Opinion
Civil Action No. 03-1949 (RCL).
March 21, 2005
MEMORANDUM OPINION
This matter is before the Court on defendants' renewed motion to dismiss plaintiff's amended complaint and plaintiff's opposition in which he also moves for summary judgment. Upon consideration of the parties' submissions, the Court will grant defendants' motion and dismiss the case.
Plaintiff's motion for summary judgment does not comply with the requirements of Local Civil Rule 7(h) and therefore is summarily denied.
Plaintiff is a prisoner incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania. He has brought this action "for the purpose of attaining documents that have been requested" under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, "and having certain records corrected pursuant to" the Privacy Act, 5 U.S.C. § 552a. Amended Complaint at 1. Plaintiff sues the Executive Office for United States Attorneys ("EOUSA"), the Bureau of Prisons ("BOP"), and Harley G. Lappin in his official capacity as BOP director. Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) (lack of subject matter jurisdiction) and (b)(6) (failure to state a claim). Defendants have not identified the basis for dismissal under Rule (12)(b)(1), and the record does not otherwise suggest that the Court lacks subject matter jurisdiction over the case. The Court therefore will proceed on defendants' Rule 12(b)(6) motion.
Plaintiff's amended complaint does not appear to preserve other claims brought in the original complaint against individual defendants. Yet, plaintiff requests that the Court transfer "all clams that do not pertain to FOIA to the Southern District of Georgia." Plaintiff's Response to Government's Motion in Opposition to Plaintiff's Cross Motion for Summary Judgment at 3. To the extent the claims may survive, the Court does not find it in the interest of justice to transfer them. If, as it appears, the claims are against the individuals for violations of the FOIA or the Privacy Act, they fail because neither statute provides a cause of action against individuals.
Because the Court is relying on matters beyond the pleadings, it will analyze defendants' Rule 12(b)(6) motion under the standards for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corporation v. Catrett, 477 U.S. 317 (1986).
1. Freedom of Information Act Claim
Defendants move to dismiss the FOIA claim on the ground that plaintiff has not exhausted his administrative remedies. Plaintiff alleges that he requested records from EOUSA on April 11, 2004, and, as of May 19, 2004, EOUSA had not responded to his request. He therefore claims that he constructively exhausted his administrative remedies. An agency has twenty days to respond to a FOIA request. A FOIA requester is deemed to have constructively exhausted administrative remedies when the agency fails to respond to a FOIA request in a timely manner. 5 U.S.C. § 552(a)(6)(C)(i). If the agency responds untimely but before the lawsuit is filed, the requester, as a general rule, must complete the administrative process before involving the court. Oglesby v. Dep't of the Army, 920 F.2d 57, 65 (D.C. Cir. 1990). Defendants show that EOUSA denied plaintiff's request by letter dated May 18, 2004, which also informed plaintiff about his administrative appeal rights. Def't's Ex. 2. Plaintiff filed his amended complaint adding the FOIA claim and EOUSA as a defendant on May 26, 2004. Because EOUSA rendered its initial determination before plaintiff initiated his FOIA lawsuit, plaintiff was obligated to exhaust his administrative remedies by appealing the adverse determination. Defendants' motion on the FOIA claim therefore will be granted.
"Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination[.]" 5 U.S.C. § 552(a)(6)(A)(i).
2. Privacy Act Claim
The Privacy Act requires federal agencies to maintain records used in making determinations "with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination [about the individual]. . . ." 5 U.S.C. § 552a(e)(5). Section 552a(d) allows individuals access to agency records about themselves and to request the amendment of records "they believe to be inaccurate, irrelevant, untimely, or incomplete." Doe v. Federal Bureau of Investigation, 936 F.2d 1346, 1350 (D.C. Cir. 1991). Subsections (g)(1)(A) and (C) authorize civil actions to enforce the amendment and accuracy requirements. In addition, subsection (g)(4) provides for monetary damages, costs and attorneys' fees where the agency is shown to have acted intentionally or willfully. See Doe, 936 F.2d at 1350; accord Deters v. United States Parole Commission, 85 F.3d 655, 660-61 (D.C. Cir. 1996); Sellers v. Bureau of Prisons, 959 F.2d 307, 310-12 (D.C. Cir. 1992). An agency may be liable for "actual damages sustained by the individual as a result of the refusal or failure" to maintain accurate records and "consequently a determination is made which is adverse to the individual. . . ." 5 U.S.C. § 552a(g)(1)(C) and (g)(4)(A).
