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Harrison v. Federal Bureau of Prisons

United States District Court, District of Columbia

March 31, 2017

WILLIAM HENRY HARRISON, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         Plaintiff William Henry Harrison served two separate terms of incarceration in federal prison. In 2008, near the end of his first term, a district court directed the Bureau of Prisons (“BOP”) to disregard certain “misleading” statements in Harrison's file, which had prompted the BOP to incorrectly designate Harrison as a sex offender and declare him ineligible for minimum security housing. When Harrison was re-incarcerated in 2016, however, the BOP continued to treat him as a sex offender. Harrison made substantial efforts during his incarceration to pursue administrative remedies, and eventually had his sex offender designation removed approximately two weeks before his release date. But, by then, it was too late for the BOP to transfer him to into minimum security prison, and he has now been released. He brings this lawsuit against the United States, the BOP, and various BOP officials. The Court construes his complaint to seek (1) damages, (2) vacatur of his sex offender designation and his corresponding security and housing classifications, and (3) an order compelling the BOP to allow Harrison to review certain records in his BOP prisoner file. Defendants have moved to dismiss and/or for summary judgment.

         For the reasons discussed below, the Court will DENY without prejudice Defendants' motion to dismiss Harrison's claim for common law libel with respect to the individual-capacity defendants, on the ground that the Court cannot determine its jurisdiction over those claims until the Attorney General files a certification under the Westfall Act, 28 U.S.C. § 2679(b)(1). The Court will GRANT Defendants' motion to dismiss with respect to Harrison's other claims.

         I. BACKGROUND

         The following facts are undisputed for purposes of the BOP's motion to dismiss or for summary judgment.

         A. Harrison's First Term of Incarceration (2003-2008)

         In 2002, a jury convicted Harrison of certain drug-related crimes. Jury Verdict [Dkt. 141], United States v. Harrison, 99-cr-2 (E.D. Tex. June 4, 2002). Pursuant to Federal Rule of Criminal Procedure 32(d), the probation office submitted a Presentence Report. See PSR [Dkt. 164], 99-cr-2 (Jan. 21, 2003) (sealed). The district court then sentenced Harrison to 168 months in prison. Judgment [Dkt. 166], 99-cr-2 (E.D. Tex. Jan. 22, 2003). The U.S. Court of Appeals for the Fifth Circuit affirmed the sentence, partially on the ground that Blakely v. Washington, 542 U.S. 296 (2004), “does not apply to the . . . Sentencing Guidelines.” 108 Fed. App'x 987, 990 (5th Cir. 2004) (per curiam), reh'g denied, No. 03-40160 (5th Cir. Dec. 20, 2004). Twenty-three days after the Fifth Circuit denied Harrison's petition for rehearing, however, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), holding that “Blakely does apply to the Sentencing Guidelines.” Id. at 226. Representing himself, Harrison filed a petition for a writ of certiorari. See U.S. Dkt. No. 04-10259. The Supreme Court granted his petition, vacated the Fifth Circuit's judgment, and remanded the case for further consideration in light of Booker. 545 U.S. 1137 (2005) (mem.). The Fifth Circuit, in turn, vacated Harrison's sentence and remanded to the district court for resentencing, 237 Fed. App'x 911, 913 (5th Cir. 2007) (per curiam), which took place in January 2008.

         Harrison had spent the preceding years in federal prison, where he was “disqualified from minimum security custody and camp placement due to an unwarranted [Sex Offender] Public Safety Factor . . . in his records.” Dkt. 1 at 4 (Compl. ¶ 9); accord Id. at 5-6 (Compl. ¶ 17). Under BOP policy, a “Public Safety Factor” (“PSF”) is a designation used to reflect “relevant factual information regarding the inmate's . . . criminal history . . . that requires additional security measures.” BOP Program Statement P5100.08, Inmate Security Designation and Custody Classification, ch. 5 at 7 (Sept. 12, 2006). Of relevance here, a “Sex Offender” PSF typically precludes the inmate from being placed in minimum security housing. Id. at 8. When Harrison sought to have his Sex Offender PSF removed, he learned that it had been placed in his record based on information in the probation office's Presentence Report, which only the sentencing court could amend. Dkt. 1 at 4 (Compl. ¶¶ 10-11).

         At his January 2008 resentencing hearing, Harrison raised the issue with the district court. Id. at 5 (Compl. ¶¶ 13-14). According to publicly available documents, [1] Harrison's Presentence Report stated that he had been convicted of a “bail-jumping/sexual crime.” Minute Entry for Resentencing [Dkt. 243 at 2], 99-cr-2 (E.D. Tex. Jan. 29, 2008). The district court agreed that this description was “misleading.” Id. Harrison, the court explained, had been “only convicted of bail jumping.” Id. The court, accordingly, “direct[ed] [the] BOP to not use the misleading information against [Harrison] or [to] deny him considerations [to which] he might . . . otherwise be entitled.” Id.; accord Dkt. 1 at 5 (Compl. ¶ 14). In August 2008, however, Harrison was released from prison “without the BOP ever making the necessary changes in his file based on the sentencing judge's corrections and rulings.” Dkt. 1 at 5 (Compl. ¶ 15).

