The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Plaintiff Michael Jay Molzen, an inmate incarcerated at the Federal Correctional Complex operated by the Federal Bureau of Prisons ("BOP") brings this action against BOP under the Privacy Act, 5 U.S.C. § 552a. Molzen asserts that BOP willfully and intentionally fails to maintain its records pertaining to him with the required level of accuracy, and that its reliance on these records has resulted in adverse determinations with respect to his offense classification, custody level, designation and access to educational programs. He seeks to have these records amended*fn1 and sues for monetary damages as well. Before the Court is BOP's motion to dismiss or, in the alternative, for summary judgment. Having considered the motion, Molzen's opposition,*fn2 and the entire record of this case, the court concludes that BOP is entitled to summary judgment.
A criminal prosecution brought against Molzen in the United States District Court for the District of Minnesota was resolved by his plea of guilty to one count of conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana. Memorandum in Support of Plaintiff's Motion to Deny Defendant's Motion to Dismiss Complaint ("Pl.'s Opp'n"), Addendum, Ex. B (Judgment, Case No. 00-CR-25(02) (JMR)) at 1. On November 30, 2000, the court sentenced him to a 100-month term of imprisonment followed by a 4-year term of supervised release, and ordered restitution totaling $10,000. Id. at 2, 4. The sentencing court recommended that Molzen serve his prison term at a facility in Minnesota and that he be allowed to participate in a drug treatment program. Id. at 2. In addition, the sentencing court adopted "the factual findings and guideline application in the presentence report, except as indicated at the hearing." Id. at 5 (Statement of Reasons).
According to the presentence investigation report ("PSR"), Molzen "assisted in the distribution of approximately 1,900 pounds of marijuana and is viewed as an average participant with respect to his co-defendants." Addendum, Ex. A (excerpt from PSR). Paragraph 30 of the PSR stated:
[Molzen] recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from law enforcement officers. At the time of arrest, [Molzen] attempted to flee in his vehicle at a high rate of speed. During the flight, [Molzen] crashed into 3 separate law enforcement vehicles, requiring 2 officers to seek medical attention. As such a 2-level enhancement is applied for reckless endangerment during flight. §3C1.2. Id.
Molzen alleges that the sentencing court "overruled the finding of the [PSR] that plaintiff's arrest conduct rose to a level of 'reckless endangerment,' instead finding the conduct provided an enhancement for obstruction of justice." Complaint ("Compl.") at 2. According to Molzen, based on the offense behavior set forth in the PSR, BOP improperly assigns him "a greatest severity offense classification and increased custody" that "keep[s] [him] well beyond reasonable visiting distance from his family and away from educational opportunities," contrary to the sentencing court's recommendation and BOP policy. Id. at 3. Instead, Molzen claims that his arrest behavior constituted obstruction of justice, and that BOP should score the behavior "as a moderate nonviolent offense allowing for low custody incarceration, as recommend by the U.S. District Judge at sentencing." Id. at 5.
A. Summary Judgment Standard
Because the court has considered matters outside of the pleadings, the instant motion is treated as one for summary judgment. See Fed. R. Civ. P. 12(b). Under Fed. R. Civ. P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. 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). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50.
B. Statute of Limitations
BOP argues first that Molzen failed to file this action suit timely. Generally, a plaintiff must bring a civil action "within two years from the date on which the cause of action arises."
5 U.S.C. § 552a(g)(5). For purposes of Privacy Act claims, a cause of action arises "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 plaintiff "knows or should know of the alleged violation"). Unless this statute of limitations is equitably tolled, the late filing of a Privacy Act suit deprives the Court of subject matter jurisdiction. See Chung v. United States Dep't of Justice, 333 F.3d 273, 276-78 (D.C. Cir. 2003); Bernard v. United States Dep't of Defense, 362 F.Supp.2d 272, 278 (D.D.C. 2005).
According to BOP, Molzen's cause of action arose by October 2003 as evidenced by his challenge to the custody classification scoring based on his PSR with his Unit Team while incarcerated at the Federal Correctional Institution in Oxford, Wisconsin. Def.'s Mot. at 6 & Auterson Decl., Attach. 4 (October 22, 2003 Memorandum to Case Manager regarding recalculation of custody points). At that time, he sought a meeting with his Case Manager "to discuss the recalculation of [his] custody points."*fn3 Id. Evidently this meeting took place on October 23, 2003. See id. (October 23, 2003 Inmate Request to Staff). Molzen knew of the errors in his records and BOP's reliance on them, and already had been harmed by the ...