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November 14, 2005.

CLINT E. CLARK, Plaintiff,
BUREAU OF PRISONS et al., Defendants.

The opinion of the court was delivered by: HENRY KENNEDY JR., District Judge


This matter brought under the Privacy Act, 5 U.S.C. § 552a, is before the Court on defendants' motion for summary judgment. As recounted in the Memorandum Opinion and Order of February 26, 2004, plaintiff sued the Bureau of Prisons ("BOP") and three employees of the Federal Correctional Institution in Marianna, Florida ("FCI Marianna"), for allegedly disclosing his "sensitive" medical records containing information about his HIV/AIDS history. He seeks monetary damages exceeding $50,000. The Court dismissed the individually named defendants, maintaining claims only against the BOP. Upon consideration of the parties' submissions, the evidence presented on the disclosures at issue, and the entire record, the Court will grant defendants' motion for summary judgment and dismiss the case.


  Plaintiff's complaint initially stemmed from two separate disclosures during his confinement at the Federal Correctional Institution in Marianna, Florida ("FCI Marianna"). The first disclosure was made to Associate Warden W. Elaine Chapman in April 2002 upon plaintiff's request to the BOP Director for medical care. The second disclosure was made to an inmate in October 2002 by a dental hygienist. Mem. Op. at 2. In the pending summary judgment motion, defendant also addresses an alleged disclosure by Correctional Counselor Julio Piniero to plaintiff's cellmate and one allegedly made to Escort Officer John Alongis by the FCI Marianna medical staff. See Deft's Statement of Material Facts as to Which There is No Genuine Issue at 2-3 ("Deft's Facts"); Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment at 3. The Court did not previously consider these facts as supporting a claim, see Mem. Op. at 2, perhaps because it appears from the first (and only) amended complaint that plaintiff recounted those conversations only as background information. See Amended Complaint [Doc. No. 5] at 3-4. Plaintiff neither brought these omissions to the Court's attention on a motion to reconsider nor did he, through appointed counsel, seek to amend the complaint. Since the parties have briefed the issues surrounding the additional disclosures, the Court will treat them as amendments to the first amended complaint and address them accordingly.


  The Court should grant summary judgment in favor of a party if "the pleadings, depositions, answers to interrogatories, and admissions 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). "In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h). The Court must view the evidence in favor of the nonmoving party and believe and give benefit of all reasonable inferences drawn from the nonmoving party's evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). As a general rule, "[i]n deciding whether there is a genuine issue of fact before it, the court must assume the truth of all statements proffered by the party opposing summary judgment." Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) (citing Alveska Pipeline Serv. Co. v. United States Envtl. Protection Agency, 856 F.2d 309, 314 (D.C. Cir. 1988)). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.

  Plaintiff claims that each disclosure violated subsection (b) of the Privacy Act, which provides that "[n]o agency shall disclose any record . . . to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains," subject to enumerated exceptions. 5 U.S.C. § 552a(b). Plaintiff alleges that as a result of the unlawful disclosures, he has been subjected to discrimination and retaliation by BOP staff and inmates. The Court previously determined that the disclosure of plaintiff's medical records to Associate Warden Chapman clearly was authorized insofar as the Privacy Act specifically excepts from the proscription disclosures made "to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties." 5 U.S.C. § 552a(b)(1). See Mem. Op. at 3.

  1. Disclosure by Dental Hygienist Jenny Andreasen

  The Court found "problematic" the dental hygienist's disclosure of plaintiff's medical records to another inmate. See id. at 3. It is undisputed that in October 2002 while treating plaintiff at the prison's dental clinic, Andreasen showed plaintiff's medical chart to an inmate. See Deft's Facts at 2 ¶¶ 3-6. According to Andreasen and the inmate to whom the record was shown, Errick Dorsey, Andreasen stopped Dorsey as he walked by her and asked him if he could decipher a word on plaintiff's chart. Deft's Exh. 1 (Andreasen Deposition) at 17-19, 22. Dorsey said that he could not. Deft's Exh. 1 at 22; Exh. 2 (Dorsey Deposition) at 17-18. They both testified that the exchange took one to three seconds. Exh. 1 at 22; Exh. 2 at 18. Andreasen testified that she covered most of the chart to reveal only the word she could not decipher. Exh. 1 at 14-19. Plaintiff disputes this version. He claims that Andreasen left the chart open and exposed in its entirety, revealing references to his HIV status. Pltf's Opp. at 5-6 (citing deposition). According to plaintiff, the exchange lasted thirty seconds. Pltf's Exh 1 (Clark Deposition) at 45. The parties' conflicting versions are enough to create a triable issue on this disclosure.*fn1

  2. Disclosure by Correctional Counselor Julio Piniero

  Plaintiff alleges that his former cellmate, Cedric Bellard, told him in September 2002 that Piniero told Bellard about plaintiff's HIV status. Piniero testified that as a counselor at FCI Marianna, he had no access to plaintiff's medical records and did not know about plaintiff's HIV status. Deft's Ex. 4 (Piniero Deposition) at 9-11. Moreover, Pineiro testified that he did not discuss plaintiff's medical condition with Bellard and "vehemently" disputes that Bellard learned about plaintiff's HIV status from him. Id. at 16. Other than his own hearsay statement, plaintiff has presented no contradicting evidence.*fn2 Moreover, there is absolutely no evidence that Piniero disclosed a record or information obtained from a record. See Bartel v. F.A.A., 725 F.2d 1403, 1408 (D.C. Cir. 1984) ("the Act prohibits nonconsensual disclosure of any information that has been retrieved from a protected record."); Chang v. Department of Navy, 314 F. Supp.2d 35, 40 (D.D.C. 2004) ("Determining that a system of records exists from which the document at issue was retrieved is a prerequisite to a substantive Privacy Act claim."). Nor is there any evidence from which a reasonable inference of such a disclosure may be drawn. The Court therefore concludes that no reasonable juror could find a Privacy Act violation resulting from this allegation.

  3. Disclosure to Escort Officer John Alongis

  Plaintiff alleges that while escorting him for medical treatment in January 2003, Alongis told him that the medical staff informed him about plaintiff's HIV status. He implies that any information conveyed by the medical staff must have come from his medical records. See Pltf's Opp. at 9-11. Alongis testified that he does not recall plaintiff or having made such a statement. He added that "I wouldn't have thought that I would have said something like that." Deft's Exh. 5 (Alongis Deposition) at 13. Moreover, Alongis testified generally that the medical staff has never told him about a prisoner's medical condition or that he was transporting a HIV-positive prisoner. Id. at 17. Because the Court may not weigh the credibility of the witnesses, it will assume for purposes of the pending motion that plaintiff has presented a triable issue on this disclosure, albeit a weak one. Cf. Doe v. United States Postal Service, 317 F.3d 339, 342-43 (D.C. Cir. 2003) (summary judgment precluded by circumstantial evidence suggesting that a supervisor obtained information from an employee's records and then verbally disclosed the employee's HIV status to other staff). 4. Plaintiff's Claim for Damages

  BOP contends that even if the disclosures were improper, plaintiff cannot recover monetary damages because he cannot show that BOP staff acted intentionally or willfully or that he suffered adversely. An agency is liable for damages under the Privacy Act only if the "court determines that the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a (g)(4). The standard is high. To establish intentional or willful conduct, plaintiff must show that the agency "acted with something greater than gross negligence . . . without grounds for believing it to be lawful . . . or by flagrantly disregarding others' rights under the Act. The violation must be so patently egregious and unlawful that anyone ...

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