Summary
dismissing the plaintiff's Privacy Act claims for failure to state a claim for similar "habeas channeling" reasons
Summary of this case from Lewis v. U.S. Parole CommissionOpinion
Civil Action No. 04-1114 (JDB).
March 16, 2005
MEMORANDUM OPINION
This matter is before the Court on defendants' motion to dismiss or, in the alternative, to transfer. Having considered the motion, plaintiff's opposition, and the entire record of the case, the Court will dismiss this action.
I. BACKGROUND
Plaintiff, a federal prisoner, brings this civil action under the Privacy Act, 5 U.S.C. § 552a. He alleges that defendants' records pertaining to him contain inaccurate information about his criminal history. Compl., ¶¶ 1, 3-4. Specifically, he alleges that the "Government's Amended Version of the Offense" included information that plaintiff sold marijuana, cocaine, heroin, and pills in the 1970's, and that he participated in a narcotics conspiracy for over 20 years. Id., ¶ 3. This information apparently is incorporated into the presentence investigation report prepared by staff at the United States Probation Office for the Northern District of Illinois in January 1992, and supplemental reports in May and September 1997. See id., Ex. D, F. According to plaintiff, the sentencing judge's reliance on this allegedly inaccurate information in the presentence investigation report led him to impose a severe sentence, 50 years' imprisonment under the federal sentencing guidelines. Id., ¶ 5. Plaintiff further alleges that the United States Parole Commission's reliance on the same information led it to deny his application for parole. Id., ¶¶ 10-11. Through this action, plaintiff seeks amendment of the inaccurate records and an award of monetary damages. Id. at 5.
See Compl., Ex. A (Memorandum from Assistant United States Attorneys Peters and Schneider to L.A. Frazier, U.S. Probation Office, dated September 15, 1997).
II. DISCUSSION A. Standard of Review
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).
B. The United States Probation Office is not subject to the Privacy Act.
For purposes of the Privacy Act, the term "agency" is defined as "any Executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the [federal] Government . . . or any independent regulatory agency." 5 U.S.C. § 552(f)(1); see 5 U.S.C. §§ 551(1), 552a(a)(1). Courts of the United States expressly are excluded from the definition of "agency." 5 U.S.C. § 551(1)(B); see Washington Legal Foundation v. United States Sentencing Commission, 17 F.3d 1446, 1449 (D.C. Cir. 1994) ("courts of the United States" is interpreted such that this exemption applies to the entire judicial branch of government); see Cobell v. Norton, 157 F.Supp. 2d 82, 86 n. 6 (D.D.C. 2001). Because federal probation offices are administrative units of the courts, these offices are not subject to the Privacy Act. Callwood v. Dep't of Probation, 982 F.Supp. 341, 342 (D.V.I. 1997). Plaintiff thus fails to state a claim against the United States Probation Department for which relief can be granted.
C. The records at issue are exempt from the amendment provisions of the Privacy Act.
Generally, an individual may access a federal government agency's records or information pertaining to him in a system of records, and may request amendment of records pertaining to him. See 5 U.S.C. § 552a(d). An individual may file a civil action against an agency which 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 subsection (e)(5)).
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 United States Parole Commission's records pertaining to parole decisions are exempt from subsection (d) of the Privacy Act. See 28 C.F.R. § 16.85. Another regulation expressly declares that presentence investigation reports that originated with the courts are not subject to amendment or correction. 28 C.F.R. § 16.46(f)(3). Plaintiff has no cause of action for the Parole Commission's refusal to amend records that properly were exempted from the Privacy Act's amendment provisions. Bayless v. United States Parole Comm'n, No. 94-0686, 1994 WL 525325, *4 (D.D.C. Sept. 11, 1996) (holding that plaintiff had no viable claim against Parole Commission for amendment of presentence report because its system of inmate records was exempt from 5 U.S.C. § 552a(d)); see Doe v. Federal Bureau of Investigation, 936 F.2d 1346, 1352 (D.C. Cir. 1991); cf. 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).
