                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
MICHAEL VADEN,                      )
                                    )
                  Plaintiff,        )
      v.                            )        Civil Action No. 14-0234 (TSC)
                                    )
U.S. DEPARTMENT OF JUSTICE,         )
                                    )
                  Defendant.        )
___________________________________ )


                                  MEMORANDUM OPINION

       This matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 10) and

Plaintiff’s Motion for Summary Judgment (ECF No. 12). 1 For the reasons discussed below, the

complaint and this civil action will be dismissed.

                                        I. BACKGROUND

       Plaintiff, who had been “sentenced in the Superior Court [of] the District of Columbia,”

is in the custody of the Federal Bureau of Prisons (“BOP”) after having violated the conditions of

his parole release. Plaintiff’s Motion for Summary Judgment (“Pl.’s Mot. for Summ. J.”) at 2.

He “is . . . currently confined at the United States Penitentiary – II at the Federal Correctional

Complex, in Coleman, Florida.” Defendant’s Memorandum of Points and Authorities in Support

of Motion to Dismiss (“Def.’s Mem.”), Declaration and Certification of Records by Caixa Santos

(“Santos Decl.”) ¶ 5.

       According to plaintiff, on July 1, 2013, he became aware of “custody classification points

contained within [his] male custody classification form[,] specifically the inconsistencies

1
  The Court denies Plaintiff’s Motion for Summary Judgment and instead construes it as his
opposition to Defendant’s Motion to Dismiss.
                                                  1
regarding various miss[c]ored subjects.” Complaint (“Compl.”), Attachment (“Attach.”) at 1. 2

He contended that his base score, custody score, variance score and total score had been

calculated incorrectly, and that “the public safety factor [assigned to him] should have been

waived,” id., Attach. at 1 (page numbers designated by plaintiff). 3 Plaintiff alleges that the BOP

has “intentionally and willfully miscal[culated] points in [his] male custody classification form,”

id. at 5, such that he is designated to a more secure facility than is warranted, see Pl.’s Mot. for

Summ. J. at 2. 4

        Plaintiff brings this action under the Privacy Act, see 5 U.S.C. § 552a, alleging that the

BOP fails to maintain its records pertaining to him with the level of accuracy, see Compl.,

Attach. at 3, required under 5 U.S.C. § 552a(e)(5). He contends that, as a result, the BOP has



2
   “Custody classification” is the process by which the BOP “assign[s] a custody level based on
an inmate’s criminal history, instant offense, and institutional adjustment.” Def.’s Mem., Ex. 3
(Program Statement 5100.08, Inmate Security Designation and Custody Classification
(9/12/2006) (“P.S. 5100.08”)), ch. 2, p. 2; see P.S. 5100.08, ch. 6, p. 1. An inmate’s “custody
level (i.e., COMMUNITY, OUT, IN, and MAXIMUM) dictates the degree of staff supervision
required for an individual inmate.” P.S. 5100.08, ch. 2, p. 2 (bold type in original).
3
   A Public Safety Factor (“PSF”) is applied to an inmate whose “demonstrated behaviors . . .
require security measures to ensure the protection of society.” P.S. 5100.08, ch. 2, p. 4.
“[A]pplication of a PSF overrides security point scores to ensure the appropriate security level is
assigned to an inmate based on his . . . demonstrated current or prior behavior.” Id.
4
    The term “security level” describes:

        the structural variables and inmate-to-staff ratio provided at the various types of
        [BOP] institutions [and] identifies the institution type required to house inmates
        based on their histories, institutional adjustment, and Public Safety Factors as well
        as the physical security of the institution to include mobile patrols, gun towers,
        perimeter barriers, housing, detection devices, inmate-to-staff ratio, and internal
        security.

P.S. 5100.08, ch. 2, p. 5. “[BOP] institutions are classified into one of five security levels:
MINIMUM, LOW, MEDIUM, HIGH, and ADMINISTRATIVE based on the level of
security and staff supervision the institution is able to provide.” P.S. 5100.08, ch. 1, p. 1 (bold
type in original).
                                                  2
made a determination adverse to him in reliance on its records, Compl., Attach. at 4. Plaintiff

demands injunctive relief through correction of the allegedly inaccurate records and designation

“to the appropriate security level facility.” Id. at 5. He also demands monetary damages. Id.;

see id., Attach. at 5.

