The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This matter is before the Court on Defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons discussed below, the motion will be granted.
Plaintiff is a federal prisoner who currently "is incarcerated at the Administrative Maximum Penitentiary (ADX) in Florence, Colorado." Memorandum in Support of Defendants' Motion to Dismiss and/or for Summary Judgment ("Defs.' Mot."), Declaration of Theresa Montoya ("Montoya Decl.") ¶ 2. ADX "houses the most violent and dangerous offenders in the federal system." Id. ¶ 4. The prisoners at ADX "require an uncommon level of security and monitoring due to their records," which may include assault on or murder of staff members or other inmates, past predatory or violent behavior, or the continued operation of criminal enterprises while incarcerated. Id.
According to his presentence investigation report ("PSR"), Plaintiff "was the organizer or leader of an organization involved in the distribution of cocaine hydrochloride, cocaine base, and marijuana." Montoya Decl. ¶ 5. The PSR further stated:
[I]n November 2004, [Plaintiff] was in custody pending trial for his federal charges when he began to discuss with friends and associates, killing an individual [Plaintiff] suspected was cooperating with authorities, and planning to testify against him. The witness was shot and rushed to the hospital with life threatening injuries. While the murder attempt was unsuccessful, [Plaintiff] was convicted for his role as leader of the murder conspiracy. [Plaintiff] was also convicted for his role in arranging the attempted murder of a second individual whom he suspected was cooperating with authorities and responsible for a number of his associates being arrested on July 9, 2003.
After his conviction in April 2006, Plaintiff was housed at the Federal Correctional Facility in Forrest City, Arkansas. Montoya Decl. ¶ 7. There he "directed an inmate, Rodney Floyd, to attack a second inmate in retaliation for the inmate's cooperation with the government in the [Plaintiff's] trial." Id. An internal investigation "revealed that not only did [Plaintiff] order the assault by Mr. Floyd, but he also made several threats against the United States Attorney and investigator prosecuting his case." Id. "Plaintiff was sentenced on June 15, 2006." Id. ¶ 8. According to the Judgment and Commitment Order, the sentencing judge recommended Plaintiff's placement "in the most secure facility available." Id. The Federal Bureau of Prisons ("BOP") classified Plaintiff "as a high security inmate and designated [him] to USP Terre Haute." Id. Days later, on June 19, 2006, the sentencing judge issued an Order "prohibiting [Plaintiff] from sending any communications, directly or indirectly, to certain individuals," and directing the BOP "to confiscate and forward to the United States Attorney for the Eastern District of Arkansas any and all communications addressed or directed to" those individuals. Id. ¶ 9.
Staff at USP Terre Haute learned that "the wife of an individual who has testified against [Plaintiff] at his criminal trial had received threatening communications from [Plaintiff]."
Montoya Decl. ¶ 11. The recipient of the communications was among those individuals with whom Plaintiff was prohibited from communicating. Id. Staff later determined that Plaintiff had "circumvented and bypassed mail monitoring/screening procedures" by contacting other individuals in violation of the June 19, 2006 Order. Id. As a result, it was recommended that Plaintiff be transferred "to a facility, such as [ADX]" so that staff "could closely monitor [Plaintiff's] communications." Id. Accordingly, on October 3, 2007, Plaintiff was transferred from USP Terre Haute to ADX. Id. ¶ 4.
According to Plaintiff, the BOP maintains in his Inmate Central File memoranda prepared by the United States Marshals Service ("USMS") and the United States Attorney's Office for the Eastern District of Arkansas ("USAO"). See Amd. Compl. ¶¶ 2-3.*fn1 These memoranda allegedly contain "unsubstantiated, fabricated information from 'jailhouse' informants" indicating that Plaintiff "plan[ned] to escape and harm Judge Stephen Reasoner," Compl. at 2, the judge who presided over Plaintiff's criminal case. See United States v. Allmon, 972 F.2d 244 (8th Cir. 1992) (affirming sentence of one year and ten months imposed by The Hon. Steven M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas, on Plaintiff's conviction of receiving a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)). The USMS, Plaintiff asserts, has "forward[ed] erroneous memoranda to other jails and the Bureau of Prisons, with directions to house [him] in segregation units [where he has been] subjected to cruel and unusual punishments." Compl. at 2-3. Plaintiff alleges that the BOP and the USMS are "using the incorrect information in determinations adverse to [him]." Id. at 2. For example, the security classification and custody level assigned to Plaintiff is higher, such that he is assigned to a maximum security facility. Id. at 3. Plaintiff attributes the BOP's decisions to deny him a halfway house placement, id., to subject him "to very bias [sic] and derogatory statements and treatment from staff," id. at 5, to transfer him from one facility to another only while "blackboxed under a four man escort," id., and to place him "in segregation units for extended periods with all privileges restricted," id., to the BOP's reliance on the erroneous information in the USMS' memoranda. Further, Plaintiff asserts that his current placement "on two hour watch... on total lock-down at [ADX]" is a result of the BOP's reliance on the USMS memoranda.*fn2 Id.
Plaintiff brings this action against the BOP under the Privacy Act, see 5 U.S.C. § 552a, and demands that it "correct all inaccurate files, expunge any information not substantiated, [and] remove [him] from Maximum custody with a transfer to [a] proper facility."*fn3 Compl. at 6; Amd. Compl. ¶ 16. In addition, he demands monetary compensation of $1.4 million. Compl. at 6; Amd. Compl. ¶ 17.
Defendants move to dismiss or, in the alternative, for summary judgment, on three grounds: (1) that Plaintiff's Privacy Act claims were not filed timely; (2) that regulations exempt the Inmate Central Files from the amendment and accuracy provisions of the Privacy Act; and (3) that Plaintiff cannot secure his transfer to a less ...