United States District Court, D. Columbia
August 25, 2005.
MATIAS MONTEMAYOR, Plaintiff,
FEDERAL BUREAU OF PRISONS, Defendant.
The opinion of the court was delivered by: GLADYS KESSLER, District Judge
This matter is before the Court on Plaintiff's Motion for
Partial Summary Judgment [Dkt #62] and Defendant's Second Renewed
Motion to Dismiss or, in the Alternative, for Summary Judgment or
to Transfer (Def.'s Mot.") [Dkt. #61]. Having considered the
Motions, the Oppositions, the Replies, the entire record in this
case, and the applicable case law, the Court will deny both
Plaintiff is a federal prisoner who has been in the custody of
the Federal Bureau of Prisons ("BOP") since 1981. Plaintiff's
Second Amended Complaint ("Sec. Amd. Compl."), ¶ 4; Def.'s Mot.,
Ex. 1 ("Montemayor Dep.") at 4. He brings this action against BOP
under the Privacy Act, 5 U.S.C. § 552a. Sec. Amd. Compl., ¶ 2.
Since 1993, BOP's records have designated Plaintiff an
associate of a Security Threat Group ("STG" or "STG group")
because of his alleged affiliation with a prison gang.*fn1
Sec. Amd. Compl., ¶ 7; Pl.'s Facts, Ex. 6 (Wilford Dep.) at 75.*fn2 Plaintiff
consistently has denied any gang association, and asserts that
BOP's records pertaining to him in this regard are entirely
false. See Sec. Amd. Compl., ¶¶ 6-8, 13.
Plaintiff alleges that BOP's reliance on the false records of
gang association "began a pattern of regularly isolating
[Plaintiff] in administrative detention," including confinement
in a small cell, severe restrictions on activities, and
restrictions on access to his personal property.*fn3 Sec.
Amd. Compl., ¶ 9. These periods of administrative detention, he
alleges, caused substantial stress and has adversely affected his
health.*fn4 Id., ¶¶ 14-15. In particular, Plaintiff
remains concerned that actual members of the gang will retaliate
against him. Id., ¶ 16.
In 2002, BOP determined that the STG designation was not
warranted. Sec. Amd. Compl., ¶ 20. Although BOP stated that it
would remove the STG designation from its records pertaining to
Plaintiff, the agency allegedly continues to maintain and rely
upon false records of gang association. Id., ¶ 21. Consequently, Plaintiff has been placed
in administrative detention on other occasions solely on the
basis of the alleged gang affiliation, and has been transferred
from one BOP facility to another. Id., ¶¶ 22-23. Such
treatment, Plaintiff alleged, constitutes a "continuing pattern
of harassment . . . that has gone on for over a decade." Id., ¶
In this action, Plaintiff demands, among other relief, monetary
damages and amendment or expungement of the inaccurate records.
Sec. Amd. Compl., ¶ 33.
II. STANDARD OF REVIEW
With regard to Defendants' Motion to Dismiss, pursuant to
Federal Rule of Civil Procedure 12, a complaint should not be
dismissed unless the "`plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.'"
Browning v. Clinton, 292 F.2d 235, 242 (D.C. Cir. 2002)
(quoting Conley v. Gibson, 355 U.S. 41, 45-45 (1957)). In
deciding a motion to dismiss, a court must "accept the
plaintiff's factual allegations as true and construe the
complaint `liberally,' `grant[ing] plaintiff? the benefit of all
inferences that can be derived from the facts alleged.'"
Browning, 292 F.3d at 235 (quoting Kowal v. MCI Communications
Corp., 16 F.2d 1271, 1276 (D.C. Cir. 1994)).
For a motion to transfer, 28 U.S.C. § 1404(a) provides that
"[f]or the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any
other district or division where it might have been brought."
Section 1404(a) vests "discretion in the district court? to
adjudicate motions for transfer according to an individualized,
case-by-case consideration of convenience and fairness."
Stewart, 487 U.S. at 27 (internal citations omitted). The
moving party bears the burden of establishing that the transfer
of the action to another federal district is proper. See Shenandoah Assoc. Ltd. P'ship v.
Tirana, 182 F. Supp.2d 14, 25 (D.D.C. 2001).
Finally, with regard to Defendant's Motion for Summary Judgment
and Plaintiff's Motion for Partial Summary Judgment, such
dispositive motions may be granted if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, show that there is no genuine issue of material fact,
and that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material
fact is one "that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). When evaluating a summary judgment motion,
"[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge." Id. at 255; Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). The
party opposing a motion for summary judgment "may not rest upon
the mere allegations or denials of his pleadings, but . . . must
set forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248;
see also, Jackson v. Finnegan, Henderson, Farabow, Garrett &
Dunner, 101 F.2d 145, 150 (D.C. Cir. 1996).
