Toolasprashad v. Bureau of Prisons

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 11, 2002 Decided April 19, 2002

No. 00-5424

Latchmie Toolasprashad,
Appellant

v.

Bureau of Prisons, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 99cv02034)

Jeffrey Raskin, Student Counsel, argued the cause as
amicus curiae on the side of appellant. With him on the
briefs were Steven H. Goldblatt, appointed by the court as
amicus curiae, and Sheri Klintworth, Student Counsel.

Latchmie Toolasprashad, appearing pro se, filed the briefs
for appellant.

 Edward D. Alkalay, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.

Before: Tatel and Garland, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: In this case, we consider whether a
prisoner's transfer and reclassification in retaliation for exer-
cising his First Amendment rights could, if proven, constitute
"adverse determinations" under the Privacy Act. Answering
yes and finding that the prisoner adequately alleges the other
elements of a Privacy Act damages claim, we reverse the
district court's dismissal and remand for further consider-
ation.

I.

"Because we review here a decision granting [a] motion to
dismiss, we must accept as true all of the factual allegations
contained in the complaint[s]." Swierkiewicz v. Sorema, 122
S.Ct. 992, 995 n.1 (2002). Viewed through that lens, the facts
are as follows:

On September 22, 1997, the Bureau of Prisons transferred
Appellant, Latchmie Toolasprashad, from the Federal Correc-
tional Institution ("FCI") in Allenwood, Pennsylvania to the
FCI in Marianna, Florida, and reclassified him as a "special
offender." Compl. p 13. According to Toolasprashad, the
Bureau based both the transfer and the reclassification deci-
sions on an internal Request for Redesignation, or transfer
memorandum, written by several FCI-Allenwood staff mem-
bers. The memorandum asserts that Toolasprashad had a
"significant documented history of harassing and demeaning
staff members" at FCI-Allenwood; that he failed "to pro-
gram properly" there; and that he demonstrated "disruptive
behavior" and "clearly disrupted the orderly running of [the]
institution." Id. Ex. 2 at 1. Calling these assertions "fabri-
cated and falsified," Id. p 4, Toolasprashad points to various

Program Review Reports and work evaluations that, he ar-
gues, demonstrate he was a model prisoner during the events
at issue here. For example, the Literacy Coordinator at
FCI-Allenwood "commend[ed]" him "for his superior work
performance ... as a GED and college tutor," observing that
he "worked meritoriously without consideration of pay or
rewards," and that he went "above and beyond his normal
work to assist others." Pl.'s Mot., Aff. & Notice to Ct. Ex. 6
at 2. In addition, a Program Review Report indicates that he
"programmed well, receiving good evaluations and displaying
positive motivation." Compl. Ex. 6 at 1.

According to Toolasprashad, the staff members' falsifica-
tion of the transfer memorandum capped a series of incidents
in which some of the same individuals "harass[ed]" and
"intimidate[d] him," ridiculed his Hindu heritage, and engi-
neered his dismissal from his job tutoring inmates in the
Institution's education department. Id. p 8; see also Am.
Compl. p 5; Pl.'s Mot., Aff. & Notice to Ct. Ex. 8 at 2
(alleging that prison "staff" called Toolasprashad "a 'rag
head,' 'cow worshipper,' and 'sand nigger' "). In response to
these incidents, Toolasprashad filed a series of administrative
grievances and contacted public officials to complain about his
treatment at FCI-Allenwood--actions he claims spurred the
offending staff members to become even more abusive and to
falsify the transfer memorandum on which the Bureau subse-
quently relied in transferring and reclassifying him.

Toolasprashad alleges that the transfer to FCI-Marianna
and reclassification as a "special offender" adversely affected
him in several ways. To begin with, he could no longer
receive regular visits from his seriously ill parents, who live in
Hollis, New York--a short drive from Allenwood, but several
days' drive from Marianna, Florida. In addition, he was
denied parole, in part because the distance made it difficult
for FCI-Allenwood "staff representatives" who would have
testified on his behalf to "come to Marianna and represent
[him] before the parole board." Compl. Ex. 3 at 4. Due to
the stress of the transfer, moreover, Toolasprashad became
severely depressed, had difficulty sleeping, and developed an
eating disorder. Finally, as a "special offender," he became

ineligible for certain jobs, including tutoring positions similar
to those he had at FCI-Allenwood.

