United States District Court, D. Columbia
September 29, 2005.
CLEMMIE LEE MITCHELL, JR., Plaintiff,
BUREAU OF PRISONS, Defendant.
The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
Plaintiff, appearing pro se, brought this action pursuant to
the Privacy Act, 5 U.S.C. § 552a. Defendant has filed a motion to
dismiss or, in the alternative, for summary judgment. Because the
Court concludes that the plaintiff's claim is barred by the
Privacy Act's statute of limitations and that the records at
issue are exempt from the relevant provisions of the statute,
summary judgment will be granted.
Plaintiff is incarcerated at the United States Penitentiary in
Lee County, Virginia ("USP-Lee"). Complaint ("Compl."), p. 3. On
or about October 2, 2002, plaintiff alleges that he informed his
unit case manager, Dawn Campbell, that the detainer lodged
against him by the Bartow County, Georgia District Attorney's
Office was false and inaccurate and had been dismissed in
December, 1995. Id., ¶¶ 1-2. The detainer concerned an alleged
probation violation by plaintiff. Defendant's Motion to Dismiss
or, in the Alternative, for Summary Judgment ("Deft's Mot."),
Declaration of Denise M. Gottleib ("Gottleib Decl."), Attachment B. Plaintiff
submitted to Ms. Campbell documents that indicated that while
plaintiff was in the custody of Tennessee authorities in 1995,
the State of Georgia declined to take custody of plaintiff.
Compl., ¶ 7. Officials at USP-Lee told plaintiff that the Georgia
authorities were contacted and those authorities stated that the
detainer was still pending. Id., ¶¶ 8-11.
On October 18, 2002, plaintiff filed an Informal Resolution
Form with his counselor regarding the detainer. Id., ¶ 14;
Gottleib Decl., Attachment C, pp. 1-4. In response to plaintiff's
request, Unit Manager D. Haas contacted the Bartow County,
Georgia Probation Office. Id., p. 5. Mr. Haas was informed by
the Georgia official that the probation violation warrant issued
against plaintiff was still active. Id. Mr. Haas informed
plaintiff of this fact and that the Bureau of Prisons ("BOP") had
no authority to lift the detainer. Id.
On November 18, 2002, plaintiff filed a request for
administrative remedy with the Warden of USP-Lee, B.G. Compton.
Id., p. 13; Compl., ¶ 16. In denying the request, Warden
Compton informed plaintiff that the detainer would remain on file
unless the prison was advised by Georgia officials to remove it.
Id., ¶ 17; Gottlieb Decl., Attachment C, p. 15. For the same
reason, plaintiff's Regional Administrative Appeal was denied on
December 31, 2002. Id., pp. 16-17. On January 15, 2003,
plaintiff filed his Central Office Administrative Remedy Appeal.
Id., p. 19. The appeal was denied on February 10, 2003. Id.,
p. 21. On September 10, 2003, the Superior Court of Bartow
County, Georgia telefaxed to USP-Lee a court order denying
plaintiff's motion to quash the detainer. Id., Attachment E.
Plaintiff seeks an amendment of the alleged inaccurate records
and that a letter be sent to Georgia officials notifying them of
the inaccurate detainer information. Id., p. 9. He also
requests damages in the amount of $350.000 dollars. Id.
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate if the pleadings on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). Material facts
are those that "might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The party seeking summary judgment bears the initial
burden of demonstrating an absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao
v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the
court must draw all reasonable inferences in favor of the
non-moving party. Anderson, 477 U.S. at 255; see also
Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a
motion for summary judgment, however, "may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial."
Anderson, 477 U.S. at 248. The nonmoving party must do more
than simply "show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual
assertions in the movant's affidavits will be accepted as being
true unless [the opposing party] submits his own affidavits or
other documentary evidence contradicting the assertion." Neal v.
Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v.
Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)). The mere
existence of a factual dispute by itself, however, is not enough
to bar summary judgment. The party opposing the motion must show
that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48.*fn1
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 is reasonably necessary to assure fairness to the
individual in the determination." 5 U.S.C. § 552a(e)(5). The
Privacy Act permits an individual to request an amendment to a
record pertaining to him and requires the agency either to
promptly correct the record or to explain its reasons for
refusing to amend. See 5 U.S.C. § 552a(d)(2). An individual may
bring a civil action if the agency declines to amend the record
or fails to maintain accurate records and the plaintiff suffers
an adverse determination as a result of the agency's decision.