The following systems of records are exempted from 5 U.S.C. § 552a (c)(3) and (4), (d), (e)(2) and (3), (e)(4) (G) and (H), (e)(8), (f) and (g):
(1) Docket Scheduling and Control System (JUSTICE/PRC-001);
(2) Inmate and Supervision Files System (JUSTICE/PRC-003);
(3) Labor and Pension Case, Legal File, and General Correspondence System (JUSTICE/PRC-004);
(4) Statistical, Educational and Developmental System (JUSTICE/PRC-006); and
(5) Workload Record, Decision Result, and Annual Report System (JUSTICE/PRC-007).28 C.F.R. § 16.85(a). The stated rationale for exempting these records from subsection (d) is:
to protect internal processes by which Commission personnel are able to formulate decisions and policies with regard to federal prisoners and persons under supervision, to prevent disclosures of information to federal inmates or persons on supervision that would jeopardize legitimate correctional interests of security, custody, supervision, or rehabilitation, to permit receipt of relevant information from other federal agencies, state and local law enforcement agencies, and federal and state probation and judicial offices, to allow private citizens to express freely their opinions for or against parole, to allow relevant criminal history type information of co-defendants to be kept in files, to allow medical, psychiatric and sociological material to be available to professional staff, and to allow a candid process of fact selection, opinion formulation, evaluation and recommendation to be continued by professional staff.28 C.F.R. § 16.85(b)(3).
D. Plaintiff does not state a claim for damages under the Privacy Act.
The Privacy Act requires that an agency:
maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as to assure fairness to the individual in the determination.5 U.S.C. § 552a(e)(5). Although the Parole Commission is not obligated to comply with the amendment provisions of the Privacy Act, it still is obligated to address the accuracy of records before considering such records in making a determination affecting the prisoner. See Deters v. United States Parole Comm'n, 85 F.2d 655, 658 n. 2 (D.C. Cir. 1996); 5 U.S.C. § 552a(e)(5). In order to recover monetary damages under the Privacy Act, "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." Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552a(g)(1)(C)). Plaintiff has the burden of proving that the agencies' actions in violating the Privacy Act were intentional or willful. Albright v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984); 5 U.S.C. 552a(g)(4). To meet his burden, plaintiff "must prove that the offending agency acted `without grounds for believing [its actions] lawful' or that it `flagrantly disregarded' the rights guaranteed under the Privacy Act." Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (quoting Albright v. United States, 732 F.2d at 189).
Plaintiff's complaint is deficient in that it makes no allegations as to an intentional or willful action of the Parole Commission in violation of the Privacy Act. The Parole Commission has no affirmative obligation to investigate information set forth in a presentence investigation report. See Buxton v. United States Parole Comm'n, 844 F.Supp. 643, 644 (D. Or. 1994). As long as the Parole Commission complies with procedures for parole hearings, it complies with the fairness standard set forth in 5 U.S.C. § 552a(e)(5). See id; Bayless v. United States Parole Comm'n, 1994 WL 525325, at *6.
The Court notes that plaintiff raised the same objections to the accuracy of information in the presentence investigation report during the course of parole proceedings. See Def.'s Mot., Gervasoni Decl., Ex. 2 (Initial Hearing Summary), Ex. 5 (Addendum to Hearing Summary), and Ex. 6 (Notice of Action on Appeal).
E. Plaintiff cannot challenge his sentence by filing a Privacy Act suit.
Notwithstanding plaintiff's statements to the contrary, see, e.g., Pl.'s Opp., ¶ 3, he effectively is challenging the fact and duration of his sentence. A ruling in his favor on this Privacy Act claim may have an impact on the duration of his confinement, and a challenge of this nature is properly brought in a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and the traditional function of the writ is to secure release from illegal custody."); Razzoli v. Federal Bureau of Prisons, 230 F.3d 371, 373 (D.C. Cir. 2000) ("[F]or a federal prisoner, habeas is indeed exclusive even when a non-habeas claim would have a merely probabilistic impact on the duration of custody."); see also Wilkinson v. Dotson, ___ U.S. ___, 2005 WL 516415 *5 (Mar. 7, 2005) (habeas is exclusive remedy if success of an action "would necessarily demonstrate the invalidity of confinement or its duration"). The Privacy Act is not the proper means by which a prisoner collaterally may attack his sentence. White v. United States Probation Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam).
The Court construes plaintiff's Reply to Defendants' Response [Dkt. #18] as his opposition ("Pl.'s Opp.") to defendants' dispositive motion.
III. CONCLUSION
The Court concludes that plaintiff fails to state a Privacy Act claim on which relief can be granted. Accordingly, defendants' motion to dismiss will be granted. An Order consistent with this Memorandum Opinion will be issued separately on this same date.