                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1487
                                  ___________

Charles Arnold Trobaugh;              *
Jane L. Trobaugh,                     *
                                      *
            Appellants,               *
                                      * Appeal from the United States
      v.                              * District Court for the Northern
                                      * District of Iowa.
United States Bureau of Prisons;      *
Michael Junk,                         * [UNPUBLISHED]
                                      *
            Appellees.                *
                                 ___________

                         Submitted: October 1, 2003
                             Filed: October 6, 2003
                                  ___________

Before RILEY, HANSEN, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

       Federal prisoner Charles A. Trobaugh and his wife, Jane L. Trobaugh, appeal
the district court’s1 adverse grant of summary judgment in their action under the
Privacy Act, 5 U.S.C. § 552a, and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). As relevant, they alleged that the United
States Bureau of Prisons (BOP), in violation of the Privacy Act, failed to maintain


      1
      The Honorable Edward J. McManus, United States District Judge for the
Northern District of Iowa.
Charles’s inmate records to reflect the January 2001 dismissal of two 1989 assault
charges, and the inaccurate records led to the denial of Charles’s requests for transfer
to a minimum security prison; and that the BOP failed to respond to Charles’s Privacy
Act requests within ten days as required by 5 U.S.C. § 552a(d)(2)(A). They also
alleged that BOP employee J. Michael Junk denied Charles’s transfer requests in
retaliation for Charles’s exercising his First Amendment rights (i.e., filing a lawsuit
against Junk and contacting a United States Senator), and that Junk conspired with
nondefendants to deny Charles’s transfer. For the alleged violations of Charles’s
rights, Jane sought damages under state law for loss of consortium and negligent and
intentional infliction of emotional distress. The Trobaughs have abandoned their
additional claims. See Maheny v. Warren County, 206 F.3d 770, 771 n.2 (8th Cir.
2000) (per curiam) (claims not raised in brief are waived).

       Upon de novo review, see Cooper v. Olin, 246 F.3d 1083, 1087 (8th Cir. 2001),
we conclude that summary judgment was proper as to the Privacy Act claims against
the BOP and the Bivens claim against Junk. First, we agree with the district court
that the BOP was exempt from the ten-day response requirement. See 5 U.S.C.
§ 552a(j); 28 C.F.R. 16.97(a) (2003). Second, we conclude that the BOP took
reasonable steps to maintain an accurate record for Charles and did not act wilfully
or intentionally in not updating his record sooner. The undisputed evidence showed
Charles’s custody score was reduced in February 2001, and FMC staff corrected his
records on April 11, after receiving verification of the January dismissals. See Deters
v. United States Parole Comm’n, 85 F.3d 655, 660 (D.C. Cir. 1996) (to show wilful
or intentional conduct, plaintiff must prove agency was more than grossly negligent
and committed the act without grounds for believing it to be lawful or by flagrantly
disregarding others’ rights under Act); Sellers v. Bureau of Prisons, 959 F.2d 307,
312 (D.C. Cir. 1992) (agency must take “reasonable steps” to maintain accurate
records). Third, we conclude the record fails to show that Charles would have been
transferred “but for” retaliation, as the record supports the other reasons given for the
transfer denial, that is, Charles’s extensive criminal history and his repeated

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violations of parole and work release. Cf. Kind v. Frank, 329 F.3d 979, 981 (8th Cir.
2003) (where record demonstrated that inmate was disciplined and transferred due to
pattern of misbehavior and repeated violations of jail’s rules, inmate failed to show
that “but for his assertions of his constitutional rights, he would not have been
transferred”).

       We also conclude that the district court did not abuse its discretion in staying
discovery, particularly when the Trobaughs failed to identify what discovery was
lacking that prevented them from adequately resisting summary judgment, see Dulany
v. Carnahan, 132 F.3d 1234, 1238 (8th Cir. 1997) (standard of review; under Fed. R.
Civ. P. 56(f), party opposing summary judgment may seek continuance by filing
affidavit showing what specific facts further discovery might unveil); and we agree
with the district court that Jane’s derivative claims failed.

       Accordingly, we affirm. We deny as moot appellants’ motion to supplement
the record.

                       ______________________________




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