III. DEFENDANT'S SECOND RENEWED MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT OR TO TRANSFER
A. In Forma Pauperis Status
The Court may allow an indigent plaintiff's case to proceed if
he cannot pay the filing fee in full. See 28 U.S.C. § 1915(a).
In forma pauperis status authorizes the Clerk of Court to
effect service on the indigent plaintiff's behalf and renders him
eligible for appointment of counsel from the Civil Pro Bono Panel. See 28 U.S.C. § 1915(d), (e)(1);
Fed.R.Civ.P. 4(c)(2); LCvR 83.11(b)(3). Notwithstanding in forma
pauperis status, a "prisoner shall be required to pay the full
amount of a filing fee." 28 U.S.C. § 1915(b)(1). If the prisoner
cannot pay the filing fee in full at the time he files his
complaint, the Court may order payment in installments. Id.
"[T]he court shall dismiss the case at any time if the court
determines that . . . the [prisoner's] allegation of poverty is
untrue." 28 U.S.C. § 1915(e)(2)(A).
Plaintiff submitted an application to proceed in forma
pauperis when he filed the original complaint. See Dkt. #1-2.
Although Plaintiff paid the filing fee in full shortly
thereafter, the Court granted Plaintiff's application. See Dkt.
Defendant argues that dismissal of this action is warranted
because of misstatements and omissions in Plaintiff's application
to proceed in forma pauperis. See Def.'s Mot. at 2. Dismissal
with prejudice under 28 U.S.C. § 1915(e)(2) "is a harsh remedy to
be reserved for the most extreme cases." Morales v. E.I. du Pont
de Nemours Co., 2004 WL 2106590 at 2 (W.D.N.Y. September 21,
2004). In our Circuit, the Court of Appeals has ruled that in
general, "dismissal of a lawsuit never heard on its merits is a
drastic step normally to be taken only after unfruitful resort to
lesser sanctions." Jackson v. Washington Monthly Co.,
569 F.2d 119, 123 (D.C. Cir. 1977).
While Plaintiff may have omitted certain information on his in
forma pauperis application, (perhaps because the property in
question was located in Mexico), this case does not present an
egregious abuse of the statute. The record does not clearly
establish the level of bad faith or blatant misrepresentation
that would justify dismissal with prejudice as an appropriate,
and draconian, sanction. B. Statute of Limitations
Defendant moves for summary judgment on the ground that
Plaintiff failed to file this civil action within the Privacy
Act's two-year limitations period. Defendant argues that, as
early as 1993 or as late as 1997, Plaintiff knew of the
"maintenance of the inaccurate records and his resulting
placement in administrative detention." Def.'s Mot. at 6-7. Thus,
Defendant argues that this action is time-barred because
Plaintiff knew or should have known more than two years before
filing his Complaint that BOP failed to maintain its records with
the requisite level of accuracy, and knew that BOP relied on
those records in making a determination adverse to him and his
Under the Privacy Act, an individual must file a civil action
"within two years from the date on which the cause arises."
5 U.S.C. § 552(g)(5). "A cause of action arises under the Privacy
Act at the time that, (1) an error was made in maintaining
plaintiff's records; (2) plaintiff was harmed by the error; and
(3) the plaintiff either knew or had reason to know of the
error." Szymanski v. United States Parole Comm'n.,
870 F. Supp. 377, 378 (D.D.C. 1994); Bergman v. United States, 751 F.2d 314,
317 (10th Cir. 1984), cert denied, 474 U.S. 945 (1985). See
Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987) (cause
of action arises when "the plaintiff knows or should know of the
"The critical issue for determining whether the plaintiff's
action is barred by § 522(g)(5) is the time at which the
plaintiff first knew or had reason to know" that allegedly
inaccurate records were being maintained. Diliberti v. United
States, 817 F.2d 1259, 1262 (7th Cir. 1987). "[A]n individual's
physical discovery of improper records does not give rise to a
cause of action; it merely strengthens the original cause of
action which arose when the individual first had reason to
believe that the records were being maintained." Id. at 1263
(citing Etrell v. Dep't of the Army, 626 F. Supp. 903, 908-09 (C.D. Ill. 1986)). Plaintiff's cause of action
could not arise before he became aware of the existence of the
records about which he complains. Regardless of what Plaintiff
may have heard in his conversations with BOP staff, he alleges
that he did not learn of the existence of the offending records
until November 2001, well within the statute of limitations.
