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June 17, 2005.

FRANK A. SKINNER, Plaintiff,

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. Cir. 1994).

  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 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, 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 Privacy Act.

  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 ...

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