United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge.
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.
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.
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.
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.
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).
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.
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.
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.
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).
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.
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.
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).
STANDARD OF REVIEW
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
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"
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.
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 ...