         B. Harrison's Second Term of Incarceration (January 4 to May 2, 2008)

         On January 4, 2016, Harrison pleaded guilty to a new crime and was re-incarcerated for a term of four months. Dkt. 1 at 4-5 (Compl. ¶¶ 8, 16); see Amended Judgment [Dkt. 37 at 1, 2], 15-cr-121 (E.D. Va. Dec. 11, 2015). On January 7, he learned that he still “could not be incarcerated at the [minimum security] camp facility . . . due to the placement of the Sex Offender PSF” in his file. Id. at 5-6 (Compl. ¶ 17). Harrison then spent much of his four-month prison term seeking administrative redress.

         BOP regulations create a sequential, four-step administrative remedy process for inmates. See 28 C.F.R. § 542.10 et seq.; Dkt. 9 at 8. First, the inmate must raise the issue “informally to staff, and staff shall attempt to informally resolve the issue.” 28 C.F.R. § 542.13. Second, within 20 days after the basis for the grievance occurred, the inmate must file “a formal written Administrative Remedy Request” with a designated BOP staff member, using the “BP-9” form. Id. § 542.14. The warden has 20 days to respond, with an available 20-day extension. Id. § 542.18. Third, the inmate has 20 days to appeal the warden's response “to the appropriate Regional Director, ” who has 30 days to respond, plus a 30-day extension. Id. § 542.15(a); id. § 542.18. Finally, the inmate has 30 days to appeal the Regional Director's response “to the General Counsel, ” who has 40 days to respond plus a 20-day extension. Id. § 542.15(a); id. § 542.18. Each request or appeal is considered filed on the date it is entered into the BOP's computer database. See Id. § 542.18.

         Harrison first made two informal attempts to remove his PSF. On January 13, he filed an informal request with his case manager, Luchia King, attaching the 2008 resentencing transcript and requesting that the PSF be removed. Dkt. 1 at 15. King responded on February 18, stating that, although Harrison had “previously pursued the removal of [his] Sex Offender Public Safety Factor . . . through the Administrative Process, ” “[a] more thorough review of this issue is required before there is any consideration of removal.” Id. The next day, Harrison filed a second informal request, this time with his unit manager, Jennifer Vukelich. Id. at 17. On March 2, Vukelich responded that the request was “repetitive, ” id., but granted Harrison leave to proceed to the next step of the administrative process, see Id. (noting “BP-9 issued to inmate” on March 2, 2016).

         That same day (March 2), Harrison filed a formal request with the Warden, Eric Wilson, to have the PSF removed. Id. at 20. That request, however, was not entered into the database until March 14. See Id. at 27; Dkt. 9-2 at 3 (Kelley Decl. ¶ 4); id. at 6. As a result, Wilson's response became due April 3. See 28 C.F.R. § 542.18; Dkt. 1 at 27. On March 25, Harrison received notice that Wilson had invoked the 20-day extension, making his response due April 23-just nine days before Harrison was set to be released. See Dkt. 1 at 29. On March 30, Harrison mailed his request to the Associate Warden, Allia Lewis. See Id. at 31. As of April 4, he had received no responses. Id. at 9 (Compl. ¶ 29).

         Separately, Harrison also sought access to his BOP records that would indicate whether he was still designated as a sex offender. On March 3 (the day after he filed his formal request with Wilson), he mailed a request to the BOP's Central Office and the BOP's Designation and Sentence Computation Center, invoking the Privacy Act, 5 U.S.C. § 552a(d)(1), and requesting “review . . . [of] all files maintained in [BOP] systems containing information” relevant to his PSF factor. Id. at 23. And on March 22, he filed a written, formal request for copies of “every 337, 338, and 409” form in his BOP file (i.e., the forms that would indicate his PSFs). Id. at 25. Neither request received a response.[2] Dkt. 1 at 7 (Compl. ¶ 21).

         In April, apparently under the impression that he was required to exhaust his remedies before leaving prison-and recognizing the reality that he would not have time to do so- Harrison filed suit in this Court. See Dkt. 1 at 9 (Compl. ¶ 30). Harrison originally mailed his complaint on April 4, id. at 2, but the Clerk's Office returned it due to procedural defects, id. at 1. He mailed it again on April 14. Id. at 2. On April 15-the day after Harrison mailed his now-operative complaint to the Clerk's Office-Wilson responded to Harrison's administrative request. See Dkt. 9-3 at 2. Wilson explained that Harrison did, in fact, have a Sex Offender PSF in his file and that the district court's January 31, 2008, Statement of Reasons had, in fact, directed the BOP not to use the sex offense information in the Presentence Report. Id. “In compliance with th[at] document, ” Wilson wrote, “the PSF of Sex Offender has been removed.” Id. But, given Harrison's impending release date (just over two weeks away), Harrison would “not be transferred” to the minimum security camp. Id.

         On April 26, Harrison appealed Wilson's decision to the BOP's Mid-Atlantic Regional Director. Dkt. 9-4 at 2. Harrison was still awaiting the Director's response when he was released from prison on May 2. See id.; Dkt. 7. By coincidence, May 2 is also the day that ...


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