The opinion of the court was delivered by: Reggie B. Walton United States District Judge
This matter is before the Court on defendant's motion to dismiss. For the reasons discussed below, the Court will grant the motion.
Plaintiff is a federal prisoner who currently is incarcerated at the Beckley Federal Correctional Institution in Beaver, West Virginia ("FCI Beckley"). Complaint ("Compl.") at 2. He brings this civil action against the Federal Bureau of Prisons ("BOP") under the Privacy Act, 5 U.S.C. § 552a (2000). Id.
The BOP maintains in its files concerning the plaintiff a copy of his presentence investigation report ("PSI") prepared by the United States Probation Office for the Western District of Virginia ("USPO").*fn1 Compl. at 3, 5. Plaintiff alleges that the PSI "contains two unsubstantiated statements claiming Plaintiff threatened one Josh Smeltzer with a firearm." Id. at 5. He challenges the accuracy of these statements because they conflict with the terms of his plea agreement and the government's stipulation that plaintiff did not brandish a firearm for purposes of sentencing under 18 U.S.C. § 924(c) (2000).*fn2 Id. at 5-6 & Exhibit ("Ex.") A (Plea Agreement, Case No. 1:03CR96). He further claims that these statements (items #8-9 of the PSI) are incorrect and unreliable because "[t]hey were made by admitted opiate addicts who were, at the time of their statements, under indictment/arrest for crimes in which they were seeking to get a break or a deal from law enforcement officers." Id. at 6. According to plaintiff, prior to his arrival at the BOP, staff "utilized information contained in [his] PSI to calculate Plaintiff's custody level, to determine the location of incarceration, the type of inmates with whom he would be housed, and, surely, many other decisions unknown to Plaintiff." Compl. at 5. Plaintiff states that the BOP has been relying on the incorrect statements since 2004. Id. at 7. And, plaintiff contends that the BOP's reliance on this incorrect information resulted in his classification as a "high custody" inmate, placement in a higher security facility than is warranted, designation to correctional facilities far from his home, and denial of visitation from his family. Id. at 11.
In an effort to have the PSI corrected, plaintiff sent a written request to the USPO, Compl. at 7 & Ex. B (January 16, 2006 letter to USPO), noting the inconsistencies in the report. Plaintiff requested that the USPO amend the PSI and send a revised copy to FCI Beckley. Id., Ex. B. The USPO responded as follows:
The information in paragraphs 8 and 9, for which you referenced, was taken from the case agent's reports. During the objection stage of the presentence report, neither you nor your attorney objected to that information at that time and, on the date of your sentencing, the Honorable James P. Jones, Chief United States District Judge, found the information in the presentence report as fact. Therefore, no changes will be made.
Compl., Ex. C (February 27, 2006 letter from T.H. O'Neill, United States Probation Officer).*fn3
Plaintiff argues that the BOP intentionally has failed to recognize the inaccuracy of the PSI, and has failed to correct that information or "in the least, [to] make [a] notation in Plaintiff's Central File as to the inaccuracies and their irrelevancy." Compl. at 10. He demands amendment of the PSI and an award of damages. Id. at 13.
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. 5 U.S.C. § 552a(d)(1), (2). He then may file a civil action against the agency if it refuses to amend its records upon request, 5 U.S.C. § 552a(g)(1)(A), or if the agency 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)). A plaintiff must bring his claim under the Privacy Act "within two years from the date on which the cause of action arises." 5 U.S.C. § 552a(g)(5). In a civil suit filed pursuant to (g)(1)(C), if the agency's actions were willful or intentional, the court may award actual ...