                                                                                 FILED
                            UNITED STATES DISTRICT COURT                          MAR - 9 2010
                            FOR THE DISTRICT OF COLUMBIA                     Clerk U.S. District and
                                                                               Ba~k.ruptCY courts


 Frederick Anthony Cargill,

         Plaintiff,
         v.                                         Civil Action No.      10 0388
 United States Probation Office for the
 Middle District of North Carolina,

         Defendant.



                                   MEMORANDUM OPINION

       Petitioner Frederick Anthony Cargill has filed an application to proceed in forma pauperis

and a pro se complaint for damages under the Privacy Act, 5 U.S.C. § 552a. The application will

be granted and the Privacy Act complaint for damages will be dismissed.

        Cargill is a prisoner under sentence imposed by the United States District Court for the

Middle District of North Carolina. He is currently incarcerated at the federal correctional

institution in Beaver, West Virginia. Although he styles his complaint as one for damages under

the Privacy Act, it is based on an assertion that he is, or at least will be, over-detained due to an

error in his sentence calculation. Any award of damages for wrong-doing would be contingent

on finding that in fact, the sentence had been imposed in error.

       This court is not the proper forum in which to seek a determination that the sentence had

been imposed in error, and the Privacy Act is not the proper means by which a prisoner may

collaterally attack his sentence unless he can also show that his sentence has been invalidated by

a court. Under well-settled precedent, a prisoner challenging the length of his sentence must




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proceed by way of habeas. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Chatman-Bey v.

Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988) ("[A]s a matter of Congressional intent,

prisoners mounting a challenge to the lawfulness of their custody are to proceed by means of

habeas."). It is also well-settled that a claim for damages that challenges the fact or duration of a

prisoner's conviction or confinement is barred unless that conviction or confinement has been

invalidated in a prior proceeding. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Taken

together, these cases make clear that the plaintiff cannot maintain his Privacy Act claim for

damages based on the premise that his sentence is unlawful unless he can also show that his

sentence was invalidated by an appropriate court. White v. United States Probation Office, 148

F.3d 1124, 1125-26 (D.C. Cir. 1998) (per curiam) ("We hold that such a claim is not cognizable

under the Privacy Act unless the sentence has been invalidated in a prior proceeding."); Brown v.

Bureau of Prisons, 498 F. Supp. 2d 298,304 (D.D.C. 2007) (citing White, 148 F.3d at 1125-26).

        Cargill is a prisoner seeking money damages on the premise that his custody is unlawful,

which effectively constitutes a collateral attack on his sentence. As such, it must first be

exhausted as a motion under 28 U.S.C. § 2255 lodged with the sentencing court; only thereafter,

and only if the prisoner can show that the remedy under § 2255 is inadequate or ineffective, the

challenge can be made under 28 U.S.C. § 2241 as a petition for a writ of habeas corpus lodged in

the district court that has personal jurisdiction over the prisoner's immediate custodian. See

28 U.S.c. § 2255; Wilson v. Office o/Chairperson, Dist. o/Columbia Bd.       0/ Parole,   892 F.

Supp. 277, 279 (D.D.C. 1995) ("[A] decision on a § 2255 motion is ordinarily required before a

federal court will entertain a habeas petition."); Chatman-Bey, 864 F.2d at 810 ("[A] district

court may not entertain a habeas corpus action unless it has personal jurisdiction over the


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custodian of the prisoner.... It is also well settled that the appropriate defendant in a habeas

action is the custodian of the prisoner.") (internal quotation marks and citations omitted). This

Court would not have jurisdiction over either a motion filed by Cargill under 28 U.S.C. § 2255 or

a petition filed by Cargill for habeas relief under 28 U.S.C. § 2241. And, because a claim such as

the one presented "is not cognizable under the Privacy Act unless the sentence has been

invalidated in a prior proceeding," White v. United States Probation Office, 148 F.3d at 125, the

complaint will be dismissed for lack of jurisdiction.

        A separate order accompanies this memorandum opinion.




Date:




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