Vaden v. United States Department of Justice , 79 F. Supp. 3d 207 ( 2015 )


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  •                        UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ___________________________________
    )
    MICHAEL VADEN,                      )
    )
    Plaintiff,        )
    v.                            )        Civil Action No. 14-0234 (TSC)
    )
    U.S. DEPARTMENT OF JUSTICE,         )
    )
    Defendant.        )
    ___________________________________ )
    MEMORANDUM OPINION
    This matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 10) and
    Plaintiff’s Motion for Summary Judgment (ECF No. 12). 1 For the reasons discussed below, the
    complaint and this civil action will be dismissed.
    I. BACKGROUND
    Plaintiff, who had been “sentenced in the Superior Court [of] the District of Columbia,”
    is in the custody of the Federal Bureau of Prisons (“BOP”) after having violated the conditions of
    his parole release. Plaintiff’s Motion for Summary Judgment (“Pl.’s Mot. for Summ. J.”) at 2.
    He “is . . . currently confined at the United States Penitentiary – II at the Federal Correctional
    Complex, in Coleman, Florida.” Defendant’s Memorandum of Points and Authorities in Support
    of Motion to Dismiss (“Def.’s Mem.”), Declaration and Certification of Records by Caixa Santos
    (“Santos Decl.”) ¶ 5.
    According to plaintiff, on July 1, 2013, he became aware of “custody classification points
    contained within [his] male custody classification form[,] specifically the inconsistencies
    1
    The Court denies Plaintiff’s Motion for Summary Judgment and instead construes it as his
    opposition to Defendant’s Motion to Dismiss.
    1
    regarding various miss[c]ored subjects.” Complaint (“Compl.”), Attachment (“Attach.”) at 1. 2
    He contended that his base score, custody score, variance score and total score had been
    calculated incorrectly, and that “the public safety factor [assigned to him] should have been
    waived,” 
    id., Attach. at
    1 (page numbers designated by plaintiff). 3 Plaintiff alleges that the BOP
    has “intentionally and willfully miscal[culated] points in [his] male custody classification form,”
    
    id. at 5,
    such that he is designated to a more secure facility than is warranted, see Pl.’s Mot. for
    Summ. J. at 2. 4
    Plaintiff brings this action under the Privacy Act, see 5 U.S.C. § 552a, alleging that the
    BOP fails to maintain its records pertaining to him with the level of accuracy, see Compl.,
    Attach. at 3, required under 5 U.S.C. § 552a(e)(5). He contends that, as a result, the BOP has
    2
    “Custody classification” is the process by which the BOP “assign[s] a custody level based on
    an inmate’s criminal history, instant offense, and institutional adjustment.” Def.’s Mem., Ex. 3
    (Program Statement 5100.08, Inmate Security Designation and Custody Classification
    (9/12/2006) (“P.S. 5100.08”)), ch. 2, p. 2; see P.S. 5100.08, ch. 6, p. 1. An inmate’s “custody
    level (i.e., COMMUNITY, OUT, IN, and MAXIMUM) dictates the degree of staff supervision
    required for an individual inmate.” P.S. 5100.08, ch. 2, p. 2 (bold type in original).
    3
    A Public Safety Factor (“PSF”) is applied to an inmate whose “demonstrated behaviors . . .
    require security measures to ensure the protection of society.” P.S. 5100.08, ch. 2, p. 4.
    “[A]pplication of a PSF overrides security point scores to ensure the appropriate security level is
    assigned to an inmate based on his . . . demonstrated current or prior behavior.” 
    Id. 4 The
    term “security level” describes:
    the structural variables and inmate-to-staff ratio provided at the various types of
    [BOP] institutions [and] identifies the institution type required to house inmates
    based on their histories, institutional adjustment, and Public Safety Factors as well
    as the physical security of the institution to include mobile patrols, gun towers,
    perimeter barriers, housing, detection devices, inmate-to-staff ratio, and internal
    security.
    P.S. 5100.08, ch. 2, p. 5. “[BOP] institutions are classified into one of five security levels:
    MINIMUM, LOW, MEDIUM, HIGH, and ADMINISTRATIVE based on the level of
    security and staff supervision the institution is able to provide.” P.S. 5100.08, ch. 1, p. 1 (bold
    type in original).
    2
    made a determination adverse to him in reliance on its records, Compl., Attach. at 4. Plaintiff
    demands injunctive relief through correction of the allegedly inaccurate records and designation
    “to the appropriate security level facility.” 
    Id. at 5.
    He also demands monetary damages. Id.;
    see 
    id., Attach. at
    5.
