The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
In this action brought under the Constitution and the Privacy Act, 5 U.S.C. § 552a, plaintiff, a federal prisoner proceeding pro se, alleges that the Bureau of Prisons ("BOP") is maintaining a false and inaccurate investigative report about him that is adversely affecting his custody. He also accuses BOP corrections officers of violating his First Amendment rights by retaliating against him for filing grievances and communicating with public officials. In addition to the BOP, plaintiff names as defendants several high-level BOP officials, his warden and a deputy inspector general at the Department of Justice.
Defendants move to dismiss under Federal Rule of Civil Procedure 12 (b)(1) for lack of subject matter jurisdiction, Rule 12(b)(5) for insufficient service of process and Rule 12(b)(6) for failure to state a claim or, in the alternative, for summary judgment under Rule 56. Upon consideration of the parties' submissions and the entire record, the Court will grant defendants' motion for summary judgment as to the Privacy Act claim and transfer the remainder of the case to the United States District Court for the District of New Jersey.
Plaintiff is serving a life sentence currently at the Federal Correctional Institution in Fort Dix, New Jersey. He worked in the food services department from 2002 to May 2008, when he was reassigned to the gardening crew, and is currently working as an orderly. (Def.'s Statement of Material Facts Not in Genuine Dispute ¶ 6.) On April 9, 2002, plaintiff filed a grievance about an incident at work and the working conditions in the commissary. He also accused a staff member, Robert Wright, of retaliating against him for a grievance plaintiff had filed against Wright in 2000. (Id. ¶ 1; Compl at 5-8.) An investigation conducted by BOP's Office of Internal Affairs found plaintiff's claims of staff misconduct unsubstantiated. (Compl., Ex. 1.)
The resulting Special Investigative Services ("SIS") report dated April 14, 2003, is the subject of the Privacy Act claim. On July 26, 2005, plaintiff filed a grievance with his warden in which he accused the SIS investigator of falsifying the report by indicating that plaintiff had lied. (Decl. of Carolyn Lanphear [Dkt. No. 21-2], Ex. A.) On August 19, 2005, the warden informed plaintiff that an investigation of his allegations was underway but that he would not be informed of the results. (Id.) Between August 2005 and July 2008, plaintiff filed grievances and administrative appeals covering various issues, which were ultimately rejected as untimely filed. (Lanphear Decl. ¶¶ 7-8.) Plaintiff filed this action on February 19, 2009.
A. The Court Has Subject Matter Jurisdiction
Although defendants have invoked Fed. R. Civ. P. 12(b)(1) as a basis for dismissal, they have not presented a supporting argument. The Court is satisfied that it has original jurisdiction over this action under 28 U.S.C. § 1331, inasmuch as the complaint arises under the Constitution and federal law. The motion to dismiss for lack of subject matter jurisdiction therefore is denied.
B. Defendants are Entitled to Judgment on the Privacy Act Claim
Defendants assert that plaintiff failed to properly exhaust his administrative remedies on the Privacy Act claim and that the claim is barred by the Act's two-year statute of limitations. The Privacy Act authorizes a lawsuit to enforce any liability created under this section . . . [if it is] brought . . . within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.
5 U.S.C. § 552a(g)(5). See Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987) (holding that the Privacy Act's statute of limitations begins to run when "the plaintiff knows or should know of the alleged violation"). Plaintiff was aware of the allegedly inaccurate SIS report by August 2005 when he filed his grievance. His exhibits include the final agency action of March 16, 2006, rejecting his grievance as untimely. (Pl.'s Opp'n, Ex. 14.) Plaintiff therefore had until March 16, 2008, to file a lawsuit based on this claim. Because he did not file this action until February 2009, the Court finds the Privacy Act claim to be time-barred. It therefore will not address whether plaintiff properly exhausted his administrative remedies.
C. This Venue is Improper for Litigating Plaintiff's Surviving Claim
As to the remaining claim of retaliation, defendants correctly assert that any claim based on acts that occurred prior to December 22, 2005, are barred by res judicata because plaintiff raised or could have raised those claims in a prior civil action in the District of New Jersey. Def.'s Mem. at 27-28 & Ex. D (Opinion); see Toolasprashad v. Wright, 232 Fed.Appx. 208 (3d Cir. 2007) (affirming district court ruling); Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) ("[T]he parties to a suit and their privies are bound by a final judgment and may not relitigate any ground for relief which ...