                                          II. DISCUSSION

       A. Plaintiff’s Failure to Exhaust Administrative Remedies Does Not Bar This Action

           Defendant moves to dismiss the complaint on the ground that plaintiff failed to

exhaust his administrative remedies prior to filing this action as is required under the Prison

Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e(a). See generally Def.’s Mem. at 3-6.

        In relevant part, the Prison Litigation Reform Act provides that:

                [n]o action shall be brought with respect to prison conditions under
                section 1983 of this title, or any other Federal law, by a prisoner
                confined to any jail, prison, or other correctional facility until such
                administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and “applies to all prisoners

seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520

(2002); see Jones v. Bock, 549 U.S. 199, 211 (2007). It requires proper exhaustion, meaning that

a prisoner must comply with procedural rules, including filing deadlines, as a precondition to

filing a civil suit in federal court, regardless of the relief offered through the administrative

process. See Woodford v. Ngo, 548 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731, 741

(2001). Thus, a prisoner may file a civil action concerning conditions of confinement under

federal law only after he has exhausted the prison’s administrative remedies. See Jackson v.

District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001). Exhaustion under the PLRA is not a

jurisdictional requirement, however. See Jones, 549 U.S. at 216; Woodford, 548 U.S. at 101. It

is instead an affirmative defense, Jones, 549 U.S. at 216, which a defendant must plead and

                                                   3
prove, Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005) (quoting Dale v. Lappin, 376

F.3d 652, 655 (7th Cir. 2004)); see Albino v. Baca, 646 F.3d 1162, 1171 (9th Cir.), cert. denied,

135 S. Ct. 403 (2014).

          An inmate first must “present[] an issue of concern informally to staff, and staff shall

attempt to informally resolve the issue before an inmate submits a Request for Administrative

Remedy.” 28 C.F.R. § 542.13(a). “The [BOP] makes available a three level administrative

remedy process should informal resolution procedures fail to achieve sufficient results, under

which an inmate may seek formal review of an issue relating to any aspect of his/her own

confinement.” Santos Decl. ¶ 3 (internal quotation marks omitted). The declarant describes the

process as follows:

               The first level of administrative remedy process review is begun by
               filing a Request for Administrative Remedy at the institution
               where the inmate is incarcerated. Should the inmate’s complaint
               be denied at the institution level, the inmate may appeal by filing a
               Regional Administrative Remedy Appeal with the Regional Office
               for the geographic region in which the inmate’s institution of
               confinement is located. For an inmate at FCC Coleman, this
               appeal would be filed with the Southeast Regional Office of the
               BOP in Atlanta, Georgia (“SERO”). If the Regional Office denies
               relief, the inmate can appeal to the Office of General Counsel via a
               Central Office Administrative Remedy Appeal. This is the third
               and final step of the process.

Id.

          Plaintiff states that he became aware of the alleged miscalculation of custody

classification points on July 1, 2013, see Compl., Attach. at 1, and that he submitted an informal

resolution request on the following day, see id., Ex. (Informal Resolution Form dated July 2,

2013). The BOP’s regulations provide that the deadline for completion of an informal resolution

and submission of a formal written Administrative Remedy Request on the appropriate form

(“BP-9”) to the Warden is 20 days from the date on which the underlying event occurred. 28

                                                 4
C.F.R. § 542.14(a). Thus, plaintiff’s deadline for submission of a formal Administrative

Remedy Request would have fallen on or about July 21, 2013.

          According to plaintiff, he had not “received a response within the . . . time provision,”

and therefore he filed his formal written Administrative Remedy Request to the Warden on July

22, 2013. Pl.’s Mot. for Summ. J., Ex. 1 (Request for Administrative Remedy, Case Number

743584-F1 dated July 22, 2013). The Warden rejected the claim on the grounds that plaintiff

“did not submit [his] request through [his] counselor or other authorized person,” and that he

“did not attempt informal resolution prior to submission of [the] administrative remedy” request.

