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Lugo v. U.S. Department of Justice

United States District Court, District of Columbia

September 30, 2016

DANIEL LUGO, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, et ah Defendants.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS United States District Judge.

         Plaintiff Daniel Lugo, proceeding pro se, was serving a prison sentence in New York when he was convicted of the federal crime of conspiracy to commit murder in aid of racketeering. After his conviction, three Assistant U.S. Attorneys (AUSAs) sent a letter to the Chairman of the New York Division of Parole, stating their belief "beyond a reasonable doubt" that Lugo was guilty of murder. Lugo obtained an unsigned copy of the letter in the course of his habeas proceedings in New York, and he promptly filed this lawsuit against the Department of Justice. He alleges that the letter was inaccurate, insecurely safeguarded, and improperly disclosed, all in violation of his rights under the Privacy Act and the Fifth Amendment to the U.S. Constitution.

         The Department of Justice has now filed a motion to dismiss, or, in the alternative, for summary judgment. Dkt. 9. Lugo, in turn, opposes the Department's motion and cross-moves for summary judgment. Dkt. 11. In addition, he seeks leave to file an amended complaint. Dkt. 22. For the reasons discussed below, the Department's motion will be granted, and Lugo's motion will be denied.

         I. BACKGROUND

         For the following facts are taken from Lugo's complaint, the two declarations filed in this matter, and related court records of which the Court can take judicial notice. See Veg-Mix, Inc. v. U.S. Dep't of Agric, 832 F.2d 601, 607 (D.C. Cir. 1987).

         On March 8, 2000, Lugo entered custody of the New York State Department of Corrections and Community Supervision. Dkt. 1 at 17. He had been convicted of conspiracy in the second degree and criminal possession of a controlled substance in the third degree, both felonies. Id.; see N.Y. Penal Law §§ 105.15, 220.16. He was set to become eligible for parole on November 11, 2005. Dkt. 1 at 3, 17.

         While in state custody, Lugo was indicted on federal charges. On August 12, 2002, a federal jury convicted Lugo of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5). Dkt. 1 at 14; Calendar Entry No. 172, United States v. Tyler, No. 1-cr-922 (E.D.N.Y. Aug. 12, 2002). Judge Jack B. Weinstein later sentenced Lugo to ten years of imprisonment, which Lugo was to serve consecutively with his state court sentence. Dkt. 1 at 14; Calendar Entry No. 215, United States v. Tyler, No. l-cr-922 (E.D.N.Y. Oct. 29, 2002).

         On or about November 4, 2002, three AUSAs sent a letter to the Chairman of the New York Board of Parole regarding Lugo's federal conviction. Dkt. 1 at 2; see Dkt. 1 at 14-15 (draft of letter). The letter explained that, although Lugo had been convicted only of conspiracy to commit murder, the government had "compelling evidence that. . . Lugo was involved in the murder . . . itself." Dkt. 1 at 14. According to the letter, the government possessed "a recorded conversation" during which Lugo's coconspirator "identified . . . Lugo and his brother ... as the hitmen who perpetrated the murder." Id. Judge Weinstein, however, had excluded that evidence from trial. Id. Nonetheless, the AUSAs offered the Parole Board a chance to review the audiotape and transcript, and asserted that those items, "when viewed in conjunction with the evidence that was admitted to trial, establish[] beyond a reasonable doubt that. . . Lugo is guilty of murder[]." Id. at 15.

         In September 2005, Lugo appeared for his first hearing before the New York Parole Board. Dkt. 1 at 3. The Parole Board asked about Lugo's federal conviction, but Lugo declined to answer on the grounds that "the case was still being litigated." Id. He was subsequently denied parole. Id. These events recurred in October 2007, when Lugo appeared before the Parole Board a second time and was again denied parole. Id. On October 31, 2008, Lugo reached his "conditional release date" under New York law, and was transferred to federal custody, id. at 3, 17, where he remains.

         In the course of Lugo's October 2007 parole hearing, a parole officer first acknowledged to him the existence of the AUSA letter. Id. at 3. Lugo subsequently filed requests for the letter under the federal Freedom of Information Act and New York's Freedom of Information Law, but his requests were not acknowledged. Id. at 4.

