United States District Court, District of Columbia
KEVIN P. MAHONEY, Plaintiff,
BUREAU OF PRISONS, Defendant.
ROYCE C. LAMBERTH United States District Judge
This matter is before the Court on defendant's Motion to Dismiss [ECF No. 17]. For the reasons discussed below, the Court will grant the motion and dismiss this action.
"Bureau of Prisons (BOP] institutions are classified into one of five security levels:
MINIMUM, LOW, MEDIUM, HIGH, and ADMINISTRATIVE." Program Statement 5100.08, Inmate Security Designation and Custody Classification (9/12/2006), ch. 1, p. 1 (bold type in original). The term "security level" describes:
the structural variables and inmate-to-staff ratio provided at the various types of [BOP] institutions (i.e., Minimum, Low, Medium, High). It also identifies the institution type required to house inmates based on their histories, institutional adjustment, and Public Safety Factors as well as the physical security of the institution to include mobile patrols, gun towers, perimeter barriers, housing, detection devices, inmate-to-staff ratio, and internal security Id., ch. 2, p. 5. The term "custody classification" refers to "[t]he review process to assign a custody level based on an inmate's criminal history, instant offense, and institutional adjustment." Id., ch. 2, p.2. "A Management Variable [MGTV] is required when placement has been made and/or maintained at an institution level inconsistent with the inmate's scored security level."
Id., ch. 5, p. 1. If, for example, "an inmate represents a greater security risk (i.e., pending charges, detainer, escape risk, etc.) than [his] assigned security level, [he] may be placed in an institution outside normal guidelines, " and the Greater Security MGTV (code V) applies. Id., ch. 5, p. 5.
Plaintiff "is serving a 60 months sentence for Corruptly Endeavoring to Obstruct and Impede the Due Administration of the [Internal Revenue Service], Criminal Contempt, and Filing of False Tax Return." Mem. of P. & A. in Support of Mot. to Dismiss of Resp't Bureau of Prisons ("Def.'s Mem."), Second Decl. of Carolyn Lamphear ("Second Lamphear Decl.") ¶ 4.As of May 18, 2012, the BOP designated plaintiff to the Federal Correctional Institution in Loretto, Pennsylvania:
[Plaintiff has been] classified as a Minimum security level inmate with a Management Security Level of Low. The Designation and Sentence Computation Center reviewed [his] case and determined [that he] require [s] more security than [is] available at a minimum institution. As such, a Greater Security MGTV was applied during the initial designation process with a November 3, 2013, expiration date. [His] Male Custody Classification form was updated to accurately reflect no history of escape on November 28, 2012. However, [the BOP found that] the MGTV was applied in compliance with policy and [that he was] appropriately housed at FCI Loretto.
Second Lamphear Decl., Ex. C (Regional Administrative Remedy Appeal, Part B - Response, dated December 19, 2012). "Prison staff updated [p]laintiff's custody classification on November 15, 2013, and determined that [he] should remain at FCI Loretto." Id. ¶ 6. The MGTV "has been applied to maintain [p]laintiff at a Low security prison, and has an expiration date of October 28, 2015." Id. ¶ 6.
Plaintiff alleges that the BOP has designated him to "FCI Loretto
as a result of a classification status under a 'Threat Management Variable', [MGTV], due to . . . information in the Presentencing Report . . . alleging [his] being a 'member' of a sovereign citizen movement." Compl. ¶ 5. This erroneous information allegedly comes from "some unidentified entity or person within the [Federal Bureau of Investigation]" who "paints [plaintiff] as a member of some so called organization called sovereign citizens." Id. ¶ 19; see generally id., Ex. C-l (excerpt from transcript of sentencing proceedings). Plaintiff contends that "there is no credible evidence whatsoever that [he] is a member of any such group [and the alleged] group poses [no] physical threat to anyone within or without the BOP." Id. ¶ 20. Thus, he asserts, the BOP not only maintains inaccurate records pertaining to him, but also "employ[s these records] to [his] detriment, " id. ¶ 26, by, for example, causing him to "suffer harsher confinement conditions, [to lose] access to programs and [to experience] invidious discrimination, " id. ¶ 14. He demands an order directing "the BOP to cease and desist from using ... the inaccurate information for custody, security program or placement purposes, " "to re-score [him] for custody-security classification purposes, " and "to remove the MGTV predicated on the inaccurate information or other unsubstantiated . . . allegations or non-convictions." Id. at 6.
The BOP moves to dismiss on the ground that the complaint fails to state a Privacy Act claim. See Def. 's Mem. at 1, 3-5. It argues that plaintiff "has no civil remedy under the statute to demand amendment of the records or actions that would reflect an amendment of the records." Id. at 3. Plaintiffs purported opposition either deems the BOP's motion "scandalous and immaterial, " PL's Mot. for Consolidation Application for Joinder and to Strike Def.'s Mot. to Dismiss as Merely Citing a Necessary Party's Absence Which Is Hereby Cured [ECF No. 18] at 2, or strays so far from the substance of the motion, see generally Aff. Showing Good Cause for Limited Discovery Allowance and Hearing [ECF No. 21], that the Court may treat defendant's arguments as conceded, see Hopkins v. General Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."), aff'd, 98 F.App'x 8 (D.C. Cir. 2004). Nevertheless, given plaintiff's pro se status, the Court addresses defendant's motion on its merits.
"The Privacy Act regulates the collection, maintenance, use, and dissemination of information about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707 (D.C. Cir. 2008) (internal quotation marks and citations omitted). Subsection (e)(5) of the Privacy Act requires that an agency "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5). An individual may request access to and amendment of an agency's records or information in a system of records pertaining to him. See Id . § 552a(d). That individual may file a civil action ...