Invoking the Privacy Act, Toolasprashad filed suit in the
United States District Court for the District of Columbia
against the Bureau of Prisons and several named Bureau
officials. Under the Act, an individual may "request amend-
ment of a record pertaining to him," 5 U.S.C. s 552a(d)(2),
and may obtain civil damages whenever an agency "intention-
al[ly] or willful[ly]" "fails to maintain any record concerning
[the] individual with such accuracy ... as is necessary to
assure fairness in any determination relating to ... the
individual[,] ... and consequently a determination is made
which is adverse to the individual," id. s 552a(g)(1)(C), (g)(4).
In his original and amended complaints, Toolasprashad re-
quested that the Bureau expunge the transfer memorandum
from his prison file and sought damages from both the
Bureau and individual staff members. The district court
granted the Bureau's motion to dismiss on the grounds that
(1) the transfer memorandum is located in the Inmate Central
Record System, which the Bureau has "properly exempted"
from the Privacy Act provision that permits requests for
amendment of flawed records, Toolasprashad v. Bureau of
Prisons, No. 99-2034, slip op. at 3 (D.D.C. June 20, 2000); (2)
"the Privacy Act does not provide a cause of action against
individual[ ]" defendants, id. at 2; and (3) Toolasprashad
could not establish two necessary elements of his damages
claim--that he was "aggrieved by an adverse [agency] deter-
mination" and that the agency acted "intentionally or willfully
in failing to maintain accurate records," id. at 4-6 (citing
Deters v. United States Parole Comm'n, 85 F.3d 655, 657
(D.C. Cir. 1996)). After filing a motion for reconsideration,
which the district court denied, Toolasprashad filed this ap-
peal.

In response to the Bureau's motion for summary affir-
mance, we affirmed the district court's dismissal of Toolas-
prashad's claim for injunctive relief and his claims against the
individual defendants. See Toolasprashad v. Bureau of Pris-
ons, No. 00-5424 at 1 (D.C. Cir. July 17, 2001) (order granting
partial summary affirmance). Observing that "[t]his court

has not yet addressed whether the transfer of a prisoner in
retaliation for the exercise of his constitutional rights could
constitute an 'adverse determination' under the Privacy Act,"
however, we denied summary affirmance with respect to
Toolasprashad's damages claim and appointed Professor Ste-
ven Goldblatt of the Georgetown University Law Center
Appellate Litigation Program as amicus to present arguments
with respect to this remaining issue. Id. at 1-2. We now
consider the issue de novo. E.g., Weyrich v. New Republic,
Inc., 235 F.3d 617, 623 (D.C. Cir. 2001).

II.

Before turning to the merits, we must address a procedural
issue, flagged by amicus, that implicates our jurisdiction: the
timeliness of the notice of appeal. Toolasprashad filed his
notice almost five months after the district court entered
judgment dismissing the original and amended complaints--
well outside the sixty-day window permitted by Federal Rule
of Appellate Procedure ("FRAP") 4(a)(1)(B). As amicus
points out, however, Toolasprashad's situation is not nearly as
dire as this suggests because seven days after the judgment
of dismissal, he filed a motion entitled "Motion Requesting an
Enlargement of Time to File a Motion and Brief for Recon-
sideration." Less than a month after the district court
granted this first motion, Toolasprashad filed the promised
motion for reconsideration, which the court denied. Because
Toolasprashad filed his notice of appeal fewer than sixty days
after the denial of his motion for reconsideration, the notice
constituted a timely appeal from that denial.

The only procedural question, then, is whether Toolas-
prashad also timely appealed the district court's underlying
dismissal. Two procedural rules govern this issue: FRAP 4,
which provides that "the time to file an appeal runs ... from
the entry of the order disposing" of a motion for relief from
judgment under Federal Rule of Civil Procedure ("FRCP")
60 "if the motion is filed no later than [ten] days ... after
the judgment is entered," Fed. R. App. P. 4(a)(4)(A)(vi) (em-
phasis added); and FRCP 6, which provides that the district

court "may not extend the time" for filing a FRCP 60 motion,
Fed. R. Civ. P. 6(b). As the latter rule makes clear, the
district court lacked authority to grant Toolasprashad's mo-
tion for enlargement of time. Thus, if we strictly applied the
rules, we could review only the district court's denial of
reconsideration because Toolasprashad filed his motion for
reconsideration outside FRAP 4's ten-day window, so his
notice of appeal from the dismissal of his complaint was
untimely.

