Hurt v. District of Columbia Court Services & Offender Supervision Agency , 827 F. Supp. 2d 16 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DONNELL HURT, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1167 (RBW)
)
DISTRICT OF COLUMBIA COURT )
SERVICES AND OFFENDER )
SUPERVISION AGENCY, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
This civil action brought pro se is on partial remand from the United States Court of
Appeals for the District of Columbia Circuit for further proceedings to address the plaintiff’s
claim brought under the improper disclosure provision of the Privacy Act, 5 U.S.C. § 552a
(2000). See Hurt v. Cromer, No. 09-5224, Order (D.C. Cir. June 11, 2010).1 At the time giving
rise to this action, the plaintiff was a parolee under the supervision of the Court Services and
Offender Supervision Agency for the District of Columbia (“CSOSA”). See Hurt v. District of
Columbia Court Services, 612 F. Supp. 2d 54, 56 (D.D.C. 2009). The remanded claim against
CSOSA2 is based on the alleged disclosure by the plaintiff’s parole officer, Keith Cromer
(“Cromer”), to the plaintiff’s then-girlfriend that he had served a prison sentence for murder. See
id. at 55.
1
On appeal from the final order issued in this action, the government conceded that
under District of Columbia Circuit precedent, an agency cannot exempt itself from the Privacy
Act’s civil liability provisions set forth at 5 U.S.C. § 552a(g) and that this Court’s dismissal on
that basis therefore was error. See Order (citing Tijerina v. Walters, 821 F.2d 789, 796-97 (D.C.
Cir. 1987)).
2
See Hurt v. District of Columbia Court Services, 612 F. Supp. 2d 54, 57 (D.D.C. 2009)
(substituting CSOSA as the real party in interest to the Privacy Act claim).
The defendant now moves for summary judgment under Fed. R. Civ. P. 56., which the
plaintiff opposes. Upon consideration of the parties’ submissions and the relevant parts of the
record, the Court will grant the defendant’s motion and enter judgment for the defendant
accordingly.
I. BACKGROUND
The relevant facts are as follows. The plaintiff was convicted in the Superior Court of the
District of Columbia for murder in the second degree while armed, grand larceny and petit
larceny, and was sentenced on May 19, 1983, to 15 to 45 years’ imprisonment. Hurt, 612 F.
Supp. 2d at 56. He was released to parole supervision on December 30, 2005, with a full-term
parole expiration date of July 1, 2039. Id.In a parole supervision report dated July 24, 2006, the plaintiff stated that he resided with
his girlfriend (“L.H.”) in the northeast quadrant of the District of Columbia. Defendant’s Motion
for Summary Judgment (“Def.’s Mot.”), Statement of Material Facts [Dkt. # 62], Exhibit (“Ex.”)
7. On August 1, 2006, parole officer Cromer met with a private investigator employed by L.H.’s
family who informed him that L.H. was “mentally challenged and liv[ing] in [an] assisted living
[facility]” that did not allow individuals who were not on the resident list to live there. Def.’s
Mot., Declaration of Keith Cromer (“Cromer Decl.”) [Dkt. # 62-16] ¶ 12. The investigator
further informed Cromer that the plaintiff had met L.H. on June 24, 2006, “on a bus, [] stayed
with her several nights,” and moved into her residence on July 15, 2006. Id. Cromer was asked
to inform the plaintiff that he should have no more contact with L.H., who, through Community
Connections of Washington, D.C., had allegedly informed the plaintiff that she did not want to
have a relationship with him and that she wanted him to move out of her residence by July 29,
2
2006. Id. ¶¶ 12, 15. The investigator gave Cromer “a letter dated July 25, 2006, which detailed
various allegations against [the plaintiff].”3 Id. ¶ 12.
On August 1, 2006, Cromer visited L.H.’s home, in part to confirm the investigator’s
statements. Id. ¶ 14. The plaintiff “answered the door, showed [Cromer] around the apartment[,]
. . . [and] introduced [Cromer] to L.H.” as his parole officer.4 Id. ¶ 15. Cromer then spoke with
L.H. alone. L.H. confirmed that she asked the plaintiff to leave the house but only because she
did not want to lose her home by allowing an unauthorized person to live there. Id. In response
to Cromer’s question as to whether the plaintiff “had been in any manner abusive to her or had
threatened her[,] L.H. indicated that [the plaintiff] had not been abusive or threatening.” Rather,
“[s]he said that [the plaintiff] had been kind to her.” Id. In response to L.H.’s question as to
whether the plaintiff was on parole for a murder conviction, Cromer allegedly confirmed that the
plaintiff was on parole but told her that she should discuss with the plaintiff why he was on
parole.5 Id. Allegedly, “L.H. responded that she just wanted [the plaintiff] out of her house and
wanted no further contact with him.” Id. That was the only conversation Cromer had with L.H.
Id. ¶ 17.
3
The Court will not repeat those allegations because they are impermissible hearsay,
disputed by the plaintiff and L.H., and immaterial to resolving the issue at hand.
