The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Mark Miller is a prisoner in federal custody. He filed a pro se complaint asserting a variety of statutory and constitutional claims against the Federal Bureau of Prisons ("BOP") and two BOP employees in their personal capacities for a variety of alleged acts and injuries. The defendants have moved to dismiss the complaint under several provisions of Rule 12(b) of the Federal Rules of Civil Procedure or, in the alternative, under Rule 56 for summary judgment. The defendants' motion for summary judgment will be granted.
Miller was arrested, convicted, and sentenced to imprisonment in 2005 in connection with his conviction for possession with intent to distribute cocaine. Miller filed this complaint about events that occurred in 2008 while he was confined at a low security BOP facility at the United States Medical Center for Federal Prisoners in Springfield, Missouri. Miller requested a transfer to a minimum, i.e., lesser, security facility. Defs.' Mot. to Dismiss or for Summ. J. ("Defs.' Mot."), Declaration of Eric Banta (April 24, 2009) ("Banta Decl.") Att. A, Sec. 3. Eric Banta, Miller's case manager at the time and now a defendant in this suit, prepared a transfer request for Miller to a less restrictive environment, a minimum security facility, and submitted it to the BOP's transfer authority, the Designation and Sentence Computation Center in Grand Prairie, Texas. Banta Decl. ¶¶ 4-6 & Att. A. Section 5 of the transfer request form requires BOP staff to "[n]ote any past or present behavior and/or management concerns." Banta Decl. Att. A, Sec. 5. Banta prepared the transfer request in accordance with BOP procedure, codified at Program Statement 5100.08, which instructs the preparer to include in Section 5 the inmate's "history of arrests and disruptive behavior which may not hve resulted in a conviction." Banta Decl.¶ 7 & Ex. B. All of the information Banta included in the transfer request was derived from Miller's pre-sentence investigation report ("PSR") prepared before sentencing by the Probation Officer. Id. ¶ 8.
Among the information Banta reported in Section 5 of the transfer request were the following two incidents that had resulted in charges that were later dismissed:
September 27, 1997, Mr. Miller was arrested for Aggravated Assault, Driving Under the Influence, Leaving the Scene of an Accident, Stop Sign and Speeding in Lawrence Kansas. Lawrence police officers responded to an aggravated assault call in which the complainant advised officers Mark Miller entered her apartment through the rear sliding door, was holding a black semi-automatic handgun, and was walking around the apartment brandishing the gun. The complainant noted Mr. Miller had been at her apartment earlier in the evening and had been in an argument with his ex-girlfriend. Both Mr. Miller and his ex-girlfriend left the apartment, with Mr. Miller returning later with a firearm. The complainant reported she was frightened by Mr. Miller and got her 16-month-old son, exited the apartment and went to another apartment to call the police. Other witnesses were in the apartment observing Mr. Miller wielding the firearm. The witnesses reported Mr. Miller had left the area in a vehicle driving westbound. Kansas University police officers later located the vehicle wrecked at an intersection.
Witnesses at the scene advised officers Miller had fled the scene on foot. Miller was located running toward Wescoe Hall on the University campus. The arresting officer noted Mr. Miller appeared intoxicated and was vomiting on himself. Inside Mr. Miller's pants pocket was a 9 mm magazine with nine 9 mm bullets. The handgun possessed by Mr. Miller was located near Murphy Hall on the University campus. The gun was identified as a Ruger 9 mm pistol. Law enforcement officers determined the Ruger 9 mm pistol was the same pistol used during the May 5, 1997 incident [also involving Miller]. The motion to dismiss filed by the prosecutor indicates the lab report regarding blood analysis was not received in time for the jury trial. In addition, essential witnesses were not located.