    II. DISCUSSION
    A. Plaintiff’s Failure to Exhaust Administrative Remedies Does Not Bar This Action
    Defendant moves to dismiss the complaint on the ground that plaintiff failed to
    exhaust his administrative remedies prior to filing this action as is required under the Prison
    Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e(a). See generally Def.’s Mem. at 3-6.
    In relevant part, the Prison Litigation Reform Act provides that:
    [n]o action shall be brought with respect to prison conditions under
    section 1983 of this title, or any other Federal law, by a prisoner
    confined to any jail, prison, or other correctional facility until such
    administrative remedies as are available are exhausted.
    42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and “applies to all prisoners
    seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 
    534 U.S. 516
    , 520
    (2002); see Jones v. Bock, 
    549 U.S. 199
    , 211 (2007). It requires proper exhaustion, meaning that
    a prisoner must comply with procedural rules, including filing deadlines, as a precondition to
    filing a civil suit in federal court, regardless of the relief offered through the administrative
    process. See Woodford v. Ngo, 
    548 U.S. 81
    , 85 (2006); Booth v. Churner, 
    532 U.S. 731
    , 741
    (2001). Thus, a prisoner may file a civil action concerning conditions of confinement under
    federal law only after he has exhausted the prison’s administrative remedies. See Jackson v.
    District of Columbia, 
    254 F.3d 262
    , 269 (D.C. Cir. 2001). Exhaustion under the PLRA is not a
    jurisdictional requirement, however. See 
    Jones, 549 U.S. at 216
    ; 
    Woodford, 548 U.S. at 101
    . It
    is instead an affirmative defense, 
    Jones, 549 U.S. at 216
    , which a defendant must plead and
    3
    prove, Brengettcy v. Horton, 
    423 F.3d 674
    , 682 (7th Cir. 2005) (quoting Dale v. Lappin, 
    376 F.3d 652
    , 655 (7th Cir. 2004)); see Albino v. Baca, 
    646 F.3d 1162
    , 1171 (9th Cir.), cert. denied,
    
    135 S. Ct. 403
    (2014).
    An inmate first must “present[] an issue of concern informally to staff, and staff shall
    attempt to informally resolve the issue before an inmate submits a Request for Administrative
    Remedy.” 28 C.F.R. § 542.13(a). “The [BOP] makes available a three level administrative
    remedy process should informal resolution procedures fail to achieve sufficient results, under
    which an inmate may seek formal review of an issue relating to any aspect of his/her own
    confinement.” Santos Decl. ¶ 3 (internal quotation marks omitted). The declarant describes the
    process as follows:
    The first level of administrative remedy process review is begun by
    filing a Request for Administrative Remedy at the institution
    where the inmate is incarcerated. Should the inmate’s complaint
    be denied at the institution level, the inmate may appeal by filing a
    Regional Administrative Remedy Appeal with the Regional Office
    for the geographic region in which the inmate’s institution of
    confinement is located. For an inmate at FCC Coleman, this
    appeal would be filed with the Southeast Regional Office of the
    BOP in Atlanta, Georgia (“SERO”). If the Regional Office denies
    relief, the inmate can appeal to the Office of General Counsel via a
    Central Office Administrative Remedy Appeal. This is the third
    and final step of the process.
    
    Id. Plaintiff states
    that he became aware of the alleged miscalculation of custody
    classification points on July 1, 2013, see Compl., Attach. at 1, and that he submitted an informal
    resolution request on the following day, see 
    id., Ex. (Informal
    Resolution Form dated July 2,
    2013). The BOP’s regulations provide that the deadline for completion of an informal resolution
    and submission of a formal written Administrative Remedy Request on the appropriate form
    (“BP-9”) to the Warden is 20 days from the date on which the underlying event occurred. 28
    4
    C.F.R. § 542.14(a). Thus, plaintiff’s deadline for submission of a formal Administrative
    Remedy Request would have fallen on or about July 21, 2013.
    According to plaintiff, he had not “received a response within the . . . time provision,”
    and therefore he filed his formal written Administrative Remedy Request to the Warden on July
    22, 2013. Pl.’s Mot. for Summ. J., Ex. 1 (Request for Administrative Remedy, Case Number
    743584-F1 dated July 22, 2013). The Warden rejected the claim on the grounds that plaintiff
    “did not submit [his] request through [his] counselor or other authorized person,” and that he
    “did not attempt informal resolution prior to submission of [the] administrative remedy” request.
