                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
LATCHMIE TOOLASPRASHAD,             )
                                    )
               Plaintiff,           )
                                    )
            v.                      ) Civ. Action No. 09-0317 (ESH)
                                    )
BUREAU OF PRISONS et al.,           )
                                    )
               Defendants.          )
____________________________________)


                                  MEMORANDUM OPINION

       In this action brought under the Constitution and the Privacy Act, 5 U.S.C. § 552a,

plaintiff, a federal prisoner proceeding pro se, alleges that the Bureau of Prisons (“BOP”) is

maintaining a false and inaccurate investigative report about him that is adversely affecting his

custody. He also accuses BOP corrections officers of violating his First Amendment rights by

retaliating against him for filing grievances and communicating with public officials. In addition

to the BOP, plaintiff names as defendants several high-level BOP officials, his warden and a

deputy inspector general at the Department of Justice.

       Defendants move to dismiss under Federal Rule of Civil Procedure 12 (b)(1) for lack of

subject matter jurisdiction, Rule 12(b)(5) for insufficient service of process and Rule 12(b)(6) for

failure to state a claim or, in the alternative, for summary judgment under Rule 56. Upon

consideration of the parties’ submissions and the entire record, the Court will grant defendants’

motion for summary judgment as to the Privacy Act claim and transfer the remainder of the case

to the United States District Court for the District of New Jersey.
                                       I. BACKGROUND

       Plaintiff is serving a life sentence currently at the Federal Correctional Institution in Fort

Dix, New Jersey. He worked in the food services department from 2002 to May 2008, when he

was reassigned to the gardening crew, and is currently working as an orderly. (Def.’s Statement

of Material Facts Not in Genuine Dispute ¶ 6.) On April 9, 2002, plaintiff filed a grievance

about an incident at work and the working conditions in the commissary. He also accused a staff

member, Robert Wright, of retaliating against him for a grievance plaintiff had filed against

Wright in 2000. (Id. ¶ 1; Compl at 5-8.) An investigation conducted by BOP’s Office of Internal

Affairs found plaintiff’s claims of staff misconduct unsubstantiated. (Compl., Ex. 1.)

       The resulting Special Investigative Services (“SIS”) report dated April 14, 2003, is the

subject of the Privacy Act claim. On July 26, 2005, plaintiff filed a grievance with his warden in

which he accused the SIS investigator of falsifying the report by indicating that plaintiff had lied.

(Decl. of Carolyn Lanphear [Dkt. No. 21-2], Ex. A.) On August 19, 2005, the warden informed

plaintiff that an investigation of his allegations was underway but that he would not be informed

of the results. (Id.) Between August 2005 and July 2008, plaintiff filed grievances and

administrative appeals covering various issues, which were ultimately rejected as untimely filed.

(Lanphear Decl. ¶¶ 7-8.) Plaintiff filed this action on February 19, 2009.

                                        II. DISCUSSION

A.     The Court Has Subject Matter Jurisdiction

       Although defendants have invoked Fed. R. Civ. P. 12(b)(1) as a basis for dismissal, they

have not presented a supporting argument. The Court is satisfied that it has original jurisdiction



                                                  2
over this action under 28 U.S.C. § 1331, inasmuch as the complaint arises under the Constitution

and federal law. The motion to dismiss for lack of subject matter jurisdiction therefore is denied.

B.     Defendants are Entitled to Judgment on the Privacy Act Claim

       Defendants assert that plaintiff failed to properly exhaust his administrative remedies on

the Privacy Act claim and that the claim is barred by the Act’s two-year statute of limitations.

The Privacy Act authorizes a lawsuit

      to enforce any liability created under this section . . . [if it is] brought . . . within two
      years from the date on which the cause of action arises, except that where an agency
      has materially and willfully misrepresented any information required under this
      section to be disclosed to an individual and the information so misrepresented is
      material to establishment of the liability of the agency to the individual under this
      section, the action may be brought at any time within two years after discovery by the
      individual of the misrepresentation.

5 U.S.C. § 552a(g)(5). See Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987) (holding that

the Privacy Act's statute of limitations begins to run when “the plaintiff knows or should know of

the alleged violation”). Plaintiff was aware of the allegedly inaccurate SIS report by August

2005 when he filed his grievance. His exhibits include the final agency action of March 16,

2006, rejecting his grievance as untimely. (Pl.’s Opp’n, Ex. 14.) Plaintiff therefore had until

March 16, 2008, to file a lawsuit based on this claim. Because he did not file this action until

February 2009, the Court finds the Privacy Act claim to be time-barred. It therefore will not

address whether plaintiff properly exhausted his administrative remedies.

C.     This Venue is Improper for Litigating Plaintiff’s Surviving Claim

       As to the remaining claim of retaliation, defendants correctly assert that any claim based

on acts that occurred prior to December 22, 2005, are barred by res judicata because plaintiff

raised or could have raised those claims in a prior civil action in the District of New Jersey.

Def.’s Mem. at 27-28 & Ex. D (Opinion); see Toolasprashad v. Wright, 232 Fed.Appx. 208 (3d

                                                    3
Cir. 2007) (affirming district court ruling); Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.

Cir. 1981) ("[T]he parties to a suit and their privies are bound by a final judgment and may not

relitigate any ground for relief which they already have had an opportunity to litigate--even if

they chose not to exploit that opportunity--whether the initial judgment was erroneous or not.")

       As to any surviving retaliation claims, defendants correctly argue that this venue is

improper for litigating those claims because none of the alleged misconduct occurred in the

District of Columbia. See 28 U.S.C. § 1391(b) (designating the proper venue as the judicial

district where a substantial part of the events occurred). Moreover, defendants correctly argue

that this Court lacks personal jurisdiction over the officials at FCI Fort Dix whom plaintiff

directly implicates in the alleged retaliatory conduct and against whom such a claim is properly

brought.1 See Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993) (finding that a

federal official may be held personally liable under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), only for unconstitutional conduct in which he

was personally and directly involved).

       For the foregoing reasons, the Court grants defendants’ motion for summary judgment as

to the Privacy Act claim and transfers the remainder of the case to the District of New Jersey. A

separate Order accompanies this Memorandum Opinion.



                                                           /s/
                                              ELLEN SEGAL HUVELLE
                                              United States District Judge

DATE: September 29, 2009


       1
          Based on plaintiff’s supplemental submissions that the Court has allowed to be filed,
the alleged retaliatory conduct appears to be ongoing at FCI Fort Dix.

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