See Tijerina v. Walters, 821 F.2d at 798; Compl. at 5-6
(Plaintiff "was privileged to learn that information has been
placed in his institutional and central file, by SIS, labeling
him as a `gang member.'").
BOP's statute of limitations argument rests on one brief,
totally unclear, snippet of testimony from a deposition given by
Mr. Montemayor. The snippet itself refers to an earlier exchange
in the same deposition in which he suggests that he knew he was
being categorized as a gang member as far back as the mid-1990's
when he was imprisoned in El Reno. The testimony in the
deposition is extremely vague and it is questionable whether Mr.
Montemayor fully understood all the questions being asked of him.
Moreover, even if BOP correctly characterizes the testimony, at
that point Plaintiff could not identify any adverse
determinations. For that reason, he had no cause of action. This
brief exchange between Plaintiff and opposing counsel about
events which occurred almost a decade earlier is simply not
sufficient to justify the granting of summary judgment. That is
particularly true in light of Plaintiff's allegation that he did
not learn of the erroneous STG associate designation until
November 19, 2001 when his inmate grievance was denied regarding
his placement "in SHU for an extended period of time without just
cause" because he was "being targeted as a gang member." Pl.'s
Opp. at 6, Ex. 4.
As noted in Anderson, "[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge." 477 U.S. at 255. In short, it is clear that there is a
genuine issue of material fact as to the date upon which Plaintiff learned certain information and the date upon which a
cause of action arose. Therefore, summary judgment is
inappropriate and must be denied.
Defendant next argues that Plaintiff fails to state a claim for
damages. The Privacy Act provides:
In any suit brought under the provisions of
subsection (g)(1)(C) or (D) of this section in which
the court determines that the agency acted in a
manner which was intentional or willful, the United
States shall be liable to the individual in an amount
equal to the sum of
(A) actual damages sustained by the individual as a
result of the refusal or failure, but in no case
shall a person entitled to recovery receive less than
the sum of $1,000; and
(B) the costs of the action together with reasonable
attorney fees as determined by the court.
5 U.S.C. § 552(g)(4) (emphasis added). It authorizes a minimum
award of damages of $1,000 to a plaintiff who proves that he has
suffered actual damages as a result of the defendant having
violated the Act. 5 U.S.C. § 552a(g)(4)(A). Defendant urges the
Court to interpret the term "actual damages" so that only
pecuniary losses are compensable under the Privacy Act. Def.'s
Mot. at 11. Under such an interpretation, damages for mental or
emotional injury are not available. Further, Defendant argues,
because Plaintiff cannot establish any pecuniary loss, his claim
for damages fails entirely.
In Doe v. Chao, 540 U.S. 614, 627 (2004), the Supreme Court
concluded that under the precise language of the statute, quoted
above, a plaintiff must suffer some damages in order to be
entitled to recovery. However, in footnote 12 of its Opinion, the
Supreme Court also recognized that "[t]he Courts of Appeals are
divided on the precise definition of actual damages." Id. The
Court declined to resolve that conflict in Chao because the issue was
not raised in the petition for certiorari. Id.
The issue still remains undecided in our Circuit. There are
decisions at the District Court level which have held that
Privacy Act damages are limited to out-of-pocket expenses. Pope
v. Bond, 641 F. Supp. 489, 501 (D.D.C. 1986); Albright v.
United States, 558 F. Supp. 260, 264 (D.D.C. 1982), aff'd on
other grounds, 732 F.2d 181 (D.C. Cir. 1984); Houston v.
United States Dept. of Transportation, 494 F. Supp. 24, 30
(D.D.C. 1979). However, it is clear that the recent trend at the
District Court level has been to allow Privacy Act suits seeking
general compensatory damages, such as pain and suffering and
non-pecuniary losses, to proceed. Boyd v. Snow,
335 F. Supp.2d 28, 39 (D.D.C. 2004); Rice v. United States, 211 F.R.D. 10,
13-14 (D.D.C. 2002); Alexander v. FBI, 971 F. Supp. 603, 607
(D.D.C. 1997); Dong v. Smithsonian Institution,
942 F. Supp. 69, 74 (D.D.C. 1996), rev'd on other grounds,
125 F.3d 877 (D.C. Cir. 1997). In particular, Boyd, which is the most
recent case from our District Court, ruled that the plaintiff
would be allowed to prove "severe emotional and physical harm,
stress, sleeplessness, and nightmares" in order to demonstrate
the "actual damages" which must be demonstrated under the Privacy
Act. Boyd, 335 F. Supp.2d at 139.
The Government, commendably, does identify the many cases on
both sides of this unresolved issue. It urges this Court to give
the term "actual damages" the more restrictive reading, its
rationale being that because the Fifth Circuit in Johnson v.
