UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)

NATHAN E. JACOBS )
)

Plaintiff, )

)

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v. ) Civil Action No. 11-274 (RJL)

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BUREAU OF PRISONS, et al., )
)

Defendants. )

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MEMORANDUM OPINION

February 715, 2012 [1:)1<:. # 20, 261
Plaintiff brings this action under the Privacy Act, see 5 U.S.C. § 552a, against the Federal

Bureau of Prisons ("BOP").l This matter is before the Court on the BOP’s Motion to Dismiss in

l The Privacy Act does not authorize suits against individuals, see Martinez v. Bureau of

Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006), and to the extent that plaintiff purports to bring a
Privacy Act claim against the individual identified as "C.M.C. Cole," the claim will be dismissed.
See, e.g., Ramirez v. U.S. Dep ’t ofJustice, No. 10-50l6, 2010 WL 4340408, at *l (D.C. Cir. Oct.
19, 201 0) (per curiam) (affirrning dismissal of Privacy Act claims against individuals); Earle v.
Holder, No. 10-0422, 2011 WL 4526039, at *3 (D.D.C. Sept. 30, 201 l) ("The Court therefore
dismisses the complaint against the individual officials and substitutes the Department of

Justice . . . of which BOP is a component, as the proper defendant."); Morris v. U.S. Prob. Servs.,
723 F. Supp. 2d 225, 227-28 (D.D.C. 2010). Nor may plaintiff assert a constitutional claim
against defendant Cole under Bivens v. Six Unknown Named Agents of the Fea’. Bureau of
Narcotics, 403 U.S. 388 (1971), where the relief he seeks is available to him under the Privacy Act.
See Chung v. US. Dep ’t of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003) (affirniing dismissal of
constitutional claims because "they are encompassed within the remedial scheme of the Privacy
Act"); Lewis v. U.S. Parole Comm ’n, 770 F. Supp. 2d 246, 251-52 (D.D.C. 2011).

1

Part, or in the Alternative, for Summary Judgment in Part [Dkt. #20].2
l. BACKGROUND

Plaintiff "was sentenced to 252 months imprisonment after a jury found him guilty of one
count of felon in possession of a firearm." Um`ted States v. Jacobs, No. 01 -cr-8077l, 2008 WL
1901233, at *1 (E.D. Mich. Apr. 25, 2008). He came in to BOP custody in May 2002 and began
to serve the current sentence in January 2003. Public Inforrnation Inmate Data as of 03-30-201 1,
Ex. A to Defs.’ Mot. to Dismiss in Part, or in the Altemative, for Summ. J. in Part [Dkt. #20]
("Defs.’ l\/Iem."), at 2, 5. Plaintiff was incarcerated at the Federal Correctional Institution in
Lisbon, Ohio ("FCI Elkton") at the time he filed this action. See Compl. at l. The BOP since has
transferred him to the F ederal Correctional Institution in Loretto, Pennsylvania. Pl.’s Notice
[Dkt. # 44] at 1. "His projected release date is July 30, 2020, via good conduct time eamed."
Decl. by Harrell Watts ("Watts Decl."), Ex. D to Defs.’ Mem., 1[ 5.

On four occasions, Watts Decl. 11 7, plaintiff has submitted an Administrative Remedy

Request for a transfer "to a facility closer to [his] family." Compl. at 1. Three of requests were

