                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
                                  1
TERRENCE J. BARNETT,                      )
                                          )
                  Plaintiff,              )
      v.                                  )                               Civil Action No. 15-1614 (BAH)
                                          )
UNITED STATES OF AMERICA, et al.,         )
                                          )
                  Defendants.             )
_________________________________________ )


                                        MEMORANDUM OPINION

         This matter is before the Court on the federal Defendants’ Motion to Dismiss Plaintiff’s

Complaint [ECF No. 16] and the District of Columbia Metropolitan Police Department’s Motion

to Dismiss, or, in the Alternative, for Summary Judgment [ECF No. 17]. For the reasons

discussed below, the Court will grant the motions and dismiss this case.

                                                I. BACKGROUND

         The Court construes the plaintiff’s complaint as one under the Privacy Act, see 5 U.S.C.

§ 552, with respect to records maintained by the Federal Bureau of Prisons (“BOP”). 2 Generally,

the plaintiff alleges that reliance on false or inaccurate information in his presentence


1
  Various spellings of the plaintiff’s first name appear in the record of this case. The Court adopts “Terrence,” the
version appearing on the Federal Bureau of Prisons’ Inmate Locator and corresponding with Reg. No. 42703-007.
2
   The plaintiff also purports to raise Privacy Act claims with respect to records of the Superior Court of the District
of Columbia, see Compl. at 4-5, the Metropolitan Police Department (“MPD”), see id. at 5, the Federal Bureau of
Prisons (“BOP”), see id. at 13, and the Court Services and Offender Supervision Agency (“CSOSA”), see id. at 5.
Because the Court understands the complaint to raise a claim only against the BOP under the Privacy Act, the Court
grants the federal defendants’ motion to dismiss the United States and CSOSA as parties in this action. Further,
because the Privacy Act applies to federal entities and expressly excludes the government of the District of
Columbia, see 5 U.S.C. §§ 551(1)(D), 552a(1), the claims against the Superior Court and the MPD are dismissed.


                                                           1
investigation report (“PSR”), see Compl. at 5, 14-17 (page numbers designated by ECF), has

been “used to arrest and convict [him],” such that he is “now serving prison time for [an offense

or offenses he is] 100 % innocent of,” id. at 5. He asserts that such “false misrepresentation[s]”

about him “prejudice him in obtaining parole, work assignments, transfer to a prison nearer [to]

his home, [a]ffect his appeal(s), Pardon/Commutation of [his] sentence and other legal issues.”

Id. at 9. “[S]everal false facts have and are being used against [him],” the plaintiff claims, “and

this falsity is causing [him] to suffer physi[c]al, mental and emotional distresses [which] could,

should, and would have been avoided[.]” Id. at 20. The plaintiff demands that the defendants

“[r]emove all false facts from [his PSR], arrest warrant and all other government files,” and

“[o]verturn [his] current conviction or [grant him a] new trial.” Id. at 5; see id. at 9-12, 20. In

addition, the plaintiff demands an award “of one million to fifty million in damages for false

arrest, false imprisonment, obstructing justice, malicious prosecution, falsifying documents, and

for . . . pain & suffering.” Id. at 6.

                                         II. DISCUSSION

                                  A. Dismissal Under Rule 12(b)(6)

        A complaint is subject to dismissal if it fails to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Wood v. Moss, 134 S. Ct. 2056, 2067

(2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible when

the plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant’s

liability,” but allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

                                                  2
556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although

“detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint

must offer “more than labels and conclusions” or “formulaic recitation of the elements of a cause

of action” to provide “grounds” of “entitle[ment] to relief,” Twombly, 550 U.S. at 555 (alteration

in original), and “nudge[ ] [the] claims across the line from conceivable to plausible,” id. at 570.

The Court must “assume[] the truth of all well-pleaded factual allegations in the complaint and

construe[] reasonable inferences from those allegations in the plaintiff’s favor,” but it “is not

required to accept the plaintiff’s legal conclusions as correct.” Sissel v. U.S. Dep’t of Health &

Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014) (internal quotations and citations omitted). With

these considerations in mind, the Court concludes that the plaintiff’s complaint must be

dismissed.

