The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
This matter is before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1), (6). In the alternative, defendant moves for summary judgment.*fn1 See Fed. R. Civ. P. 56. For the reasons stated below, the Court will dismiss the complaint under Rule 12(b)(6).
Plaintiff is a federal prisoner who currently is incarcerated at the Federal Correctional Institution in Lisbon, Ohio ("FCI Elkton"). Complaint ("Compl.") ¶ 3. He alleges that the Federal Bureau of Prisons ("BOP") applied to him the public safety factor of 'greatest severity' in error based on information in his presentence investigation report ("PSR") indicating that he was the "manager in a drug organization" and "reported to the organizer/leader of the organization."*fn2 Id. ¶¶ 5, 9.
Plaintiff challenged the application of the public safety factor, asserting that he merely was "one of five 'overall managers' reporting directly to the leader of the organization." Compl., Attach. (Request for Administrative Remedy dated June 29, 2005). He asserted that the "greatest severity" public safety factor is not warranted because the PSR "does not show that he received the largest share of profits and did not have the greatest decisionmaking authority in his conspiracy." Compl. ¶ 9. BOP denied plaintiff's request to "correct his record and delete the notation, 'Greatest Severity,' Public Safety Factor." Id. ¶ 7.
Plaintiff brings this civil action against BOP under the Privacy Act, see 5 U.S.C. § 552a. Compl. ¶ 1. He alleges that BOP both fails to maintain its records pertaining to him with the requisite level of accuracy and refuses to amend its inaccurate records. See id. ¶¶ 1, 11. He demands correction of BOP records by deleting the "greatest severity" public safety factor and also demands monetary damages. Id. ¶¶ 12-13.
Defendant moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the complaint fails to state a claim upon which relief can be granted. A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The ruling on a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure does not test a plaintiff's likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The factual allegations of the complaint must be presumed to be true and liberally construed in plaintiff's favor. See, e.g., United States v. Phillip Morris, Inc., 116 F.Supp. 2d 131, 135 (D.D.C. 2001). The Court, however, is not obligated to draw an inference that is not supported by the facts presented. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Generally, the Privacy Act requires that each covered 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). An individual may access an agency's records pertaining to him, and may request amendment of those records. See 5 U.S.C. § 552a(d). He may file a civil action against the agency if it refuses to amend its records upon request, see 5 U.S.C. § 552a(g)(1)(A), or if it: fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.
5 U.S.C. § 552a(g)(1)(C); see Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992) (subsection (g) provides civil remedies for violations of subsection (e)(5)).*fn3 In a civil suit filed pursuant to 5 U.S.C. § 552a(g)(1)(C), if the agency's actions were willful or intentional, the Court may award actual damages sustained by the individual as a result of the agency's failure. 5 U.S.C. § 552a(g)(4)(A).
Notwithstanding the relief ostensibly available under the Privacy Act, the Director of an agency may promulgate regulations to exempt any of the agency's systems of records from certain parts of the Privacy Act, if the system of records is: maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including . . . correctional, probation, pardon, or parole authorities, and which consists of . . . reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
5 U.S.C. § 552a(j)(2).*fn4 Pursuant to this authority, regulations have been promulgated to exempt BOP's Inmate Central Records System (JUSTICE/BOP-005), among other systems of records, from subsections (d) and (g) of the Privacy Act, that is, the Act's amendment ...