Id., Ex. 1 (Rejection Notice – Administrative Remedy dated July 24, 2013 regarding Remedy ID

743584-F1). Undaunted, plaintiff pursued an appeal to the Regional Office, id., Ex. 1 (Regional

Administrative Remedy Appeal dated August 21, 2013), which rejected the appeal on the ground

that plaintiff did not “first file a BP-9 request through the institution for the warden’s review and

response,” id., Ex. (Rejection Notice – Administrative Remedy dated August 27, 2013 regarding

Remedy ID 743584-R1). Similarly, plaintiff’s appeal to the BOP’s Central Office, id., Ex. 1

(Central Office Administrative Remedy Appeal dated September 23, 2013), was rejected on the

ground that plaintiff had “submitted [his] request to the wrong level,” id., Ex. 1 (Rejection

Notice – Administrative Remedy dated October 28, 2013 regarding Remedy ID 743584-A1).

According to the Administrative Remedy Coordinator, plaintiff should have filed a BP-9 at the

institution for the Warden’s review and response before filing an appeal. Id.

          Meanwhile, on August 23, 2013, plaintiff received a response to his informal remedy

request at which time his counselor issued him a BP-9 form. See id., Ex. 1 (Informal Resolution

Form). On September 13, 2013, plaintiff submitted a second formal written Administrative

Remedy Request regarding his custody classification score, see id., Ex. 4 (Request for



                                                  5
Administrative Remedy, Case Number 750131-F1 dated September 13, 2013), which was

rejected as untimely because plaintiff had not submitted the request within 20 calendar days of

the date of the matter about which he complained, id., Ex. 4 (Rejection Notice – Administrative

Remedy, Remedy ID 750131-F1, dated September 18, 2013).

          Defendant asserts that plaintiff filed his first formal written administrative remedy

request prematurely, “before he even heard back regarding the outcome of informal resolution.”

Def.’s Mem. at 2. Thus, defendant contends, the BOP was “correct in denying [p]laintiff’s

administrative remedy request and subsequent related appeals because he did not wait for the

outcome of informal resolution before filing those appeals.” Id. at 3. Therefore, defendant

argues, this “case should be dismissed” because plaintiff “has not properly exhausted his

administrative remedies regarding his custody classification points.” Id.

          Although plaintiff had not exhausted his administrative remedies prior to the filing of

this lawsuit, dismissal is not warranted under the circumstances of this case. Plaintiff ably

demonstrates his efforts to comply with the applicable regulations and filing deadlines. He

shows that he timely submitted an informal remedy request on July 2, 2013, that he did not

receive a timely response from his correctional counselor, and that he attempted to meet the 20-

day deadline by filing his first formal written Administrative Remedy Request on July 22, 2013.

He further demonstrates his attempt to file a second formal written Administrative Remedy

Request upon receipt – weeks later than the regulations allow – of the response to his informal

remedy request. The Court finds that plaintiff’s failure to exhaust administrative remedies

occurred through no fault of his own, and defendant’s motion to dismiss on this basis will be

denied.




                                                 6
       B. Plaintiff Fails to State a Privacy Act Claim Upon Which Relief Can Be Granted

        According to plaintiff, the BOP is relying on information contained in his presentence

investigation report (“PSI”) that either is incorrect or is misinterpreted, yet still was factored into

the scores for purposes of determining his custody classification and security level. See

generally Plaintiff’s Opposition to Motion to the [Defendant’s] Motion to Dismiss (“Pl.’s

Opp’n”) at 1-3. As a result, plaintiff claims that he has been “place[d] in a higher security

institution for a violation of parole when if corrected [he] should have been scored for a medium

custody institution,” Pl.’s Mot. for Summ. J. at 9, and thus has been placed in a “more hostel

[sic] environment and life threaten[ing] situation [as] oppose[d] to being housed in a lesser

security” facility. Id. at 11.

        Generally, “[t]he Privacy Act regulates the collection, maintenance, use, and

dissemination of information about individuals by federal agencies.” Wilson v. Libby, 535 F.3d

697, 707 (D.C. Cir. 2008) (internal quotation marks and citations omitted). An individual may

request access to and amendment of an agency’s records or information in a system of records

pertaining to him. See 5 U.S.C. § 552a(d). That individual may file a civil action against an

agency which “makes a determination . . . not to amend [the] record in accordance with his

request.” Id. § 552a(g)(1)(A). The Privacy Act also 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.” Id. § 552a(e)(5). An individual may file a civil action if an 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


                                                   7
                consequently a determination is made which is adverse to the
                individual.

