United States District Court, District of Columbia
LAWRENCE T. TYLER, Plaintiff,
U.S. FEDERAL BUREAU OF PRISONS et al., Defendants.
G. SULLIVAN UNITED STATES DISTRICT JUDGE
is a federal prisoner appearing pro se. In the
Complaint styled as brought under the Privacy Act, the
Freedom of Information Act (“FOIA”), and the
Administrative Procedure Act (“APA”), plaintiff
challenges the accuracy of information contained in his
presentence investigation report (“PSI”) and the
alleged adverse effect it is having on his custody in
Folkston, Georgia. Plaintiff has sued the U.S. Bureau of
Prisons (“BOP”), BOP contractor GEO Group, Inc.,
which operates the facility where plaintiff is incarcerated,
and several GEO employees in their official capacities.
are the separate motions of BOP and the GEO defendants to
dismiss. Each motion seeks dismissal under Federal Rule of
Civil Procedure 12(b)(3) for improper venue and Rule 12(b)(6)
for failure to state a claim upon which relief can be
granted. Also pending is plaintiff's motion for partial
summary judgment as to liability. The Court finds that this
venue is proper but that plaintiff has stated no viable
claim. Therefore, the defendants' motions
will be granted, plaintiff's motion will be denied, and
this case will be dismissed for the reasons explained more
in the U.S. District Court for the Southern District of Texas
convicted plaintiff of one count of conspiracy to commit
health care fraud, seven counts of health care fraud, and one
count of money laundering. United States v. Tyler,
626 Fed.Appx. 511, 512 (5th Cir. 2015) (per curiam). As a
result, plaintiff is serving a 72-month prison sentence. In
addition, plaintiff must serve three years of supervised
release and pay restitution. Id.
has expended an inordinate amount of ink on irrelevant facts
pertaining to his trial and convictions. See Compl.
at 4-36. Relevant to this action are plaintiff's
allegations that (1) his custody is based on
“inaccurate” and/or “incomplete”
information in the PSI with regard to “loss
amount” and his U.S. citizenship, and (2) defendants
have taken no “reasonable steps” to verify the
challenged information. Id. at 37-38. As a result,
plaintiff alleges, he has suffered “adverse
determination[s] . . . such as longer detention, and a
restitution award of $1, 238, 823.08.” Id. at
defendant may move to dismiss a complaint for failure to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). In considering such a motion, the “complaint
is construed liberally in the plaintiff['s] favor, and
[the Court] grant[s] plaintiff[ ] the benefit of all
inferences that can be derived from the facts alleged.”
Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994) (citation omitted). “However, the
[C]ourt need not accept inferences drawn by [the] plaintiff[
] if such inferences are unsupported by the facts set out in
the complaint.” Id. Nor must the Court accept
“a legal conclusion couched as a factual allegation,
” nor “naked assertions devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted); see also
Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,
525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (noting that the D.C.
Circuit has “never accepted legal conclusions cast in
the form of factual allegations” (internal quotation
marks omitted)). Ordinarily on a Rule 12(b)(6) motion, the
Court considers only “the facts alleged in the
complaint, documents attached as exhibits or incorporated by
reference in the complaint, and matters about which the Court
may take judicial notice.” Gustave-Schmidt v.
Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002) (citing
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624-25 (D.C. Cir. 1997)).
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' ” Iqbal, 556 U.S. at 678 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the pleaded
factual content “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. Although a
pro se complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers,
” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (internal quotation marks and citation omitted),
it too “must plead ‘factual matter' that
permits the court to infer ‘more than the mere
possibility of misconduct, ' ” Atherton v.
District of Columbia Office of the Mayor, 567 F.3d 672,
681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at
plaintiff's claims are predicated on the alleged
incorrectness of his PSI contained in his prison file,
judicial review is authorized solely under the Privacy Act.
See Griffin v. Ashcroft, No. 02-5399, 2003 WL
22097940, at *2 (D.C. Cir. Sept. 3, 2003) (affirming
“the district court's dismissal of appellant's
constitutional claims based on the BOP's alleged
maintenance and use of inaccurate information because such
claims are encompassed within the Privacy Act's
comprehensive remedial scheme”) (citing Chung v.
U.S. Dep't of Justice, 333 F.3d 273, 274 (D.C. Cir.
2003)). For this reason, the Court hereby dismisses (1) any
APA claim, since “a plaintiff cannot bring an APA claim
to obtain relief for an alleged Privacy Act violation,
” Westcott v. McHugh, 39 F.Supp.3d 21, 33
(D.D.C. 2014), and (2) the claims against the named
individual defendants and GEO Group, Inc., since “the
Privacy Act does not apply to government contractors, ”
Metro. Life Ins. Co. v. Blyther, 964 F.Supp.2d 61,
71 (D.D.C. 2013) (citing cases). See Abdelfattah v. U.S.
Dep't of Homeland Sec., 787 F.3d 524, 533 n.4 (D.C.
Cir. 2015) (“[T]he Privacy Act creates a cause of
action against only federal government agencies and not
private corporations or individual officials.”)
(citations omitted), and Martinez v. Bureau of
Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (concluding
that “the district court properly dismissed the named
individual defendants because no cause of action exists that
would entitle appellant to relief from them under the Privacy
Act or FOIA”) (citations omitted)).
addition, plaintiff has mentioned the FOIA but has not
alleged that BOP withheld agency records to state a claim
under FOIA. See Banks v. Lappin, 539 F.Supp.2d 228,
235 (D.D.C. 2008) (“Federal jurisdiction over a FOIA
claim is dependent upon a showing that an agency improperly
withheld agency records.”) (citing Kissinger v.
Reporters Comm. for Freedom of the Press, 445
U.S. 136, 150 (1980)). Accordingly, any FOIA claim is
dismissed as well.
(e)(5) of the Privacy Act requires that an agency:
maintain all records which are used by the agency in making
any determination about any individual with such accuracy,
relevance, timeliness, and completeness as to assure ...