UNITED STATES DISTRICT COURT
F()R THE DISTRICT OF COLUMBIA

)
ALAN SCOTT, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-2372 (RCL)
)
JOYCE K. CONLEY, et al., )
) F I L E D
Defendants. )
) SEP 2 6 2012
Clerk, U.S. District and
Bankruptcy Couri;s
MEMORANDUM OPINION

This matter is before thc Court on defendants’ motion to dismiss plaintiffs complaint.l
For the reasons discussed below, the motion will be granted in part and denied in part without

prej udice.

I. BACKGROUND

Plaintiff, a former federal prisoner, brings this action against the Federal Bureau of
Prisons ("BOP") under the Privacy Act, see 5 U.S.C. § 552a, and against assorted BOP officials
in their individual capacities under Bivem' v. Six Unknown Fed. Narcotics Agerzls, 403 U.S. 388
(197l). ln addition, plaintiff alleges violations of rights protected under the First and Fifth

Amendments to the United States Constitution by all defendants

A. Handling of Plaz`nl;`ff ’s Maz`l, Telephone Calls and Publications

l Plaintiff has amended his original complaint ("Compl.") [Dkt. #l] twice -- on january

14, 2010 ("Am. Compl.") [Dkt. # 6] and on August 3, 2011 ("2d Am. Compl.") [Dkt. #55].
1

Plaintiff acknowledges a Warden’s authority "to reject correspondence (including emails)
. . . sent by or to an inmate" but notes that the Warden may do so only if it is deemed
"‘detrimental to the security, good ordcr, or discipline of the institution, to the protection of the
public, or if it might facilitate criminal activity."’ Compl. 11 13 (quoting 28 C.F.R. § 540.l4(d)).
To this end, the Warden may "reject correspondence (including emails)," if, for example, the
correspondence "depicts, describes, or encourages activities which may lead to the use of
physical violence or group disruption," includes plans to commit illegal activities or to violate
BOP regulations, or indicates "direction of an inrnate’s business." Id. 11 13. And a Warden "may
reject a publication . . . if it is determined detrimental to the security, good order, or discipline of
the institution or if it might facilitate criminal activity." 28 C.F.R. § 540.7l(b). Such
circumstances may exist if the publication describes procedures for constructing or using
weapons or incendiary devices, brewing alcoholic beverages, manufacturing drugs, or contains

sexually explicit material. See Compl. 11 14.

The BOP has established a Counter-Terrorism Unit ("CTU"), the staff of which is
principally "responsible for monitoring and analyzing domestic and international terrorist-related
intelligence and information." Reply Mem. of Law to Pl.’s Opp’n to Defs.’ Mot. to Dismiss,
ECF No. 62 ("Reply"), Smith Decl. 11 2. lt also established a Communications Management Unit
("CMU"), designed "to provide an inmate housing unit that enables staff to more effectively
monitor communications between CMU inmates and persons in the community." Ia'. , Smith

Decl. 11 5 (citation omitted).

A CMU inmate need not be linked to terrorist activity to qualify for CMU placement.
Any inmate whose "current offense(s) ol` conviction . . . or activity while incarcerated, indicates
a propensity to encourage, coordinate, facility [sic], or otherwise act in furtherance of, illegal

2

activity through communication with persons in the community" may be assigned to a CMU.

Ia’, , Smith Decl. 11 6(b). Plaintiff is such an inmate.

