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Djenasevic v. Executive United States Attorney's Office

September 30, 2008


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


This matter is before the Court on Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment. Defendants' motion will be granted.


Plaintiff was arrested by state authorities in Florida in December 2000 and was released from a county jail in February 2001 after posting bond. United States v. Djenasevic, No. 06-11593, 2007 WL 2709901, at *1 (11th Cir. Sept. 18, 2007) (per curiam), cert. denied, __ U.S. __, 128 S.Ct. 1320 (2008). Although plaintiff had been cooperating with authorities in an ongoing heroin trafficking investigation, "[b]y March 2001 . . . he absconded and was subsequently arrested in South Africa while attempting to board a flight to Yugoslavia." Id. Plaintiff was extradited to the United States. See Compl. at 4; Plaintiff['s] Pro Se Opposition to Defendant['s] Counsel's Request for Summary Judgment and or in the Alternative Dismissal ("Pl.'s Supp. Opp'n"), Ex. (Affidavits of Ronald L. Geer and Kathy J.M. Peluso in Support of Request for Extradition). "In October 2002, a federal indictment was filed against [plaintiff], and, in November 2002, a superseding indictment was filed, charging him with conspiracy to possess one kilogram or more of heroin with intent to distribute, distribution of heroin, possession with intent to distribute 100 grams or more of heroin, and possession of firearms." Djenasevic, 2007 WL 2709901, at *1. Plaintiff pled guilty to all counts of the superceding indictment. See id. at *2-3.

Plaintiff, who describes himself as a citizen of Montenegro, brings this action under the Privacy Act, see 5 U.S.C. § 552a.*fn1 See Compl. at 1-2, 4. He alleges that inaccurate information originating from various government agencies is maintained by the Federal Bureau of Prisons ("BOP") in his Inmate Central File. See id. at 2. Further, plaintiff alleges that the United States Department of State ("State Department"), the Drug Enforcement Administration ("DEA"), the Executive Office for United States Attorneys ("EOUSA"), and the Federal Bureau of Investigation ("FBI") provided false statements to the South African embassy "trigger[ing] his expulsion" from South Africa and his extradition to the United States. See id. at 4, 7. Plaintiff does not identify the information that allegedly is inaccurate or that is "FALSE & MISLEADING." Id. at 4 (emphasis in original). Nor does plaintiff articulate the allegedly adverse decision made in reliance on the inaccurate information, other than to assert that "his Custody was effected." Id. at 2.

As the Court construes the complaint, plaintiff alleges that BOP, the State Department, DEA, EOUSA and FBI have refused to amend records pertaining to him upon his request in violation of 5 U.S.C. § 552a(d)(2), and that BOP has failed to maintain its records pertaining to him with the requisite degree of accuracy, relevance, timeliness and completeness in violation of 5 U.S.C. § 552a(e)(5). Plaintiff demands remedies pursuant to 5 U.S.C. § 552a(g)(1)(C), (4). See Compl. at 2.


A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act ("PLRA") in relevant part provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). This exhaustion requirement is mandatory and "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002); see Jones v. Bock, 549 U.S. 199, __, 127 S.Ct. 910, 918-19 (2007). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. Woodford v. Ngo, 548 U.S. 81, 93 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted the prison's administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001).

The Court presumes that plaintiff must exhaust his administrative remedies with respect to his claims under the amendment and accuracy provisions of the Privacy Act before filing a civil action in a federal district court. See Bethea v. United States Parole Comm'n, No. 01-5396, 2003 WL 728946, at *1 (D.C. Cir. Mar. 3, 2003) (per curiam) (assuming without deciding that a federal prisoner must exhaust administrative remedies under the PLRA before pursuing a Privacy Act claim in district court), cert. denied, 540 U.S. 880 (2003); Reid v. Fed. Bureau of Prisons, No. 04-1845 (ESH), 2005 WL 1699425, *3 (D.D.C. July 20, 2005) (concluding that Privacy Act claim stemming from purportedly inaccurate information in BOP records resulting in assignment to higher security level concerns prison conditions and, therefore, prisoner plaintiff must exhaust Administrative Remedy Program procedures before filing Privacy Act suit).

1. State Department

The State Department's Office of Information Programs and Services ("IPS") "is responsible for the receipt, acknowledgment, and processing of external requests for Department records," including those made by members of the public under FOIA and the Privacy Act. Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or, Alternatively, Motion for Summary Judgment ("Defs.' Mot."), Grafeld Decl. ¶ 2; see 22 C.F.R. § 171.1 et seq. "For Privacy Act requests, the request should state the type of records sought, the complete name and date and place of birth of the subject of the request, and the timeframe for the records." 22 C.F.R. § 171.5(c). IPS "maintains an automated case tracking system which assigns case control numbers to, and tracks the status of, all FOIA and Privacy Act requests received." Grafeld Decl. ¶ 4. Staff enter information about each request, such as the requester's name, into the automated system. Id.

IPS staff searched the automated case tracking system "for a request from or about Kabil Anton Djenasevic for the time period up to the date of [the filing of plaintiff's lawsuit], September 24, 2007."*fn2 Grafeld Decl. ΒΆ 6. There was no record that IPS ...

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