The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
This matter is before the Court on defendants' motion to
dismiss.*fn1 Having considered defendants' motion, plaintiff's
response, and the entire record of this case, the Court will grant the
Plaintiff, a federal prisoner, brings this action against the United
States Department of Justice, Federal Bureau of Prisons ("BOP"), under
the Privacy Act, 5 U.S.C. § 552a. He alleges that information
provided in his presentence investigation report is incorrect. First, he
contends that he was assessed 3 points for a drug conviction although the
applicable Program Statement authorizes the assessment of only 1 point.
Compl. at 3. Second, he contends that he was
assessed points for probation violation charges for which
he was not convicted.*fn2 Id. at 3-4. Third, he
contends that BOP failed to verify information pertaining to past
probation violations. Id. at 4. BOP's reliance on this incorrect
information, plaintiff claims, has resulted in adverse determinations
regarding his custody classification, his transfer to a less secure
facility, and his eligibility for institutional programs. Id. at
1. He demands amendment of the incorrect records and an award of monetary
damages. Id. at 5.
I. Amendment of the records is not an available remedy.
An agency may promulgate regulations to exempt any system of records
within the agency from any part of the Privacy Act, except subsections
(b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and
(11), and (i), if the system of records 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) (emphasis added). Pursuant to this authority,
the Federal Bureau of Prisons exempted the Inmate Central Record System
(JUSTICE/BOP-005) from the Privacy Act. See
28 C.F.R. § 16.97(a)(4). Records maintained in BOP's Inmate Central Record
inmates' presentence investigation reports, are exempt
from the Privacy Act's amendment provisions.*fn3
White v. United States Probation Office, 148 F.3d 1124
, 1125 (D.C.
Cir. 1998) (exemption from Privacy Act amendment provision barred
plaintiff from seeking amendment of presentence report); Sellers v.
United States Bureau of Prisons, 959 F.2d 307, 309 (D.C. Cir. 1992)
(citing Deters v. United States Parole Comm'n, 85 F.3d 655, 658
n.2 (D.C. Cir. 1996)). Plaintiff's claim for amendment of the records is
therefore barred. White, 148 F.3d at 1125.
II. Plaintiff fails to state a Privacy Act claim for damages.
Pursuant to the Privacy Act, an agency must:
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 bring suit against an
agency which fails to meet this standard. See
5 U.S.C. § 552a(g)(1)(C). In order to recover monetary damages under the
Privacy Act, "a plaintiff must assert that an agency failed to maintain
accurate records, that it did so intentionally or willfully, and,
consequently, that an `adverse' `determination [wa]s made' respecting the
plaintiff. Toolasprashad v. Bureau of Prisons, 286 F.3d 576
, 583 (D.C. Cir.
2002) (quoting 5 U.S.C. § 552a(g)(1)(C)). Plaintiff has the burden of
proving that the agencies' actions in violating the Privacy Act were
intentional or willful. Albright v. United States, 732 F.2d 181,
189 (D.C. Cir. 1984); 5 U.S.C. § 552a(g)(4). To meet his burden, plaintiff
"must prove that the offending agency acted `without grounds for
believing [its actions] lawful' or that it `flagrantly
disregarded' the rights guaranteed under the Privacy Act."
Laningham v. United States Navy, 813 F.2d 1236
, 1242 (D.C. Cir.
1987) (quoting Albright v. United States, 732 F.2d at 189).
With respect to the calculation of plaintiff's custody classification
level, BOP relied on plaintiff's criminal history as reflected in the
presentence investigation report. Compl. at 3-4. Plaintiff does not
dispute the truth of his drug conviction; rather, he contends that the
conviction merited only a score of 1 point rather than 3 points, such
that he should have been housed in a low security facility. Id.
at 4. His challenge, then, is to BOP's use of the information, not to its
accuracy, relevance or completeness. A challenge to the professional
judgment of BOP officials in assessing points for purposes of
establishing a prisoner's custody classification is not properly mounted
by means of a Privacy Act suit. See Kleinman v. Dep't of
Energy, 956 F.3d 335, 337-38 (D.C. Cir. 1992).
With respect to plaintiff's history of escape and history of violence,
plaintiff claims that the charges at issue (i.e., the probation
violations) were dismissed. Compl. at 4. Because he was not convicted of
an escape or of a violent offense, he argues that these charges cannot be
used in determining his custody classifications. Id. This
argument is meritless. In making custody classification decisions, BOP
may take into account evidence of a prisoner's behavior even if the
behavior did not result in a criminal conviction. See Griffin v.
Ashcroft, No. 02-5399, 2003 WL 22097940 (D.C. Cir. Sept. 3, 2003).
Moreover, plaintiff cannot demonstrate an intentional or willful
violation of his rights under the Privacy Act. The prior drug conviction
and probation violation charges reflected in the presentence
investigation report are not clearly wrong, and, therefore, BOP's
reliance on this information neither constitutes flagrant disregard of
his rights, nor rises to the level of an intentional violation of the
Privacy Act. Further, when plaintiff presented his challenge to the
accuracy of records pertaining to the probation violation
charges, BOP took affirmative steps to verify the information.
See Compl., Ex. O (October 24, 2001 Memorandum from Unit Manager
to plaintiff's Central File).
Finally, plaintiff cannot point to any adverse determinations made by
BOP. Although the Court assumes without deciding that BOP's decision "to
restrict [plaintiff] from a transfer and many Institutional programs"
(Compl. ¶ 1) is an adverse determination,*fn4 plaintiff
has been transferred from Ray Brook Institution to the Low Security
Correctional Institution in Beaumont, Texas, a less secure facility, to
allow him to participate in a Diesel Mechanic Vocational Training
Program. See Mot. Exs. 1-2. Because the basis of plaintiff's
claim for relief was BOP's failure to transfer him and provide him access
to programs, that claim has been rendered moot by the transfer. See
Nat'l Black Police Ass'n v. Dist. of Columbia, 108 F.3d 346, 349
(D.C. Cir. 1997) ...