UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARIO E. VILLABONA-ALVARADO, )

Plaintiff, §
v. § Civil Case N0. 11-2071 (RJL)

FEDERAL BUREAU OF PRISONS, g
Defendant. § F I L E D

FEB 1 9 2013

MEMoRANDUM oPINIoN _ .
February  2013 [# 61 @(i'§ii§ i¢§’rtii`iii§iii§i?,i'é'fi»iiii»i@

Plaintiff Mario E. Villabona-Alvarado filed this lawsuit pro se against the Federal
Bureau of Prisons ("BOP" or "defendant") on November 18, 2011, alleging violations of
the Privacy Act as codified at 5 U.S.C. § 552a(e)(5). Compl. [Dkt. # l]. Defendant
moved to dismiss this case or, in the alternative, to transfer the case to the Northem
District of Alabama. Mot. to Dismiss, June l3, 2012 [Dkt. # 6]. For the reasons stated
below, the Court GRANTS defendant’s Motion to Dismiss.

BACKGROUND

Plaintiff alleged that, while he was incarcerated, confidential jailhouse informants
accused plaintiff of participating in an escape plot. Compl. [Dkt. # l] 11 l. Following an
investigation by the Federal Bureau of Investigation and BOP, the investigators
determined that they lacked sufficient evidence to charge plaintiff for the alleged escape.

Ia’. 11 2. Nevertheless, plaintiff was placed in a super maximum security prison for over

nine years. Ia’. il 3. Plaintiff alleges that, only when he "discovered" documents from
his BOP records in "late 2009" did he learn that he was assigned to maximum custody
"due to his involvement in [the] escape plot." Id. 111 4-5. Not so.

During his incarceration, plaintiff has become a serial litigator, attempting to seek
relief in multiple venues. He began by filing three independent federal lawsuits in
September 2007: one in the Southem District of lllinois, Vz`llabona-Alvarado v. Unz`ted
States, et al., Civ. Action No. 07-641 (S.D. lll. filed Sept. 10, 2007) ("Illinois case"), one
in the District of Kansas, Villabona-Alvaraa’o v. Um'tea' States, et al., Civ. Action No.
07-3235 (D. Kan. filed Sept. ll, 2007) ("Kansas case"), and one in the District of
Colorado, Compl., Villabona~Ali/arado v. Unz`ted States, et al,, Civ. Action No. 07-1972
(D. Colo. Sept. 19, 2007) ("Colorado case"). These three cases possessed strikingly
similar complaints, all based upon the same set of facts as in this case. In each, plaintiff
alleged violations of the Privacy Act. See Compl., Kansas case, at l; Compl., Illinois
case, at l; Compl., Colorado case at l.

The Colorado case was dismissed due to plaintiff’s procedural defect. See Oct 29,
2007 Order, Colorado case. In the Kansas case, the court considered and dismissed,
inter alz`a, plaintiff’ s Privacy Act claims "[b]ecause BOP regulations exempt the lnmate
Central Records System from the accuracy, damages and amendment provisions of the
Privacy Act." Sept. 22, 2008 Mem. Op., Kansas case, at 5~7 (dismissal for failure to

state a claim upon which relief can be granted). And in the lllinois case, plaintiff s case

was dismissed as frivolous, and the court awarded him one of his three "strikes" under 28
U.S.C. § l9l5(g). Oct. l6, 2008 Mem. and Order, Illinois case. More importantly, the
documents plaintiff allegedly "discovered" in late 2009, Compl. il 4, were attached as
exhibits to plaintiff’ s complaints in each of the 2007 cases. See Ex. D to Compl.,
Colorado case; Ex. D to Compl., Kansas case; Ex. D to Compl., Illinois case.

Most recently, plaintiff filed a Petition for Writ of Mandamus under 28 U.S.C. §
1361 and for Relief under the Administrative Procedures Act, 5 U.S.C. § 706(1), in the
United States District Court for the Northem District of Alabama, in which he asked to
have BOP expunge any mention of the escape plot from plaintiff s files. Compl.,
Villabona-Alvarado v. Fea’. Bureau of Prz'sons, No. l0-cv-l853 (N.D. Ala. July l2, 2010),
at l. After a magistrate judge recommended denial of plaintiff’s petition, the court
adopted the recommendation and held that "petitioner is not entitled to mandamus relief
because he cannot show a clear right to have his prison records expunged of references to

