5 U.S.C. § 552a(j)(2). Accordingly, the BOP has exempted certain systems of records from the amendment requirements. See 28 C.F.R. § 16.97(a); Sellers v. Bureau of Prisons, 294 U.S. App. D.C. 361, 959 F.2d 307, 309 (D.C. Cir. 1992). Among the systems of records exempted by the BOP from the amendment requirements of the Privacy Act are the systems of records in which the plaintiff's Custody Classification Form are contained. Because the plaintiff has failed to put forth any evidence that these records have not been properly exempted from the amendment requirements, summary judgment for the defendants must be granted with respect to this claim.
B. The plaintiff is not entitled to damages based on the willful misuse of inaccurate information because such a claim is barred by res judicata and also is meritless.
The plaintiff raises an issue concerning the increase of his custody level from minimum to low based on an offense conduct involving violence, that is, pointing a loaded .45 caliber weapon at a law enforcement officer. The defendant claims he is entitled to damages based on his assertion that this was a willful misuse of inaccurate information that resulted in a determination to his detriment.
In a Memorandum Opinion and Order dated February 16, 1995, Judge Joyce Hens Green of this Court examined the accuracy of the same statement at issue here. Judge Green held that, although Mr. Meyer had not been convicted of "aggravated assault," the information on his classification form that listed his "VIOLENCE" element was "Meyer v. Federal Bureau of Prisons, Civ. No. 94-0053, slip op. at 8 (Feb. 16, 1995) (Green, J.) (Mem. Op. and Order). Judge Green noted that "Mr. Meyer was convicted of reckless conduct on July 3, 1990 for 'pointing a loaded .45 caliber pistol at a police officer.'" Id. at n.8. Judge Green held that this conduct clearly could be classified as "intimidation involving a weapon" and, therefore, "serious." Id. at 9. The plaintiff cannot now relitigate the fact that the conduct for which he was convicted, pointing a loaded .45 caliber pistol at a police officer, was inaccurate. Thus, the plaintiff's claim in this regard is barred by res judicata.
Moreover, the plaintiff has not produced any evidence that the allegedly improper rating resulted in a determination that was adverse to him. There is no evidence, other than his allegations, that the classification deprived him of the right to a lesser sentence, credits, or camp placement. The plaintiff was placed in a residential drug treatment program on November 29, 1995. Jones Decl. P 8. The documents attached to his Opposition do not indicate that his rating has factored into his consideration for early release or that a determination in that regard has even been made. Finally, the defendant was considered inappropriate for camp placement before his custody classification was raised. Id. P 9. Thus, the plaintiff's claim fails on its merits as well.
IV. SUMMARY JUDGMENT WILL BE DENIED WITH RESPECT TO THE PLAINTIFF'S FOIA CLAIM BECAUSE A GENUINE ISSUE OF MATERIAL FACT MAY EXIST AS TO THE THREE DOCUMENTS IDENTIFIED IN AN OCTOBER 20, 1995 BOP MEMORANDUM.
The plaintiff requests, pursuant to the FOIA, three pages of documents of conversations between the BOP staff and the FBI and the United States Attorney's Office in the Southern District of Illinois. The defendants have stated that it appears that documents between the FBI and the United States Attorney's Office in the Southern District of Illinois do not exist. See Decl. of Angela Buege, P 3. However, this statement does not specifically address the plaintiff's request. The Court cannot say at this time that the documents that the plaintiff seeks between BOP staff and the FBI and U.S. Attorney's Office in the Southern District of Illinois do not exist, in light of a Memorandum dated October 20, 1995 from Angie Buege, Paralegal, FCI Sandstone, MN to Gary Roberts, Paralegal Specialist, North Central Region, which indicates that 3 such pages may exist. Because of this one apparent inconsistency in the record, further briefing is required. Accordingly, the Court shall deny summary judgment on the plaintiff's FOIA claim and shall order further briefing on the narrow issue whether these three pages exist and are releasable to the plaintiff.
For the reasons set forth in the foregoing Memorandum Opinion, the Court shall grant the defendants' Motion to Dismiss the plaintiff's claims against the defendant Jones in his individual capacity for lack of personal jurisdiction. The Court also shall grant the defendants' Motion to Dismiss the plaintiff's Constitutional claims against the defendants. The Court shall grant the defendants' Motion for Summary Judgment with respect to the plaintiff's Privacy Act claims and shall deny the defendants' Motion for Summary Judgment with respect to the plaintiff's FOIA claim so that the narrow issue concerning the 3 pages identified above further can be addressed. The Court shall issue an Order of even date herewith, consistent with the foregoing Memorandum Opinion.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
For the reasons set forth in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 10th day of September, 1996,
ORDERED that the defendants' Motion to Dismiss the plaintiff's claims against the defendant Jones in his individual capacity for lack of personal jurisdiction shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the defendants' Motion to Dismiss the plaintiff's Constitutional claims against the defendants shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the defendants' Motion for Summary Judgment shall be, and hereby is, GRANTED in part and DENIED in part, more specifically, judgment is hereby entered for the defendants with respect to the plaintiff's Privacy Act claims; and it is
FURTHER ORDERED that the defendant shall file further briefing with respect to the 3 pages identified in the Court's Memorandum Opinion of even date herewith on or before 4:00 p.m. on September 20, 1996, to which the plaintiff must respond on or before 4:00 p.m. on September 25, 1996; and it is
FURTHER ORDERED that the plaintiff's Motion for Appointment of Counsel shall be, and hereby is, DENIED.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE