UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

)

KEVIN P. MAHONEY, )
)

Plaintiff, )

v ) Civil Action No. 13-0516 (RCL)

)

BUREAU OF PRISONS, )
)

Defendant. )

)

 

MEMORANDUM OPINION

This matter is before the Court on defendant’s Motion to Dismiss [ECF No. 17]. For

the reasons discussed below, the Court will grant the motion and dismiss this action.1
I. BACKGROUND

“Bureau of Prisons (BOP] institutions are classiﬁed into one of ﬁve security levels:
MINIMUM, LOW, MEDIUM, HIGH, and ADMINISTRATIVE.” Program Statement

5100.08, Inmate Security Designation and Custody Classiﬁcation (9/12/2006), ch. 1, p. 1 (bold

 

type in original). The term “security level” describes:

the structural variables and inmate-to-staff ratio provided at the
various types of [BOP] institutions (i.e., Minimum, Low, Medium,
High). It also identiﬁes the institution type required to house
inmates based on their histories, institutional adjustment, and
Public Safety Factors as well as the physical security of the
institution to include mobile patrols, gun towers, perimeter
barriers, housing, detection devices, inmate-to-staff ratio, and
internal security

1 Plaintiff‘s Motion for Hearing [ECF No. 26] will be denied as moot.

l

Id, ch. 2, p. 5. The term “custody classification” refers to “[t]he review process to assign a

custody level based on an inmate’s criminal history, instant offense, and institutional
adjustment.” Id, ch. 2, p.2. “A Management Variable [MGTV] is required when placement has
been made and/or maintained at an institution level inconsistent with the inmate’s scored security
level.” Id, ch. 5, p. 1. If, for example, “an inmate represents a greater security risk (i.e., pending
charges, detainer, escape risk, etc.) than [his] assigned security level, [he] may be placed in an

institution outside normal guidelines,” and the Greater Security MGTV (code V) applies. Id, ch.

5, p. 5.

Plaintiff “is serving a 60 months sentence for Corruptly Endeavoring to Obstruct and
Impede the Due Administration of the [lntemal Revenue Service], Criminal Contempt, and
Filing of False Tax Return.” Mem. of P. & A. in Support of Mot. to Dismiss of Resp’t Bureau of
Prisons (“Def.’s Mem.”), Second Decl. of Carolyn Lamphear (“Second Lamphear Decl.”) ﬂ] 4.2
As of May 18, 2012, the BOP designated plaintiff to the Federal Correctional Institution in

Loretto, Pennsylvania:

[Plaintiff has been] classiﬁed as a Minimum security level inmate
with a Management Security Level of Low. The Designation and
Sentence Computation Center reviewed [his] case and determined
[that he] require[s] more security than [is] available at a minimum
institution. As such, a Greater Security MGTV was applied during
the initial designation process with a November 3, 2013, expiration
date. [His] Male Custody Classiﬁcation form was updated to
accurately reﬂect no history of escape on November 28, 2012.
However, [the BOP found that] the MGTV was applied in

2 The Court summarily rejects plaintiff’s challenge, see, e.g., Aff. Showing Good Cause for Limited Discovery
Allowance and Hearing [ECF No. 21] at 5, to the validity of the BOP’s supporting declaration. The declaration is
executed “under penalty of perjury” that the assertions therein are “true and correct to the best of [the declarant’s]
knowledge,” Second Lanphear Decl. at 2, and “the use in federal proceedings of unswom declarations given under
penalty ofperjury in lieu of affidavits” is “speciﬁcally authorize[d]” under 28 U.S.C. § 1746,Th0mas v. US. Dep’t
ofEnergy, 719 F.2d 342, 344 n. 3 (10th Cir. 1983).

compliance with policy and [that he was] appropriately housed at
FCI Loretto.

Second Lamphear Decl., Ex. C (Regional Administrative Remedy Appeal, Part B — Response,
dated December 19, 2012). “Prison staff updated [p]laintiff’s custody classiﬁcation on
November 15, 2013, and determined that [he] should remain at FCI Loretto.” Id. 1] 6.3 The
MGTV “has been applied to maintain [p]laintiff at a Low security prison, and has an expiration

date of October 28, 2015.” 1d. 1] 6.

Plaintiff alleges that the BOP has designated him to “FCI Loretto as a result of a
classiﬁcation status under a ‘Threat Management Variable’, ‘MGTV], due to . . . information in
the Presentencing Report . . . alleging [his] being a ‘member’ of a sovereign citizen movement.”
Compl. 1] 5.4 This erroneous information allegedly comes from “some unidentiﬁed entity or
person within the [Federal Bureau of Investigation]” who “paints [plaintiff] as a member of some
so called organization called sovereign citizens.” Id. 1] 19; see generally id., Ex. C-l (excerpt
from transcript of sentencing proceedings). Plaintiff contends that “there is no credible evidence
whatsoever that [he] is a member of any such group [and the alleged] group poses [no] physical
threat to anyone within or without the BOP.” 1d. 1] 20. Thus, he asserts, the BOP not only
maintains inaccurate records pertaining to him, but also “employ[s these records] to [his]
detriment,” id. 1] 26, by, for example, causing him to “suffer harsher conﬁnement conditions, [to
lose] access to programs and [to experience] invidious discrimination,” id. 1] 14. He demands an
order directing “the BOP to cease and desist from using . . . the inaccurate information for

custody, security program or placement purposes,” “to re-score [him] for custody-security

3 Plaintiff notiﬁed the Court [EC F No. 27] that he since has been transferred to the Federal Correctional Institution
in Danbury, Connecticut.

4 Plaintiffs Petition for Writ of Habeas Corpus, Petition for Writ of Mandamus, or in the Alternative, Petition for
Review [ECF No. 1] is construed as a civil complaint (“Compl.”) against the Federal Bureau of Prisons under the
Privacy Act, see 5 U.S.C. § 552a.

classiﬁcation purposes,” and “to remove the MGTV predicated on the inaccurate information or

other unsubstantiated . . . allegations or non—convictions.” Id. at 6.

11. DISCUSSION

The BOP moves to dismiss on the ground that the complaint fails to state a Privacy Act
claim. See Def.’s Mem. at 1, 3-5. It argues that plaintiff “has no civil remedy under the statute
to demand amendment of the records or actions that would reﬂect an amendment of the records.”
Id. at 3. Plaintiffs purported opposition either deems the BOP’s motion “scandalous and
immaterial,” Pl.’s Mot. for Consolidation Application for J oinder and to Strike Def.’s Mot. to
Dismiss as Merely Citing a Necessary Party’s Absence Which Is Hereby Cured [ECF No. 18] at
2, or strays so far from the substance of the motion, see generally Aff. Showing Good Cause for
Limited Discovery Allowance and Hearing [ECF No. 21], that the Court may treat defendant’s
arguments as conceded, see Hopkins v. General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff ﬁles an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded”), aff’d, 98 F. App’x 8

(DC. Cir. 2004). Nevertheless, given plaintiffs pro se status, the Court addresses defendant’s

motion on its merits.

“The Privacy Act regulates the collection, maintenance, use, and dissemination of
information about individuals by federal agencies.” Wilson v. Libby, 535 F.3d 697, 707 (DC.
Cir. 2008) (internal quotation marks and citations omitted). 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 to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). An
individual may request access to and amendment of an agency’s records or information in a
system of records pertaining to him. See id. § 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,” id. § 552a(g)(1)(A), or if the agency:

fails to maintain any record concerning [him] 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 [him] that may
be made on the basis of such record, and consequently a
determination is made which is adverse to [him].

