The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendants' motion to dismiss.*fn1 The Court has considered the motion and plaintiff's opposition thereto, and will grant defendants' motion in part and deny it in part.
A. Plaintiff's Conviction and Sentence
"On February 6, 1992, the grand jury for the United States District Court for the Western District of North Carolina returned a thirty count indictment against twenty-one individuals, charging nineteen of them with participation in a conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. The ringleader, Alvin Truesdale, was also charged with maintaining a CCE [continuing criminal enterprise] in violation of 21 U.S.C. § 848 and several other federal crimes." United States v. McManus, 23 F.3d 878, 880-81 (4th Cir. 1994). "At trial, persuasive evidence showed that Alvin Truesdale ran a large drug operation in Charlotte, North Carolina, involving several drug houses and links with drug suppliers in Florida and New York and that each of the appellants here played some role in the conspiracy." Id. at 881. "Alvin Truesdale was convicted of the twenty-two charges against him remaining at the time of trial." Id. "The district court, applying the United States Sentencing Guidelines, sentenced Alvin Truesdale to life imprisonment plus twenty-five years." Id.
Truesdale's CCE and firearms convictions were affirmed on appeal; but the Fourth Circuit "remand[ed] the case to the district court with instructions to vacate his § 846 conspiracy conviction and resentence [him,] and direct[ed] the court to make specific findings with regard to: 1) the amount of cocaine attributable to Alvin Truesdale, and 2) whether the two prior offenses were properly used to calculate his criminal history category." United States v. McManus, 23 F.3d at 888. After having conducted a hearing on resentencing, the district court set aside the conspiracy conviction, found that between 50 and 150 kilograms of cocaine were involved, found that the two prior convictions were properly considered in determining Truesdale's criminal history category, and imposed a sentence identical to the sentence originally imposed. United States v. Truesdale, 78 F.3d 580 (4th Cir.) (table) (per curiam), cert. denied, 517 U.S. 1215 (1996). The Fourth Circuit affirmed the resentencing on appeal. See id.
Plaintiff now is serving a term of life imprisonment without parole on Count 1 (CCE); concurrent terms of 20 years' imprisonment on Counts 3-9 (cocaine possession and distribution offenses) and Counts 15-16, 19 and 21-23 (money laundering offenses); concurrent terms of three years' imprisonment on Counts 17, 20 and 24 (money laundering offenses) and Counts 29-30 (submission of fraudulent tax returns); a term of five years' imprisonment on Count 10 (using and carrying a firearm during and in relation to a drug trafficking crime) to run consecutively to Count 1; and a term of 20 years' imprisonment on Count 11 (using and carrying a firearm during and in relation to a drug trafficking crime) to run consecutively to Count 10.
Pl.'s Resp. to the Defs.' Mot. to Dismiss the Compl. and Mem. of P. & A. in Support Thereof ("Pl.'s Opp'n"), Ex. 3 (Amended Judgment in a Criminal Case, Case No. 3:92CR34-01-P) at 1, 7.
With the exception of Count 15, all of the offenses concluded on or after November 1, 1987, the effective date of the Sentencing Reform Act of 1984 ("SRA"), Pub. L. No. 98-473, § 235(a)(1), 98 Stat. 2031, amended by Pub. L. No. 99-217, § 4, 99 Stat. 1728 (1985). See Pl.'s Opp'n, Ex. 3 at 1, 7. Among other things, the SRA eliminated the possibility of parole for all federal criminal offenses. The CCE statute provided that anyone convicted of having been a "principal administrator, organizer, or leader of the [continuing criminal] enterprise or is one of several such principal administrators, organizers, or leaders," if the quantity of controlled substance exceeded a certain amount and if the enterprise's gross receipts during any 12-month period exceeded $10 million shall be sentenced to life in prison. See 21 U.S.C. § 848(b). Because the money laundering offense in Count 15 concluded in October 1987, see Pl.'s Opp'n, Ex. 3 at 1, plaintiff was eligible for parole on that charge, and, indeed, has been paroled from the sentence imposed for Count 15 to serve the remaining sentences. See id., Ex. 1 (July 16, 2002 Notice of Action); see also Compl. ¶ 17.
Plaintiff purports to bring this action in part under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and alleges violations of the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Thirteenth Amendments to the United States Constitution. See Compl. ¶ 1. In addition, he brings claims under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, the Privacy Act, see 5 U.S.C. § 552a, and the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. § 2671 et seq. See id.
1. Conclusion Date of the CCE Offense
Count One pertains to the date on which the CCE offense (Count I of the criminal indictment) concluded. Plaintiff maintains that he is an "old law" offender: he alleges that the CCE offense concluded not later than January 1987, before the effective date of the SRA, and therefore argues that he is eligible for parole. See Compl. ¶¶ 10-11, 15. According to plaintiff, the Federal Bureau of Prisons ("BOP"), its Director, the former Attorney General of the United States, the United States Parole Commission ("USPC") and its members, and other federal government employees fail to recognize his status as an "old law" offender and that, as a result, his sentence is calculated incorrectly and he is improperly denied parole consideration. Id. ¶¶ 11-20, 22-25. In addition, he alleges that the defendants "negligently and unlawfully programmed the [BOP's] SENTRY database with false information . . . claiming several different dates for [his] old law charge," all of which fall after November 1, 1987. Id. ¶ 9; see id. ¶ 25.
2. Claims Regarding Government Records
Counts Two, Three and Four of plaintiff's complaint pertain to defendants' alleged failure to maintain a repository of records of convictions (such as plaintiff's conviction under 21 U.S.C. § 848) as required under 18 U.S.C. § 6332, their refusal to release records under the FOIA, and their failure to maintain the records themselves with the accuracy, completeness, and timeliness required under the Privacy Act. See Compl. ¶¶ 32-43, 46-48, 51-57. Plaintiff brings these claims against the individual defendants in their individual capacities under Bivens, as well as against the United States Department of Justice ("DOJ") and the BOP.
In Count Four, plaintiff alleges that defendants negligently and unlawfully failed to establish a repository of records of convictions as required under 18 U.S.C. § 6332. See Compl. ¶¶ 60-62. Plaintiff also alleges that BOP staff negligently accepted as true or failed to verify any document or other record reflecting plaintiff's charge or conviction of any drug trafficking offense or violent offense concluding on February 15, 1998. See id. ¶¶ 63-68.
With respect to all claims, plaintiff demands monetary damages. Compl. ¶ 30; see id. ¶¶ 44, 58, 69. With respect to the FOIA claims, he demands the immediate release of unredacted records pertaining to his criminal convictions, id. ¶ 44, and the establishment of a repository of records under 18 U.S.C. § 6332. Id. ¶ 49. Under the Privacy Act, plaintiff demands injunctive relief requiring the BOP "to immediately program [its] SENTRY data base and/or adjust [its] records to show the correct date ...