                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

MARK ALAN LANE,                                      )
                                                     )
                       Plaintiff,                    )
                                                     )
                       v.                            )   Civil Action No. 08-1269 (RJL)
                                                     )
FEDERAL BUREAU OF PRISONS, et ai.,                   )
                                                     )

                                                  ~
                       Defendants.

                                    MEMORANDUM OPINION
                                       (June ~, 2009)

       In this civil action brought under the Privacy Act, 5 U.S.C. § 552a, plaintiff, proceeding

pro se, alleges that the Bureau of Prisons' reliance on inaccurate information in his presentence

investigation report has resulted in adverse decisions regarding his custody. I He seeks

"amendment of the 2001 presentence report and money damages[.]" Compl at 4. Defendants

move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or for

summary judgment pursuant to Rule 56 [Dkt. No. 13]; plaintiff moves for summary judgment

[Dkt. No. 17]. Because BOP inmate records are exempt from the Privacy Act's amendment and

damages provisions, and the Act provides no private right of action against the individually

named defendants, 2 the Court grants defendants' Rule 12(b)(6) motion to dismiss and denies

plaintiff s unsupported motion for summary judgment.


       I Plaintiff is a federal prisoner serving a sentence of 360 months' imprisonment imposed
following his plea of guilty to conspiracy to possess with intent to distribute methamphetamine
and conspiracy to launder monetary instruments. United States v. Lane, 52 Fed. Appx. 838 (7th
Cir. 2002).

        2 In addition to BOP, plaintiff sues his warden, W.A. Sherrod, Administrator Harold

Watts and Regional Director Michael K. Nalley. But see Martinez v. Bureau of Prisons, 444
F.3d 620, 624 (D.C. Cir. 2006) ("[T]he district court properly dismissed the named individual
defendants because no cause of action exists that would entitle appellant to relief from them
under the Privacy Act[.]") (citations omitted).
        A court may dismiss a complaint on the ground that it fails to state a claim upon which

relief can be granted if, assuming the alleged facts to be true and drawing all inferences in the

plaintiffs favor, it appears that the plaintiff can prove no facts "consistent with the allegations in

the complaint" to support the claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,563, 127

S.Ct. 1955, 1969 (2007). "[T]he pleadings [must] suggest a 'plausible' scenario to 'sho[w] that

the pleader is entitled to relief[.]'" Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009)

(quoting Twombly, 127 S.Ct. at 1966).

        The Privacy Act requires federal agencies to maintain records used in making

determinations "with such accuracy, relevance, timeliness, and completeness as is reasonably

necessary to assure fairness to the individual in the determination [about the individual] .... " 5

U.S.C. § 552a(e)(5). Section 552a(d) allows individuals access to agency records about

themselves and to request the amendment of records "they believe to be inaccurate, irrelevant,

untimely, or incomplete." Doe v. Federal Bureau o/Investigation, 936 F.2d 1346,1350 (D.C.

Cir. 1991). Subsections (g)(1)(A) and (C) authorize civil actions to enforce the amendment and

accuracy requirements. In addition, subsection (g)(4) provides for monetary damages, costs and

attorneys' fees where the agency is shown to have acted intentionally or willfully. See Doe, 936

F.2d at 1350; accord Deters v. United States Parole Commission, 85 F.3d 655,660-61 (D.C. Cir.

1996); Sellers v. Bureau o/Prisons, 959 F.2d 307, 310-12 (D.C. Cir. 1992). An agency may be

liable for "actual damages sustained by the individual as a result of the refusal or failure" to

maintain accurate records and "consequently a determination is made which is adverse to the

individual. ... " 5 U.S.C. § 552a(g)(1)(C) and (g)(4)(A).




                                                  2
       The Privacy Act authorizes law enforcement agencies to exempt "any system of records

within the agency" from certain provisions of the Privacy Act, including subsection(g). 5 U.S.C.

§ 522a m(2). 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)). See 28 C.F.R. § 16.97(a)(4); White v. United States Probation Office,

148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam) ("Under regulations ... presentence reports

and BOP inmate records systems are exempt from the amendment provisions of the Act");

accord Martinez, 444 F.3d at 624 ("The BOP has exempted its Inmate Central Record System

from the accuracy provisions of the Privacy Act[.]") (citations omitted). Plaintiff therefore fails

to state a claim upon which relief can be granted. See Ramirez v. Dep't of Justice, 594 F.

Supp.2d 58, 65 (D.D.C. 2009) ("Having exempted its records from the substantive provision

regarding the agency's recordkeeping obligations, BOP effectively deprives litigants of a remedy

for any harm caused by the agency's substandard recordkeeping."); Lopez v. Huff, 508 F. Supp.2d

71,77 (D.D.C. 2007) ("To the extent that plaintiff is seeking to have his [presentence

investigation report] amended, such relief is not available because the BOP has properly

exempted its inmate central files, where such documents are kept, from the [Privacy Act's]

amendment requirements.") (citations omitted).

        For the foregoing reasons, defendants' motion to dismiss is granted and plaintiffs

motion for summary judgment is denied. A separate Order accompanies this Memorandum

Opinion.                                ~
                                          RICH         . LEON
                                        United States District Judge



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