    
    Id., Ex. 1
    (Rejection Notice – Administrative Remedy dated July 24, 2013 regarding Remedy ID
    743584-F1). Undaunted, plaintiff pursued an appeal to the Regional Office, 
    id., Ex. 1
    (Regional
    Administrative Remedy Appeal dated August 21, 2013), which rejected the appeal on the ground
    that plaintiff did not “first file a BP-9 request through the institution for the warden’s review and
    response,” 
    id., Ex. (Rejection
    Notice – Administrative Remedy dated August 27, 2013 regarding
    Remedy ID 743584-R1). Similarly, plaintiff’s appeal to the BOP’s Central Office, 
    id., Ex. 1
    (Central Office Administrative Remedy Appeal dated September 23, 2013), was rejected on the
    ground that plaintiff had “submitted [his] request to the wrong level,” 
    id., Ex. 1
    (Rejection
    Notice – Administrative Remedy dated October 28, 2013 regarding Remedy ID 743584-A1).
    According to the Administrative Remedy Coordinator, plaintiff should have filed a BP-9 at the
    institution for the Warden’s review and response before filing an appeal. 
    Id. Meanwhile, on
    August 23, 2013, plaintiff received a response to his informal remedy
    request at which time his counselor issued him a BP-9 form. See 
    id., Ex. 1
    (Informal Resolution
    Form). On September 13, 2013, plaintiff submitted a second formal written Administrative
    Remedy Request regarding his custody classification score, see 
    id., Ex. 4
    (Request for
    5
    Administrative Remedy, Case Number 750131-F1 dated September 13, 2013), which was
    rejected as untimely because plaintiff had not submitted the request within 20 calendar days of
    the date of the matter about which he complained, 
    id., Ex. 4
    (Rejection Notice – Administrative
    Remedy, Remedy ID 750131-F1, dated September 18, 2013).
    Defendant asserts that plaintiff filed his first formal written administrative remedy
    request prematurely, “before he even heard back regarding the outcome of informal resolution.”
    Def.’s Mem. at 2. Thus, defendant contends, the BOP was “correct in denying [p]laintiff’s
    administrative remedy request and subsequent related appeals because he did not wait for the
    outcome of informal resolution before filing those appeals.” 
    Id. at 3.
    Therefore, defendant
    argues, this “case should be dismissed” because plaintiff “has not properly exhausted his
    administrative remedies regarding his custody classification points.” 
    Id. Although plaintiff
    had not exhausted his administrative remedies prior to the filing of
    this lawsuit, dismissal is not warranted under the circumstances of this case. Plaintiff ably
    demonstrates his efforts to comply with the applicable regulations and filing deadlines. He
    shows that he timely submitted an informal remedy request on July 2, 2013, that he did not
    receive a timely response from his correctional counselor, and that he attempted to meet the 20-
    day deadline by filing his first formal written Administrative Remedy Request on July 22, 2013.
    He further demonstrates his attempt to file a second formal written Administrative Remedy
    Request upon receipt – weeks later than the regulations allow – of the response to his informal
    remedy request. The Court finds that plaintiff’s failure to exhaust administrative remedies
    occurred through no fault of his own, and defendant’s motion to dismiss on this basis will be
    denied.
    6
    B. Plaintiff Fails to State a Privacy Act Claim Upon Which Relief Can Be Granted
    According to plaintiff, the BOP is relying on information contained in his presentence
    investigation report (“PSI”) that either is incorrect or is misinterpreted, yet still was factored into
    the scores for purposes of determining his custody classification and security level. See
    generally Plaintiff’s Opposition to Motion to the [Defendant’s] Motion to Dismiss (“Pl.’s
    Opp’n”) at 1-3. As a result, plaintiff claims that he has been “place[d] in a higher security
    institution for a violation of parole when if corrected [he] should have been scored for a medium
    custody institution,” Pl.’s Mot. for Summ. J. at 9, and thus has been placed in a “more hostel
    [sic] environment and life threaten[ing] situation [as] oppose[d] to being housed in a lesser
    security” facility. 
    Id. at 11.
    Generally, “[t]he Privacy Act regulates the collection, maintenance, use, and
    dissemination of information about individuals by federal agencies.” Wilson v. Libby, 
    535 F.3d 697
    , 707 (D.C. Cir. 2008) (internal quotation marks and citations omitted). An individual may
    request access to and amendment of an agency’s records or information in a system of records
    pertaining to him. See 5 U.S.C. § 552a(d). That individual may file a civil action against an
    agency which “makes a determination . . . not to amend [the] record in accordance with his
    request.” 
    Id. § 552a(g)(1)(A).
    The Privacy Act also 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 fairness to the individual in
    the determination.” 
    Id. § 552a(e)(5).
    An individual may file a civil action if an agency:
    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
    7
    consequently a determination is made which is adverse to the
    individual.
    
    Id. § 552a(g)(1)(C).
