Opinion
Civil Action No. 4:99-2165.
April 27, 2005
REPORT AND RECOMMENDATION
Pending before the court is the defendant's motion for summary judgment. (Doc. No. 69). Based upon the court's review of the record in the instant action, it is recommended that the motion be granted.
By way of relevant background, on December 15, 1999, the plaintiff filed the instant action in which he, in part, claimed that the Bureau of Prisons, ("BOP"), possesses a report prepared by a Disciplinary Hearing Officer, ("DHO"), which contains inaccurate information. (Doc. No. 1).
By report dated January 28, 2000, former United States Magistrate Judge Raymond J. Durkin gave the action preliminary consideration and recommended that it be dismissed without service for the plaintiff's failure to exhaust his administrative remedies. (Doc. No. 8). By order dated March 16, 2000, the court adopted the report in toto. (Doc. No. 12).
On April 5, 2000, the plaintiff filed a notice of appeal with the United States Court of Appeals for the Third Circuit, ("Third Circuit"). (Doc. No. 14). In an "Unreported-Not Precedential" opinion dated August 8, 2002, the Third Circuit stated:
Pursuant to 42 U.S.C. § 1997e(a):
No 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.
(emphasis added). Federal regulations, which define the "available" remedies, make it clear that requests pursuant to the Privacy Act and Freedom of Information Act are excluded from the Administrative Remedy Program:
Requests or Appeals will not be accepted under the Administrative Remedy Program for claims for which other administrative procedures have been established, including tort claims, Inmate Accident Compensation claims, and Freedom of Information or Privacy Act requests. Staff shall inform the inmate in writing of the appropriate administrative procedure if the Request or Appeal is not acceptable under the Administrative Remedy Program.
28 C.F.R. § 542.12(b). Thus, to the extent that Cordero is seeking relief pursuant to the Privacy Act, he need not seek relief via the Administrative Remedy Program. He must, however, have exhausted the administrative remedies established for the Privacy Act. See 5 U.S.C. §§ 552a(d)(2) and (d)(3), Quinn v. Stone, 987 F.2d 126 (3d Cir. 1992).Cordero v. Bureau of Prisons, No. 00-3351, slip op. at 4-5.
The Third Circuit held that "because it is unclear whether Cordero was properly advised of his administrative remedies with regard to his attempts to correct the DHO report, we shall vacate the order of the District Court with regard to the DHO report claim and remand the matter for further proceedings." Id., at 5.
By order dated November 7, 2002, the action was remanded to the undersigned for further proceedings consistent with the judgment issued by the Third Circuit on August 8, 2002, and filed in Williamsport on November 4, 2002. (Doc. No. 41). The undersigned received the file from the Clerk in Williamsport on November 25, 2002.
By order dated December 5, 2002, the Clerk of Court was directed to serve upon the defendant all relevant documents filed in this case since its inception. In accordance with the Third Circuit's directive, the defendant was advised that the only response required was whether, and under what circumstances, the plaintiff was advised in writing of the appropriate administrative procedure with regard to correcting the report of the DHO which allegedly contains inaccurate information pursuant to the provisions of 28 C.F.R. § 542.12(b). Any requirement of an answer was held in abeyance pending the court's determination as to whether the plaintiff properly exhausted his administrative remedies with respect to the DHO report. (Doc. No. 42).
Subsequent to issuing this order, it was determined that the Third Circuit previously indicated, in a published decision, that a plaintiff need not exhaust administrative remedies when seeking relief pursuant to 5 U.S.C. §§ 552a (g)(1)(C) and (g)(4), as the plaintiff in this case is doing. See Quinn v. Stone, 978 F.2d 126, 138 n. 22 (3d Cir. 1993) (citing Nagel v. U.S. Department of Health, Education and Welfare, 725 F.2d 1438, 1441 n. 2 (D.C. Cir. 1984) (there is no exhaustion requirement in a suit for damages under § 552a (g)(4)). See also Schaeuble v. Reno, 87 F.Supp.2d 383, 387-88 n. 3 (D.N.J. 2000) (same) (citingQuinn v. Stone, supra.)); Lei v. Brown, 1995 WL 37613 (E.D.Pa.) (same).
