Opinion
Civil Action No. 99-3699.
September 28, 1999.
MEMORANDUM
Plaintiff, a federal prisoner, filed a pro se action titled "Complaint for Declaratory and Injunctive Relief," asserting jurisdiction "under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as amended, and the Privacy Act (PA), 5 U.S.C. § 582(a)." As defendants, plaintiff names two U.S. Probation Officers from the Eastern District of Pennsylvania, Joan M. Leiby and Mary O'Neill, the Chief U.S. Probation Officer for the Eastern District of Pennsylvania, Barry W. Polsky, Assistant U.S. Attorney Paul A. Sarmousakis, and U.S. Attorney Michael R. Stiles, both from the Eastern District of Pennsylvania, and Attorney Steven A. Morley, Esquire, plaintiff's former defense counsel.
Plaintiff alleges in his Complaint that defendants Leiby, O'Neill, Polsky, Sarmousakis and Stiles "have possession of, and control over, the correction, amendment, or expungement of records that the plaintiff seeks." The records to which plaintiff refers include the Presentence Report prepared by the U.S. Probation Office that was used by the sentencing judge in calculating plaintiff's sentence under the United States Sentencing Guidelines. The gravamen of plaintiff's claim is that his Criminal History Category was improperly calculated, as a result of which he was incorrectly classified as a career offender and sentenced as a career offender. The relief plaintiff seeks is the correction of his records, chiefly the Presentence Report, to reflect that he is not a career offender. That relief is sought against all of the defendants excepting only Steven Morley. The claim against Mr. Morley is that he "failed to investigate agency records for inaccuracy."
Plaintiff asks the Court to provide the following specific relief: (1) issue a declaratory judgment that the failure to correct the subject records is unlawful; (2) issue an injunction compelling the U.S. Probation Office and the U.S. Attorneys Office to act upon his "FOIA/PA requests;" (3) refer this case to the "Merit Systems Production Board" for investigation; (4) award costs and attorney fees; (5) expedite lawsuit pursuant to 28 U.S.C. § 1657(a); and (6) grant such other relief as is just and proper.
With his Complaint, plaintiff filed a Motion to ProceedIn Forma Pauperis. With respect to the Motion to Proceed In Forma Pauperis, it appears that plaintiff is unable to pay the costs of commencing this action. Accordingly, leave to proceed in forma pauperis is granted. However, for the reasons which follow, plaintiff's Complaint will be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e).
I. DISCUSSION A. FOIA/PA Claim
Plaintiff's claim that he is entitled to removal of his classification as a career offender from the records of the U.S. Probation Office and the U.S. Attorneys' Office, and to have the "corrected" records furnished to him, is without merit. Plaintiff was convicted of drug and weapons offenses in the U.S. District Court for the Eastern District of Pennsylvania and his sentence was affirmed on appeal by the United States Court of Appeals for the Third Circuit Court of Appeals. See United States v. Whyte, 892 F.2d 1170 (3d Cir. 1989). The precise issue raised in plaintiff's Complaint for Declaratory and Injunctive Relief — the alleged errors in the calculation of plaintiff's criminal history — was presented to the Court of Appeals and rejected. There is absolutely no basis on the present state of the record for "correcting" plaintiff's criminal history in the records at issue. Accordingly, plaintiff's FOIA/PA claim for production of corrected records will be dismissed as legally frivolous.
B. Challenge to Sentence
Although plaintiff has titled this action a FOIA/PA claim for production of corrected records in which he seeks declaratory and injunctive relief rather than release from confinement, plaintiff is, in fact, challenging the duration of his sentence. As such, plaintiff's only remedy for his claim that his sentence was miscalculated is a writ of habeas corpus.Preiser v. Rodriguez, 411 U.S. 475, 488-89 (1973); Heck v. Humphrey, 512 U.S. 477, 481-82 (1994); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995). The Court notes that plaintiff has unsuccessfully sought to challenge his sentence by petition for writ of habeas corpus.
C. Defense Counsel
Plaintiff's claim against his former defense counsel, Steven A. Morley, is likewise frivolous. The FOIA/PA claims asserted by plaintiff are addressed to the governmental agencies charged with responsibility for maintaining the records at issue. Mr. Morley, as a private citizen, is not subject to the records maintenance provisions of the Privacy Act, upon which plaintiff relies for jurisdiction in this action. Accordingly, plaintiff's claim against Mr. Morley will be dismissed as legally frivolous.
II. CONCLUSION
Plaintiff has advanced an "indisputably meritless legal theory" in his Complaint. Thus, under Neitzke v. Williams, 490 U.S. 319, 327 (1989), the action will be dismissed as legally frivolous under 28 U.S.C. § 1915(e).
An appropriate Order follows.
ORDER
AND NOW, to wit, this 28th day of September, 1999, in accordance with the accompanying Memorandum filed on this date, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Leave to Proceed In Forma Pauperis is GRANTED; and
2. Plaintiff's Complaint is DISMISSED AS FRIVOLOUS pursuant to 28 U.S.C. § 1915(e);
3. A certificate of appealability will not be granted because petitioner has not made a substantial showing of a denial of a constitutional right. ( 28 U.S.C. § 2253(c)).