    If the Court determines that the agency’s actions were willful or intentional,
    it may award actual damages sustained by the individual as a result of the agency’s failure to
    maintain its records with the requisite level of accuracy, costs of the action and attorney fees. 
    Id. § 552a(g)(4).
    “The agency obligations created by the Privacy Act are not absolute, however.” Meyer v.
    Fed. Bureau of Prisons, 
    940 F. Supp. 9
    , 134 (D.D.C. 1996). 5 BOP regulations, for example,
    exempt the Inmate Central Records System (JUSTICE/BOP-005) from subsections (d) and (g) of
    the Privacy Act. See 28 C.F.R. § 16.97(a)(1), (4). An inmate’s custody classification form is
    part of his Inmate Central File. See BOP Program Statement 5800.11, Inmate Central File,
    Privacy Folder and Parole Mini-Files (12/31/1997) at 5, 7. Consequently, insofar as plaintiff
    demands amendment under subsection (d) of any record maintained in the Inmate Central File –
    including a custody classification form – such relief is unavailable under subsection (g). See
    White v. U.S. Prob. Office, 
    148 F.3d 1124
    , 1125 (D.C. Cir. 1998) (per curiam) (holding that
    appellant is “barred from seeking amendment of his presentence report” because “presentence
    reports and BOP inmate records systems are exempt from the amendment provisions of the
    5
    An agency head may promulgate regulations to exempt a system of records from any part of
    the Privacy Act other than subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9),
    (10), and (11), and (i), 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 . . . 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).
    8
    [Privacy] Act”); Jennings v. Fed. Bureau of Prisons, 
    657 F. Supp. 2d 65
    , 71 (D.D.C. 2009)
    (“Insofar as plaintiff demands amendment of any record maintained in the Inmate Central Files
    system, that is, amendment of the PSI, custody classification form, or security designation form,
    this relief . . . is unavailable.”); Register v. Lappin, No. 07-CV-136, 
    2007 WL 2020243
    , at *3
    (E.D. Ky. July 6, 2007) (“[A]ll information pertaining to [a prisoner’s] security level and custody
    classification [is] maintained in the Inmate Central Records System, a system which has been
    exempted from subsections (d),(e)(5) and (g) of the Privacy Act by regulation.”).
    In addition, regulations exempt the Inmate Central Records System from subsection
    (e)(5). See 28 C.F.R. § 16.97(j); see also 28 C.F.R. § 16.97(k)(2). Because the BOP exempts the
    Inmate Central Records System from the substantive provision regarding the agency’s
    recordkeeping obligations, there no longer is a remedy under the Privacy Act for harm resulting
    from inaccuracies in the inmate records. See Flores ex rel. Estate of Flores v. Fox, 394 F. App’x
    170, 172 (5th Cir. 2010) (per curiam) (denial of motion to amend complaint “to name the agency
    as the proper defendant” to Privacy Act suit for damages “would have been futile because in
    2002, the BOP promulgated regulations exempting its Inmate Central Records System from §
    552a(e)(5) and from § 552a(g), the civil remedies provision”), cert. denied, 
    131 S. Ct. 1797
    (2011); Martinez v. Bureau of Prisons, 
    444 F.3d 620
    , 624 (D.C. Cir. 2006) (per curiam)
    (upholding dismissal of Privacy Act claims against BOP which had “exempted its Inmate Central
    Record System from the accuracy provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5)”); Earle
    v. Holder, 
    815 F. Supp. 2d 176
    , 181-82 (D.D.C. 2011) (“It is settled that inmate records
    maintained by BOP, including presentence reports, have been exempted from the Privacy Act’s
    accuracy and amendment requirements (subsections (d) and (e)(5)) and from its damages
    provision (subsection (g)).”), aff’d, No. 11-5280, 
    2012 WL 1450574
    , at *1 (D.C. Cir. Apr. 20,
    9
    2012); Conklin v. U.S. Bureau of Prisons, 
    514 F. Supp. 2d 1
    , 6 (D.D.C. 2007) (concluding that
    “plaintiff effectively is barred from obtaining any remedy, including damages, under subsection
    (g), for the BOP’s alleged failure to maintain records pertaining to him with the mandated level
    of accuracy”).
    III. CONCLUSION
    Defendant’s motion to dismiss will be denied in part because plaintiff’s failure to
    exhaust his administrative remedies does not bar this action. However, the motion will be
    granted in part because plaintiff’s complaint fails to state a Privacy Act claim upon which relief
    can be granted. Plaintiff’s motion for summary judgment will be denied. An Order accompanies
    this Memorandum Opinion.
    DATE: February 9, 2015                           /s/
    TANYA S. CHUTKAN
    United States District Judge
    10