29-2016 PAGE 002 OF 002 * FULL SCREEN FORMAT * 11:22:53 REGNO: 07725-078 NAME: HARRISON, WILLIAM RSP OF...: PET UNT/LOC/DST: QTR.: RCV OFC: PET REMEDY ID: 855175-F1 SUB1: 13IM SUB2: DATE RCV: 03-14-2016 UNT RCV..:UNIT 2 QTR RCV.: L08-122L FACL RCV: PET UNT ORG..:UNIT 2 QTR ORG.: L08-122L FACL ORG: PET EVT FACL.: PET ACC LEV: PET 1 MXR 1 RESP DUE: SAT 04-23-2016 ABSTRACT.: APPEALS PSF OF SEX OFFENDER STATUS DT: 04-15-2016 STATUS CODE: CLO STATUS REASON: XPL INCRPTNO.: RCT: P EXT: P DATE ENTD: 03-14-2016 REMARKS..: REGNO: 07725-078 NAME: HARRISON, WILLIAM RSP OF...: PET UNT/LOC/DST: QTR.: RCV OFC: MXR REMEDY ID: 855175-R1 SUB1: 13IM SUB2: DATE RCV: 04-26-2016 UNT RCV..:UNIT 2 QTR RCV.: L08-122L FACL RCV: PET UNT ORG..:UNIT 2 QTR ORG.: L08-122L FACL ORG: PET EVT FACL.: PET ACC LEV: PET 1 MXR 1 RESP DUE: THU 05-26-2016 ABSTRACT.: APPEALS PSF OF SEX OFFENDER STATUS DT: 05-12-2016 STATUS CODE: CLO STATUS REASON: XPL INCRPTNO.: RCT: P EXT: DATE ENTD: 04-26-2016 REMARKS..: 2 REMEDY SUBMISSION(S) SELECTED G0000 TRANSACTION SUCCESSFULLY COMPLETED Case 1:16-cv-00819-RDM Document 9-2 Filed 07/11/16 Page 6 of 6 Exhibit 2 Case 1:16-cv-00819-RDM Document 9-3 Filed 07/11/16 Page 1 of 2 Case 1:16-cv-00819-RDM Document 9-3 Filed 07/11/16 Page 2 of 2 Exhibit 3 Case 1:16-cv-00819-RDM Document 9-4 Filed 07/11/16 Page 1 of 2 Case 1:16-cv-00819-RDM Document 9-4 Filed 07/11/16 Page 2 of 2 Exhibit 4 Case 1:16-cv-00819-RDM Document 9-5 Filed 07/11/16 Page 1 of 6 Program Statement U.S. Department of Justice Federal Bureau of Prisons OPI: CPD/CPB NUMBER: P5100.08 DATE: 9/12/2006 SUBJECT: Inmate Security Designation and Custody Classification 1. PURPOSE AND SCOPE. This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate security level institution that also meets their program needs and is consistent with the Bureau’s mission to protect society. The Bureau’s classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(b). All classification, designation and redesignation decisions are made without favoritism given to an inmate’s social or economic status. 2. PROGRAM OBJECTIVES. The expected results of this Program Statement are: a. Each inmate will be placed in a facility commensurate with their security and program needs through an objective and consistent system of classification which also allows staff to exercise their professional judgement; and, b. Staff will systematically and objectively review an inmate’s classification making the environment in which they are housed safer for both inmates and staff while protecting the public from undue risk. 3. SUMMARY OF CHANGES. This revision incorporates Executive Staff decisions 03-04-05 and 99-03-03, as well as other procedural changes such as the movement of most designation/redesignation functions (04-08-17) to the Designation and Sentence Computation Center (DSCC), Grand Prairie, Texas. a. The scoring item “Type of Prior Commitment” has been replaced with “Criminal History Score.” (Chapter 4, Page 8 and Case 1:16-cv-00819-RDM Document 9-5 Filed 07/11/16 Page 2 of 6 P5100.08 9/12/2006 Page 2 Chapter 6, Page 5) b. A new scoring item for inmate “Age” has been added. (Chapter 4, Page 12 and Chapter 6, Page 8) c. A new scoring item for “Education Level” has been added. (Chapter 4, Page 12 and Chapter 6, Page 8) d. The “Drug/Alcohol Abuse” scoring item has been added to the BP-337 and has moved from Section C (Custody Scoring) of the BP-338 to Section B (Base Scoring) of the BP-338. (Chapter 4, Page 13 and Chapter 6, Page 9) e. The “Mental/Psychological Stability” scoring item has been discontinued. f. The “Responsibility Demonstrated” scoring item has been replaced with “Living Skills” and “Program Participation.” (Chapter 6, Page 10) g. Instructions for scoring the “Family/Community Ties” scoring item have been clarified. (Chapter 6, Page 13) h. The floor for the Violent Behavior PSF has been reduced from High to Low Security. (Chapter 5, Page 9) i. New cutpoints and a new Custody Variance Table have been developed. (Chapter 1, Page 2 and Chapter 6, Page 15) j. An expiration date for the Greater Security Management Variable has been added. (Chapter 5, Page 5) k. The criteria for the Deportable Alien PSF has been clarified. (Chapter 5, Page 9) l. Text has been added that formalizes the Bureau’s past and current practice of continually assessing the effectiveness of its inmate classification process. (Program Statement Section 6) m. Text has been added that encourages DSCC staff to consider using a Management Variable when designating inmates where age is largely the contributing factor in the inmate’s placement. (Chapter 5, Page 5) n. Text has been revised that requires the entry of supporting information in the BP-337 “REMARKS SECTION” when there is Case 1:16-cv-00819-RDM Document 9-5 Filed 07/11/16 Page 3 of 6 P5100.08 9/12/2006 Chapter 5, Page 8 PUBLIC SAFETY