Gale v. U.S. Dept. of Justice, Federal Bureau of Prisons

• Decision Date: 12 June 1980
• Docket Number: No. 79-2331,79-2331
• Parties: Melvin GALE, Appellant, v. U. S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 224

628 F.2d 224

202 U.S.App.D.C. 224

Melvin GALE, Appellant, v. U. S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS et al.

No. 79-2331.

United States Court of Appeals, District of Columbia Circuit.

June 12, 1980.

Appeal from the United States District Court for the District of columbia.

Melvin Gale, pro se, was on the motion to proceed in forma pauperis.

Charles F. C. Ruff, U. S. Atty., John A. Terry and Constance L. Belfiore, Asst. U. S. Attys., Washington, D.C., were on the response to the motion to proceed in forma pauperis.

Before ROBINSON, MacKINNON and MIKVA, Circuit Judges.

Opinion for the Court filed by MIKVA, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

MIKVA, Circuit Judge.

Appellant Melvin Gale is a federal prisoner currently incarcerated in the federal penitentiary in Lewisburg, Pennsylvania. In 1976, Gale was convicted in the District Court of possession of an unregistered firearm and other charges and received a sentence of 3 to 9 years. After sentencing, he was taken to the District of Columbia Reformatory in Lorton, Virginia. Additional charges of burglary and grand larceny were then pending against him in the District of Columbia Superior Court. Gale was transferred from Lorton to Superior Court on several occasions in connection with his trial on these charges. On February 28, 1977, Gale was convicted. He received a sentence of 12 to 40 years on the burglary charge and a concurrent sentence of 3 to 9 years on the larceny charge. Later, he was transferred to Lewisburg where he now resides. ¹

Gale commenced this pro se action in September, 1979, by mailing a complaint and a motion for leave to proceed without prepayment of costs to the District Court. His complaint alleges that he wrote to the Justice Department's Bureau of Prisons on February 5, 1979, requesting copies of the documents used to effect his transfers between Lorton and Superior Court. The complaint states that his request was unanswered and that he then forwarded an appeal to the office of the Deputy Attorney General on April 9. On April 18, the Director of the Justice Department's Office of Privacy and Information Appeals wrote to Gale, saying that he could not act on any appeal until there had been an initial decision by the Bureau of Prisons, but that if the Bureau had still not responded to the request, Gale was entitled to treat the letter as a denial of his appeal. ² Gale alleged that as of August, 1979, he had not received the documents he had requested.

Gale asserted that he was entitled to receive the documents under the Freedom of Information Act, 5 U.S.C. § 552 (1976), and the Privacy Act, 5 U.S.C. § 552a (1976). He also alleged that the government's failure to deliver the documents deprived him of constitutional rights protected by the Fifth Amendment's due process clause and the Eighth Amendment. Gale seeks $150,000 in compensatory and punitive damages and attorney's fees for a fellow inmate who assisted him in drawing up the complaint.

On September 26, 1979, the District Court granted Gale permission to file the complaint without prepayment of costs, but simultaneously dismissed the action, citing 28 U.S.C. § 1915(d) (1976) ³ and another case brought by Gale earlier in the year that had also been dismissed. Gale then filed a notice of appeal in the District Court and a motion for leave to appeal without prepayment of costs. This motion was denied by the District Court on the ground that the appeal is "frivolous and not taken in good faith." See 28 U.S.C. § 1915(a) (1976).

Pursuant to Fed.R.App.P. 24(a), Gale filed a motion in this Court seeking leave to appeal without prepayment of costs on November 19. On December 11, the Chief Judge ordered the government to respond to this motion. Based upon our review of the record and the government's response, we now grant Gale's motion.

