The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
By this action, Richard Selvis Jefferson, a prisoner confined pursuant to a federal sentence, seeks to hold the Federal Bureau of Prisons ("BOP") and the United States Probation Office ("USPO") for the District of New Jersey liable for monetary damages alleging that these entities violated his rights under the Privacy Act, 5 U.S.C. § 552a, the Fifth Amendment, and the Eighth Amendment. Jefferson proceeds pro se.
Before the Court are defendants' motion to dismiss or in the alternative for summary judgment, Jefferson's cross-motion for summary judgment and his motion for appointment of counsel. As is explained below, Jefferson's claims must be dismissed. Therefore, the defendants' motion to dismiss will be granted, and all other pending motions will be denied as moot.
Jefferson was convicted by both federal and state authorities pursuant to plea agreements after an interstate crime spree involving stealing a car, robbing banks, a high-speed chase and a shoot out with police. Part of the bargain he struck in his state plea agreement was that his state sentence would run concurrently with his federal sentence, which was imposed first. It has not turned out that way. In fact, Jefferson served his state sentence in Rahway State Prison first, and was then paroled to the federal authorities, who take the position that Jefferson's federal sentence commenced only after he was paroled from the state sentence. The difference to Jefferson is approximately eleven years of imprisonment. Jefferson has filed several suits, all aimed at attempting to realize the benefit of his bargain or to be compensated for being deprived of it.*fn1
This suit falls into the latter category and seeks damages for constitutional violations and, under the Privacy Act, for the BOP's adverse decision based on an allegedly inaccurate document relating to Jefferson.
The complaint alleges that a federal probation officer created a factually incorrect document in response to an inquiry from the BOP. See Compl. at 16-18, 21.*fn2 The BOP allegedly relied upon that document when it denied Jefferson's request to designate, nunc pro tunc, Rahway State Prison as the place for serving his federal sentence. Id. at 21-22. The BOP has the discretion to make such a designation, and if it did so, it would have the effect, retroactively, of making Jefferson's state sentence run concurrently with his federal sentence. See Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment ("Defs.' Mem.") at 1 n.1 (citing 18 U.S.C. § 3621(b) and United States Evans, 159 F.3d 908, 911-12 (4th Cir. 1998). In addition to his Privacy Act claims, Jefferson alleges that the BOP's refusal to make the nunc pro tunc designation in his case constitutes a violation of his due process rights under the Fifth Amendment and has the effect of imposing cruel and unusual punishment in violation of the Eighth Amendment.
The defendants argue that as federal defendants they are immune from suits for damages for constitutional violations, and that therefore this court lacks subject matter jurisdiction over Jefferson's constitutional claims. In addition, they contend that the rule in Heck v. Humphrey, 512 U.S. 477 (1994), bars this action for damages. They also argue that Jefferson's complaint fails to state a claim under the Privacy Act upon which relief may be granted, because the USPO is not subject to the Privacy Act, and because the BOP is exempt from suit under the Privacy Act for any damages arising from the records at issue. The Court does not consider other arguments made by the defendants because it is not necessary to do so.
The plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). On a motion to dismiss for lack of subject matter jurisdiction, a court accepts as true all factual allegations in the complaint, but must also scrutinize them closely to satisfy itself that it has the power to hear the claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003).
On a motion to dismiss for failure to state a claim upon which relief may be granted, a pro se complaint must be liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520 (1972). In determining whether a complaint fails to state a claim upon which relief may be granted, a court "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007), and "grant plaintiffs the benefit of all inferences that can be derived from the facts alleged," Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). There are limits and exceptions, however. A court need not accept either a plaintiff's legal conclusions, or inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint. Id. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Fed. R. Civ. P. 8). It requires a "showing" and not just a blanket assertion of a right to relief. Id. at 555 n. 3.
Sovereign immunity bars the constitutional claims against the BOP. The United States enjoys sovereign immunity from suit except where it has expressly waived immunity and consented to suit. Lane v. Pena, 518 U.S. 187, 192 (1996); Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The United States has not waived its immunity from a suit for damages for constitutional violations. F.D.I.C. v. Mayer, 510 U.S. 471, 486 (1994). Because a suit for damages against the BOP is essentially a suit against the United States, it is barred by the doctrine of sovereign immunity. Therefore, this court has no subject matter jurisdiction over a suit for damages against the BOP arising from alleged constitutional violations. Accordingly, the damages claims against the BOP for constitutional violations will be dismissed for lack of subject matter jurisdiction.*fn3
The Supreme Court's rule in Heck v. Humphrey, 512 U.S. 477, bars the constitutional claims against the USPO. In Heck, the Court stated that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments," id. at 486, and held that in order to recover damages for allegedly unconstitutional . . . imprisonment, . . . a plaintiff must [first] prove that the conviction or sentence has been reversed in direct appeal, expunged by executive order, declared invalid by a . . . tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.
Id. at 486-87; see also White v. U.S. Probation Office, 148 F.3d 1124 (D.C. Cir. 1998) (per curiam) (holding that Heck v. Humphrey barred plaintiff's damages claim for the content of his presentence report). In short, because no court has found that Jefferson's current imprisonment is unlawful, ...