"While in BOP custody, Plaintiff . . . engaged in a scheme to defraud class action claims
administrators and members of class action settlements, by filing false claims in class action
settlements of securities fraud cases. This scheme unfolded with the unknowing assistance of
various members of the public, including numerous reference librarians at public libraries." Ia'. ,
Smith Decl. 11 9. Based on his criminal history, plaintiff was transferred to a CMU at the Federal
Correctional Complex in Terre Haute, lndiana ("FCC Terre Haute"), described by plaintiff as a
unit "under the direct control and supervision in all aspects . . . by the [CTU]." Compl.11 7. The

BOP’s notice to plaintiff explained the transfer as follows:

Your offenses of conviction include Conspiracy to Commit Mail Fraud;
Conspiracy to Commit Bank Fraud; Possession of Forged Securities; Conspiracy
to Make False Claims Against the U.S.; and lneome Tax Evasion. Your
incarceration conduct has included orehestrating a scheme to defraud class action
settlements by filing false claims in securities fraud cases; filing fraudulent
income tax returns and frequent[] misuse/abuse of legal mail. Your latest
conviction involved misuse of legal mail and you were again recently disciplined
for further rnisuse/abuse of legal mail. Your contact with persons in the
community requires heightened controls and review.

Defs.’ Mem. of P. & A. in Supp. of their Mot. to Dismiss Pl.’s Compl. and Am. Compl., ECF
Nos. 1, 6,, 55 ("Defs.’ Mem."), Ex. A (Notice to lnmate of 'i`ransfer to Communication

Management Unit dated Mareh 9, 2009).

At the CMU, "[a]ll social phone calls made by inmates must be approved by CTU staf£"
scheduled one week in advanee, and "limited to a 30-minute ‘window’ between 8:00 Al\/I to 3:00
PM on non-holiday weekdays." Compl. 11 7. Calls are "live monitored" by CTU staff, z'd., and
are "automatically tape-recorded," id. 11 8. Recordings of calls made by CMU inmates "are

maintained by the BOP indefinitely including beyond the inmate’s release and/or expiration of

3

his sentence," yet recordings of non-CMU inmates’ calls are maintained for only nine months.

Ia'.

"All social mail received by or sent by an inmate is scanned and sent electronically to
[the] CTU" for approval prior to delivery to or from the inmate. Id. 11 7. Emails on the inmate
Trulincs system are handled in the same manner. Ia’. Mail "must be sent to or received from an
address that is approved by defendants." id The electronic copies of such correspondence "are
maintained indefinitely and beyond the inmate[’]s release and/or expiration of his sentence," but
the BOP does not maintain copies of non-CMU inmates’ correspondence after their release from

custody. Id. 11 9.
B. Allegatz`ons of Plaintijj’ ’s Complaint, As Amena'ed
l. Bz'vens Claims

According to plaintiff, Joyce K. Conley, Les Smith, and other BOP officials "conspired
together in concert to violate plaintiff s constitutional rights under the First and Fif`th
Amendments . . . [by] causing [plaintiff’ s] mail to be rejected both incoming and outgoing
whenever that mail contained such items as bank, stockbroker [or] credit card statements, credit
reports, [or] tax statements . . . relat[ing] to [his] personal financial affairs." Compl. 1 17; see ia’.
1111 18-26; see also Am. Compl. 1111 l7(A-B); 2d Am. Compl. 1111 l7(B), 32(B). These defendants
also blocked "any correspondence both incoming and outgoing and emails of plaintiff s home
address in Taunton, Massachusetts,” Compl. 11 19, and "have caused the rejection of
correspondence . . . including . . . bank account statements, credit card statements, stock
brokerage statements, . . . personal credit reports, form 1099’5 from holdings in publicly held

companies, annual reports of publicly held corporations, and correspondence and requests for

information made to him by banks and credit card companies." Id. 11 21 . Additionally, these
defendants also have caused the rejection of publications titled "Spies Among Us: How to Stop
the [S]pies, [T]errorists, [H]ackers, and [C]riminals [Y]ou [D]on’t [E]ven [K]now [Y]ou
[E]ncounter [E]very [D]ay," "Hacking Exposed Computer Forensics: Secrets and Solutions," z`d.
11 18, and "Crime School: Money Laundering," 2d Am. Compl. 11 l7(B)(k). Plaintiff has deemed
these actions violations of rights protected under the First and Fif`th Amendments to the United
States C0nstitution, see Compl. 11 19, for which he demands unspecified injunctive relief, a
declaratory judgment, and compensatory and punitive damages in an unspecified amount, id. 11

32.