DOT, 700 F.2d 971, 972-74 (5th Cir. 1983), reached a decision
that was diametrically opposed to that reached by the Sixth
Circuit in Hudson v. Reno, 130 F.3d 1193, 1207 (6th Cir. 1997),
a narrow interpretation of the term should be adopted. The Court does not find that rationale persuasive and
will follow the lead of the most recent cases in this
jurisdiction, such as Boyd, Rice, Alexander, and Dong.
The Government also argues that the Plaintiff's allegations of
mental anguish are insufficient to satisfy the requirements of
the Prison Litigation Reform Act. That statute provides:
No federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered
while in custody without a prior showing of physical
42 U.S.C. § 1997e(e). See also 28 U.S.C. § 1346(b)(2). For
purposes of Section 1997 e(e), the alleged physical injury need
not be serious, although it must be more than de minimis.
See Mitchell v. Horn, 318 F.3d 523
, 536 (3d Cir. 2003);
Oliver v. Keller, 289 F.3d 623
, 626 (9th Cir. 2002); Liner v.
Goord, 196 F.3d 132
, 135 (2d Cir. 1999); Siglar v. Hightower,
112 F.3d 191
, 193 (5th Cir. 1997) and Tribe v. Snipes, 19 Fed.
Appx. 325, 326 (6th Cir. 2001).
Defendant argues that Plaintiff cannot prevail on his claim for
damages for mental or emotional injury because he does not
establish a prior showing of physical injury as required by
28 U.S.C. § 1997e(e). However, Plaintiff attributes his heart attack
to the physical and emotional stress resulting from BOP's
erroneous STG designation, his 10 different administrative
detentions, his fear for his safety, and his transfer to
different BOP facilities. Obviously those allegations, if proven,
constitute a sufficient and adequate allegation of "physical
injury" for purposes of satisfying Section 1997e(e).
Lastly, Defendant moves to transfer venue, under
28 U.S.C. § 1404(a), "[f]or the convenience of parties and witnesses, in the
interest of justice" to the United States District Court for the
Northern District of Texas, the district in which Plaintiff
currently is incarcerated. Defendant argues that Plaintiff and all the witnesses reside in or near
Texas, and necessary documents are in Texas. Plaintiff contests
this fact and responds that the number of witnesses is few and
that they are located in the District of Columbia, Oklahoma, and
Florida, as well as Texas.
It is undisputed that venue in this District is proper. See
5 U.S.C. § 552a(g)(5). Plaintiff filed his original pro se
complaint here three years ago, discovery is complete, and this
Court is familiar with the case. His appointed counsel is in this
District. Transfer of this action at this late date will only
delay its resolution and impose hardship on Plaintiff's pro bono
counsel. Defendant can cite to no substantive prejudice it will
suffer from completing litigation in this District.
Therefore, Defendant's Motion to Transfer will be denied.
E. Plaintiff's Motion for Partial Summary Judgment
"To state a claim for 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) (citing
5 U.S.C. § 552a(g)(1)(C)). Plaintiff moves for partial summary judgment on
one element of his claim: that the STG designation itself
constitutes an adverse determination for purposes of the Privacy
Act. See Pl.'s Mot. at 11.
Defendant has filed a fairly lengthy opposition which, while
not always clear, essentially argues that there are material
issues of fact regarding the consequences, if any, of the STG
assignment, as well as the causation, injury and intent relating
to whatever STG assignments he may have been given. For example,
Defendant notes that Plaintiff's assumption that all of his
placements in administrative detention following the STG
assignment must have been the result of records showing such an
assignment, does not follow either logically or necessarily.
Defendant also argues that Plaintiff has failed to establish any causation for the
adverse effects he claims from the consequences of the STG
assignment. Finally, Defendant argues that Plaintiff admits that
he never personally saw any BOP records saying he was a gang
member, but that staff told him this fact. If Plaintiff's
placement in administrative detention was simply because of what
prisoners or staff were saying about him, then it is far from
clear that the determination to place him in administrative
detention was based on inaccurate records (which would be covered
by the statute), rather than the hearsay of prisoners and/or
staff (which would not be covered by the statute).
In short, Defendant is correct that, at least in the context of
this case, "one cannot examine an STG assignment in a vacuum and
conclude that it is per se an adverse determination." Def.'s
Opp. to Pl.'s Motion, p. 7. That conclusion is particularly
compelling when, as here, all factual inferences must be resolved
in the Defendant's favor. For these reasons, Plaintiff has not
carried his burden under Fed.R.Civ.P. 56 to establish that
there are no material facts in dispute and that he is entitled to
judgment as a matter of law.
For the reasons stated herein, the Court will deny both
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