By correspondence filed on January 10, 2003, the court was notified that, due to a large volume of civil process for service in November and December 2002, the court's December 5, 2002, order had not been served upon the defendant until January 8, 2003. (Doc. No. 43). As a result, by order dated January 13, 2003, the defendants were given until February 13, 2003, to respond to this court's December 5, 2002, order. The plaintiff was given until on or before February 28, 2003, to file a reply brief. (Doc. No. 44).
On February 13, 2003, the defendant filed a response to the court's December 5, 2002, order, along with supporting exhibits. (Doc. Nos. 45 46). The plaintiff filed a reply brief on February 28, 2003. (Doc. No. 48).
In its response, the defendant maintained that the Third Circuit's opinion was "grounded on an incomplete picture of the Privacy Act and its applicability to the BOP." (Doc. No. 45, p. 2). Specifically, the defendant argued that the BOP is exempt from the correction/amendment provision of the Privacy Act, 5 U.S.C. § 552a(d). According to the defendant, since the BOP is exempt from the amendment provisions, the BOP advises an inmate who requests correction of his records to file under the Administrative Remedy Program, 28 C.F.R. §§ 542.10, et seq. The defendant contended that 28 C.F.R. § 542.12(b) is inapplicable in this case because an inmate has no recourse to correct or amend records under the Privacy Act and, therefore, the BOP finds requests to correct acceptable under the Administrative Remedy Program.
In reviewing the defendant's response, the court noted that the plaintiff is alleging that the BOP violated subsection (e)(5) of the Privacy Act by failing to correct inaccurate information in a DHO report. To that extent, the plaintiff alleges that the inaccurate information has adversely effected his classification and security level within the BOP. (Doc. Nos. 1, 48, 55).
5 U.S.C. § 552a (e)(5) provides:
(e) Agency requirements — Each agency that maintains a system of records shall —
(5) 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.
Subsection (e)(5) of the Privacy Act requires that federal agencies maintain records used to make determinations about individuals with such accuracy as is reasonably necessary to assure fairness. The Privacy Act provides an express civil remedy for individuals who suffer adverse determinations resulting from violations of this fairness requirement. 5 U.S.C. § 552a(g)(1)(C). However, the Act allows certain agencies, after holding hearings, to promulgate regulations exempting themselves from provisions of the Act. 5 U.S.C. § 552a(j).
At the time of the plaintiff's complaint, the BOP promulgated such regulations and exempted itself from several provisions of the Privacy Act. Specifically, 28 C.F.R. § 16.97(a)(1999) exempted BOP records from §§ 552a (c)(3) and (4), (d), (e)(2), and (3), (e)(4)(H), (e)(8), (f), and (g). Of importance to this case, the regulation did not exempt the BOP records from subsection (e)(5). Thus, at the time of the plaintiff's complaint, the BOP had not expressly exempted itself from the precise provision which the plaintiff alleges the BOP violated.
On August 9, 2002, the Department of Justice implemented a final rule also exempting the "Inmate Central Records System, Justice BOP-005," at issue in this case, from subsections (e)(1) and (e)(5) of the Privacy Act. 67 F.R. 51754.
With respect to civil remedies for violations of subsection (e)(5) of the Privacy Act, subsection (g)(1)(C) provides a civil action against the offending party whenever the agency "fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual." Moreover, pursuant to subsection (g)(4), in any action brought under subsection (g)(1)(C), "in which the court determines that the agency acted in a manner which was intentional or willful," the United States shall be liable for actual damages sustained by the individual not less than $1,000 as well as litigation costs and attorney's fees.
The court notes that subsection (g)(4) allows suits for monetary damages only, not any form of injunctive relief. See also Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997). Thus, to the extent that the plaintiff is bringing this action for injunctive and declaratory relief, the court recommends that the action be dismissed.
Thus, while the BOP was not exempt from the requirements of § 552a (e)(5), the court indicated that it must be determined whether the plaintiff was entitled to relief pursuant to subsections (g)(1)(C) and (g)(4). As such, the court issued an order on May 23, 2003, in which the defendant was directed to ". . . file an answer to the plaintiff's complaint which specifically addresses the plaintiff's contention relating to the inaccuracies contained in his DHO report" and to ". . . further show cause why the plaintiff is not entitled to relief pursuant to 5 U.S.C. §§ 552a (e)(5), (g)(1)(C), and (g)(4) . . ." (Doc. No. 49).