Amicus suggests that we may avoid this procedural dilem-
ma by construing the motion for enlargement of time itself as
a FRCP 60 motion for relief from judgment, and the subse-
quent motion as a memorandum in support thereof. For
several reasons, we think this approach makes sense. First,
the former motion, which Toolasprashad filed within ten days
of the original dismissal, expressly states, "[t]his case should
not have been dismissed.... The Court erred as a matter of
law that the defendants cannot subject prisoners to 'retalia-
tion' by preparing fabricated and fictitious documents[,]" Pl.'s
Mot. Req. Enlarg. Time at 1-2. This is virtually the same
argument Toolasprashad later raised in his official motion for
reconsideration. See Mot. Req. Recons. at 25-26 ("[P]laintiff
could not be retaliated against by the [FCI-]Allenwood defen-
dants for exercising his constitutional rights to petition the
government for redress.... The evidence is clearly in favor
of plaintiff that the defendants retaliated against plaintiff and
the Court cannot ignore same."). In addition, we have an
obligation to construe pro se filings liberally, Richardson v.
United States, 193 F.3d 545, 548 (D.C. Cir. 1999), particularly
as in this case the procedural confusion arose in part because
the district court overstepped its authority in granting an
extension of time, cf. Ruggiero v. FCC, 278 F.3d 1323, 1328
(D.C. Cir. 2002) (finding that liberal construction of filings
"ma[de] particular sense" because appellant relied on this
court's procedural order in failing to submit a second petition
for review). Under this liberal construction, because Toolas-
prashad filed the motion for enlargement of time within the
ten-day period established by FRAP 4, "the time to file [his]
appeal r[an] ... from the entry of the order" denying recon-

sideration. Fed. R. App. P. 4(a)(4)(A)(vi). Accordingly, Too-
lasprashad timely appealed both the denial of reconsideration
and the underlying dismissal, and both district court decisions
are properly before us.

III.

To state a claim for money damages under the Privacy Act,
a plaintiff must assert that an agency failed to maintain
accurate records, that it did so intentionally or willfully, and
consequently, that an "adverse" "determination [wa]s made"
respecting the plaintiff. 5 U.S.C. s 552a(g)(1)(C). That is,
the plaintiff must allege: inaccurate records, agency intent,
proximate causation, and an "adverse determination." Before
turning to the "adverse determination" issue we asked amicus
to brief, we consider whether Toolasprashad's original and
amended complaints adequately allege the first three ele-
ments, keeping in mind "the accepted rule that a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

In Deters v. United States Parole Commission, we ex-
plained that analysis of the inaccurate records element of a
Privacy Act claim depends on whether the "truth" underlying
the challenged statements "is clearly provable or relatively
easily ascertainable." 85 F.3d at 658 (internal quotation
marks and citation omitted). In "typical" cases, where truth
can readily be ascertained, it is " 'feasible, necessary, and
proper, for the agency and, in turn, the district court to
determine whether each filed item of information is accu-
rate.' " Id. (quoting Doe v. United States, 821 F.2d 694, 699
(D.C. Cir. 1987) (en banc)). In contrast, in "atypical" cases,
where truth is harder to determine, "neither the agency nor
the court ... is required to 'find and record truth.' Instead,
it suffices to 'adjust [the] file equitably to reveal actual
uncertainty.' " Id. (quoting Doe, 821 F.2d at 701). Given
the posture of this case--a motion to dismiss--we neither
should nor need decide the typicality issue, however, as it

turns on the kind and sufficiency of proof. For our purposes,
it is enough that Toolasprashad challenges as false a specific
assertion in the transfer memorandum that could, depending
on the evidence, be easily ascertainable--namely, that he had
a "significant documented history of harassing and demeaning
staff members at [FCI-Allenwood]." Compl. Ex. 2 at 1
(emphasis added).

