United States District Court, D. Columbia
BAILEY, Plaintiff, Pro se, LEWISBURG, PA.
FEDERAL BUREAU OF PRISONS, JOSE A. SANTANA, Chief,
Designation Sentence and Computation Center, IKE C.
EICHENLAUB, Mid-Atlantic Regional Director, ROBERT L. FARLEY,
Warden, USP Big Sandy, MICHAEL S. SMITH, Associate Warden,
USP Big Sandy, KEVIN TONEY, Captain (Former), USP Big Sandy,
JAMES LINK, Special Investigative Agent, USP Big Sandy, JOHN
STUMBO, Special Investigative Supervisory Lieutenant, USP Big
Sandy, DAVID ROOT, Special Investigative Supervisory
Lieutenant, USP Big Sandy, SNYDER, Special Investigative
Supervisory Lieutenant, USP Big Sandy, M. PARR, Case Manager
Coordinator, USP Big Sandy, TIMOTHY FAZENBAKER, Unit Manager,
USP Big Sandy, R.D. SLOAN, Case Manager, USP Big Sandy,
Defendants: Claire M. Whitaker, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE, Washington, DC.
OPINION [Dkts. #16, #20]
J. LEON, United States District Judge.
Ari Bailey (" plaintiff" ) brings this action
pro se against the Bureau of
Prisons (" BOP" ) and twelve named BOP
employees (collectively, " defendants"
) for alleged violations of his rights under the First
Amendment, the Supremacy Clause, the Privacy Act, and various
civil rights statutes. See Compl. [Dkt. # 1].
Presently before the Court is Defendants' Motion to
Dismiss or, Alternatively, to Transfer. See
Defs.' Mot. to Dismiss (" Defs.' Mot." )
[Dkt. #16]; Mem. in Support of Defs.' Mot. to Dismiss, or
Alternatively, to Transfer (" Defs.' Mem." )
[Dkt. #16]. Upon consideration of the pleadings, the relevant
law, and the record herein, the Court GRANTS in part
defendants' Motion to Dismiss.
the instant case arises on a motion to dismiss, the
Court's factual analysis centers upon those facts alleged
in the Complaint, the documents attached thereto, and matters
of which the Court may take judicial notice. See
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624-25, 326 U.S.App.D.C. 67 (D.C. Cir. 1997). As
required by governing precedent, the Court will " accept
as true all of the factual allegations contained in the
complaint." See Swierkiewicz v.
Sorema, 534 U.S. 506, 508 n.1, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002). Viewed through this lens, the facts here
are as follows:
October 20, 1994, plaintiff was sentenced to a 540-month term
of imprisonment and was thereafter incarcerated at the United
States Penitentiary, Big Sandy (" Big Sandy" ). In
or around 2012, the BOP concluded, based on an internal
investigation conducted by the BOP's Central Office
Intelligence Section and the Sacramento Intelligence Unit
(" SIU" ) that plaintiff should be classified as a
" public security factor" (" PSF" ) based
on his purported ties to the Black Guerrilla Family ("
BGF" ), a prison gang that the BOP considers to be a
" disruptive group."  See Compl.
¶ 39; Defs.' Mem. at 4. As a result of this
reclassification, the BOP transferred plaintiff to a facility
capable of handling high security inmates--the United States
Penitentiary in Lewisburg, Pennsylvania. See Compl.
¶ ¶ 39-40, 64.
to say the least, was not amenable to this transfer. In 2014,
commenced the instant suit, claiming that his
reclassification was based on " intrinsically erroneous,
false, stale, outdated [and] inaccurate records
information" in violation of the Privacy Act.
See Compl. ¶ 19. According to plaintiff,
defendants fabricated his membership in the BGF in a "
willfull [sic] collaboration to oppress, threaten, or
intimidate plaintiff' as retribution for the various
inmate grievances he has lodged during his confinement.
See Compl. ¶ 52. As evidence of this
proposition, plaintiff states that he confronted one of the
named defendants, Big Sandy Unit Manager Timothy Fazenbaker,
about his grievances and was told by defendant Fazenbaker:
" we have to do some creative writing to get your
transfer approved." Compl. ¶ 50. Plaintiff alleges
that his reclassification and ensuing transfer has had
several adverse effects, including:
1.) Permanent disqualification from medium custody and
minimum custody placement within the B.O.P., (2.) forced
compliance with monthly urinanalysis [sic] test[s]
irregardless [sic] of negative results . .., (3.) permanent
disqualification from general population at all BOP federal
transit center facilities, (4.) permanent high-heightened
security placement and transfers, (5.) Permanent
reclassification as " criminal street gang-disruptive
group" . . . (6.) " surprise transfer" to
ADX-MAX or special management unit (SMU), (7.)
reclassification for max two-hour watch custody, without any
[disciplinary hearing officer] finding, incident report or
hearing [and] (8.) punitive confinement in segregation for 12
months . . . .
Id. ¶ 64. Invoking numerous statutory and
constitutional laws, plaintiff's Complaint alleges four
discrete causes of action: retaliation in violation of the
First Amendment of the Constitution (Count I); Violation of
the Privacy Act of 1974 (Count II); Denial of his Civil
Rights in violation of 18 U.S.C. § § 241 and 242
(Count III); and violation of his rights under the Supremacy
Clause of the Constitution (Count IV). Compl. at 12-13.
Plaintiff demands declaratory relief, monetary damages, and
expungement of all references to his membership in a
Disruptive Group from records maintained by the BOP, the U.S.
Department of Justice, and the state of California.
See Compl. at 13. Defendants moved, in response, to
dismiss the complaint in its entirety. See
Defs.' Mot. For the reasons discussed below, the Court
will grant in part defendants' Motion.
move to dismiss plaintiff's Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule
12(b)(1) permits a party to challenge the Court's
jurisdiction, whereas Rule 12(b)(6) permits a party to
challenge the sufficiency of the Complaint. " [I]n
passing on a motion to dismiss, whether on the ground of lack
of jurisdiction over the subject matter or for failure to
state a cause of action, the allegations of the complaint
should be construed favorably to the pleader."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974); see Phillips v. Bureau of
Prisons, 591 F.2d 966, 969, 192 U.S.App.D.C. 357 (D.C.
Cir. 1979) (on a motion to dismiss, courts must " accept
the truth of the well-pleaded factual allegations of the
complaint" ). Although the plaintiff must be given every
favorable inference that may be drawn from the factual
allegations, the Court need not accept as true " a legal
conclusion couched as a factual allegation," or
inferences that are entirely unsupported by the facts pled in
complaint. Trudeau v. Fed. Trade Comm'n, 456
F.3d 178, 193, 372 U.S.App.D.C. 335 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286, 106 ...