                          B. The Federal Defendants’ Motion to Dismiss

       Generally, “[t]he Privacy Act regulates the collection, maintenance, use, and

dissemination of information about individuals by federal agencies.” Wilson v. Libby, 535 F.3d

697, 707 (D.C. Cir. 2008) (internal quotation marks and citations omitted); see Doe v. Chao, 540

U.S. 614, 618 (2004) (stating that Privacy Act “gives agencies detailed instructions for managing

their records and provides for various sorts of civil relief to individuals aggrieved by failures on

the Government's part to comply with the requirements”). For example, an individual may

request amendment of an agency’s records or information in a system of records pertaining to

him. See 5 U.S.C. § 552a(d)(2). The individual may file a civil action against an agency which

“makes a determination . . . not to amend [the] record in accordance with his request.” Id. §

552a(g)(1)(A).




                                                  3
       The Privacy Act also 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.” Id. §

552a(e)(5). An individual may file a civil action against the agency if it

                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.
Id. § 552a(g)(1)(C). If the Court determines that the agency’s actions were willful or intentional,

it may award actual damages sustained by the individual following from the agency’s failure to

maintain its records with the requisite level of accuracy, costs of the action and attorney fees. Id.

§ 552a(g)(4).

       The Privacy Act is not a vehicle for challenging a criminal conviction, however. See

Semrau v. U. S. Immigration & Customs Enforcement, No. 5:13-CV-188, 2014 WL 4626708, at

*5 (S.D. Miss. Sept. 12, 2014) (finding that “attempts to use the Privacy Act to challenge a

conviction, a reprimand imposed as a punishment therefrom, or any other action or decision

recorded in an agency file is barred by law”); Corley v. U.S. Parole Comm’n, 709 F. Supp. 2d 1,

5 (D.D.C. 2009) (“To the extent that this Privacy Act case is a disguised collateral attack on the

plaintiff's conviction and sentence . . . it is misplaced.”); see also Blair-Bey v. Quick, 151 F.3d

1036, 1042 (D.C. Cir. 1998) (discussing D.C. Code § 23-110 as the “remedy analogous to 28

U.S.C. § 2255 for prisoners sentenced in D.C. Superior Court who wished to challenge their

conviction or sentence”). Nor is it “a vehicle for amending the judgments of federal officials . . .

as those judgments are reflected in records maintained by federal agencies.” Kleiman v. Dep’t of

Energy, 956 F.2d 335, 337-38 (D.C. Cir. 1992). Rather, it “allows for the amendment of factual

                                                  4
or historical errors” alone, Rogers v. U.S. Dep’t of Labor, 607 F. Supp. 697, 699 (N.D. Cal.

1985), and the plaintiff “cannot avail himself of the Privacy Act in order to challenge the

determinations themselves,” Jacobs v. Bureau of Prisons, 845 F. Supp. 2d 224, 230 (D.D.C.

2012) (citations omitted), aff’d, No. 12-5129, 2012 WL 6603085 (D.C. Cir. Dec. 17, 2012).

        Furthermore, “[t]he agency obligations created by the Privacy Act are not absolute[.]”

Meyer v. Fed. Bureau of Prisons, 940 F. Supp. 9, 134 (D.D.C. 1996). Relevant to this case are

BOP regulations which exempt the Inmate Central Records System (JUSTICE/BOP-005) from

subsections (d) and (g) of the Privacy Act. See 28 C.F.R. § 16.97(a)(1), (4). Because a

prisoner’s PSR is maintained in the BOP’s Inmate Central Records System, relief in the form of

amendments to the plaintiff’s PSR simply is not available. See White v. U.S. Prob. Office, 148

F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam) (holding that appellant is “barred from seeking

amendment of his presentence report” because “presentence reports and BOP inmate records

systems are exempt from the amendment provisions of the [Privacy] Act”); Jennings v. Fed.

Bureau of Prisons, 657 F. Supp. 2d 65, 71 (D.D.C. 2009) (“Insofar as plaintiff demands

amendment of any record maintained in the Inmate Central Files system, that is, amendment of

the PS[R], custody classification form, or security designation form, this relief . . . is

unavailable.”). 3

        In addition, BOP regulations exempt the Inmate Central Records System from subsection

(e)(5) of the Privacy Act. See 28 C.F.R. § 16.97(j); see also id. § 16.97(k)(2). Thus, the BOP




3
   Furthermore, a PSR is a court document, and the federal courts are expressly exempt from the Privacy Act. See
Hankerson v. United States, 594 F. App’x 608, 609 (11th Cir. 2015) (noting that the term “agency” excludes the
federal courts, and that the Probation Office which prepared the plaintiff’s PSR serves as an arm of the court);
Jefferson v. Fed. Bureau of Prisons, 657 F. Supp. 2d 43, 47 (D.D.C. 2009) (dismissing Privacy Act claim against
U.S. Probation Office because it “is a component of the Administrative Office of the United States Courts, part of
the judicial branch of government” and therefore not subject to the Act).

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exempts the Inmate Central Records System from the substantive provision regarding the

agency’s recordkeeping obligations. It follows that there remains no remedy under the Privacy

Act for harm resulting from inaccuracies in the inmate records. See Martinez v. Bureau of

Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam) (affirming dismissal of Privacy Act

claims against BOP which had “exempted its Inmate Central Record System from the accuracy

provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5)”); Earle v. Holder, 815 F. Supp. 2d 176,

181-82 (D.D.C. 2011) (“It is settled that inmate records maintained by BOP, including

presentence reports, have been exempted from the Privacy Act’s accuracy and amendment

requirements (subsections (d) and (e)(5)) and from its damages provision (subsection (g)).”),

aff’d, No. 11-5280, 2012 WL 1450574, at *1 (D.C. Cir. Apr. 20, 2012); Conklin v. U.S. Bureau

of Prisons, 514 F. Supp. 2d 1, 6 (D.D.C. 2007) (concluding that “plaintiff effectively is barred

from obtaining any remedy, including damages, under subsection (g), for the BOP’s alleged

failure to maintain records pertaining to him with the mandated level of accuracy”).

       The plaintiff’s complaint fails to state a viable Privacy Act claim for amendment of

records or for monetary damages, and, therefore, the federal defendants’ motion to dismiss will

be granted.

                  C. The District of Columbia Defendants’ Motion to Dismiss

       Notwithstanding the Court’s initial conclusion that the plaintiff proceeds only under the

Privacy Act, arguably there are three possible claims, false arrest, false imprisonment, and

malicious prosecution, see Compl. at 6, which “can be interpreted as being brought against MPD

(or the District [of Columbia]),” Mem. in Support of District of Columbia Metropolitan Police

Department’s Mot. to Dismiss, or in the Alternative, for Summ. J. [ECF No. 17-1] (“D.C.



                                                 6
Mem.”) at 2. 4 These claims must fail, however, because the complaint fails to state them

adequately.

         “The elements of the tort of false arrest and false imprisonment are: (1) the detention or

restraint of [the plaintiff] against his will within boundaries fixed by the defendant, and (2) the

unlawfulness of the restraint.” Saha v. Lehman, 537 F. Supp. 2d 122, 126 (D.D.C. 2008)

(citations omitted), aff’d, No. 08-7047, 2008 WL 4726053 (D.C. Cir. July 31, 2008). The few

facts set forth in the complaint simply do not allow this Court to draw a reasonable inference that

the District of Columbia defendants are liable for the misconduct alleged. Similarly, absent

factual allegations that “[t]here [has been] (a) a criminal proceeding instituted or continued by

the [District] against the plaintiff, (b) termination of the proceeding in favor of the [plaintiff], (c)

absence of probable cause for the proceeding, and (d) [m]alice, or a primary purpose in

instituting the proceeding other than that of bringing an offender to justice,” Amobi v. District of

Columbia Dep’t of Corr., 755 F.3d 980, 992 (D.C. Cir. 2014) (quoting DeWitt v. District of

Columbia, 43 A.3d 291, 296 (D.C. 2012) (emphasis removed), the complaint does not state a

malicious prosecution claim.




4
   Mentioned in the complaint is MPD Detective Anthony Brigadini, who allegedly “stated several false facts in a
signed affidavit of allegations used to arrest and convict the plaintiff” of an unspecified criminal offense. Compl. at
5. The plaintiff deems “this Detective . . . a part of the D.C. M.P.D. and therefor[e] the D.C. M.P.D. is responsible”
for the harms he allegedly has suffered. Pl.’s Mot. of Opp’n to Not Dismiss Pl.’s Civil Compl. [ECF No. 23] at 2.
For purposes of this discussion, the Court proceeds as if – but not deciding that – Detective Brigadini is a party
defendant on whom service of process has been made.

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                                       III. CONCLUSION

       The plaintiff’s complaint fails to allege Privacy Act or tort claims upon which relief can

be granted. The Court therefore grants the defendants’ motions to dismiss. An Order is issued

separately.


DATE: June 15, 2016                                    /s/   Beryl A. Howell
                                                        BERYL A. HOWELL
                                                        Chief Judge




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