Brown v. Bureau of Prisons, Civil Action No. 06-1606 (GK).

• Decision Date: 06 August 2007
• Docket Number: Civil Action No. 06-1606 (GK).
• Parties: Whitney BROWN, Plaintiff, v. BUREAU OF PRISONS, Defendant.
• Court: U.S. District Court — District of Columbia

498 F.Supp.2d 298

Whitney BROWN, Plaintiff, v. BUREAU OF PRISONS, Defendant.

Civil Action No. 06-1606 (GK).

United States District Court, District of Columbia.

August 6, 2007.

Whitney Brown, Bastrop Federal Correctional Institution, Bastrop, TX, pro se.

Oliver W. McDaniel, U.S. Attorney's Office for the District of Columbia, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

KESSLER, District Judge.

This matter is before the Court on Defendant's motion to dismiss. For the reasons set forth below, the motion will be granted.

I. BACKGROUND

Plaintiff is a federal prisoner who is serving a 360-month prison sentence at the Federal Correctional Institution in Bastrop, Texas ("FCI Bastrop"). He brings this civil action against the Federal Bureau of Prisons ("BOP") under the Privacy Act, see 5 U.S.C. § 552a.¹

The criminal history section of Plaintiffs presentence investigation report ("PSR") reflects two juvenile convictions. See Complaint ("Compl."), Attach. (Excerpt (para. 35-36) of PSR). Plaintiff was arrested on February 24, 1981 in San Antonio, Texas for theft. Id. (Excerpt (para. 36) of PSR). On May 27, 1981, Plaintiff was sentenced to three years' imprisonment and was released on bond. Id. He later failed to appear, was rearrested on January 15, 1983, and then began to serve a three-year sentence in the custody of the Texas Department of Corrections. Id.

On July 21, 1981, Plaintiff was arrested in Seaside, California and was charged with kidnapping. Compl., Attach. (Excerpt (para. 35) of PSR). On November 13, 1981, Plaintiff was committed to the California Youth Authority for a term not to exceed 7 years. Id. According to the PSR, Plaintiff was released from custody on December 28, 1984. Id. According to Plaintiff, he was released from the custody of the California Youth Authority on January 15, 1983, "approximately 5 years, 7 months, and 28 days" before September 13, 1988, the date on which he committed the instant federal offense. Compl. at 6.

Plaintiff contends that the United States Probation Officer ("USPO") who prepared the PSR incorrectly included these juvenile convictions in the report, and that these convictions erroneously were factored into the criminal history score for purposes of applying the United States Sentencing Guidelines. Compl. at 6-7. According to Plaintiff, the sentencing guidelines do not permit consideration of a juvenile conviction where a defendant is released more than 5 years before the federal offense. Plaintiff's Reply Brief ("Pl.'s Opp'n") at 6. Plaintiff contends that this erroneous criminal history score led to the imposition of 36 additional months' imprisonment under the sentencing guidelines. Id. at 7.

Plaintiff further alleges that the BOP improperly relies on the July 1981 juvenile kidnapping conviction "to make adverse determinations regarding [Plaintiffs] security and custody classification" under BOP Program Statement 5100.07, Security Designation and Classification Manual.² Compl. at 4. Specifically, Plaintiff asserts that the offense conduct is characterized as a crime of violence on which BOP relies in denying him "the opportunity to drop to a, lower classification to go to a [prison] camp." Id. at 3 & Attach. (Oct. 12, 2005 Request for Administrative Remedy) at 1.

Plaintiff sought amendment to the PSR through the inmate grievance process. See Compl., Attach. (Oct. 12, 2005, Oct. 31, 2005 and Jan. 3, 2006 Request for Administrative Remedy, Regional Administrative Remedy Appeal, and Central Office Remedy Appeal, respectively). In support of his argument, Plaintiff attached a copy of a letter he received from the USPO who prepared the PSR. Id., Attach. (Aug. 23, 2005 letter from F.J. Olvera). The USPO acknowledged an error: two points for the juvenile kidnapping conviction should not have been assessed. Id. Absent this error, Plaintiffs criminal history points would have totaled 8 points (placing him in Criminal History Category IV), not 10 points (placing him in Criminal History Category V). Id. Had Plaintiffs criminal history points totaled 8 points, Plaintiffs term of imprisonment would have fallen within the guideline range of 324 to 405 months. Id. With 10 criminal history points, Plaintiffs term of imprisonment would fall within the higher guideline range of 360 to 480 months. Id. Plaintiffs actual sentence of 360 months' imprisonment fell within both of the guideline ranges. Id. The USPO noted that any difference in criminal history points "may or may not change [Plaintiff's] classification level" while in BOP custody. Id.

