Ramirez v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JESSE RAMIREZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-2226 (RWR)
)
DEPARTMENT OF JUSTICE, et al., )
)
Defendants. )

MEMORANDUM OPINION

Plaintiff brings this action under the Privacy Act, 5 U.S.C. § 552a, against the United

States Department of Justice and several of its components, a United States Probation Office, and

individual officials and employees of those entities. The defendants have moved to dismiss, or in

the alternative, for summary judgment. For the reasons discussed below, defendants’ motions

will be granted.

I. BACKGROUND

Plaintiff currently is in the custody of the Federal Bureau of Prisons (“BOP”) serving life

sentences imposed by the United States District Court for the Western District of Texas, San

Antonio Division. See Memorandum of Points and Authorities in Support of Defendants’

Motion to Dismiss and, in the Alternative, for Summary Judgment (“Defs.’ Mot.”), Ex. 5 (Public

Information Inmate Data as of 05-20-2008) at 2 & Ex. 6 (criminal docket, United States v.

Ramirez, No. 05-cr-00621-FB-3 (W.D. Tex. filed Nov. 20, 2002), appeal dismissed for want of

prosecution, No. 04-50778 (5th Cir. May 9, 2006) (exhibit numbers designated by the Court);

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Compl. at 2 (page numbers designated by the Court). He initially alleges that the presentence

investigation report (“PSR”) prepared by the United States Probation Office for the Western

District of Texas contained false and inaccurate information supplied by the United States

Attorney’s Office for the Western District of Texas on which the defendants rely to his detriment.

See Compl. at 2-3. Generally, the information about which plaintiff complains appears in “the

affidavit that supported probable cause” and “the affidavits for Title 3 intercepts that were used

before and at the grand jury proceeding to indict [him].” Compl., Attach. A (April 13, 2005

letter to Johnny Sutton, United States Attorney for the Western District of Texas).

According to plaintiff, the United States Probation Office prepared the PSR on or about

May 24, 2004. Compl. at 2. He says that he told the Assistant United States Attorneys

prosecuting the criminal case, the probation officer and the presiding judge in open court at his

sentencing hearing on July 22, 2004, that the PSR contained false and inaccurate information. Id.

at 3. Although plaintiff claims he “did submit documentation on the court record at sentencing []

[t]hat proved this information was in [f]act false and inaccurate,” he complains that “not one of

these agency officers [or] officers of the court[] [m]oved to correct this false and inaccurate

information.” Id. The PSR became a part of the BOP’s records pertaining to plaintiff and is

maintained in his Inmate Central File. See id. at 2-3. Plaintiff contacted the United States

Attorney’s Office for the Western District of Texas, the Executive Office for United States

Attorneys (“EOUSA”), the BOP, and the Drug Enforcement Administration (“DEA”) in

unsuccessful attempts to have the PSR corrected. See id. at 3-6; Motion to Amend Pleading

[#14], Ex. 2 (April 28, 2008 letter to DEA). Plaintiff does not identify any particular document

or record other than the PSR that is incorrect. Rather, he asserts in general and vague terms that

2
records maintained by the United States Attorney’s Office, the DEA and the BOP are false and

inaccurate. See, e.g., Compl. at 3 & Attach. A at 1.

In his Complaint, plaintiff seeks an order “compelling the Defendants to correct all of the

false/inaccurate information . . . within these [agencies’] files and that has affected Plaintiff

adversely.” Compl. at 6. According to plaintiff, if this false information had been corrected, he

“would not have been convicted to begin with, [and he] would not have been given 3 life

sentences and [he] would not have been classified [by BOP] and designated to a [United States

Penitentiary].” Id., Attach. A at 2. In subsequent papers, however, plaintiff appears to have

abandoned his claim for amendment of the offending records and instead focuses exclusively on

defendants’ alleged failure to comply with the Privacy Act’s accuracy provision, see 5 U.S.C. §

552a(e)(5), and his claim for actual damages resulting from the agencies’ failure to maintain

records with the requisite level of accuracy.1 See 5 U.S.C. § 552a(g)(1)(C). See Motion to

Amend Pleading [#14] at 1; Plaintiff[’]s Memorandum in Response to Defendants[’] Motion to

Dismiss And Or Summary Judgment (“Pl.’s Opp’n”) [#25-2] at 4-5, 38-40.

