The opinion of the court was delivered by: Gladys Kessler United States District Judge
This matter is before the Court on Defendant's motion to dismiss. For the reasons set forth below, the motion will be granted.
Plaintiff is a federal prisoner who is serving a 360-month prison sentence at the Federal Correctional Institution in Bastrop, Texas ("FCI Bastrop"). He brings this civil action against the Federal Bureau of Prisons ("BOP") under the Privacy Act, see 5 U.S.C. § 552a.*fn1
The criminal history section of Plaintiff's presentence investigation report ("PSR") reflects two juvenile convictions. See Complaint ("Compl."), Attach. (Excerpt (para. 35-36) of PSR).
Plaintiff was arrested on February 24, 1981 in San Antonio, Texas for theft. Id. (Excerpt (para. 36) of PSR). On May 27, 1981, Plaintiff was sentenced to three years' imprisonment and was released on bond. Id. He later failed to appear, was rearrested on January 15, 1983, and then began to serve a three-year sentence in the custody of the Texas Department of Corrections. Id.
On July 21, 1981, Plaintiff was arrested in Seaside, California and was charged with kidnapping. Compl., Attach. (Excerpt (para. 35) of PSR). On November 13, 1981, Plaintiff was committed to the California Youth Authority for a term not to exceed 7 years. Id. According to the PSR, Plaintiff was released from custody on December 28, 1984. Id. According to Plaintiff, he was released from the custody of the California Youth Authority on January 15, 1983, "approximately 5 years, 7 months, and 28 days" before September 13, 1988, the date on which he committed the instant federal offense. Compl. at 6.
Plaintiff contends that the United States Probation Officer ("USPO") who prepared the PSR incorrectly included these juvenile convictions in the report, and that these convictions erroneously were factored into the criminal history score for purposes of applying the United States Sentencing Guidelines. Compl. at 6-7. According to Plaintiff, the sentencing guidelines do not permit consideration of a juvenile conviction where a defendant is released more than 5 years before the federal offense. Plaintiff's Reply Brief ("Pl.'s Opp'n") at 6. Plaintiff contends that this erroneous criminal history score led to the imposition of 36 additional months' imprisonment under the sentencing guidelines. Id. at 7.
Plaintiff further alleges that the BOP improperly relies on the July 1981 juvenile kidnapping conviction "to make adverse determinations regarding [Plaintiff's] security and custody classification" under BOP Program Statement 5100.07, Security Designation and Classification Manual.*fn2 Compl. at 4. Specifically, Plaintiff asserts that the offense conduct is characterized as a crime of violence on which BOP relies in denying him "the opportunity to drop to a lower classification to go to a [prison] camp." Id. at 3 & Attach. (Oct. 12, 2005 Request for Administrative Remedy) at 1.
Plaintiff sought amendment to the PSR through the inmate grievance process. See Compl., Attach. (Oct. 12, 2005, Oct. 31, 2005 and Jan. 3, 2006 Request for Administrative Remedy, Regional Administrative Remedy Appeal, and Central Office Remedy Appeal, respectively). In support of his argument, Plaintiff attached a copy of a letter he received from the USPO who prepared the PSR. Id., Attach. (Aug. 23, 2005 letter from F.J. Olvera). The USPO acknowledged an error: two points for the juvenile kidnapping conviction should not have been assessed. Id. Absent this error, Plaintiff's criminal history points would have totaled 8 points (placing him in Criminal History Category IV), not 10 points (placing him in Criminal History Category V). Id. Had Plaintiff's criminal history points totaled 8 points, Plaintiff's term of imprisonment would have fallen within the guideline range of 324 to 405 months. Id. With 10 criminal history points, Plaintiff's term of imprisonment would fall within the higher guideline range of 360 to 480 months. Id. Plaintiff's actual sentence of 360 months' imprisonment fell within both of the guideline ranges. Id. The USPO noted that any difference in criminal history points "may or may not change [Plaintiff's] classification level" while in BOP custody. Id.
While the assessment of criminal history points for the purpose of applying the federal sentencing guidelines may have been incorrect, BOP explained that it properly relied on information in the PSR pertaining to the juvenile kidnapping conviction. Compl., Attach. (Dec. 14, 2005 Regional Director Response to Admin. Remedy No. 391136-R1 & Feb. 17, 2006 National Inmate Appeals Response to Admin. Remedy No. 391136-A1). According to Program Statement 5100.07, as long as a juvenile conviction is documented and has been neither expunged nor vacated, it may be considered by BOP in determining a prisoner's custody classification.*fn3 See id., Attach. (Feb. 17, 2006 National Inmate Appeals Response to Admin. Remedy No. 391136-A1). BOP staff found that the kidnapping conviction "has not been vacated or expunged," and that Plaintiff is "correctly scored with a serious history of violence." Id. Accordingly, BOP staff deemed Plaintiff ineligible for placement in a prison camp. Id.
In this action, Plaintiff demands an order either "to remove all records and files concerning the arrest and conviction" for kidnapping, or "to obliterate all references to" the kidnapping conviction in BOP records. Compl. at 8. He also demands an award of monetary damages. Id.
A. Motion to Dismiss Under ...