4
The plaintiff disputes that he introduced Cromer to L.H. as his “parole officer . . .
because that’s not his title.” Plaintiff’s Response to Defendant’s Motion for Summary Judgment
(“Pl.’s Opp’n”), Declaration of Donnell Hurt [Dkt. # 67-2] ¶ 4. He also disputes that
“Community Connections . . . directed [him] to leave [L.H.’s] apartment” and states that “Mr.
Cromer has never encouraged me to advise my girlfriend . . . about the nature of or details of my
offense.” Id. ¶ 8.
5
According to L.H., “Mr. Keith Cromer did tell me about Donnell Hurt being in prison
for killing someone.” Pl.’s Opp’n, Exhibit 5, Declaration of [L.H.] [Dkt. # 67-1] ¶ 6.
3
On August 2, 2006, the plaintiff met with Cromer at his office. The plaintiff informed
Cromer that he was no longer living with L.H. “because he was asked to leave by L.H.,” and that
he was essentially homeless. Id. ¶ 19. In the instant lawsuit, the plaintiff seeks $10 million in
damages. Hurt, 612 F. Supp. 2d at 55.
II. DISCUSSION
1. Legal Standard
To grant a motion for summary judgment under Federal Rule of Civil Procedure 56, a
court must find that “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When ruling on a motion for summary judgment, “the court must draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000) (citations omitted). Here, the defendant has the burden of demonstrating the
absence of a genuine issue of material fact, and that the plaintiff “fail[ed] to make a showing
sufficient to establish the existence of an element essential to [his] case, and on which [he] will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In responding to a summary judgment motion, the plaintiff “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the plaintiff must not rely on
“mere allegations or denials . . . but . . . must set forth specific facts showing that there [are]
genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (internal quotation marks and citation
4
omitted) (second omission in original). Thus, “[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Id. at 249–50 (citations omitted).
2. Analysis
“The Privacy Act regulates the collection, maintenance, use, and dissemination of
information about individuals by federal agencies [and] authorizes civil suits by individuals . . . .
whose Privacy Act rights are infringed.” Wilson v. Libby, 535 F.3d 697, 707 (D.C. Cir. 2008)
(citations and internal quotation marks omitted). It prohibits a federal agency from disclosing
“any record . . . contained in a system of records by any means of communication to any person”
without the subject’s permission, save exceptions not applicable to this case. 5 U.S.C. § 552a(b).
Subsection(g)(1)(D) of the Privacy Act authorizes civil remedies against an agency that
“fails to comply with [the disclosure provision],” and subsection (g)(4) provides for monetary
damages of no less than $1,000, costs and attorneys’ fees where the agency is shown to have
acted intentionally or willfully. See Doe v. FBI, 936 F.2d 1346, 1350 (D.C. Cir. 1991); accord
Maydak v. U.S., 630 F.3d 166, 177-78 (D.C. Cir. 2010). Thus, an agency may be held liable for
“actual damages sustained by the individual as a result of the refusal or failure” where the agency
has failed to comply with any other provision “in such a way as to have an adverse effect on an
individual.” 5 U.S.C. § 552a(g)(1)(D); Maydak, 630 F.3d at 178 (“Plaintiffs seeking relief must
establish that (1) the agency violated a provision of the Act, (2) the violation was ‘intentional or
willful,’ . . . and (3) the violation had an ‘adverse effect’ on the plaintiff.”) (quoting § 552(a)
(g)(4), (g)(1)(D)). “The plaintiff must allege ‘actual damages’ connected to the adverse effect to
‘qualify’ under the Act.” Doe v. U.S. Dep’t of Justice, 660 F. Supp. 2d 31, 49 (D.D.C. 2009)
(quoting Doe v. Chao, 540 U.S. 614, 620-27 (2004)).
5
Whether Cromer disclosed to L.H. that the plaintiff was on parole for murder is a
materially disputed fact that cannot be resolved at the summary judgment stage. See Cromer
Decl. ¶ 15 (stating that he “confirmed that [the plaintiff] was on parole, but told L.H. that she
should discuss with Hurt what he was on parole for.”); Plaintiff’s Response to Defendant’s
Motion for Summary Judgment (“Pl.’s Opp’n”) [Dkt. # 67], Ex. 5, Declaration of [L.H.] [Dkt.
# 67-1] ¶ 6 (“Mr. Keith Cromer did tell me about Donnell Hurt being in prison for killing
someone.”). However, even if the plaintiff is able to prove that the disclosure was made, the
plaintiff’s Privacy Act claim nevertheless would fail in regards to the elements of intent and
causation.
A. Intentional or Willful Conduct
The intent element of a Privacy Act damages claim is a high hurdle to clear. Thus, “a
violation of the statute ‘must be so patently egregious and unlawful that anyone undertaking the
conduct should have known it unlawful.’ ” Maydak, 630 F.3d at 179 (quoting Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007)) (other citation omitted). “‘Intentional or
willful’ means: ‘somewhat greater than gross negligence, or, an act committed without grounds
for believing it to be lawful, or by flagrantly disregarding others' rights under the Act.’” Id.(quoting Waters v. Thornburgh, 888 F.2d 870, 875 (D.C. Cir. 1989), abrogated on other grounds
by Doe v. Chao, 540 U.S. 614 (2004)) (alterations omitted). To survive the defendant’s summary
judgment motion as to this element of a Privacy Act claim, the plaintiff must “proffer evidence
that the Government’s actions” rose to the level of the foregoing standard. Id. at 180.