2 Also before the Court is Defendants’ Motion to Dismiss, or in the Alternative, for

Summary Judgment of Plaintiff’s "Bivens" Claims [Dkt. #26]. The motion will be granted
because plaintiff’ s constitutional claim is barred under the doctrine of claim preclusion. Plaintiff
carmot bring "a subsequent lawsuit . . . if there has been prior litigation (1) involving the same
claims or cause of action, (2) between the same parties or their privies, and (3) there has been a
fmal, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. Um`ted
States, 471 F.3d 186, 192 (D.C. Cir. 2006). Plaintiff has raised the same Bivens claim for being
called "jigga-boo, slang for nigger," by corrections officers at FCl Elkton, Mot. Supp. Supplement
to Civil Action for Annulment & Correction of Title 42 USC § 1983 for a "Bz'vens Action" under
the Local Rule of the District Court & to be Paid For by the Dep’t of Justice Criminal Justice Act
[Dkt. #18] at 1, in a prior action and the claim was dismissed with prejudice. See Jacobs v.
Holder, No. 4:10cvl544, 2010 WL 4449357, at *l, 3 (N.D. Ohio Nov. l, 2010). The court in the
prior action determined that "the alleged slur [did] not constitute a constitutional violation,"
dismissing the cause of action, and declined to exercise jurisdiction over the remaining state law
claim of intentional infliction of emotional distress. Id. at *2. Because the elements of claim
preclusion are met here, this Court grants defendants’ Motion to Dismiss Plaintiff s Bz`vens Claims.

2

denied for failure to comply with Administrative Remedy Program procedures. Watts Decl.

1111 8-9, 11. The BOP denied the fourth request, filed on December 13, 2009, explaining that
plaintiff was deemed "a Low security inmate with in-custody; he was held in a low security
institution; and he was housed within 500 miles of his release residence," and thus a transfer was
"not appropriate." Ia'. 11 10.

lt appears that plaintiff attributes the denial of his requests for a transfer to erroneous
information contained in his 2002 presentence investigation report ("PSI") "as well as other
erroneous information contained in his files." Compl. at 1. He further alleges that the BOP
relies on this erroneous information in making decisions regarding "custody and security
classifications, job and quarter[s] assignments[,] and the opportunity to earn money and good time
[credit]." Ia’. The complaint does not point out the allegedly erroneous information, however.
The Court is left to surmise that the PSI and the BOP’s other records do not reflect plaintiffs
discharge in 2003 from a life tenn of probation imposed by the Third Judicial Circuit Court of
Wayne County, Michigan. See id. ; see also Supp. to Compl. [Dkt. #10] at 1 & Exs. (Petition and
Order for Discharge from Probation, Michigcm v. Jacobs, No. 96-0992-01 (3d Cir. Ct. of Wayne
Cty. Mich. May 8, 2003)). Plaintiff apparently believes that, had the BOP’s records reflected his
discharge from probation, his requests for a transfer would have been granted.

Plaintiff contends that the BOP has violated the Privacy Act in three ways: failing to
maintain its records pertaining to him with the requisite level of accuracy, failing to amend its
records at his request, and intentionally and willfully refusing to verify the information he deems
erroneous. See Compl. at 2; Supp. to Compl. at l. He demands injunctive relief, Compl. at l,
and monetary damages of $16 billion, see Motion Summarizing Foregoings [sic] with Adequate
Criminal Alternatives and Civil Remedies for Relief and Damages Sougth [sic] in Opposition and

3

Response to Defendants[’] Motion to Dismiss Claims Under Local Court Rule LCVR 7(b) and
F.R.C.P. Rule 6(d) District Court Civil Action No. 1l-0274 ([R]JL) Ordered June l, 2011 to be
Paid For by the U.S. Department of Justice Criminal Justice Act [Dkt. #32] ("Pl.’s Opp’n") at 4.
11. D1scUss1oN3
A. Summary Judgment Standard
To grant a motion for summary judgment, the Court must find that "there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing
law." Anderson v. Liberlj/ Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for
summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). Here, defendant
bears the burden of demonstrating the absence of a genuine issue of material fact and that plaintiff
"fail[ed] to make a showing sufficient to establish the existence of an element essential to [his]
case, and on which [he] will bear the burden of proof at trial." Celoz‘ex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
In responding to a summary judgment motion, plaintif` "must do more than simply show

that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, plaintiff must not rely on "mere
allegations or denials . . . but . . . must set forth specific facts showing that there [are] genuine

issue[s] for trial." Anderson, 477 U.S. at 248 (internal quotation marks and citation omitted)

3 For purposes of this discussion, the Court presumes without deciding that plaintiff s

Privacy Act claim is not barred by the statute of limitations.

