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Vernon Norman Earle v. Eric Holder

September 30, 2011


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


Plaintiff, a federal prisoner proceeding pro se, commenced this action against several individual District of Columbia and federal defendants, seeking monetary damages and the "correction of [his] files and [r]ecords, as reflective of [his] [District of Columbia] sentences . . . ." Civil Complaint ("Compl.") at 10.*fn1 Plaintiff states that this action "arises" under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Id. at 5. The Court recently granted plaintiff's motion to withdraw any claims brought against the individual federal defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Memorandum Opinion and Order of September 9, 2011 [Dkt. # 29]. In addition, the Court recently dismissed the claims against the District of Columbia defendants. See Order of September 28, 2011 [Dkt. # 31].

The federal defendants move collectively to dismiss the complaint. Upon consideration of the parties' submissions, and for the following reasons, the Court will grant the instant motion to dismiss the remaining FOIA and Privacy Act claims.


The alleged facts relevant to the instant motion are as follows. On December 18, 2006, plaintiff's case manager at USP Big Sandy in Inez, Kentucky, Jenifer Fultz, conducted "a Reclassification on Plaintiff using the male custody Classification form . . . ." Compl. at 5. Fultz "change[d] my current conviction to prior conviction and activated a sentence which can not be aggregated because its [sic] a federal sentence, and my present sentence is a District of Columbia . . . sentence." Id. Plaintiff alleges that Fultz was retaliating against him for having filed "several Grievances against her" and that she "informed plaintiff before his Classification that she [was] going to give [him] 24 points to keep him in the penitentiary settings." Id. Plaintiff unsuccessfully appealed the classification and, on August 9, 2007, "the B.O.P. Director" allegedly "concur[red] with the incorrect calculation of plaintiff['s] criminal [h]istory score base [sic] on prior conviction which is the corrent [sic] sentence now been [sic] serve [sic] by the plaintiff." Id., ¶ 3; see Compl. Attach. [Dkt. # 1-1] at 21 (Response to Administrative Remedy).*fn2

On October 4, 2007, plaintiff was transferred to his current facility, USP McCreary, where he was informed that he had 27 points, "up 3 points from the 24 at [USP Big Sandy]." Compl. at 5, ¶ 4. When plaintiff protested the accuracy of the scoring, he allegedly was directed to view his presentence investigation report ("PSR"). Id. at 6. After reviewing the report, plaintiff determined that he was scored incorrectly based on an alleged improper aggregation of his federal sentence of 30 months for escape with his District of Columbia sentence. Id. According to plaintiff, the "30 month[] sentence has effectively taken the place of plaintiff['s] corrent [sic] sentence, and place plaintiff['s] D.C.D.C. as prior convictions, which would make [the D.C.] sentences stop [r]unning." Id. Plaintiff says he informed his then-case manager, T. Browder, and the case manager coordinator, T. Sheldrake, that they could "activate nothing concerning the . . . federal sentence" until he had completed service of the D.C. sentence. Id. The case managers allegedly told plaintiff that he would need to write "the probation office to [challenge] the files and records['] incorrectness." Id. Plaintiff allegedly demanded that the case managers contact the probation office pursuant to Bureau of Prisons ("BOP") policy and the Privacy Act. Id. He then filed grievances, "but to no avail." Id.; see generally Compl. Attachs. Allegedly, on April 16, 2008, in response to plaintiff's appeal to BOP's central office, "the F.B.O.P. director refuse[d] to act on its own policy to instruct its employees to do their duty . . . .," which, according to plaintiff, was to contact the probation office to correct information contained in his PSR. Id. at 7.

Plaintiff further alleges that on August 15, 2008, he filed a FOIA/PA request with BOP "for correction of Records or 'Amendment Request' . . . ." Id. at 8. He received a response "refusing to address [the] issue" on September 17, 2008. Id. On October 1, 2008, plaintiff appealed the denial of his request "to amend and correct [his] records and files" to "[then-BOP] Director Harley G. Lappin," who acknowledged the appeal by letter of November 21, 2008. Id. On February 13, 2009, plaintiff "received a communication from the Office of privacy and Civil Liberties, in the U.S. Department of [J]ustice, assigning an appeal number." Id. Plaintiff sent that office a letter on March 4, 2009, complaining about the delay. This civil action was formally filed on March 15, 2010.*fn3


A. The FOIA Claim

As an initial matter, the Court finds that the complaint establishes no basis for exercising jurisdiction under the FOIA. The Court's jurisdiction under the FOIA extends only to claims arising from the improper withholding of agency records. See Vazquez v. U.S. Dep't of Justice, 764 F. Supp. 2d 117, 119 (D.D.C. 2011) (citing 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983)). Plaintiff has not alleged that he requested the disclosure of records and was denied. See 5 U.S.C. § 552(a)(6)(A)(I) (requiring an agency to "determine within 20 days . . . after the receipt" of a properly submitted FOIA request "whether to comply with the request" and to notify the requester accordingly). Rather, he challenges the accuracy of agency records, which is the exclusive province of the Privacy Act. See Chung v. U.S. Dep't of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003) (affirming dismissal of constitutional claims against DOJ officials as "encompassed within the remedial scheme of the Privacy Act.") (citation omitted); accord Lynn v. Lappin, 593 F. Supp. 2d 104, 105-06 (D.D.C. 2009) (dismissing constitutional claims)(citations omitted); see also Blazy v. Tenet, 194 F.3d 90, 96 (D.C. Cir. 1999) (explaining that "[u]nlike FOIA, the Privacy Act's primary purpose is not disclosure. Rather, 'the main purpose of the Privacy Act's disclosure requirement is to allow individuals on whom information is being compiled and retrieved the opportunity to review the information and request that the agency correct any inaccuracies.' ") (quoting Henke v. United States Dep't of Commerce, 83 F.3d 1453, 1456-57 (D.C. Cir. 1996)).

For these reasons, the Court dismisses any claims purportedly "arising" under the FOIA for lack of jurisdiction.

B. The Privacy Act Claim

Defendants seek dismissal of the Privacy Act claim on the grounds that (1) the Privacy Act does not authorize claims against individuals; (2) the claim is time-barred; (3) the BOP has exempted its inmate central file -- where plaintiff's PSR is maintained -- from the Privacy Act's amendment and accuracy provisions; and (4) the Privacy Act is ...

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