Both Cromer and his supervisor, Marie Asike, state that they believed that under
CSOSA’s policy they could disclose public information, such as the plaintiff’s conviction, to a
6
third party without running afoul of the Privacy Act. Cromer Decl. ¶ 21; Declaration of Marie
Asike [Dkt. # 62-15] ¶ 5. The defendant has provided CSOSA’s policy, effective October 2,
2000, governing the agency’s disclosure obligations under the “Freedom of Information/Privacy
Act.” Def.’s Mot., Exhibit 12 (“Policy”). The Policy lists a parolee’s name and “Offense of
Conviction” among information “[t]he U.S. Parole Commission considers . . . to be public.”6 Id.
at 15.
The plaintiff has not proffered any evidence to contradict Cromer’s and Asike’s
reasonable reliance on the policy, and it has been made clear that the Privacy Act's “‘intentional
or willful’ element cannot be satisfied with mere speculation . . . .” Maydak, 630 F.3d at 180.
Furthermore, “[i]f the official’s knowledge of the disclosed information derives from sources that
are not protected ‘records,’ [e.g., public records][,] then the disclosure rarely implicates the
Privacy Act.” Hurt, 612 F. Supp. 2d at 58 (quoting Mulhern v. Gates, 515 F. Supp. 2d 174, 182
(D.D.C. 2007)).
Based on the record in this case, the Court determines that no reasonable jury presented
with the defendant’s unrefuted evidence could find a violation of the Privacy Act arising from the
alleged disclosure of the plaintiff’s conviction, which is a matter of public record. Therefore, the
defendant is entitled to summary judgment based on the intent element of the plaintiff’s claim.
See Velikonja v. Mueller, 362 F. Supp. 2d 1, 18 (D.D.C. 2004) (“Summary judgment is proper
where the agency presents evidence explaining its conduct and its grounds for believing its action
to be lawful.”) (citing Laningham v. United States Navy, 813 F.2d 1236, 1243 (D.C. Cir. 1987)).
6
“The United States Parole Commission . . . released the plaintiff to parole . . . under the
supervision of [CSOSA].” Hurt, 612 F. Supp. 2d at 56.
7
B. Causation
Because summary judgment is warranted on the intent issue, the Court need not address
the causation element. However, it is clear from the record that the plaintiff cannot show that the
alleged improper disclosure on August 1, 2006, resulted in his homelessness, see Pl.’s Opp’n at
7, because it is obvious that the decision for him to leave L.H.’s residence by July 29, 2006, was
made before the alleged disclosure. See Cromer Decl. ¶ 12; Pl.’s Opp’n, Ex. 3 (July 25, 2006
Letter to Cromer from ACHS Investigations, LLC).6 Accordingly, the defendant is also entitled
to summary judgment based on the plaintiff’s inability to prove this element.
III. CONCLUSION
For the foregoing reasons, the Court concludes that because the plaintiff cannot establish
all of the elements of his Privacy Act claim, judgment must be awarded to the defendant.7
________s/________________
REGGIE B. WALTON
Date: December 8, 2011 United States District Judge
6
The plaintiff also alleges that after the disclosure to L.H., their relationship “was
devastated and destroyed,” causing him to suffer “mental anguish, psychological pains and
suffering . . . .” Pl.’s Opp’n at 7. Even if the plaintiff could prove a violation of the Privacy Act,
he could not recover monetary damages for the injuries he contends he sustained resulting from
the dissolution of his relationship with L.H.. See Gamble v. Dep’t of Army, 567 F. Supp. 2d 150,
156 (D.D.C. 2008) (citing Doe v. Chao, 540 U.S. 614, 620-25 (2004) (“holding that emotional
anguish alone is insufficient, and that a plaintiff must show actual damages to recover under the
Privacy Act.”); Doe v. U.S. Dep’t of Justice, 660 F. Supp. 2d 31, 49 (D.D.C. 2009) (the “plaintiff
‘must establish not only that he was ‘adversely affected’ by the improper disclosure, but also that
he suffered ‘some harm for which damages can reasonably be assessed.’ ”) (citations omitted);
see also Doe v. Chao, 306 F.3d 170, 180 (4th Cir. 2002) (“An award of compensatory emotional
distress damages [under the Privacy Act] requires evidence establish[ing] that the plaintiff
suffered demonstrable emotional distress, which must be sufficiently articulated; neither
conclusory statements that the plaintiff suffered emotional distress nor the mere fact that a . . .
violation occurred supports an award of compensatory damages.”) (footnote, citation and internal
quotation marks omitted; second alteration in original).
7
A separate Order accompanies this Memorandum Opinion.
8