On July 28, 2003, the defendant filed an "Answer to the Complaint with Affirmative Defenses." (Doc. No. 54). The answer complied with the provision of the court's order directing that the defendant respond to the contentions contained the complaint. However, the defendant did not address the merits of the plaintiff's claim as previously directed. As a result, by order dated November 13, 2003, the court directed the defendant to do so. (Doc. No. 58). The defendant filed its brief on December 5, 2003. (Doc. No. 61). The plaintiff filed a reply brief on December 29, 2003. (Doc. No. 62).
By report dated September 23, 2004, the court recommended that the plaintiff's complaint be dismissed for his failure to state a claim under 5 U.S.C. §§ 552a (e)(5), (g)(1)(C), and (g)(4) of the Privacy Act. (Doc. No. 68). Specifically, the court noted that, pursuant to the Privacy Act, an individual may obtain civil damages under §§ 552a (g)(1)(C) and (g)(4) when an agency "intentional[ly] or willful[ly]" "fails to maintain any record concerning [the] individual with such accuracy . . . as is necessary to assure fairness in any determination relating to . . . the individual[,] . . . and consequently a determination is made which is adverse to the individual." Toolasparashad v. Bureau of Prisons, 286 F.3d 576, 581 (D.C. Cir. 2002).
In this case, the court noted that the plaintiff generally alleged in his complaint that the inaccurate information in his DHO report "resulted in adverse determinations being made relating to Plaintiff's character, rights and opportunities." (Doc. No. 1, ¶ 27). The plaintiff later clarified this statement by alleging that the inaccuracies in his DHO report resulted in adverse determinations with respect to his classification and security level within the BOP. (Doc. No. 48, p. 4; Doc. No. 55, pp. 4-5). The plaintiff alleged no other adverse determinations as a result of the DHO report.
Materials submitted by the defendant indicated that on January 31, 1997, the plaintiff was sentenced in the United States District Court for the Southern District of New York to 156 months of imprisonment for conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(5) and conspiracy to commit assault in violation of 18 U.S.C. § 1959(a)(6). On September 4, 1997, well in advance of the DHO report at issue in this case, the plaintiff was designated by the Northeast Regional Office with a "high" security level classification. This classification level was made pursuant to Bureau of Prisons' Program Statement 5100.07, Security Designation and Custody Classification Manual. In accordance with the plaintiff's custody classification level scoring, he was designated to serve his sentence at a "high security institution." The defendant's materials further indicated that there had been no change in the plaintiff's security classification as a result of the alleged inaccurate information in his DHO report, and that, regardless of the information contained in the DHO report, the plaintiff's security classification would be "high." (Doc. No. 61, Ex. 1). Since the plaintiff failed to provide any affirmative evidence that his security classification was adversely effected by the information contained in the DHO report, the court found that the plaintiff had failed to adequately set forth a claim for relief pursuant to the Privacy Act, 5 U.S.C. §§ 552a (g)(1)(C) and (g)(4), and recommended that his complaint be dismissed.
Because the requirements for establishing a claim for relief under 5 U.S.C. §§ 552a (g)(1)(C) and (g)(4) are conjunctive and the plaintiff failed to meet one of those requirements, the court indicated that it need not address the other factors. It was noted, however, that the court considered the defendant's brief and the plaintiff's reply addressing the remaining factors and found the defendant's brief to be well-taken.
By order dated November 8, 2004, the court declined to adopt the report of the undersigned finding that, because the court had considered materials outside of the pleadings in connection with the rule to show cause, the procedure for converting a motion to dismiss to one for summary judgment should have been applied in this case. As such, the court remanded the matter for the establishment of discovery and dispositive motions deadlines. (Doc. No. 67).
By order dated November 18, 2004, the court directed that any additional discovery in this action be completed on or before December 20, 2004, and that any dispositive motions be filed on or before January 20, 2005. (Doc. No. 68). In accordance with this court's directive, on January 20, 2005, the defendant filed the instant motion for summary judgment. (Doc. No. 69). A statement of material facts, (Doc. No. 71), and supporting brief with exhibits, (Doc. No. 73), followed on February 3, 2005. On February 25, 2005, the plaintiff filed a brief and exhibits in opposition to the defendant's motion for summary judgment. (Doc. No. 74).
Upon review, the substance of these latest submissions does not materially alter this court's previous recommendation of September 23, 2004. To this extent, the defendant still maintains that the plaintiff has failed to identify any adverse determinations as a result of the alleged inaccurate information in his DHO report. (Doc. No. 70).
In response, the plaintiff argues that he, in fact, has suffered adverse determinations as a result of the alleged inaccurate information in his DHO report. To this extent, the plaintiff argues that the BOP's Program Statement 5100.07, "Security Designation and Custody Classification Manual," provides that "disciplinary action might affect the security custody level." (Emphasis in plaintiff's brief). (Doc. No. 64, p. 6). The plaintiff argues, therefore, that as long as the alleged inaccurate DHO report remains in his record, the information in the report will be used to maintain him at a "high" security classification. To support this contention, the plaintiff has provided two BOP Program Review Reports, in which he indicates that the reviewer "circled current and past violence showing that the DHO Report does have an adverse determination to some degree during even the six month program review." (Doc. No. 74, pp. 3-4).
The plaintiff seems to argue that, the more time he serves, the more he is entitled to have his security classification reduced. To this extent, the plaintiff indicates that "[t]o hold that [he] could be subject to such a high security classification indefinitely, for the whole duration of his criminal sentence, would violate every fiber of Due Process making every unit team hearing a sham." (Doc. No. 64, p. 5). However, the Supreme Court has held that an inmate has "no legitimate statutory or constitutional entitlement" to any particular custodial classification which is sufficient to invoke due process. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). According to the Court, Congress has given federal prison officials full discretion to control the classification of prisoners residing in their institutions. Id. (citing 18 U.S.C. § 4081).
The court notes that these are Program Review Reports and not Custody Review Reports.
Initially, with respect to the plaintiff's contentions, the fact that the above-cited Program Statement provides that disciplinary action "might" affect an inmate's security custody level does not establish that the DHO Report in this case, in fact, affected the plaintiff's security classification level.
Moreover, upon review of the reports relied upon by the plaintiff, the reviewer's comments relating to "current violence" and "past violence" are responsive to any inquiry on the form as to whether the offender is subject to notification under 18 U.S.C. § 4042 (b). There is no indication that the reviewer's response relates to, or is in any way meant to affect, the plaintiff's security custody classification.
This section provides:
(b) Notice of release of prisoners. —
(1) At least 5 days prior to the date on which a prisoner described in paragraph (3) is to be released on supervised release, or, in the case of a prisoner on supervised release, at least 5 days prior to the date on which the prisoner changes residence to a new jurisdiction, written notice of the release or change of residence shall be provided to the chief law enforcement officer of the State and of the local jurisdiction in which the prisoner will reside. Notice prior to release shall be provided by the Director of the Bureau of Prisons. Notice concerning a change of residence following release shall be provided by the probation officer responsible for the supervision of the released prisoner, or in a manner specified by the Director of the Administrative Office of the United States Courts. The notice requirements under this subsection do no apply in relation to a prisoner being protected under chapter 224.
(2) A notice under paragraph (1) shall disclose —
(A) the prisoner's name;
(B) the prisoner's criminal history, including a description of the offense of which the prisoner was convicted; and
(C) any restrictions on conduct or other conditions to the release of the prisoner that are imposed by law, the sentencing court, or the Bureau of Prisons or any other Federal agency.
(3) A prisoner is described in this paragraph is the prisoner was convicted of —
(A) a drug trafficking crime, as that term is defined in section 924(c)(2); or
(B) a crime of violence (as defined in section 924 (c)(3)).
Furthermore, under the "Current Assignment" section of the form, there is a reference which indicates "curr[ent] viol[ence] on/after 91394," which pre-dates the DHO report in question.
Therefore, the plaintiff has failed to refute the defendant's materials and establish that he suffered an adverse determination as a result of the alleged inaccurate information in his DHO report. As such, the defendant's motion for summary judgment should be granted.
As previously reported, because the requirements for establishing a claim for relief under 5 U.S.C. §§ 552a (g)(1)(C) and (g)(4) are conjunctive and the plaintiff has failed to meet one of those requirements, the court need not address the other factors. The court notes, however, that it has considered the defendant's brief and the plaintiff's reply addressing the remaining factors and has found the defendant's brief to be well-taken.
On the basis of the foregoing,
IT IS RECOMMENDED THAT:
the defendant's motion for summary judgment, (Doc. No. 69), be GRANTED.