While the assessment of criminal history points for the purpose of applying the federal sentencing guidelines may have been incorrect, BOP explained that it properly relied on information in the PSR pertaining to the juvenile kidnapping conviction. Compl., Attach. (Dec. 14, 2005 Regional Director Response to Admin. Remedy No. 391136-R1 & Feb. 17, 2006 National Inmate Appeals Response to Admin. Remedy No. 391136-A1). According to Program Statement 5100.07, as long as a juvenile conviction is documented and has been neither expunged nor vacated, it may be considered by BOP in determining a prisoner's custody classification.³ See id., Attach. (Feb. 17, 2006 National Inmate Appeals Response to Admin. Remedy No. 391136-A1). BOP staff found that the kidnapping conviction "has not been vacated or expunged," and that Plaintiff is "correctly scored with a serious history of violence." Id. Accordingly, BOP staff deemed Plaintiff ineligible for placement in a prison camp. Id.

In this action, Plaintiff demands an order either "to remove all records and files concerning the arrest and conviction" for kidnapping, or "to obliterate all references to" the kidnapping conviction in BOP records. Compl. at 3. He also demands an award of monetary damages. Id.

II. DISCUSSION

A. Motion to Dismiss Under Rule 12(b)(6)

The ruling on a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure does not test the likelihood of Plaintiffs success on the merits; rather, it tests whether he properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The factual allegations of the complaint must be presumed to be true and liberally construed in Plaintiffs favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2001). The Court, however, is not obligated to draw an inference that is not supported by the facts presented. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

In deciding a motion to dismiss under Rule 12(b)(6), the Court may consider 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) (citation omitted); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C.Cir.2003) (motion to dismiss under Rule 12(b)(6) converted to summary judgment motion under Rule 56 when parties submitted, and magistrate judge considered, matters outside the pleadings). In this case, the parties rely on the same exhibits which Plaintiff has attached to his complaint.

B. Neither Amendment of the Records Nor Damages Are Available Remedies under the Privacy Act

Generally, the Privacy Act requires that each covered 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 is' reasonably necessary to assure fairness to the individual in the determination.

5 U.S.C. § 552a(e)(5). An individual may access an agency's records pertaining to him, and he may request amendment of those records. See 5 U.S.C. § 552a(d). He may file a civil action against the agency if it refuses to amend its records upon request, see 5 U.S.C. § 552a(g)(1)(A), or if it:

fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.

5 U.S.C. § 552a(g)(1)(C); see Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.Cir.1992) (subsection (g) provides civil remedies for violations of subsection (e)(5)).⁴ In a civil suit filed pursuant to 5 U.S.C. § 552a (g)(1)(C), if the agency's actions were willful or intentional, the court may award actual damages sustained by the individual as a result of the agency's recordkeeping deficiencies. 5 U.S.C. § 552a(g)(4)(A).

Notwithstanding the relief ostensibly available under the Privacy Act, the director of an agency may promulgate regulations to exempt any of the agency's systems of records from certain parts of the Privacy Act, if the system of records is:

maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including ... correctional, probation, pardon, or parole authorities, and which consists of ... reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.

5 U.S.C. § 552a(j)(2).⁵

Pursuant to this authority, BOP has promulgated regulations to exempt its Inmate Central Records System (JUSTICE/BOP-005) from subsections (d) and (g) of the Privacy Act, that is, the Act's amendment and remedies provisions. See id.; 28 C.F.R. § 16.97(a)(4), (b)(3). An inmate's Central File "is part of the [BOP's] central records system, and contains a complete copy of [the PSR], which [] is received from the sentencing court and maintained in the ordinary course of business in the central record system." Def.'s Mot. to Dismiss,...