Plaintiff accuses BOP of maintaining false records that label him "as a snitch." Amended Complaint at 2, ¶ 7. He seeks to "correct all records that refer to Plaintiff as a `snitch', and $2 million in damages. Id. at 3. BOP asserts correctly that it has properly exempted its Inmate Central Record System, where the challenged records presumably are located, from the Privacy Act's amendment provisions (subsection (d)). See 28 C.F.R. § 16.97; White v. United States Probation Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam); Deters, 85 F.3d at 658, n. 2. The Court therefore has no authority to grant the injunctive relief plaintiff seeks.
BOP also suggests that the inmate record system is exempt from the Privacy Act's accuracy provision (subsection (e)(5)), but it has not advanced an argument based on the regulation or any other authority. See Memorandum of Points and Authorities in Support of Defendants' Renewed Motion to Dismiss ("Def't's Mem.") at 10 n. 6. Perhaps this is because BOP does not appear to have wholly exempted itself from liability under this subsection. See Sellers, 959 F.2d at 309; cf. 28 C.F.R. § 16.97(k) (BOP may waive the exemption "[w]here compliance would not appear to interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected"). The Court therefore will address the damages claim based on the Privacy Act's accuracy provision.
Defendants reason that "there can be no Privacy Act remedy against the agency if the Privacy Act imposes no obligation on an agency to maintain or amend the particular records at issue." Def't's Mem. at 11. The D.C. Circuit has implicitly rejected a similar argument. See Sellers, 959 F.2d at 310-12.
To prevail on a damages claim under subsection (g)(1)(C) of the Privacy Act, plaintiff must establish that "(1) he has been aggrieved by an adverse determination; (2) [the agency] failed to maintain records with the degree of accuracy necessary to assure fairness in the determination; (3) the [agency's] reliance on the inaccurate records [proximately caused the adverse determination]; and (4) the [agency] acted intentionally or willfully in failing to maintain accurate records." Deters, 85 F.3d at 657; Sellers, 959 F.2d at 312; accord Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002) (claim consists of allegations of "inaccurate records, agency intent, proximate causation, and an adverse determination").
"It is feasible, necessary, and proper, for the agency and, in turn, the district court to determine whether each filed item of information is accurate." Doe v. United States, 821 F.2d 694, 699 (D.C. Cir. 1987). Plaintiff has not specifically identified the alleged erroneous record or records; thus, the inquiry arguably should end here. Assuming, without deciding, that plaintiff has sufficiently pleaded the element of an inaccurate record, his claim fails on the remaining elements. To establish an adverse determination, plaintiff must show "at least, a decision that negatively `affect[ed]' his rights." Toolasprashad, 286 F.3d at 584 (quoting Deters, 85 F.3d at 659). Plaintiff alleges that he was "placed in the hole while at FCI Jessup [sic]" because of the label, but he was told that it was "for his own safety." Plaintiff's Cross-Motion for Summary Judgment and Response to Defendant's Motion to Dismiss at 5. This, without more, does not establish an adverse determination.
It appears that plaintiff is seeking to challenge information contained not in his own records but in those of other inmates. See Def't's Mem. at 3-4 (citing administrative grievance papers attached to the original complaint).
Plaintiff contends, and the Court has no doubt, that it is "a dangerous thing" to be "labeled a `snitch' while serving a lengthy sentence." Pltf's Opp. at 5. He expresses a fear of reprisal but has not alleged that he has suffered an actual injury as a result of the alleged label. Plaintiff's general observation is not significantly probative of the issue.
The intent element of a Privacy Act damages claim is a high hurdle to clear. It requires plaintiff to show that the agency's failure to maintain accurate records amounted to "something greater than gross negligence." Deters, 85 F.3d at 660 (citation and internal quotation marks omitted). "An agency acts in an intentional or willful manner either by committing the act without grounds for believing it to be lawful, or by flagrantly disregarding others' rights under the Act . . . [T]he violation must be so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful." Id. (citations and internal quotation marks omitted). Plaintiff alleges that unidentified BOP records label him a snitch. It is unclear if this is a fact, i.e., the record actually names him a snitch, or a conclusion based on events set forth in a particular record. In either case, plaintiff has not provided any facts from which the accuracy of the record or records may be tested and the agency's intent probed. See id. at 658 (in the "typical" Privacy Act case, the "truth" is "clearly provable" or "relatively easily ascertainable") (citation and internal quotation marks omitted). In sum, plaintiff's allegations are just too vague to sustain a claim for damages under the Privacy Act.
For example, plaintiff states that "Lt. Ruley also told [him] that there were records that said Plaintiff assisted authorities with getting a search warrant for a drug bust at USP Beaumont." Pltf's Opp. at 5.
For the foregoing reasons, the Court grants defendants' renewed motion to dismiss. A separate Order will issue contemporaneously.