II. DISCUSSION

A. Defendants’ Motions to Dismiss

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

1
Plaintiff concedes “that under certain exemptions of the Privacy Act and of 28
CFR (e.g. 28 CFR § 16.81(a)(4) and etc.) that defendant agency’s [sic] do not have to
amend/correct their records.” Pl.’s Opp’n at 3. Further, he states that he is “not trying to attack
his criminal conviction or sentence,” as he “is “fully aware that the Privacy Act is not the proper
means to attack/collaterally attack a conviction or sentence.” Id. at 4; see id at 38.

3
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. __, __, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). A motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of

success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes the factual

allegations of the complaint to be true and construes them liberally in the plaintiff’s favor. See,

e.g., United States v. Phillip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2001). Although

“detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a plaintiff

must offer “more than labels and conclusions” to provide “grounds” of “entitle[ment] to relief.”

Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1964-65. Thus, the complaint’s “[f]actual allegations

must be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (citations omitted).

1. The United States Department of Justice is the Proper Party Defendant

A person may bring a civil action under the Privacy Act against an agency of the federal

government. 5 U.S.C. § 552a(g)(1). For purposes of the Privacy Act, the term “agency” means:

any executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the executive branch of the Government (including
the Executive Office of the President), or any independent regulatory
agency[.]

5 U.S.C. § 552(f)(1). The term does not encompass officers or employees of an agency. See

Mittleman v. United States Treasury, 773 F. Supp. 442, 450 (D.D.C. 1991) (dismissing all

Privacy Act claims against defendants other than federal agencies); see also Connelly v.

Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1989) (concluding that individuals

4
are not liable for damages under the Privacy Act because civil action is filed against the agency).

Nor does the term “agency” include “the courts of the United States,” 5 U.S.C. § 551(1)(B), a

phrase interpreted as applying to the entire judicial branch of government. See Washington Legal

Found. v. United States Sentencing Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994). United States

Probation Offices are units of the federal courts and therefore are not subject to the Privacy Act.

See DeMartino v. Fed. Bureau of Investigation, 511 F. Supp. 2d 146, 148 (D.D.C. 2007);

Callwood v. Dep’t of Probation of the Virgin Islands, 982 F. Supp. 341, 343 (D.V.I. 1997).

Accordingly, all the individual defendants named in the complaint, as amended, and the United

States Probation Office will be dismissed as party defendants.2 In addition, the named

components of the Department of Justice will be dismissed sua sponte since complete relief for

any Privacy Act violations by the components can be awarded against the Department itself. See

Lopez v. Huff, 508 F. Supp. 2d 71, 73 n.3 (D.D.C. 2007) (substituting “the Department of Justice,

of which the [Federal Bureau of Prisons] is a component, as the real party in interest” in a

Privacy Act suit); Marcotte v. Sec’y of Defense, 618 F. Supp. 756, 763 (D. Kan. 1985)

(concluding that the Department of the Air Force, not the separate entities encompassed within it,

is the “agency” for purposes of the Privacy Act). The United States Department of Justice, then,

is the remaining defendant.3

2. Plaintiff’s Claims are Barred by the Statute of Limitations

2
Plaintiff does not bring any civil rights claims against the individual defendants in
their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971)). See Pl.’s Opp’n at 38, 44.
3
The Court will grant plaintiff’s “Motion for Voluntary Dismissal” [#26] and deny
plaintiff’s “Motion to Re-Instate/Refile Suit” [#31] against the DEA, which is a component of
the Department of Justice.

5
 A Privacy Act cause of action arises “at the time that (1) an error was made in

maintaining plaintiff’s records; (2) plaintiff was harmed by the error; and (3) the plaintiff either

knew or had reason to know of the error.” Szymanski v. United States Parole Comm’n, 870 F.

Supp. 377, 378 (D.D.C. 1994); see Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987). A

new cause of action does not arise each time an adverse determination is made based on the

allegedly erroneous records. Harrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir.), cert. denied,

537 U.S. 1057 (2002); Bergman v. United States, 751 F.2d 314, 317 (10th Cir.), cert. denied, 474

U.S. 945 (1985). An action to enforce a Privacy Act claim must be filed within two years from

the date on which the claim arises. 5 U.S.C. § 552a(g)(5). Unless the statute of limitations is

equitably tolled, a late-filed Privacy Act claim is time barred. See Chung v. United States Dep’t

of Justice, 333 F.3d 273, 278 n.1 (D.C. Cir. 2003).

Because statute of limitations issues often depend on contested questions of fact, the

Court must exercise caution before dismissing a complaint on statute of limitations grounds

based solely on the face of the complaint. See Richards v. Mileski, 662 F.2d 65, 73 (D.C. Cir.

1981) (commenting on the “inherent problem in using a motion to dismiss for purposes of raising

a statute of limitations defense”). Thus, the Court may grant a motion to dismiss as untimely

“only if the complaint on its face is conclusively time-barred,” Firestone v. Firestone, 76 F.3d

1205, 1209 (D.C. Cir. 1996), or “if ‘no reasonable person could disagree on the date’ on which

the cause of action accrued.” Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473,

1475 (D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463

n.11 (D.C. Cir. 1989)).

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 Defendant argues that plaintiff’s cause of action accrued by July 22, 2004, the date on

which he objected to the PSR’s contents in open court, yet he failed to file his complaint within

two years of that date. See Defs.’ Mot. at 13-15. Because plaintiff did not file his action until

December 2007, defendant argues that it is barred by the two-year statute of limitations.4 Id. at

14. Plaintiff counters that defendant is to blame for any delay in the filing of this action. See

Pl.’s Opp’n at 37-38. He asserts that he “start[ed] the action within 1 year of . . . becoming aware

of the inaccurate/false information,” and that he “was patiently waiting for Defendants to

discharge their duties” under the Privacy Act. Id. at 38. In the alternative, he argues that the

statute of limitations should be tolled “[f]or ‘Continuing Violations Doctrine.’” Id. According to

plaintiff, defendants “are still ‘disseminating’ and violating the mandates of the Privacy Act.” Id.

Plaintiff’s own complaint establishes that he knew of inaccuracies in the PSR on July 22,

2004, if not earlier.5 He alleges that he notified the prosecutors, the probation officer, and the

presiding judge at sentencing of inaccuracies in the PSR and that he “submit[ted] documentation

on the court record at sentencing . . . prov[ing] this information was in [f]act false and

inaccurate.” Compl. at 3. The filing of this civil action in 2007 occurred more than two years

4
The first pages of plaintiff’s original Complaint and Application to Proceed
Without Prepayment of Fees and Affidavit bear two date stamps, indicating that the Clerk of
Court initially received the papers on September 4, 2007. It appears that the Clerk returned the
papers and that plaintiff resubmitted them on October 4, 2007. The Court’s records reflects that,
after plaintiff’s Application was approved, the papers officially were placed on the electronic
docket as of December 11, 2007.
5
“It jsut [sic] so happened . . . [t]hat the same ‘inaccurate/false information[’] that
defendants willfully mainatined [sic] in their records against Plaintiff[] is the exact same
‘inaccurate/false’ information[] [t]hat defendants relied upon to arrest Plaintiff on Nov. 8, 2002
at 5:30 am, to obtain the arrest warrant and . . . to have Plaintiff indicted.” Pl.’s Opp’n [#25-2] at
4.

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later, after the statute of limitations had run. Plaintiff’s claims are barred as untimely. See Green

v. Westphal, No. 03-3547, 2004 WL 817446, at *2 (3d Cir. Apr. 15, 2004) (affirming dismissal

of Privacy Act claims filed in December 2001 as time barred where plaintiff knew of alleged

error in his military record “in 1981 when he first sought to have his discharge upgraded from

undesirable to honorable” and where he “was also harmed by the alleged error in 1981 when he

was denied medical treatment from the Department of Veterans Affairs hospital because he did

not have an honorable discharge”), cert. denied sub nom. Green v. Brownlee, 543 U.S. 913

(2004); Duncan v. United States Envtl. Protection Agency, No. 03-15906, 2004 WL 385682, at

*1 (9th Cir. Mar. 2, 2004) (affirming dismissal of Privacy Act claims where plaintiffs “wrote a

letter on July 28, 1997, stating that they faced retaliation after their boss learned of their

whistleblowing [and] therefore knew, and informed others, of the EPA’s alleged disclosure of

their identities in violation of the [Privacy] Act in July 1997, placing their January 2000

complaint well outside the limitations period”); Harrell v. Fleming, 285 F.3d at 1293-94

(affirming dismissal of Privacy Act claims “based on alleged errors in presentence investigation

reports prepared in connection with his criminal convictions in 1982 and 1983, which in turn

caused errors in the Bureau of Prison’s and the Parole Commission’s administration of his

sentences,” because prisoner plaintiff “was clearly aware of the alleged errors on July 29, 1992,

when he challenged them during his initial parole hearing”); Bowyer v. United States Dep’t of Air

Force, 875 F.2d 632, 636 (7th Cir. 1989) (affirming dismissal of Privacy Act claims where

plaintiff “knew (or had a reason to know) of the allegedly erroneous records sufficient to trigger

the statute of limitations, even if he did not actually know that the records were erroneous,” yet

“filed this suit some twenty-three months later on January 18, 1985”), cert. denied, 493 U.S.

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1046 (1990); Molzen v. Federal Bureau of Prisons, No. 05-2360, 2007 WL 779059, at *3

(D.D.C. Mar. 8, 2007) (concluding that cause of action arose when plaintiff challenged the

custody classification scoring based on his PSR with his Unit Team, by which time plaintiff

“knew of the errors in his records and BOP’s reliance on them, and already had been harmed by

the error”). Neither the filing of inmate grievances nor the submission of Privacy Act requests to

the relevant agencies tolls the statute of limitations for filing a claim for damages. See

Christensen v. United States Dep’t of Interior, No. 04-4020, 2004 WL 2106560, at *2 (10th Cir.

Sept. 22, 2004) (filing of administrative claim pursuant to the Federal Tort Claims Act pertaining

to false testimony by agency employees before a federal grand jury “is irrelevant to the Privacy

Act limitations period, which applies to filing in federal court”); Hubbard v. United States Envtl.

Protection Agency, 809 F.2d 1, 4 (D.C. Cir. 1986) (exhaustion of administrative remedies is not a

prerequisite to filing a damages claim under the Privacy Act).

3. BOP, EOUSA and DEA Records Are Exempt from the Accuracy and Damages
Provisions of the Privacy Act

Even if plaintiff had filed his complaint timely, the relief he demands is not available to

him. The Privacy Act’s accuracy and damages provisions do not apply to the systems of records

where the allegedly false and inaccurate information is maintained.

Subsection (e)(5) of the Privacy Act 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.

5 U.S.C. § 552a(e)(5). An individual may access an agency’s records or information in a system

of records pertaining to him, and may request amendment of records pertaining to him. See 5

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U.S.C. § 552a(d). In addition, he may file a civil action against an agency which refuses to

amend its records upon request or fails to maintain its records with the requisite level of accuracy

and completeness. See 5 U.S.C. § 552a(g); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.

Cir. 1992) (stating that subsection (g) provides civil remedies for violations of subsection

(e)(5)).6 In a civil suit filed under subsection (g)(1)(C), if the Court determines that the agency’s

actions were willful or intentional, the Court 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, and further may award costs of the action and attorney fees. 5 U.S.C. § 552a(g)(4).

Notwithstanding the relief available under the Privacy Act, an agency’s Director may

promulgate regulations to exempt any system of records within the agency from any part of the

Privacy Act, except 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, probation, pardon, or parole
authorities, and which consists of . . . reports identifiable to an
individual compiled at any stage of the process of enforcement of the

6
In relevant part, subsection (g) authorizes an individual to file a civil action
whenever any agency “makes a determination . . . not to amend an individual’s record in
accordance with his request.” 5 U.S.C. § 552a(g)(1)(A). In addition, subsection (g) provides for
the filing of a civil action whenever 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 consequently a
determination is made which is adverse to the individual.

5 U.S.C. § 552a(g)(1)(C).

10
 criminal laws from arrest or indictment through release from
supervision.

5 U.S.C. § 552a(j)(2). Pursuant to this authority, regulations exempt BOP’s Inmate Central

Records System (JUSTICE/BOP-005), among other systems of records, from subsections (d) and

(g). See 28 C.F.R. § 16.97(a)(1), (4). Presentence investigation reports are maintained in the

Inmate Central Records System. See Defs.’ Mot., Declaration of Jan Hanks (“Hanks Decl.”) ¶ 1.

