The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
This matter is before the Court on consideration of defendants'
motion to dismiss or, in the alternative, for summary
judgment.*fn1 Having considered defendants' motion,
plaintiff's opposition, and the entire record of the case, the
Court will dismiss this action for failure to state a claim upon
which relief can be granted.
Plaintiff is a federal prisoner who currently is incarcerated
at the United States Penitentiary in Atlanta, Georgia. He brings
this action against the United States Department of Justice and
the Federal Bureau of Prisons ("BOP") under the Privacy Act,
5 U.S.C. § 552a.
On November 27, 2001, there was a "massive shake down" in the
USP Atlanta unit where plaintiff was housed. Compl. at 2 & Ex. A
(Referral of an Inmate Matter for Investigation). Staff allegedly found packages containing white
powder in plaintiff's locker, and the powder tested positive for
cocaine. Id. Plaintiff countered that, not only did staff plant
the packages in his locker, but also that the white powder was
laundry detergent. Id. at 2, 3. In subsequent disciplinary
proceedings, plaintiff "was found guilty of infraction code 113,
possession of narcotics, marijuana, drugs or related
paraphernalia not prescribed for the individual by the medical
staff." Pl.'s Supp. Mem. (Pl.'s Aff.), ¶ 15; see Pl.'s Opp.,
Ex. I (Discipline Hearing Officer Report). Among the sanctions
imposed were placement in disciplinary segregation and
disallowance of good time conduct credit. Id.
Plaintiff alleges that BOP records pertaining to him in its
Inmate Central Records System are incorrect. The records
allegedly fail to reflect that the white powder substance was
laundry detergent, not cocaine. Compl. at 3. This incorrect
information, plaintiff alleges, led to adverse determinations
regarding his custody classification, job and quarters
assignments, among other things. He demands monetary damages "for
placement in segregation on November 27, 2001 thru March 26,
2002," and "for adverse effect in record determining custody,
classification, job, quarter assignment and the lose [sic] of
forty (40) days good conduct credits." Compl. at 3. He also seeks
injunctive relief.*fn2 DISCUSSION
A complaint should not be dismissed for failure to state a
claim unless the plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). The ruling on a motion under
Rule 12(b)(6) does not test a plaintiff's likelihood of success
on the merits; rather, it tests whether a plaintiff properly has
stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). The factual allegations of the complaint are presumed to
be true and are construed liberally in plaintiff's favor. See,
e.g., United States v. Phillip Morris, Inc., 116 F.Supp. 2d 131,
135 (D.D.C. 2001). The Court is not obligated, however, to draw
factual inferences that are not supported by the facts alleged.
Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.
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 access a federal
government agency's records or information pertaining to him in a
system of records, and may request amendment of records
pertaining to him. See 5 U.S.C. § 552a(d). He may file a civil
action against an agency which refuses to amend its records upon
request, or fails to maintain its records with the requisite
level of accuracy and completeness. See 5 U.S.C. § 552a(g);
Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir.
1992) (subsection (g) provides civil remedies for violations of
subsection (e)(5)). An agency may promulgate regulations to exempt any system of
records within the agency from any part of the Privacy Act,
except from subsections (b), (c)(1) and (2), (e)(4)(A) through
(F), (e)(6), (7), (9), (10), and (11), and (i), if the system of
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, regulations exempt BOP's Inmate Central Records System
(JUSTICE/BOP-005) from subsections (c)(3) and (4), (d), (e)(2)
and (3), (e)(4)(H), (e)(8), (f) and (g). See
28 C.F.R. § 16.97(a)(4). Consequently, insofar as plaintiff demands the
amendment of the records at issue, such relief is unavailable
under 5 U.S.C. § 552a(g). See White v. United States Probation
Office, 148 F.3d 1124
, 1125 (D.C. Cir. 1998) (barring claim for
amendment of presentence report maintained in Inmate Central
Records System); Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir.
1997) (per curiam) (denying injunctive relief on the ground that
regulations exempt BOP records from amendment provision of
In addition, pursuant to 5 U.S.C. § 552a(j)(2), BOP's Inmate
Central Records System is exempt from subsection (e)(5) of the
Privacy Act.*fn3 See 28 C.F.R. § 16.97(j) (effective
August 9, 2002); see also 28 C.F.R. § 16.97(k)(2). Having
exempted its records from the substantive provision regarding the
agency's record-keeping obligations, BOP effectively deprives litigants of a remedy for
any harm caused by the agency's substandard record-keeping.
Accordingly, insofar as plaintiff demands damages for BOP's
failure to maintain records in its Inmate Central Records System
pertaining to him with the requisite level of accuracy and
completeness, damages are not available.
Presuming the truth of plaintiff's factual allegations and
construing them liberally in plaintiff's favor, the Court
concludes that the complaint fails to state a claim upon which
relief can be granted. The BOP's Inmate Central Records System is
exempt from the Privacy Act's accuracy and amendment provisions,
such that plaintiff is not entitled to the relief he demands.
Accordingly, the ...