UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AINSWORTH C. JACKSON, :
:
Plaintiff, :
:
v. : Civil Action No. 08-408 (RWR)
:
FEDERAL BUREAU OF PRISONS et al., :
:
Defendants. :
MEMORANDUM OPINION
Plaintiff Ainsworth C. Jackson, a prisoner under federal sentence when he filed this pro se
action, asserts Privacy Act and constitutional claims against the Federal Bureau of Prisons
(“BOP”), Geo Group, Inc. (“GEO”), a private corporation under contract with the BOP to
provide prison facilities and management, and several individual employees of BOP and GEO in
both their official and personal capacities. All parties have filed dispositive motions, which are
fully briefed. For the reasons explained below, the complaint will be dismissed.
FACTUAL BACKGROUND
Jackson, convicted on federal felony charges of interstate transportation of securities taken
by fraud, see Compl., Ex. B. at 11, was imprisoned in Rivers Correctional Institution (“Rivers”)
at Winton, North Carolina, operated by GEO. The complaint alleges that Jackson’s presentence
report contains erroneous information about a prior arrest and conviction, that prison authorities
at Rivers and the BOP rejected his repeated requests to correct the error. Id. at 3-4. On this
basis, the complaint asserts claims for damages under the Privacy Act. The complaint also
alleges that prison authorities relied on the inaccurate records as a premise to obtain a DNA
sample from Jackson in January 2008 for inclusion in the federal Combined DNA Index System.
Id. at 4. On this basis, the complaint asserts claims for alleged violation of the plaintiff’s Fourth
and Fifth Amendment rights. By amendment to his complaint, Jackson also alleged a civil
conspiracy among the prison authorities to effect the alleged violations. See Pl.’s [Second] Mot.
to Amend (May 15, 2008).
The federal defendants have filed a motion to dismiss or, in the alternative, for summary
judgment. The non-federal defendants have moved to dismiss the claims against them for lack of
personal jurisdiction. The plaintiff has moved for summary judgment.
DISCUSSION
On a motion to dismiss, a pro se complaint is to be liberally construed in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520 (1972). In determining whether a complaint fails
to state a claim upon which relief may be granted, a court generally “must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“grant plaintiffs the benefit of all inferences that can be derived from the facts alleged,” but need
not accept either a plaintiff’s legal conclusions, or inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint. Kowal v. MCI Communications
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).
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A. Privacy Act Claims
A plaintiff can maintain Privacy Act claims against only federal agencies, and not against
any individuals or private corporation. See 5 U.S.C. §§ 552a(g)(1) (authorizing suit against a
federal agency), § 552a(f)(1) (defining federal agency); see also Ramirez v. Dep’t of Justice, 594
F. Supp. 2d 58, 61 (D.D.C. 2009) (concluding that individuals are not liable under the Privacy
Act). In other words, of all the defendants identified in this suit, only the BOP is subject to a
Privacy Act claim. The BOP has, in accordance with the law, see 5 U.S.C. § 552a(j)(2),
exempted its Inmate Central Records System from certain provisions of the Privacy Act,
including the provision that requires it to maintain accurate records or to amend inaccurate
records, and from suits arising from inaccurate records. See 28 C.F.R. § 16.97(a)(4) (exempting
the Inmate Central Records System); see also Martinez v. BOP, 444 F.3d 620 (D.C. Cir. 2006)
(affirming that the Inmate Central Records System is exempt from the Privacy Act provisions).
The record at issue, Jackson’s presentence report, is part of the Inmate Central Records System,
and therefore, not a record as to which the BOP may be sued. Thus, the Privacy Act claims will
be dismissed for failure to state a claim against these defendants upon which relief may be
granted.
B. Constitutional Claims
As an agency of the federal government, the BOP enjoys sovereign immunity from a suit
for damages for constitutional violations. F.D.I.C. v. Mayer, 510 U.S. 471, 486 (1994). The
same is true for federal agents sued in their official capacities, because a suit against a federal
agent in his official capacity is the equivalent of a suit against the United States. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). Thus, the constitutional claims against the BOP and any
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individual federal agent acting in his official capacity must be dismissed for lack of subject
matter jurisdiction. There is also no private right of action for damages against the private
corporate entity, GEO, for alleged constitutional violations. See Correctional Services Corp. v.
Malesko, 534 U.S. 61, 63 (2001) (declining to extend Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), to allow recovery against a private corporation
operating a halfway house under contract with the BOP). Therefore, the constitutional claims
against GEO will be dismissed for failure to state a claim upon which relief may be granted.
Individual federal agents are subject to suit in their personal capacities under Bivens for
damages for certain constitutional violations. The pro se complaint does not suggest a theory of
liability for the individual employees of GEO, but if the GEO employees are liable at all for
constitutional violations — an issue that is not decided here — it is under the theory that they
acted as federal agents. See United States v. Classic, 313 U.S. 299, 326 (1941) (“[P]ower
possessed by virtue of . . . law and made possible only because the wrongdoer is clothed with the
authority of . . . law is action taken ‘under color of’ . . . law.”); Browning v. Clinton, 292 F.3d
235, 250 (D.C. Cir. 2002) (stating that a Bivens claim must show that defendants acted under
color of federal law).
The collection of a sample of plaintiff’s DNA is authorized by statute. See 42 U.S.C.
§ 14135a. That law was last amended in 2006, well before the plaintiff was required to provide a
DNA sample. The law authorizes the collection of DNA from any person in the custody of the
BOP that has been convicted of a felony. See 42 U.S.C. § 14135a(a)(1)(B), (d)(1). The record
establishes unequivocally that the plaintiff was convicted of a felony and was in the custody of
the BOP. Courts have repeatedly found that this statute is not contrary to the constitution. See
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Kaemmerling v. Lappin, 553 F.3d 669, 685-86 (D.C. Cir. 2008) (holding, in part, that the statute
does not offend the Fourth Amendment protection against unreasonable search and seizure or the
Fifth Amendment Due Process or Equal Protection guarantees); Johnson v. Quander, 440 F.3d
489, 498 (D.C. Cir. 2006) (holding that accessing an individual’s stored DNA records after the
individual has completed his sentence is not a search for Fourth Amendment purposes); see also
United States v. Weikert, 504 F.3d 1, 18 (1st Cir. 2007) (holding that the statute did not violate
Fourth Amendment); id. at 8-9 (collecting cases). Given the facts alleged in the complaint and
the law, the plaintiff cannot prevail on his implied Bivens claims that his Fourth and Fifth
Amendment protections were violated by the collection of his DNA sample or by its continued
storage in the national DNA database. Thus, the plaintiff’s constitutional claims against the
individual defendants in their personal capacities will also be dismissed for failure to state a
claim upon which relief may be granted. Because the complaint does not state a claim for
constitutional violations, it also does not state a claim for conspiracy to violate the plaintiff’s
constitutional rights, and the conspiracy claim will also be dismissed.
CONCLUSION
The constitutional claims against the BOP and the official capacity suits against the
individual federal agents are barred by sovereign immunity and will be dismissed for lack of
subject matter jurisdiction. All other claims against all other defendants will be dismissed for
failure to state a claim upon which relief may be granted. A separate order accompanies this
memorandum opinion.
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SIGNED this 28th day of September, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge
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