4

(second omission in original). Thus, "[i]f the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Ia'. at 249-50 (citations omitted).
B. Accuracy and Amendment Provisions of the Privacy Act
Subsection (e)(5) of the Privacy Act 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 is reasonably necessary to assure fairness to the
individual in the determination." 5 U.S.C. § 552a(e)(5). An individual may access an agency’s
records or information in a system of records pertaining to him, and may request amendment of
such records. See 5 U.S.C. § 552a(d). That individual may file a civil action against an agency
which "makes a determination . . . not to amend an individual’s record in accordance with his
request." 5 U.S.C. § 552a(g)(1)(A). In addition, an individual may bring suit against an agency
under subsection (g)(l)(C) if the 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 consequently a

determination is made which is adverse to the individual.
5 U.S.C. § 552a(g)(l)(C). lf 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, and further may award costs of
the action and attomey fees. 5 U.S.C. § 552a(g)(4).

Notwithstanding the relief ostensibly available under the Privacy Act, an agency’ s Director

may promulgate regulations to exempt any system of records within the agency from any part of

the Privacy Act, except subsections (b), (c)(l) and (2), (e)(4)(A) through (F), (e)(6), (e)(7), (e)(9),
(e)(10), and (e)(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, probation, pardon, or

parole 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. § 5 52a(j)(2)(C). Pursuant to this authority, regulations exempt the BOP’s lnrnate
Central Records System (JUSTlCE/BOP-005), among other systems of records, from subsections
(d) and (g). See 28 C.F.R. § 16.97(a)(l), (4). An inmate’s PSI is maintained in the BOP’s
Inmate Central Records System. See Change Notice (Dec. 3l, 1997) and excerpt from Program
Statement 5800.1l, Inmate Central File, Privacy Folder and Parole Mini-Files (Sept. 8, 1997),
Ex. B to Defs.’ Mot., at 5. Consequently, insofar as plaintiff demands the access to or amendment
of his PSI, such relief is unavailable under 5 U.S.C. § 552a(g). See White v. U.S. Prob. Ojj"ice,
148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam) (barring claim for amendment of presentence
report); Risley v. Hawk, 108 F.3d l396, 1397 (D.C. Cir. 1997) (per curiam) (denying injunctive
relief on the ground that regulations exempt BOP records from amendment provision of Privacy
Act).

ln addition, under 5 U.S.C. § 552a(j)(2), the BOP’s Inmate Central Records System is

exempt from subsection (e)(5) of the Privacy Act.3 See 28 C.F.R. § l6.97(j); see also 28 C.F.R.

§ l6.97(k)(2). Having exempted its records from the substantive provision regarding the

3 The variation in language between subsections (e)(5) and (g)(l)(C) of the Privacy Act is of

“no substantive significance." Doe v. United States, 821 F.2d 694, 698 n.l0 (D.C. Cir. 1987) (en
banc).

agency’s recordkeeping obligations, there remains no remedy for any harm resulting from the
agency’s substandard recordkeeping. Accordingly, insofar as plaintiff seeks damages for the
BOP’s failure to maintain records in its Inmate Central Records System pertaining to him with the
requisite level of accuracy and completeness, damages are not available See, e.g., Lane v. Fed,
Bureau of Prisons, No. 08-1269, 2009 WL 1636422, at *l (D.D.C. June 9, 2009) ("It is established
that BOP has exempted its Inmate Central Records System containing, among other records,
presentence investigation reports, from the Privacy Act’s accuracy and amendment requirements
(subsections (d) and (e)(5)) and from its damages provision (subsection (g))."), aff’a’, 2010 WL
288816 (D.C. Cir. Jan. 7, 2010), cert deniea', 131 S. Ct. 146 (2010); Mz`tchell v. Bureau ofPrz`sons,
No. 05~0443, 2005 WL 3275803, at *4 (D.D.C. Sept. 30, 2005) ("[I]nsofar as plaintiff demands
damages for BOP’s failure to maintain records in its Imnate Central Records System pertaining to
him with the requisite level of accuracy and completeness, damages are not available[]" because
such records are exempt from 5 U.S.C. § 552a (e)(5)).
C. Monetary Damages and Attorney Fees