Since these events occurred, plaintiff has been released from custody. Defendants argue,
see Defs.’ Mem. at 14-16, and plaintiff concedes, see Pl.’s Opp’n to Def.’s Mot. to Dismiss [Dkt.
#63] at 2, that all the Bivens claims arising from the handling of his telephone calls,
correspondence and publications are now moot.z His remaining claims arise under the Privacy

Act and are brought against the BOP alone.3

2. Privacy Act Claims

2 Because the mail-related claims are now moot, the Court will deny plaintiffs Motion to

Reconsider Denial of Leave to File Plaintiff’s Motion for Partial Summary Judgment [Dkt. #66]
and Motion to Substitute John Doe # Defendant and File Waiver [Dkt. #67].

3 Defendants move to dismiss on several grounds, most of which are no longer relevant
because plaintiff’ s mail-related claims are moot. The Court, therefore, need not discuss whether
sovereign immunity bars claims against the individual defendants in their official capacities, see
Defs.’ Mem. at 16-17, whether service of process has been effected on and whether the Court
lacks personal jurisdiction over the individual defendants, see z`a'. at 17-22, whether plaintiff’ s
Bivens claims should be dismissed for improper venue, see z`a'. at 22-23, whether plaintiff
exhausted the administrative remedies, see id. at 24-25, whether respondeat superior applies, see
id. at 26-27, and whether the individual defendants are protected by qualified immunity, see z`a’.

at 28-36. Nor does the Court address plaintiffs request for a preliminary injunction, as "plaintiff
has abandoned the preliminary injunction quest due to his release." Pl.’s Opp’n at 9.

5

According to plaintiff, the BOP maintains "a system of records that is not authorized by 5
U.S.C. [§] 552a(e)(1) and 5 U.S.C. [§] 552a(e)(7) and which has not been exempted pursuant to
28 CFR l6.97." Compl. 1127; see id. 11 9. This system of records apparently contains recordings
of inmate telephone calls, see id. ‘1 8, and electronic copies of social mail, id. 11 9. In addition,
plaintiff contends that BOP’S CTU "maintains various system[s] of records in its offices that . . .
parallel the same type of records that also exist" at BOP facilities, "including the CMU/CTU at

FCC Terre Haute." Ia’. 11 11.

Plaintiff alleges that the BOP not only collects records unlawfully, but also uses these
records "in a manner that causes . . . an adverse effect on plaintif ," z`d. 11 28, particularly by
releasing information about him "to persons or companies not authorized to receive such
disclosures," icl. 11 30, in violation of 5 U.S.C. § 552a(b). F or example, plaintiff alleges that the
BOP has "given unsolicited notice and information to certain of plaintiff s creditors that plaintiff
[was] incarcerated and as a direct result . , . plaintiff s long-standing account(s) were closed"

even though the accounts were not delinquent. Compl. 11 31.

Plaintiff s next claim arises from the BOP’s "refus[al] to disclose to plaintiff material (4
folders of records as of September 20, 2009) collected on or pertaining to plaintiff." Id. This
action, he alleges, violates the Privacy Act, Am. Compl. 11 28(A), and plaintiff demands
"injunctive relief that would enjoin [the BOP] from maintaining in any form, be it written,
microfilm, or electronic, of any records collected by its CTU," such as recorded telephone calls

or copies of emails or correspondenee, after plaintiff s release from incarceration," ia’. 11 32(A).

ll. DlSCUSSION

A. Agency Obligations Under the Privacy Act

"The [Privacy] Act gives agencies detailed instructions for managing their records and
provides for various sorts of civil relief to individuals aggrieved by failures on the Government’s
part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618 (2004). For Privacy Act
purposes, a "record" is "any item, collection, or grouping of information about an individual that
is maintained by an agency . . . that contains [the individual’s] name, or the identifying number,
symbol, or other identifying particular . . . such as a finger[print] . . . or a photograph." 5 U.S.C.
§ 5 52a(a)(4). Such information may include the individual’s "education, financial transactions,
medical history, and criminal and employment history." Ia’. A "system of records" is defined as
"a group of any records under the control of any agency from which information is retrieved by
the name of the individual or by some identifying number, symbol, or other identifying particular

assigned to the individual." Id. § 552a(a)(5).

