Royer v. Fed. Bureau Of Prisons

• Decision Date: 19 November 2010
• Docket Number: No. l:10-cv-0146 (LMB/IDD),l:10-cv-0146 (LMB/IDD)
• Parties: RANDALL TODD ROYER Plaintiff, v. FEDERAL BUREAU OF PRISONS Defendant.
• Court: U.S. District Court — Eastern District of Virginia

RANDALL TODD ROYER Plaintiff,
v.
FEDERAL BUREAU OF PRISONS Defendant.

No. l:10-cv-0146 (LMB/IDD)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OP VIRGINIA
Alexandria Division

Dated: November 19, 2010

MEMORANDUM OPINION

Before the Court is the defendant's Motion to Dismiss or for Summary Judgment [Dkt. No. 23]. For the reasons discussed below, the Court finds that venue is improper in the Eastern District of Virginia. Accordingly, the Court will not address the Motion to Dismiss but will transfer this civil action to the United States District Court for the District of Columbia.

I. Background

This is a civil action against the Federal Bureau of Prisons ("BOP"), an agency of the United States Department of Justice, located in the District of Columbia. The pro se plaintiff, Randall Todd Royer, also known as Ismail Royer, is a federal inmate in the custody of the BOP. On January 16, 2004, Royer pled guilty before this Court to one count of aiding and abetting the use and discharge of a firearm during and in relation to a crime of violence (conspiracy to violate the Neutrality Act), in violation of 18 U.S.C. §§ 924(c)(2) & 3238, and one count of aiding and abetting the carrying of an explosive during the commission of a

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felony which may be prosecuted in a court of the United States, in violation of 18 U.S.C. §§ 844(h)(2) & 3238. Royer was sentenced to 240 months incarceration, among other penalties, and is currently confined at the Administrative Maximum Security Facility in Florence, Colorado.

The BOP has classified Royer as an offender with a history of, or nexus to, international terrorism and has accordingly designated him as a "terrorist inmate." Royer challenges his classification as a terrorist inmate, alleging that the classification was based upon erroneous records and has resulted in the imposition of harsh and atypical restrictions on his conditions of confinement relative to those of ordinary prisoners. PL's Compl.¶ 3. Specifically, Royer argues that his designation as a terrorist inmate was based upon inaccurate information originally contained in a draft version of a Pre-Sentence Report ("PSR") prepared by the Probation Office before his sentencing hearing. Id.¶¶ 32-41. The draft PSR contained, inter alia, information drawn from the Statement of Facts that Royer had signed pursuant to his plea agreement, including his affirmation that during the 1992-1995 war in Bosnia and Herzegovina, he had fought on the side of the Bosnians against the Serbian army as part of the "Abu Zubair" unit. The draft PSR contained a further statement, in the last sentence of Paragraph 42, that "Abu Zubair (known more formally as Abu Zubair al Madani) was a member of Al Qaeda sent to Bosnia by [Osama] Bin Laden to establish camps for Al Qaeda." See id. at ¶ 33.

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At Royer's sentencing hearing, his defense counsel orally objected to the last sentence of Paragraph 42 in the PSR, arguing that it incorrectly confused the Abu Zubair military unit in Bosnia, with which Royer was affiliated, with an individual with a similar name who had been a member of al Qaeda but had died several years before. The government acknowledged the error, and this Court ordered that the line be stricken from the final PSR. Accordingly, the Probation Office deleted the last sentence of Paragraph 42 from the PSR, and the final adopted version of the report, as completed and filed in the BOP's Inmate Central Records System, no longer contains that statement.

Royer does not challenge the accuracy of the final adopted version of his PSR in his Inmate Central File. See Pl's Compl. ¶ 25. Rather, he alleges that the BOP's Counter Terrorism Unit improperly gained access to the redacted line in the draft PSR containing the incorrect statement about Abu Zubair, ¹ and that the

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BOP then improperly used that information in classifying him as a terrorist inmate. See id. ¶¶ 32-41. Royer also alleges that the BOP has maintained inaccurate records derived from "open source reporting" that falsely suggest that he has been affiliated with al Qaeda. Id. ¶ 39. Finally, Royer alleges that the BOP has failed to provide him access to those records, to collect information directly from him to correct those records, or to respond to his requests that the records be amended to remove any erroneous information. See id. ¶¶ 42-44, 54-76.

Royer's Complaint, filed on January 19, 2010, includes eleven counts. Counts 1-9 claim violations of the Privacy Act and the Freedom of Information Act, 5 U.S.C. § 552 & 552a et seq., while Counts 10-11 are brought pursuant to Bivens v. Six Unknown Namgd Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971), and allege violations of the First Amendment and the Fifth Amendment's Due Process Clause. Royer seeks monetary damages, as well as declaratory and injunctive relief, including an order that the BOP amend its records concerning Royer and give him access to those records, a declaration that the BOP is violating his due process and free speech and association rights, and an injunction prohibiting the BOP from enforcing its heightened conditions of confinement, such as the restriction on physical contact visits with family members, against him. Pl's Compl. at 35-36.

On May 13, 2010, defendant BOP filed a Motion to Dismiss or for Summary Judgment. Pursuant to Local Civil Rule 7(K), the BOP

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sent plaintiff a Roseboro notice, advising him that he was entitled to file a response opposing defendants' motion, and Royer filed his response on July 14, 2010. Neither party addressed the matter of venue in their initial briefing. However, finding that further exploration of the issue would be helpful before ruling on the Motion, this Court entered an Order on September 28, 2010 directing the parties to address the issue of whether venue is proper in this District. Royer filed his supplemental memorandum concerning venue on October 18, 2010, and the BOP filed its response on October 27, 2010.²

II. Discussion

Royer raises some very serious allegations in his Complaint. In fact, in light of arguments advanced by the BOP itself, it appears that the BOP may in fact be maintaining inaccurate information about Royer, in violation of this Court's oral order during Royer's sentencing hearing that Paragraph 42 of his Presentence Report be stricken as erroneous. Specifically, in its Motion to Dismiss or for Summary Judgment, the BOP continues to make reference to the fact that Royer fought with a Bosnian military unit known as "Abu Zubair," and improperly confuses that group with a now deceased al Qaeda operative by that same name.

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In its Motion to Dismiss or for Summary Judgment, the BOP first defends its classification of Royer as a "terrorist inmate" by...