United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
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
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.
following facts are undisputed for purposes of the BOP's
motion to dismiss or for summary judgment.
Harrison's First Term of Incarceration
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.
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).
January 2008 resentencing hearing, Harrison raised the issue
with the district court. Id. at 5 (Compl.
¶¶ 13-14). According to publicly available
documents,  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).
Harrison's Second Term of Incarceration (January 4 to May
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
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.
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
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).
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. Dkt. 1 at 7 (Compl. ¶ 21).
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.
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 ...