In order to recover damages and attomey fees, "plaintiff must assert that an agency failed
to maintain accurate records, that it did so intentionally or willfully, and consequently, that an
‘adverse’ ‘determination [wa]s made’ respecting the plaintiff." Toolasprashad v. Bureau of
Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552a(g)(1)(C)) (alteration in
original). Plaintiff bears the burden of proving that the agency’s actions in violating the Privacy
Act were intentional or willful. Reuber v. Um`tea’ States, 829 F.2d 133, 141 & n.58 (D.C. Cir.
1987); 5 U.S.C. § 552a(g)(4). To meet his burden, a "plaintiff must prove that the offending
agency acted ‘without grounds for believing [its actions] lawful’ or prove that it ‘flagrantly
disregarded’ the rights guaranteed under the Privacy Act." Laningham v. U.S. Navy, 813 F.2d

7

1236, 1242 (D.C. Cir. 1987) (quoting Albright v. Um'tea’ States, 732 F.2d 181, 189 (D.C. Cir.
1984)) (alteration in original). Negligence and inadvertence do not rise to the level of an
intentional or willful violation of the Privacy Act. See Albright, 732 F.2d at 189; Maydak v.
Unz`ted States, 630 F.3d 166, 183 (D.C. Cir. 2010) ("As our case law makes clear, the Privacy Act’s
‘intentional or willful’ element carmot be established with mere speculation." (citation omitted)).
The complaint not only fails to indicate what information is erroneous but also fails to set
forth the adverse determination allegedly made on the basis of this erroneous information.4 There
is no basis for an award of monetary damages absent plaintiff s showing "that any BOP record
pertaining to him is inaccurate, irrelevant, untimely, or incomplete, [or] . . . that BOP acted
intentionally or willfully in violation of the Privacy Act." Djenasevz'c v. Exec. U.S. Attorney ’s
O/j‘ice, 579 F. Supp. 2d 129, 136 (D.D.C. 2008). Moreover, the designation of an inmate to a
particular facility is left to the BOP’s discretion, as are determinations as to an inmate’s custody
level, security classification, quarters assignment and work assignments. See Moody v. Daggetz‘,
429 U.S. 78, 88 n.9 (1976). "The Privacy Act allows for the amendment of factual or historical
errors," Kleiman v. Dep ’t of Energy, 956 F.2d 335, 337 (D.C. Cir. 1992) (quoting Rogers v. U.S.
Dep ’t of Labor, 607 F. Supp. 697, 699 (N.D. Cal. 1985)), and an individual may use it to challenge
the information on which a determination is based. "lt is not . . . a vehicle for amending the
judgments of federal officials or . . . other[s] . . . as those judgments are reflected in records
maintained by federal agencies," id. at 337-38, and plaintiff carmot avail himself of the Privacy
Act in order to challenge the determinations themselves. See Conklin v. U.S. Bureau of Prisons,

514 F. Supp. 2d 1, 6 (D.D.C. 2007) (denying request for amendment of Custody Classification

4 Moreover, plaintiffs contention that the PSI is erroneous because it omits his discharge

from probation is nonsensical. The PSI was prepared in 2002, and could not have reflected his
discharge from probation which occurred in 2003.

8

Form because "custody classification reflects the judgment of the BOP staff, and, therefore, it is
not subject to amendment under the Privacy Act"); Molzen v. Fed. Bureau of Prisons, No.
05-2360, 2007 WL 779059, at *7 (D.D.C. Mar. 8, 2007) (rejecting inmate’s direct challenge to
BOP’s decisions as to custody classification and security level based on information in his PSI).
Simply stated, "[p]laintiff carmot force the BOP to change his custody classification, security
level, or facility designation by means of this Privacy Act suit." Allmon v. Fea'. Bureau of
Prisons, 605 F. Supp. 2d l, 7 (D.D.C. 2009); see Earle, 2011 WL 4526039, at *5.
III. CONCLUSION

Plaintiff neither states a Privacy Act claim upon which relief can be granted, nor brings a

cognizable Bivens claim. Accordingly, defendants’ Motion to Dismiss, or in the Altemative, for

Summary Judgment is granted. An Order consistent with this decision is issued separately.

1/4¢@`~»»>??»~.,/

RICHARD J. LEoNJ
United States District Judge