As for the issue of agency intent, we disagree with the
district court that "the record would not support a finding
that defendants acted willfully or intentionally." Toolas-
prashad, No. 99-2034, slip op. at 5. Toolasprashad alleges
that certain Bureau staff members "fabricated and falsified"
the transfer memorandum to punish him for, among other
things, filing administrative grievances. Compl. p 4. If prov-
en, retaliatory fabrication of prison records would certainly
meet Deters' definition of a willful or intentional Privacy Act
violation--a violation "so patently egregious and unlawful that
anyone undertaking the conduct should have known it unlaw-
ful." 85 F.3d at 660. It makes no difference that other
Bureau staff members, in deciding to transfer Toolasprashad,
may "have reasonably relied on the memorandum." Toolas-
prashad, No. 99-2034, slip op. at 6. Reasonable reliance by
some employees cannot immunize an agency from the Privacy
Act consequences of employing other individuals who (alleg-
edly) deliberately falsify records.

The third required element of a Privacy Act damages claim,
causation, merits even less attention. The Bureau argues
that Toolasprashad "fails to allege with any admissible evi-
dence that the allegedly inaccurate Request for Redesig-
nation was the proximate cause of his transfer." Appellees'
Br. at 35. In its district court motion to dismiss, however,
the Bureau stated just the opposite: "[P]laintiff was trans-
ferred based on the Request for Redesignation in his file."
Def.'s Mem. Supp. Mot. to Dismiss at 7. The Bureau sug-
gests no reason why it should not be held to its original
characterization of the facts, at least for purposes of this
appeal.

 Having concluded that Toolasprashad adequately asserts
the first three elements of a Privacy Act claim for damages,
we turn to the central issue in this case: whether the
Bureau's decisions to transfer and reclassify Toolasprashad in
retaliation for his filing grievances could constitute "adverse
determinations" under the Privacy Act. The Act provides
little guidance as to the intended breadth of the phrase
"determination ... adverse to the individual." We have
recognized, however, that in the prison context, "adverse
determination" denotes, at least, a decision that negatively
"affect[s an] inmate's rights...." Deters, 85 F.3d at 659. At
this early stage in the proceedings, therefore, if Toolasprash-
ad satisfactorily alleges deprivation of his constitutional
rights, his claims must survive the Bureau's motion to dis-
miss. Indeed, at oral argument, the Bureau never disputed
that, in the abstract, an allegation that an agency intentional-
ly and willfully falsified a document to violate an individual's
First Amendment rights would support a Privacy Act claim.

To determine whether Toolasprashad alleges a deprivation
of rights, we consider two questions: Was he exercising his
First Amendment rights when he filed the grievances? If so,
was the Bureau's alleged response sufficiently severe to con-
stitute actionable retaliation? The answer to the first ques-
tion is undoubtedly yes. Prisoners, as the Supreme Court
has held, retain their First Amendment "right to petition the
Government for a redress of grievances." Turner v. Safley,
482 U.S. 78, 84 (1987) (citing Johnson v. Avery, 393 U.S. 483
(1969)). This right extends not just to court filings but also
to the various preliminary filings necessary to exhaust admin-
istrative remedies prior to seeking judicial review. As the
Fifth Circuit explained, "[a]ccess to courts entails not only
freedom to file pleadings but also freedom to employ ...
those accessories without which legal claims cannot be effec-
tively asserted." Ruiz v. Estelle, 679 F.2d 1115, 1153 (5th
Cir. 1982), partially vacated on other grounds, 688 F.2d 266,
267 (5th Cir. 1982). Thus, although prison officials may limit
inmates' ability to file administrative grievances provided the
limitations are "reasonably related to legitimate penological
interests," Turner, 482 U.S. at 89, officials may not retaliate

against prisoners for filing grievances that are "truthful[ ] and
not otherwise offensive" to such interests, Crawford-El v.
Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), rev'd on other
grounds, 523 U.S. 574 (1998). On remand, of course, the
Bureau may offer any evidence tending to support its defense
that it transferred Toolasprashad because his actions were
indeed "offensive" to "legitimate penological interests."