FACTORS A Public Safety Factor (PSF) is relevant factual information regarding the inmate’s current offense, sentence, criminal history or institutional behavior that requires additional security measures be employed to ensure the safety and protection of the public. Public Safety Factors are normally applied on the Inmate Load and Security Designation Form (BP-337) prior to an inmate’s initial assignment to an institution, however, additions or deletions may be made at anytime there after via the Custody Classification Form, (BP-338). A maximum of three PSFs may be applied, however if more than three apply, those which would provide the greatest security and public safety will be utilized. CODE PSF - DESCRIPTION A None. No Public Safety Factors apply. B Disruptive Group. A male inmate who is a validated member of a Disruptive Group identified in the Central Inmate Monitoring System will be housed in a High security level institution, unless the PSF has been waived. At the time of initial designation, if the Presentence Investigation Report or other documentation identifies the inmate as a possible member of one of the Central Inmate Monitoring Disruptive Groups, DSCC staff will enter a PSF on the BP-337. However, DSCC staff will not enter the CIM assignment "Disruptive Group." Upon loading this PSF on a not-yet-validated member, DSCC staff will (1) make a notation in the Remarks Section to indicate the need for validation upon arrival at the institution, and (2) notify the Central Office Intelligence Section, via GroupWise, to advise them of the inmate’s status. Upon the inmate's arrival at the designated institution, the intake screener will notify the institution's Special Investigation Supervisor of the inmate's PSF, to initiate the validation process. C Greatest Severity Offense. A male inmate whose current term of confinement falls into the "Greatest Severity" range according to the Offense Severity Scale (Appendix A) will be housed in at least a Low security level institution, unless the PSF has been waived. Case 1:16-cv-00819-RDM Document 9-5 Filed 07/11/16 Page 4 of 6 P5100.08 9/12/2006 Chapter 5, Page 9 Case 1:16-cv-00819-RDM Document 9-5 Filed 07/11/16 Page 5 of 6 P5100.08 9/12/2006 Chapter 5, Page 10 CODE PSF - DESCRIPTION F Sex Offender. A male or female inmate whose behavior in the current term of confinement or prior history includes one or more of the following elements will be housed in at least a Low security level institution, unless the PSF has been waived. A conviction is not required for application of this PSF if the Presentence Investigation Report (PSR), or other official documentation, clearly indicates the following behavior occurred in the current term of confinement or prior criminal history. If the case was dismissed or nolle prosequi, application of this PSF cannot be entered. However, in the case where an inmate was charged with an offense that included one of the following elements, but as a result of a plea bargain was not convicted, application of this PSF should be entered. Example: According to the PSR, the inmate was specifically described as being involved in a Sexual Assault but pled guilty to Simple Assault. Based on the documented behavior, application of this PSF should be entered: (1) Engaging in sexual contact with another person without obtaining permission to do so (forcible rape, sexual assault or sexual battery); (2) Possession, distribution or mailing of child pornography or related paraphernalia; (3) Any sexual contact with a minor or other person physically or mentally incapable of granting consent (indecent liberties with a minor, statutory rape, sexual abuse of the mentally ill, rape by administering a drug or substance); (4) Any sexual act or contact not identified above that is aggressive or abusive in nature (e.g., rape by instrument, encouraging use of a minor for prostitution purposes, incest, etc.). Examples may be documented by state or Bureau of Prisons’ incident reports, clear NCIC entries, or other official documentation; (5) Attempts are to be treated as if the sexual act or contact was completed; and/or, Case 1:16-cv-00819-RDM Document 9-5 Filed 07/11/16 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) WILLIAM HENRY HARRISON, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00819-RDM ) FEDERAL BUREAU OF PRISONS, et al., ) ) Defendants. ) ____________________________________) ORDER This matter comes before the Court on Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment. It is hereby ORDERED that Defendant’s Motion is Granted, and it is further ORDERED that judgment shall be entered for Defendant, and that this matter is hereby DISMISSED WITH PREJUDICE. It is SO ORDERED this day of , 2016. _________________________ United States District Judge Case 1:16-cv-00819-RDM Document 9-6 Filed 07/11/16 Page 1 of 1