Opinion
Civil Action No. 04-1472 (RWR).
March 14, 2005
MEMORANDUM OPINION
Plaintiff, appearing pro se, has filed a complaint under the Privacy Act, 5 U.S.C. § 552a. He alleges that the United States Marshals Service ("USMS") is maintaining inaccurate records regarding him and seeks an amendment of those records and monetary damages. Defendant has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because the Court concludes that the records at issue are exempt from the provisions of the Privacy Act, the motion will be granted and the case dismissed.
Background
According to the complaint, plaintiff was in the custody of the USMS at the Morgan Street Jail in Tampa, Florida in May, 2001, Complaint ("Compl.") ¶ 1. Plaintiff and his co-defendants were detained at the jail pending trial. Id. The USMS received information that plaintiff's co-defendants were planning an escape from the jail by taking a Marshal hostage. Id., ¶ 2 Exhibit ("Ex.") D. As a result, jail officials and United States Marshals conducted a search of the cells of plaintiff and his co-defendants. Id., ¶ 3. Deputy Marshals attempted to interview plaintiff about the escape plan, but he invoked his right to counsel and was placed in an isolation cell. Id., ¶¶ 5-9. Plaintiff alleges there was no evidence linking him to the escape plot. Id., ¶ 10.
At trial, plaintiff was convicted of conspiracy to possess with the intent to distribute cocaine and firearms offenses and sentenced to 288 months imprisonment. Plaintiff's Opposition to Defendant's Motion to Dismiss, Attachment. After being designated by the Bureau of Prisons ("BOP") to the Federal Correctional Institution in Pekin, Illinois, plaintiff filed a Request for Administrative Remedy alleging that his medium security classification was based on the erroneous conclusion that he was an escape risk. Compl., Ex. G. BOP informed plaintiff that the information it obtained from the USMS was that the USMS did consider him to be an escape risk and that a handcuff key was found in the cell of his co-defendant. Id. BOP stated that the USMS information did not allege that plaintiff had participated in the escape plan and that plaintiff's classification to a medium security facility was due to an incident report for fighting while incarcerated. Id.
On or about December 3, 2003, plaintiff received records from the USMS pursuant to his request under the Freedom of Information Act ("FOIA"). Id., ¶ 20. Among the documents plaintiff obtained were an Incident Custody and Detention Report (USM-129) and Prison Custody Alert Notices (USM-130). Id., ¶¶ 20-21. These documents noted plaintiff was an escape risk and a heroin addict. Id., Exs. D E. In response, plaintiff sent a request for correction under the Privacy Act to the USMS. Id., Ex. A. Plaintiff requested removal of data maintained by the BOP that regarded him as an escape risk and any reference to a handcuff key being found in a co-defendant's cell. Id. The USMS denied the request and stated that the records were exempt from the applicable provisions of the Privacy Act. Id. Standard of Review
A party's pro se pleadings are to be liberally construed. Harris v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir. 2002). In reviewing the sufficiency of a complaint under Rule 12 of the Federal Rules of Civil Procedure, the court must consider the facts presented in the pleadings as true and construe them and all reasonable inferences in the light most favorable to the plaintiff. Moore v. United States, 213 F.3d 705, 713 n. 7 (D.C. Cir.), cert. denied, 531 U.S. 978 (2000). The court may dismiss a complaint on the ground that it fails to state a claim upon which relief can be granted if it appears that the plaintiff can prove no set of facts in support of his claim that would warrant relief. Fed.R.Civ.P. 12(b)(6); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Thomas v. District of Columbia, 887 F.Supp. 1, 5 n. 2 (D.D.C. 1995).
Discussion
The Privacy Act requires every federal agency to "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5); see Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992); Blazy v. Tenet, 979 F.Supp. 10, 19 (D.D.C. 1997). To prevail on a Privacy Act claim, plaintiff must show (1) the agency failed to maintain accurate records; (2) that the agency's conduct was intentional or willful; and (3) that an adverse determination was made respecting the plaintiff due to the inaccurate record. Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 582 (D.C. Cir. 2002). Plaintiff has the burden of proving that the agency's 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). A willful or intentional act is "an act without grounds for believing it to be lawful, or [an act done] by flagrantly disregarding others' rights . . . or a violation . . . so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful." Deters v. U.S. Parole Comm'n, 85 F.3d 655, 660 (D.C. Cir. 1996).
An agency, by regulation, may exempt from the Privacy Act's provisions, a system of records
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).
Plaintiff contends that the USMS is maintaining inaccurate records that state that he is an escape risk. Plaintiff alleges that defendant's actions were willful and intentional because there was no objective basis to support the allegation. To support his claim that the inaccurate records are an "adverse determination," plaintiff cites negative consequences flowing from the escape allegation: (1) transfer to a higher security facility; (2) denial of favorable work details; and (3) compulsion to participate in a higher accountability program under the threat of losing good-time credits and being placed in segregation. Compl., ¶ 23.
The records which plaintiff is challenging are an Individual Custody and Detention Report (USM-129) and a Prisoner Custody Alert Notice (USM-130). These two forms are maintained in the USMS Prison Processing and Population Management/Prisoner Tracking System of Records (JUSTICE/USM-005). See 69 Fed. Reg. 23213 (April 28, 2004). The system of records included in JUSTICE/USM-005 are exempt from the provisions of the Privacy Act. Carbe v. Bureau of Alcohol, Tobacco and Firearms, ___ F.Supp.2d ___, 2004 WL 2051359 at *12 (D.D.C. August 12, 2004); Anderson v. U.S. Marshals Service, 943 F.Supp. 37, 39 (D.D.C. 1996); see also 28 C.F.R. § 16.101 (2005).
Conclusion
Since the records plaintiff is challenging are exempt from the Privacy Act, the complaint fails to state a claim upon which relief can be granted. Therefore, defendant's motion to dismiss will be granted. A separate order accompanies this Memorandum Opinion.