The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Mr. Ingram, an inmate at FCI-Elkton in Lisbon, Ohio, brings this pro se action pursuant to the Privacy Act, 5 U.S.C. § 552a, alleging that the Bureau of Prisons ("BOP") maintains inaccurate records about him. He seeks an amendment of the records. Plaintiff has named as defendants Alberto Gonzales, Attorney General of the United States, two United States Probation Officers, William F. Henry and John W. Skozilas, Jr., and T.R. Sniezek, the Warden at FCIElkton. The defendants have filed a motion to dismiss. Because the BOP records at issue are exempt from the relevant provisions of the Privacy Act and plaintiff's claim is barred by the statute of limitations, the Court will grants the defendants' motion and dismiss the case.
In December, 1992, plaintiff was sentenced in the United States District Court for the District of Maryland to 210 months imprisonment for conspiracy to possess with the intent to distribute cocaine. Compl. at 6; Defts.' Mot. to Dismiss, Ex. A. He alleges that the Presentence Investigation Report ("PSR") prepared by the United States Probation Office in connection with that offense contains inaccurate information. Id. § V. Plaintiff states that the PSR characterizes him as a "career offender" even though the sentencing court specifically ruled that he was not a career offender. Id. In addition, plaintiff asserts that his offense level under the Guidelines was erroneously increased by two points on the ground that he had committedhis offense less than two years after his release from imprisonment. Id. § VI.
According to plaintiff, he complained about this matter to the Unit Manager and his Case Manager at FCI-Elkton. Id. § V. He then appealed to the Warden, defendant Sniezek, who referred the matter to the Probation Office in Baltimore, Maryland. Id. In response, defendant Skozilas, a Supervising Probation Officer, informed the Warden that he did not have the authority to modify plaintiff's PSR, and that the request should be directed to the sentencing judge. Id. at 7.
Plaintiff claims that the inaccurate "career offender" finding in his PSR is being relied upon by the Warden and affects plaintiff's custody classification. Id. § V. As a result, plaintiff is prohibited from "participating in any transfer and furlough programs, etc." Id. He requests that the "career offender" information be deleted from his PSR. Id. § VI.
Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), defendants moves to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. As specific grounds for the motion, defendants contend that (1) plaintiff has failed to exhaust his administrative remedies; (2) the Privacy Act claim is barred by the statute of limitations; (3) the BOP records challenged by plaintiff are exempt from the Privacy Act; and (4) individuals are not the proper defendants in a Privacy Act case. In the alternative, defendants request that the case be transferred to the District of Maryland.
In considering a motion to dismiss, the court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 761 (D.C. Cir. 1997). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Swierkiewicz v. Sorema, 534 U.S. 506, 515 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). However,"[t]he plaintiff bears the burden of persuasion to establish subject-matter jurisdiction by a preponderance of the evidence." Rwanda v. Rwanda Working Group, 150 F. Supp.2d 1, 5 (D.D.C. 2001).
B. Exhaustion of Administrative Remedies
The defendants move to dismiss the complaint on the ground that plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). In relevant part, the PLRA provides that:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a) is mandatory and "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002). Section 1997e(a) "afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case," and, where possible, to "satisfy the inmate, thereby obviating the need for litigation." Id. at 524-25. A prisoner must complete the administrative process "regardless of the relief offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, a prisoner may file a civil action ...