Id. § 552a(g)(1)(C). If the Court determines that the agency’s actions were willful or intentional,

it may award actual damages sustained by the individual as a result of the agency’s failure to

maintain its records with the requisite level of accuracy, costs of the action and attorney fees. Id.

§ 552a(g)(4).

       “The agency obligations created by the Privacy Act are not absolute, however.” Meyer v.

Fed. Bureau of Prisons, 940 F. Supp. 9, 134 (D.D.C. 1996). 5 BOP regulations, for example,

exempt the Inmate Central Records System (JUSTICE/BOP-005) from subsections (d) and (g) of

the Privacy Act. See 28 C.F.R. § 16.97(a)(1), (4). An inmate’s custody classification form is

part of his Inmate Central File. See BOP Program Statement 5800.11, Inmate Central File,

Privacy Folder and Parole Mini-Files (12/31/1997) at 5, 7. Consequently, insofar as plaintiff

demands amendment under subsection (d) of any record maintained in the Inmate Central File –

including a custody classification form – such relief is unavailable under subsection (g). See

White v. U.S. Prob. Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam) (holding that

appellant is “barred from seeking amendment of his presentence report” because “presentence

reports and BOP inmate records systems are exempt from the amendment provisions of the

5
  An agency head may promulgate regulations to exempt a system of records from any part of
the Privacy Act other than 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 . . . 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).


                                                   8
[Privacy] Act”); Jennings v. Fed. Bureau of Prisons, 657 F. Supp. 2d 65, 71 (D.D.C. 2009)

(“Insofar as plaintiff demands amendment of any record maintained in the Inmate Central Files

system, that is, amendment of the PSI, custody classification form, or security designation form,

this relief . . . is unavailable.”); Register v. Lappin, No. 07-CV-136, 2007 WL 2020243, at *3

(E.D. Ky. July 6, 2007) (“[A]ll information pertaining to [a prisoner’s] security level and custody

classification [is] maintained in the Inmate Central Records System, a system which has been

exempted from subsections (d),(e)(5) and (g) of the Privacy Act by regulation.”).

       In addition, regulations exempt the Inmate Central Records System from subsection

(e)(5). See 28 C.F.R. § 16.97(j); see also 28 C.F.R. § 16.97(k)(2). Because the BOP exempts the

Inmate Central Records System from the substantive provision regarding the agency’s

recordkeeping obligations, there no longer is a remedy under the Privacy Act for harm resulting

from inaccuracies in the inmate records. See Flores ex rel. Estate of Flores v. Fox, 394 F. App’x

170, 172 (5th Cir. 2010) (per curiam) (denial of motion to amend complaint “to name the agency

as the proper defendant” to Privacy Act suit for damages “would have been futile because in

2002, the BOP promulgated regulations exempting its Inmate Central Records System from §

552a(e)(5) and from § 552a(g), the civil remedies provision”), cert. denied, 131 S. Ct. 1797

(2011); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam)

(upholding dismissal of Privacy Act claims against BOP which had “exempted its Inmate Central

Record System from the accuracy provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5)”); Earle

v. Holder, 815 F. Supp. 2d 176, 181-82 (D.D.C. 2011) (“It is settled that inmate records

maintained by BOP, including presentence reports, have been exempted from the Privacy Act’s

accuracy and amendment requirements (subsections (d) and (e)(5)) and from its damages

provision (subsection (g)).”), aff’d, No. 11-5280, 2012 WL 1450574, at *1 (D.C. Cir. Apr. 20,



                                                9
2012); Conklin v. U.S. Bureau of Prisons, 514 F. Supp. 2d 1, 6 (D.D.C. 2007) (concluding that

“plaintiff effectively is barred from obtaining any remedy, including damages, under subsection

(g), for the BOP’s alleged failure to maintain records pertaining to him with the mandated level

of accuracy”).

                                       III. CONCLUSION

          Defendant’s motion to dismiss will be denied in part because plaintiff’s failure to

exhaust his administrative remedies does not bar this action. However, the motion will be

granted in part because plaintiff’s complaint fails to state a Privacy Act claim upon which relief

can be granted. Plaintiff’s motion for summary judgment will be denied. An Order accompanies

this Memorandum Opinion.



DATE: February 9, 2015                           /s/
                                                 TANYA S. CHUTKAN
                                                 United States District Judge




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