35

the escape plot, nor is the BOP under a clear duty to do so. See Memorandum Opinion,
Vz`llabona-Alvarado v. Fea’. Bureau ofPrz`sons, No. l0-cv-l853 (N.D. Ala. Sept. l8,
2012), at 4.
STANDARD OF REVIEW
Defendant moves to dismiss the amended complaint pursuant to, inter alia, Rule

l2(b)(6) of the Federal Rules of Civil Procedure, on the ground that it fails to state a

claim upon which relief can be granted Motion to Dismiss ("Def.’s Mot.") [Dkt. # 3] at

l. ln evaluating defendant’s motion to dismiss, the Court must "treat the complaint’s
factual allegations as true" and "grant plaintiff the benefit of all inferences that can be
derived from the facts alleged." Sparrow v. United Air Lz'nes, Irzc., 216 F.3d llll, 1113
(D.C. Cir. 2000) (internal quotation marks and citation omitted), While courts are to
construe pro se complaints liberally, Erz`ckson v. Pardus, 551 U.S. 89, 94 (2007) (citation
omitted), pro se complaints still must "give the defendant fair notice of what the . . . claim
is and the grounds upon which is rests," z'a'. at 93 (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).

However, unless a prisoner is under imminent danger of serious physical injury, he
may not bring a civil action in federal court in forma pauperis if he has already brought
three or more civil actions that have been dismissed as frivolous, malicious, or failing to
state a claim upon which relief may be granted. 28 U.S.C. § l9l5(g).

ANALYSIS

Plaintiff’ s complaint suffers from at least two fatal flaws. First, the doctrine of
res judicata prevents plaintiff from relitigating the same Privacy Act claims brought and
decided on the merits in at least one previous action. "‘Under the doctrine of res
judicata, or claim preclusion, a subsequent lawsuit will be barred if there has been prior
litigation (l) involving the same claims or cause of action, (2) between the same parties or
their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of

competent jurisdiction."’ Capz`tol Hz`ll Grp. V'. Pillsbury, Winthrop, Shaw, Pz`ttman, LLC,

569 F.3d 485, 490 (D.C. Cir. 2009) (quoting Smalls v. United States, 471 F.3d l86, 192
(D.C. Cir. 2006)). "[A] plaintiff [must] present in one suit all the claims for relief that he
may have arising out of the same transaction or occurrence." U.S. Industrz`es, Inc. v.
Blake Const. Co., Inc., 765 F.2d l95, 205 (D.C. Cir. l985) (internal quotation marks and
citation omitted). in the Kansas case, the court dismissed plaintiffs identical Privacy
Act and related constitutional claims against the same defendant based upon the same set
of facts. Sept. 22, 2008 Mem. Op., Kansas case, at 7. As such, plaintiff is clearly not
permitted to bring the same exact suit before another federal court.

Second, even if plaintiffs case was not barred by res jua’icata, he would not be
able to maintain his Privacy Act claim. As the court held in the Kansas case, the BOP
record system that plaintiff s Privacy Act claim targets has been exempted from the
Privacy Act’s accuracy, damages, and amendment provisions. Ia’. at 6-7. Moreover,
plaintiffs previous lawsuits demonstrate that plaintiff possessed the relevant documents
as early as 2007-well before he claimed he possessed them in sworn ayj‘ia'avits in this
case. Compare Villabona’s Sworn Affidavit in Support of His Privacy Act Suit, Ex. A.
to Compl., at l ("i never saw the Security Memorandums Attached hereto [until] mid to
late November of 2009.") with Ex. D to Compl., Colorado case (same documents filed in
2007) and Ex. D to Compl., Kansas case (same documents filed in 2007) ana’ Ex. D to
Compl., illinois case (same documents filed in 2007). As such, plaintiff did not file this

lawsuit within the Privacy Act’s two-year statute of limitations, and it must, therefore, be

dis1nissed. See 5 U.S.C. § 552a(g)(5) ("the action may be brought at any time within two
years after discovery by the individual of the misrepresentation.").

On a final note, however, this decision constitutes yet another "strike" against the
plaintiff pursuant to 28 U.S.C. § l915(g). His penchant for filing frivolous/meritless
cases is, to say the least, growing old. More unfortunately, his propensity for making
factual misrepresentations in his pleadings is no longer acceptable. He is hereby warned
that future such misrepresentations may be referred to law enforcement authorities for
appropriate action. See, e.g., 18 U.S.C. § 1002 (possession of false papers to defraud
United States); ia’. §§ 1341, 1343 (mail and wire fraud); ia’. § 1621 (perjury).

CONCLUSION

F or all of the foregoing reasons, the Court GRANTS defendant’s Motion to

Dismiss. An Order consistent with this decision accompanies this Memorandum

Opinion.

/Q¢~ié?t~w

RICHARD <i,lEoN
United States District Judge