Consequently, insofar as plaintiff demands the access to or amendment of his presentence

investigation report, such relief is unavailable under 5 U.S.C. § 552a(g).7 See White v. United

States Probation Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (barring claim for amendment of

presentence report); Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997) (per curiam) (denying

injunctive relief on the ground that regulations exempt BOP records from amendment provision

of Privacy Act); Sellers v. Bureau of Prisons, 959 F.2d at 309 (upholding district court’s

dismissal of claim for amendment of presentence report under section 552(d)).

In addition, under 5 U.S.C. § 552a(j)(2), BOP’s Inmate Central Records System is

exempt from subsection (e)(5) of the Privacy Act.8 See 28 C.F.R. § 16.97(j) (effective August 9,

2002); see also 28 C.F.R. § 16.97(k)(2). Having exempted its records from the substantive

provision regarding the agency’s recordkeeping obligations, BOP effectively deprives litigants of

a remedy for any harm caused by the agency’s substandard recordkeeping. Accordingly, insofar

7
An inmate may review his Inmate Central File upon request to a staff member and
may challenge the accuracy of any information contained in his Central File. See Hanks Decl. ¶
6; Program Statement 5800.11, Inmate Central File, Privacy Folder and Parole Mini-Files (Sept.
8, 1997), at 18-21.
8
The variation in language between subsections (e)(5) and (g)(1)(C) of the Privacy
Act is “of no substantive significance.” Doe v. United States, 821 F.2d 694, 698 n.10 (D.C. Cir.
1987) (en banc).

11
as plaintiff seeks damages for BOP's failure to maintain records in its Inmate Central Records

System pertaining to him with the requisite level of accuracy and completeness, damages are not

available. See, e.g., Mitchell v. Bureau of Prisons, No. 05-0443, 2005 WL 3275803 at *4

(D.D.C. Sept. 30, 2005) (“[I]nsofar as plaintiff demands damages for BOP’s failure to maintain

records in its Inmate Central Records System pertaining to him with the requisite level of

accuracy and completeness, damages are not available[]” because such records are exempt from

5 U.S.C. § 552a (e)(5)).

Plaintiff’s claims are no more successful as against the DEA and the EOUSA. The DEA

records about which plaintiff complains contain “criminal investigatory data compiled for law

enforcement purposes . . . pursuant to DEA’s . . . enforcement . . . of the Federal drug laws

including the Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq, that [are]

maintained in the DEA Investigative Reporting and Filing System (IRFS), JUSTICE/DEA-008.”

Defendant’s Motion to Dismiss Or in the Alternative for Summary Judgment (“DEA Mot.”),

Declaration of William C. Little, Jr. ¶ 8. Regulations exempt IFRS from subsections (d)(2),

(e)(5), and (g), among others, of the Privacy Act. 28 C.F.R. § 16.98(c)(3). Similarly, the

offending records maintained by the United States Attorney’s Office are in criminal case files,

see Defs.’ Mot., Declaration of Dione Jackson Stearns ¶ 10, which are exempt from the from the

accuracy and damages provisions of the Privacy Act. 28 C.F.R. § 16.81(a)(4), (b).

B. Defendants’ Motion for Summary Judgment

Even if plaintiff’s complaint were timely filed and if regulations had not exempted the

relevant systems of records from the Privacy Act’s accuracy and damages provisions, plaintiff’s

claim for damages cannot succeed.

12
 In order to recover damages, “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 [was] made’ respecting the plaintiff.” Toolasprashad v. Bureau of Prisons, 286

F.3d 576, 583 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552a(g)(1)(C)). Plaintiff bears the burden of

proving that the agency’s actions in violating the Privacy Act were intentional or willful.

Albright v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984); 5 U.S.C. § 552a(g)(4). To meet

his burden, a plaintiff “must prove that the offending agency acted ‘without grounds for believing

[its actions] lawful’ or prove that it ‘flagrantly disregarded’ the rights guaranteed under the

Privacy Act.” Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (quoting

Albright, 732 F.2d at 189). Negligence and inadvertence do not rise to the level of intentional or

willful violations of the Privacy Act. See Albright, 732 F.2d at 189.