On December 24, 1999, Mr. Miller was arrested for First Degree Murder in Oklahoma City, Oklahoma. Charging documents reflect on December 24, 1999, Oklahoma City police officers were dispatched to a shooting call at an apartment complex in northwest Oklahoma City. When officers arrived they found the apartment occupied by seventeen individuals and four people have been shot. One of the victims was transported to an area hospital where he later died. Prior to his death, the victim told an officer he was shot by "Greedy". The three other victims were transported to area hospitals and survived their injuries. Witnesses advised officers that approximately four to twelve black male subjects surrounded the exterior of the apartment building and opened fire on the apartment witnesses identified the subjects as Bloods gang members. One of the gang members was identified by the occupants of the apartment as "Greedy". Two witnesses/victims stated they saw "Greedy" standing outside the apartment with a group of black male subjects seconds prior to the shooting. Through investigation "Greedy" was identified as Gregory Lewis and was found to have had past conflicts with the occupants of the apartment. Officers learned that on December 17, 1999, three of the victims were involved in an altercation with "Greedy" in which "Greedy" was beaten up. Since that time, the victims/witnesses stated that they had been threatened and harassed by "Greedy". Later in the investigation officers determined Mark Miller used the alias name of Gregory Lewis and the street moniker "Greedy". The charge of First Degree Murder was dismissed at the request of the state due to lack of evidence.
Compl., Att. 1; Banta Decl. Att. A; see also Opp'n Att. C (memorializing a statement by John Jacobsen, first assistant district attorney for Oklahoma County and Oklahoma City, Oklahoma, explaining that the first degree murder charge against Miller was dropped because "Miller's alibi checked out.").*fn1
None of the information reported in Section 5 of the transfer request related to events that occurred later than 2000. See id. The BOP's transfer authority denied the request. Banta Decl. ¶ 9. Miller promptly filed an "Inmate Request to Staff" challenging "all the allegations for wrong doing in the dismissed charges in my PSI as false...." Banta Decl. Att. E.
Shortly thereafter, at Miller's request, Banta asked the U.S. probation officer who authored Miller's PSR to review the accuracy of the arrest information in the PSR. Banta Decl. ¶¶ 10-11. The probation officer verified the accuracy of the information. Id. ¶ 11. As a result of the challenge to the accuracy of Miller's criminal history information in his PSR, Miller's unit team undertook "a comprehensive re-review." Opp'n Att. M. This review resulted in an increased "history of violence ("HOV")" score for Miller, based on an incident in 2002 that was not reflected in his arrest history in the transfer request. Id. ¶ 12.
A few months later, in response to a request from Miller for a transfer to a Residential Drug Abuse Program ("RDAP"), Banta prepared another transfer request; this time the transfer was approved by DSCC. Banta Decl. ¶ 14 & Ex. I, Sec. 3; see also Opp'n at 13 ("Plaintiff requested... the drug program."). Miller was transferred to a RDAP program located in a medium security institution near his home of record, which is one security level more restrictive than a low security facility. Id. According to the BOP website, Miller is currently housed at the Federal Correctional Institution in Seagoville, Texas, a low security institution that has a satellite camp for prisoners with a minimum security classification. Miller has not notified this Court of his change of address.
Miller sues Banta and Marty Anderson, his warden at the time, for "knowingly including false information in the request for transfer." Compl. at 1; see also id. at 2. He further alleges that after he filed his request for an administrative remedy challenging the allegedly false information, he was subjected to retaliation in the following ways: (1) that Banta and Anderson increased his HOV score; (2) that he was placed for one night in a Special Housing Unit ("SHU") without cause; (3) that he was transferred to a medium security institution; and (4) that his civil complaint was removed from the outgoing prison mail. Compl. at 2. Based on these allegations, he asserts claims under the Privacy Act, 5 U.S.C. § 552a, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997, and the First and Fourth Amendments to the Constitution. Compl. at 2. He seeks $50 million in damages and asks that his "files be corrected." Id. at 3.*fn2 In addition to filing Banta's declaration addressing the merits of the allegations, the defendants have also filed a declaration establishing that Miller did not exhaust the BOP's inmate administrative remedy process before filing this lawsuit with ...