5 U.S.C. § 552a(g)(1)(C). A plaintiff can recover monetary damages
if the agency's conduct was intentional or willful.
5 U.S.C. § 552a(g)(4).
To prevail on a Privacy Act claim for damages, plaintiff must
show (1) the agency failed to maintain accurate records; (2) that
the agency's conduct was intentional or willful; and (3) that an
adverse determination was made respecting the plaintiff due to
the inaccurate record. Toolasprashad v. Bureau of Prisons,
286 F.3d 576, 582 (D.C. 2002). Plaintiff has the burden of proving
that the agency's 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). A willful or
intentional act is "an act without grounds for believing it to be
lawful, or [an act done] by flagrantly disregarding others'
rights . . . or a violation . . . so patently egregious and
unlawful that anyone undertaking the conduct should have known it
unlawful." Deters v. U.S. Parole Comm'n, 85 F.3d 655, 660 (D.C. Cir. 1996).
Statute of Limitations
Defendant contends that plaintiff's claims are barred by the
Privacy Act's statute of limitations. 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. § 552a(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); 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 alleged
violation"). In an action challenging an agency's failure to
amend, the limitations period commences from the date of the
denial of the request to amend. Blazy v. Tenet, 979 F.Supp. 10,
18 (D.D.C. 1997). "The critical issue for determining whether the
plaintiff's action is barred by § 552a(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).
Plaintiff first told prison officials that the detainer had
been dismissed on October 2, 2002. See Compl., ¶¶ 1, 2.
Plaintiff formally requested that the BOP remove the Georgia
detainer from his record on October 18, 2002. Id., ¶ 16. Thus,
plaintiff was certainly aware of the alleged error in his record
on that date. Plaintiff submitted his complaint to this Court on
February 14, 2005, along with a petition for leave to proceed in
forma pauperis. The Clerk of the Court will not accept a
complaint for filing that is not accompanied by a filing fee
until the Court has granted a petition for leave to proceed in
forma pauperis. See Washington v. White, 231 F.Supp.2d 71, 75 (D.D.C. 2002). The application to proceed
in forma pauperis was granted on February 18, 2005 and the
complaint filed by the Clerk on March 2, 2005.
Plaintiff contends that the limitations should begin at the
conclusion of the administrative remedy process in this case,
February 10, 2003. Even if the Court accepted plaintiff's
argument, the complaint was still submitted four days beyond two
years after BOP issued its final decision on plaintiff's
administrative appeal. The Privacy Act's statute of limitations,
however, is subject to equitable tolling. See Chung v. U.S.
Dep't of Justice, 333 F.3d 273, 277-78 (D.C. Cir. 2003);
Bernard, 362 F.Supp.2d at 278. Equitable tolling commonly
applies when a plaintiff, despite due diligence, cannot obtain
information bearing on the existence of his claim. Id.
Without question, plaintiff was well aware of all the
information necessary for him to file a Privacy Act claim over
two years before filing this cause of action. Moreover, there is
no basis for tolling the Privacy Act's limitations period while
plaintiff pursues his administrative remedies. Christensen v.
U.S. Dep't of Interior, 109 Fed. Appx. 373, 375 (10th Cir.
2004); Shannon v. Gen. Elec. Co., 812 F.Supp. 308, 320 & n. 10
(N.D.N.Y. 1993). Plaintiff has not offered any basis for the
application of equitable tolling in this case. Plaintiff's
claims, therefore, are barred by the statute of limitations.
Exemption of Records from Privacy Act Requirements
Even if plaintiff had timely filed this action, he would still
not be entitled to relief. An agency may promulgate regulations
to exempt certain systems of records within the agency from the
Privacy Act. See 5 U.S.C. § 552a(j)(2). Systems of records
containing investigatory material compiled for law enforcement
purposes are exempt. See 5 U.S.C. § 552a(k)(2). Pursuant to
this authority, regulations exempt BOP's Inmate Central Records
System. See 28 C.F.R. § 16.97(a)(4).
The BOP maintains inmate detainers in the Inmate Judgment and
Commitment File which is part of the Inmate Central Records
System. See Gottlieb Decl., ¶¶ 7, 8. 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. See
28 C.F.R. § 16.97(j) (effective August 9, 2002); see also
28 C.F.R. § 16.97(k)(2). 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.
Plaintiff's Privacy Act claims are barred by the statute of
limitations and the records at issue are exempt from the relevant
provisions of the statute. Therefore, the Court will grant
summary judgment in favor of defendant. A separate Order
accompanies this Memorandum Opinion.
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