         On June 27, 2013, Lugo filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the Northern District of New York. See Pet., Lugo v. Hudson, 13-cv-753 (N.D.N.Y. June 27, 2013), ECF No. 1. He alleged procedural flaws in the process by which New York had loaned him to federal authorities in 2001 for the purpose of Lugo's federal trial. Id. at 2-3. According to Lugo, the transfer was invalid, such that his federal sentence actually began when he was placed in temporary federal custody prior to his federal trial. Id. The petition was subsequently denied. Lugo v. Hudson, No. 13-cv-0753, 2014 WL 11350815 (N.D.N.Y. June 16, 2014), aff'd, 785 F.3d 852 (2d Cir. 2015).

         On February 3, 2015, Lugo filed a "petition for a writ of audita querela and/or writ of error com nobis" in the U.S. District Court for the Eastern District of New York, the court which originally sentenced him to federal custody. See Pet., United States v. Tyler, No. 1-cr-922 (E.D.N.Y. Feb. 3, 2015), ECF No. 514. Lugo raised arguments related to the 2001 transfer of custody, id. at 5, and also argued that the November 2002 letter entitled him to a three-year reduction in his federal sentence on the grounds that it had "in effect designated the state penitentiary as the place of imprisonment, " id. at 7-8. Judge Weinstein converted the petitions to petitions for habeas corpus under 28 U.S.C. § 2241 and denied them as abuses of the writ. Memorandum & Order, United States v. Tyler, No. 1-cr-922 (E.D.N.Y. Apr. 29, 2015), ECF No. 534. It was only during this proceeding that Lugo finally obtained a draft copy of the November 2002 letter. Dkt. 1 at 4. On April 7, 2015, he filed a letter with Judge Weinstein alleging that the letter had violated his rights under the Privacy Act and the Fifth Amendment. United States v. Tyler, No. 1-cr-922 (E.D.N.Y. Apr. 29, 2015), ECF No. 537. Judge Weinstein entered a one-line order stating that "[t]he letter does not support a grant of relief." Id., Order of May 4, 2015, ECF No. 538.

         On April 30, 2015, Lugo filed the instant complaint. Dkt. 1 at 10. He brings substantially the same claims he outlined in his letter to Judge Weinstein, although neither Lugo nor the Department mentions either previous habeas proceeding. Specifically, Lugo alleges that the Department "unlawfully disclosed" the November 2002 letter; "misrepresented inaccurate [and irrelevant] information" in the letter "by conveying the presumption that [Lugo is] guilty of murder while the jury acquitted [him] of that charge"; and "failed to establish appropriate administrative and physical safeguards to insure the security and confidentiality" of the letter. Dkt. 1 at 6. He also claims that the Department disclosure placed him in "double jeopardy for the charge of murder" and deprived him of due process of law. Dkt. 1 at 5-8. According to Lugo, the letter caused him to be denied parole, thus prolonging his state incarceration by three years and postponing the start of his federal incarceration. Id. at 7. He seeks "to have those years attributed towards [his] federal sentence, " resulting in his "immediate release." Id. at 7-8. He also seeks lost wages, compensatory damages, and punitive damages. Id. at 8-9.

         The Department filed a declaration averring that the November 2002 letter, like all Lugo's Justice Department records, were stored in the "Criminal Case File" database, labeled "Justice/USA-007." Dkt. 9-2 at 2 (Currie Deck ¶ 4).

         II. STANDARD OF REVIEW

         A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) is designed to "test[] the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a motion, the Court "must first 'tak[e] note of the elements a plaintiff must plead to state [the] claim' to relief, and then determine whether the plaintiff has pleaded those elements with adequate factual support to 'state a claim to relief that is plausible on its face.'" Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)) (alterations in original) (internal citation omitted). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, [if] accepted as true, to 'state a claim to relief that is plausible on its face, '" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A plaintiff may survive a Rule 12(b)(6) motion even if "recovery is very remote and unlikely, " but the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56 (quotation marks omitted).

         To establish entitlement to summary judgment, on the other hand, the moving party must show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895-96 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the outcome of the litigation. Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record" Fed.R.Civ.P. 56(c)(1)(A).

         When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. Pepco, 447 F.3d 843, 850 (D.C. Cir. 2006). The non-movant's opposition, however, must consist of more than allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant must provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If his evidence is "merely colorable" or "not significantly probative, " summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50.

         In this case, the facts alleged in Lugo's complaint and subject to the Court's judicial notice are sufficient to resolve each issue before the Court, with the exception of whether the Department can assert a Privacy Act exemption based on 5 U.S.C. § 552a(j)(2). For that issue, the Court must rely on the Currie Declaration, Dkt. 9-2 at 2. Therefore, the Court will apply the summary judgment ...


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