Generally, the Privacy Act prohibits an agency from "disclos[ing] any record which is
contained in a system of records by any means of communication to any person, or to another
agency, except pursuant to a written request by, or with the prior written consent of, the
individual to whom the record pertains." ld, § 552a(b). There are twelve exceptions to this rule,
however. See id. § 552a(b)(l-l2). In addition, the Privacy Act requires an agency to "keep an
accurate accounting of . . . the date, nature, and purpose of each disclosure of a record to any
person . . . ; and the name and address of the person or agency to whom the disclosure is made."
Ia’. § 552a(c)(l). The agency must "make the accounting . . . available to the individual named in
the record at his request." Id. § 552a(c)(3). And an agency must "inforrn any person or other
agency about any correction or notation of dispute made by the agency . . . of any record that has
been disclosed to the person or agency if an accounting of the disclosure was made." Id, §

552a(c)(4).

B. The CTU’S "‘System ofRecords"

Plaintiff alleges that the BOP maintains an unauthorized system of records, which
includes recordings of telephone calls and electronic copies of written and email correspondence,
in violation of 5 U.S.C. [§] 552a(e)(7). See Compl. 1111 7-11. He further alleges that the BOP
intends "to retain that information on an indefinite and undefined basis," z'a'. 11 29, and that the
BOP has disclosed information about him “to persons or companies not authorized to receive
such disclosures by 5 U.S.C. [§] 552a(b)(l-l2) and in violation of 5 U.S.C. [§] 552a(b)," to his

detriment. Compl. 11 30.

The BOP argues that the relevant system of records has been exempted from these
Privacy Act provisions, see 5 U.S.C. § 55Za(d)(3-4), pursuant to the authority granted to the
BOP’s Director, see 5 U.S.C. § 552a(j). Defs.’ Mem. at 38; see z`d., Ex. i (Letter to plaintiff from
Wanda M. Hunt, Chief, FOiA/PA Section, BOP, dated September 5, 2009) at l. The CTU
apparently "does not have its own [system of records]" and instead "utilizes existing [systems] to
house documents pertinent to inmates housed in CMU[S]." Reply at 12. Counsel represents that
the BOP "modified and expanded" an existing system, the Custodial and Seeurity Record System
(JUSTiCE/BOP-OOI) in 2002, renamed it the Prison Seeurity and intelligence Record System
(JUSTICE/BOP-OOI), and since has maintained "all the records gathered by the [BOP’S] Office
of intelligence that would aid in investigatory efforts." Defs.’ Mem. at 38. This circumstance is
not apparent from the language of the notice published in the Federal Register, see 67 Fed. Reg.
41449 (June 18, 2002), to which counsel refers, nor from the declarations submitted in support of
the BOP’s motion to dismiss. The Court cannot determine whether the records plaintiff
describes - recordings of telephone calls and copies of mail and email correspondence collected
by the CTU - are among the records maintained in the Prison Seeurity and intelligence Record

8

System. Nor can the Court determine the relationship between the CTU, CMUs, BOP’s Office
of Intelligence, and the Prison Seeurity and intelligence Record System. And without a clear

understanding of the "system of records" at issue, the Court cannot determine whether the

system is exempt from any provisions of the Privacy Act.
iIi. CONCLUSION

For the reasons stated above, defendants’ motion to dismiss will be granted in part and
denied in part without prcjudice, and plaintiffs pending motions will be denied as moot. An

Order accompanies this Memorandum Opinion.

DATE; `7/,2»,"/,,_ KC- }D')/)»¢W¢Q

RoYti‘E c. LAMBERTH
United States District Judgc