The widely accepted standard for assessing whether
"harassment for exercising the right of free speech [is] ...
actionable"--our second question--depends on whether the
harassment is "[ ]likely to deter a person of ordinary firmness
from that exercise." Crawford-El, 93 F.3d at 826; see also,
e.g., Dawes v. Walker, 239 F.3d 489, 493 (2nd Cir. 2001)
(citing this standard); Pieczynski v. Duffy, 875 F.2d 1331,
1333 (7th Cir. 1989) ("Harassment of a public employee for
his political beliefs violates the First Amendment unless the
harassment is so trivial that a person of ordinary firmness
would not be deterred from holding or expressing those
beliefs."). We think the allegedly retaliatory reclassification
and transfer meet this standard.

To begin with, Toolasprashad claims that his reclassifica-
tion as a "special offender" prevented him from obtaining
tutoring jobs at FCI-Marianna akin to those at which he
excelled at FCI-Allenwood, see supra at 3 (citing Toolas-
prashad's work evaluations from FCI-Allenwood). In addi-
tion, he alleges that his transfer to FCI-Marianna distanced
him from his ill parents and from Bureau staff members who
could have testified on his behalf at his parole hearing. If, as
we held in Crawford-El, small "pecuniary losses ... in the
form of the costs of shipping ... boxes and replacing cloth-
ing" are sufficient to "deter a person of ordinary firmness ...
from speaking again," 93 F.3d at 826, then surely Toolas-
prashad's alleged deprivations also meet this standard.

The Bureau offers several counter-arguments, none of
which is convincing. For example, it notes that Toolasprash-
ad's "ability to exercise his First Amendment rights has not
been impaired by his transfer." Appellees' Br. at 24. This

fact, though undisputed, is immaterial. The relevant question
is not whether a transfer actually interferes with a particular
prisoner's ability to exercise his rights but whether the threat
of a transfer would, in the first instance, inhibit an ordinary
person from speaking. See Crawford-El, 93 F.3d at 826.
Equally irrelevant is the Bureau's long-recognized discretion
to decide where to house prisoners. See, e.g., Olim v. Waki-
nekona, 461 U.S. 238, 245 (1983) (holding that inmates have
no "justifiable expectation" of being "incarcerated in any
particular prison"). "[A]n ordinarily permissible" exercise of
discretion "may become a constitutional deprivation if per-
formed in retaliation for the exercise of a [F]irst [A]mend-
ment right." Crawford-El, 93 F.3d at 846 (Henderson, J.,
concurring). " 'Despite the fact that prisoners generally have
no constitutionally-protected liberty interest in being held at,
or remaining at, a given facility,' " therefore, the Bureau may
not transfer an inmate "to a new prison in retaliation for
exercising his or her First Amendment rights." Vignolo v.
Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997) (quoting Pratt
v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)). Finally, we are
unpersuaded by the Bureau's argument that because the
transfer memorandum was not binding, the document cannot
form the basis of an "adverse determination" under the
Privacy Act. The Bureau relies on a question posed in
Deters: "If [a preliminary parole assessment] is not binding
on the hearing panel, can it really be deemed an 'adverse
determination,' i.e., one affecting the inmate's rights ...?"
85 F.3d at 659. Here, though, because the Bureau trans-
ferred Toolasprashad in reliance on the transfer memoran-
dum, see supra at 8, it cannot reasonably argue the memoran-
dum had no effect on his rights.

Thus, in claiming retaliatory reclassification and transfer,
Toolasprashad asserts deprivation of his First Amendment
rights and, consequently, an "adverse determination" under
the Privacy Act. We need not reach the more difficult
question of whether reclassification or transfer would consti-
tute an "adverse determination" in the absence of a First
Amendment deprivation because the only claim before us that
the Bureau acted intentionally or willfully--a prerequisite, as

noted above, for a Privacy Act damages claim--relates to the
staff members' alleged retaliation against Toolasprashad for
exercising his First Amendment rights.

Overall, therefore, because Toolasprashad satisfactorily al-
leges inaccurate records, agency intent, proximate causation,
and an "adverse determination"--the four required elements
of a damages claim--his case survives the Bureau's motion to
dismiss. Whether he can ultimately prevail is an issue for
another day.

The judgment of the district court is reversed and this
matter is remanded for further proceedings consistent with
this opinion.

So ordered.