While portions of the complaint are clearly frivolous, ⁴ it does assert a cause of action under the Privacy Act, 5 U.S.C. § 552a(d)(1) (1976) (access by an individual to his record or to any information pertaining to him). Gale alleges that the Bureau of Prisons has refused to give him documents pertaining to him which are in the Bureau's possession. It is reasonable to expect that the Justice Department's files concerning a prisoner in federal custody ⁵ will include records of his transfers from prison to court, and nothing in the complaint indicates otherwise. The District Court's order contains no explanation other than the notation "See also Civil Action 79-84." ⁶

The government's response to Gale's motion does not deny that the complaint states a claim for relief under the Privacy Act. Rather, it argues that this case is moot because the Regional Director of the Bureau of Prisons wrote to Gale in March, 1979, stating that the requested information was not contained in Gale's file. Since Gale's complaint seeks not merely a response to his request but the documents themselves, the case would only be moot if the government had given Gale the documents.

The government's assertion that it does not have these documents raises factual issues which cannot be resolved in this Court. The District Court did not consider this assertion, since it dismissed the action solely on the basis of the complaint. On remand, the government will be free to attempt to prove that it does not possess the documents requested by Gale.

Although Gale's request refers to the documents as those "used by the District of Columbia Court . . . to remove Melvin Gale from federal custody," we do not necessarily agree with his claim that his removal from Lorton to Superior Court constituted a removal from federal custody. We do find that Gale has adequately described the documents used to transfer him. It is clear that Gale was transferred on several occasions pursuant to "come-up" orders issued by the Clerk of the Superior Court at the request of the United States Attorney's office. See Gale v. United States, 391 A.2d 230, 232 (D.C.Ct.App.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979). Gale's letter to the Bureau of Prisons specifies the dates of his transfers and states that they were made at the request of the "District of Columbia Court." Mindful of the Supreme Court's admonition that a pro se complaint should be held "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), we believe that Gale's letter is understandable as a We are aware that Gale undoubtedly seeks these documents to assist him in making additional claims that his transfers were unauthorized. His likelihood of success on those claims is not at issue here. Gale's reasons for seeking these documents are irrelevant to the question of whether the Privacy Act gives him a right to obtain them. Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1513 n.10, 44 L.Ed.2d 29 (1975).

request for the documents involved in his transfers, even if he may be mistaken in his legal conclusion that these transfers removed him from federal custody.

CONCLUSION

We disagree with the District Court's view that Gale's appeal is frivolous. We therefore grant his motion to proceed without prepayment of costs. The District Court's order dismissing the complaint is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

MacKINNON, Circuit Judge (dissenting):

This case is completely frivolous in so many ways that I am forced to dissent and to spell out the fundamental legal considerations which support that conclusion. It is misguided sympathy for appellant to send him further along the frivolous road. It also indicates why our court docket is jammed and decisions in meritorious cases of great magnitude are delayed.

Gale is a prisoner at Lewisburg Penitentiary where he is serving sentences imposed by the District and Superior Courts in the District of Columbia. Relying on the Freedom of Information and Privacy Acts he "requested documents" of the Department of Justice (hereafter "Department") which he alleged would show his "transfer from Federal custody" following his sentencing in the United States District Court for the District of Columbia (hereafter "District Court"). At that time he was transported from the District of Columbia Jail to Lorton Reformatory in Virginia (hereafter "Lorton") and thereafter on several occasions to the Superior Court of the District of Columbia (hereafter "Superior Court") for trial on local burglary and grand larceny charges. The Department searched its files for such records but was unable to find them and so advised Gale. He then filed suit to compel the production of such documents and claimed $150,000 damages and attorneys fees. The District Court allowed his suit to be filed in forma pauperis and thereafter dismissed it under 28 U.S.C. 1915(d) as frivolous. The judgment of the District Court should be affirmed for the simple reason that the Department does not have the requested records and for the additional reason that Gale was never in actual federal custody. He was at all times here material in the physical custody of the District of Columbia Board of Corrections, that operates both the Jail and Lorton, and Gale's factual allegations indicate that he was never outside such custody. His custody position never changed when he was taken daily to Superior Court for trial on his burglary and grand larceny charges. Gale's claim is thus frivolous because the Department does not possess the requested transfer documents, and if they could be found they would not show any "transfer from federal custody." There are also several other reasons why the case is frivolous.

I

Gale is serving a sentence of 3 to 9 years pursuant to a conviction on four firearms counts ¹ adjudged on November 19, 1976 by the United States District Court for the District of Columbia. The...