Plaintiff insists that the BOP, the EOUSA, and the DEA have failed to maintain accurate

records pertaining to his alleged involvement in a drug conspiracy, yet he fails to identify what

information is inaccurate. Apparently plaintiff calls into question any information identifying

him as the source of the drugs for which Jose Soto was arrested on December 7, 2001. See, e.g.,

Pl.’s Opp’n at 8. This information, as well as any information presented to the United States

Magistrate Judge who approved the arrest and search warrants, to the grand jury which indicted

him, to the jury which found him guilty, and to the sentencing judge who imposed sentence,

plaintiff deems false. See id. at 5-26 (recounting plaintiff’s arrest, indictment, bond hearing, trial,

and sentencing). The Court has reviewed the exhibits plaintiff submitted, and can identify no

particular record that clearly is false or inaccurate. Plaintiff may disagree with the records’

13
contents, but he fails to demonstrate that any of these components have violated his rights under

the Privacy Act.

The BOP faced a similar situation. BOP policy provides that an “inmate[] may challenge

the accuracy of information in his Central File, which would include a PS[R],” Hanks Decl. ¶ 6,

and an inmate’s case manager is responsible for assisting him with a “claim [that] there are

inaccurate records maintained by the BOP that are relied upon by the BOP.” Id. ¶ 5. An inmate

must provide staff with specific information supporting his challenge along with supporting

documentation, if possible. See id. ¶¶ 6-7. Plaintiff’s case manager at USP Beaumont explains

she has assisted inmates “on numerous occasions to resolve the [alleged] inaccuracy [of a PSR]

with the United States Probation Office,” but only if the inmates “provide [her] with sufficiently

detailed information to allow [her] to draft a specific letter to the originating agency responsible

for generating the document detailing the alleged inaccuracy.” Id. ¶ 7. She states that plaintiff

was not able to provide such detail, for example, by specifying which paragraph of his PSR was

inaccurate and what sentencing guideline was applied in error. Id. ¶¶ 8-9. Rather, she states that

plaintiff “merely handed [her] a stack of papers that was approximately two inches thick with no

specific inaccuracies tagged for [her] reference” and no supporting documentation, Id. ¶ 8. She

states that she explained her need for “more detail as to what, specifically, was inaccurate.” Id. ¶

9. To assist plaintiff, she showed him another inmate’s challenge to the accuracy of his PSR

“which resulted in [her] contacting the United States Probation Office” because that inmate

“pointed [her] to the alleged inaccuracy in his PS[R], stated how he thought it should be changed

and provided . . . supporting documentation” Id. “A general statement, such as ‘my PS[R] is

wrong,’ is not specific enough to warrant a written letter to the United States Probation Office or

14
sentencing court.” Id. ¶ 7. Absent adequate information from plaintiff, BOP staff cannot be

faulted for the alleged failure to take steps to ensure the accuracy of information included in his

Central File, including his PSR.

The plaintiff has failed to show that the relevant records are inaccurate, and, accordingly,

his Privacy Act claim for damages must fail. See Doyharzabal v. Gal, No. 7:00-2995-24BG,

2001 WL 35810671, at *3 (D.S.C. Sept. 13, 2001) (plaintiff who offered “little other than bare

assertions to support his claim that disputed statements regarding contraband and gang

membership were inaccurate” did not establish that BOP records pertaining to him were

inaccurate). Without some indication that BOP, the EOUSA, or the DEA have failed to maintain

accurate records pertaining to plaintiff, he cannot show that any of these entities violated his

rights under the Privacy Act and did so willfully or intentionally. See Doyon v. United States

Dep’t of Justice, 304 F. Supp. 2d 32, 35 (D.D.C. 2004) (plaintiff who was unable to establish that

prior drug conviction and probation violation charges reflected in presentence investigation

report maintained in Inmate Central Records System were clearly wrong did not demonstrate

intentional or willful violation of his rights under the Privacy Act), appeal dismissed, 2004 WL

2185923 (D.C. Cir. Sept. 24, 2004).

15
 III. CONCLUSION

Plaintiff’s Privacy Act claims are barred by the statute of limitations. Even if plaintiff’s

complaint were filed timely, his claims under the Privacy Act’s accuracy and damages provisions

must fail. Defendants’ dispositive motions will be granted. A separate Order accompanies this

Memorandum Opinion.

Signed this 30th day of January, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge

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