Id. § 552a(g)(1)(C). 3

An agency head may promulgate regulations to exempt any system of records within the

agency from certain provisions of the Privacy Act if the system 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. § 552a(j)(2). By regulation, the BOP’s Inmate Central Records System
(JUSTICE/BOP-OOS) is exempt from subsections (d) and (g) of the Privacy Act. See 28 CPR. §

l6.97(a)(1), (4).

3 The variation in language between subsections (e)(5) and (g)(1)(C) ofthe Privacy Act is “of no substantive
signiﬁcance.” Doe v. United States, 821 F.2d 694, 698 n.10 (DC. Cir. 1987) (en banc).

An inmate’s presentence investigation report and custody classiﬁcation form are
maintained in his Inmate Central File. See BOP Program Statement 5800.11, Inmate Central
File, Privacy Folder and Parole Mini—Files (12/31/1997) at 5, 7. Consequently, insofar as
plaintiff demands amendment of his custody classiﬁcation form or any information contained
therein, such relief is simply unavailable because his Inmate Central File is maintained in a
system of records that is exempt from the Privacy Act’s amendment provision. See White v. US.
Prob. Office, 148 F.3d 1124, 1125 (DC. Cir. 1998) (per curiam) (“[P]resentence reports and
BOP inmate records systems are exempt from the amendment provisions of the [Privacy] Act,”
and, therefore, the appellant “is barred from seeking amendment of his presentence report”);
Meyer v. Fed. Bureau of Prisons, 940 F. Supp. 9, 13—14 (D.D.C. 1996) (granting summary
judgment for BOP on claim for amendment of custody classiﬁcation form maintained in an

exempt system of records).

In addition, the BOP’s Inmate Central Records System is exempt from subsection (e)(5)
of the Privacy Act. See 28 C.F.R. § 16.970); see also Skinner v. US. Dep ’t ofJustice, 584 F.3d
1093, 1096 (DC. Cir. 2009), cert. denied, 131 S. Ct. 72 (2010). Information in plaintiffs Inmate
Central File is not subject to the substantive provision regarding the agency’s recordkeeping
obligations, see 5 U.S.C. § 552a(e)(5), and therefore there is no remedy at law for any harm
resulting from purported inaccuracies in the agency’s records. See Earle v. Holder, No. 11-5280,
2012 WL 1450574 (DC. Cir. Apr. 20, 2012) (per curiam) (afﬁrming dismissal of “Privacy Act
claim challenging the accuracy of information contained in the presentence report [as] barred by
Bureau of Prisons (BOP) regulations exempting its Inmate Central Records System from section

552a(e)(5), thus preventing the court from ordering amendment of an inmate’s records”); Lane v.

Bureau ofPrisons, No. 09-5228, 2010 WL 288816, at *1 (DC. Cir. Jan. 7, 2010) (per curiam)

(“[The district] court correctly held that the [BOP] has exempted the [Inmate Central Records
System] from the [Privacy] Act’s accuracy and amendment provisions . . . .”), cert. denied, 131
S. Ct. 146 (2010); Reeves v. Fed. Bureau ofPrisons, 885 F. Supp. 2d 384, 388 (D.D.C. 2012)
(dismissing claim under § 552a(e)(5) challenging accuracy of sentence computation and good
conduct credit information in Inmate Central File); Jackson v. Bureau of Prisons, No. 08-0930,
2009 WL 3151107, at *l (D.D.C. Sept. 24, 2009) (concluding that prisoner who “wants the
‘management variable,’ the ‘public safety factor’ and the ‘greater security’ information in his
record amended” fails to state a Privacy Act claim because “all the records at issue are exempt

from the part of the law the plaintiff asks this court to enforce”).

III. CONCLUSION

The Court concludes that plaintiff fails to state a Privacy Act claim upon which relief
can be granted. Defendant’s motion to dismiss will be granted. An Order accompanies this

Memorandum Opinion.

 

DATE: August 3‘ ,2014

ROY E C. LAMBERTH
United States District Judge

