The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, proceeding pro se, is an inmate at the United States Penitentiary in Coleman, Florida ("USP-Coleman").*fn1 He has brought claims under the Fifth and Eighth Amendments of the Constitution, the Privacy Act, 5 U.S.C. § 552a, and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Defendant has moved for partial dismissal or, alternatively, for partial summary judgment on the Privacy Act and constitutional claims. Pursuant to 12(c) of the Federal Rules of Civil Procedure, Defendant also moves for a judgment on the pleadings as to Plaintiff's FTCA claim. Because Plaintiff has failed to exhaust his administrative remedies and venue is improper in this Court, the motions will be granted.
On June 11, 2004, at USP-Atlanta, Plaintiff was placed in the Special Housing Unit ("SHU") pending an investigation of an allegation that Plaintiff had fought with another inmate. Compl., p. 3; Defendant's Motion for Partial Dismissal or, Alternatively, for Partial Summary Judgment, Exhibit A, Declaration of J. Latease Bailey ("Bailey Decl."), ¶ 4. At the prison disciplinary hearing on August 10, 2004, the hearing officer found Plaintiff guilty of fighting with another inmate and imposed a sanction of 30 days in disciplinary segregation. Id., ¶ 5; Compl., p. 3. The hearing officer also recommended that Plaintiff receive a disciplinary transfer to another institution. Id.
On August 10, 2004, Plaintiff began serving the 30 days of disciplinary segregation. Bailey Decl., ¶ 8. During his time in disciplinary segregation, Plaintiff received three additional incident reports, charging that he had assaulted anotherinmate, engaged in high-level disruptive conduct, and that he had made a sexual proposal or threat to another inmate. Id., ¶¶ 9-10; Compl., p. 3. Following the hearings on these three incidents, Plaintiff was committed to disciplinary segregation for an additional period of 90 days. Id.; Bailey Decl., ¶¶ 9-10. On December 12, 2004, Plaintiff completed service of his disciplinary segregation. Id., ¶ 11.
Plaintiff's disciplinary transfer to another institution was delayed by the BOP's High Security Transfer Pilot program, which provides that an inmate cannot be considered for a transfer unless he has not received an incident report for a minimum of 12 months. Bailey Decl., ¶ 12; Compl., pp. 3-4. Due to Plaintiff's disciplinary history, the BOP required that Plaintiff remain in administrative segregation pending his transfer. Compl., p. 23.
Plaintiff filed this action on September 23, 2005. He remained in the SHU at USP-Atlanta until November 3, 2005. Bailey Decl., ¶ 12. Plaintiff was transferred to the Federal Correctional Complex in Coleman, Florida on November 4, 2005. Id., ¶ 15.
Privacy Act and Constitutional Claims
Plaintiff's claims are based on the length of time he remained in administrative segregation while awaiting his disciplinary transfer. He contends that the BOP is maintaining inaccurate records and, as a consequence, he was wrongly subjected to an extended period of disciplinary segregation and delayed a transfer to another correctional institution. Plaintiff also alleges that the BOP violated his rights under the Fifth Amendment by denying him due process before subjecting him to "post disciplinary" segregation, and the Eighth Amendment due to the cruel and unusual conditions in the SHU.
Defendant moves for dismissal or summary judgment on these claims. In reviewing the sufficiency of a complaint under Rule 12 of the Federal Rules of Civil Procedure, a court must consider the facts presented in the pleadings as true and construe them and all reasonable inferences in the light most favorable to the plaintiff. Moore v. United States, 213 F.3d 705, 713 n.7 (D.C. Cir.), cert. denied, 531 U.S. 978 (2000). The court may dismiss a complaint on the ground that it fails to state a claim upon which relief can be granted if it appears that the plaintiff can prove no set of facts in support of his claim that would warrant relief. Fed. R. Civ. P. 12(b)(6); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Thomas v. District of Columbia, 887 F.Supp. 1, 5 n. 2 (D.D.C. 1995).
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 Depot of Health and Human Serve., 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. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier-of-fact to find in favor of the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
Defendant contends the case should be dismissed because Plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ...