Kellett v. US Bureau of Prisons

USCA1 Opinion









September 18, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________


No. 94-1898


H. RAYMOND KELLETT, JR., AND LAUREL G. KELLETT,

Plaintiffs, Appellants,

v.

UNITED STATES BUREAU OF PRISONS,

Defendant, Appellee.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE


[Hon. Mart in F. Loughlin, Senior U.S. District Judge] __________________________

____________________

Before

Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judge. _____________

____________________

H. Raymond Kellett, Jr., and Laurel G. Kellett on brief pro se. ______________________ _________________
Paul M. Gagnon, United States Attorney, and Gretchen Leah Witt, ______________ ___________________
Assistant United States Attorney, on brief for appellee.


____________________

___________________




















Per curiam. H. Raymond Kellett, Jr.,1 alleges Per curiam. ___________

violations of the Privacy Act, 5 U.S.C. 552a, by the Bureau

of Prisons ("BOP") and seeks damages pursuant to 5 U.S.C.

552a(g)(4)(A) & (B). The district court granted summary

judgment in favor of BOP. We now affirm.

I. I. __

FACTUAL BACKGROUND FACTUAL BACKGROUND __________________

Kellett, admitted to the New Hampshire bar in 1975,

acted as a closing attorney for a federally insured bank. In

1991, he pled guilty to making false statements to the bank

and to obstructing justice by attempting to influence the

grand jury testimony of his secretary. The district court

sentenced him to serve one year and one day at a federal

prison in Allenwood, Pennsylvania, beginning on January 28,

1992.

After about three months at Allenwood -- in April

1992 -- prison officials recommended Kellett for a transfer

to a community corrections center ("CCC"). On May 17, 1992,

Kellett signed documents necessary to effect his transfer.

However, in June, officials told Kellett that because the

prosecutor in his case, Assistant U.S. Attorney Margaret

Hinkle ("Hinkle"), had objected, in accordance with an ____________________

1. Kellett's wife, Laurel Kellett, is also a plaintiff, informal BOP policy,2 the transfer recommendation would be
seeking damages for loss of consortium.

2. Officials told Kellett that BOP had an unwritten policy
of seeking the prosecutor's approval or concurrence in CCC
placements for inmates sentenced to one year or less and that
his sentence was short enough to come within the policy.

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rescinded. The record indicates that Hinkle had objected to

Kellett's transfer during a telephone conversation with

Kellett's case manager, Robert Adams. Although the record is

not entirely clear, it appears that Adams's notes from his

conversation with Hinkle were placed in Kellett's file

sometime in June.

Invoking administrative procedures, Kellett

appealed the transfer denial. After Allenwood's warden, F.

C. Sizer, Jr., upheld the denial, Kellett appealed to BOP's

deputy regional director N. Lee Conner. Conner again denied

the appeal, stating:

[Despite an initial favorable halfway
house recommendation,] upon further
review and contact with other agencies,
it was determined CCC placement would be
inappropriate. This is based on the fact
you were convicted of Obstructing
Justice, which involved the intimidation ____________
and coercion against one of your _________________________________________
employees to lie for you before the Grand ________________________
Jury. As a result of this information,
staff at [Allenwood] determined CCC
placement would be inappropriate.

(emphasis added). Kellett appealed Conner's decision to

BOP's Washington, D.C., office, arguing that it was

apparently based on inaccurate information regarding

intimidation and coercion. National inmate appeals

administrator John Megathlin denied the appeal. Megathlin

determined that Sizer had properly denied CCC placement

because of: (1) the nature of Kellett's criminal offenses,

and (2) the short length of Kellett's sentence.


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Meanwhile, Kellett sought copies of Adams's notes

and other documents relating to his transfer. In response to

Kellett's inquiries, Adams and Conner both told him that he

would have to submit a request to BOP's general counsel in

Washington, D.C. Kellett never submitted such a request.

Kellett served his sentence and, upon release from

prison, filed this suit. Kellett alleges that BOP willfully

violated the so-called "accuracy provision" of the Privacy

Act, 5 U.S.C. 552a(g)(1)(C), because Kellett's transfer

denial was based on inaccurate information contained in his

file. Kellett claims the record contained two inaccuracies:

(1) that his obstruction-of-justice conviction resulted from

intimidation and coercion; and (2) that Kellett had caused a

loss of $800,000 by making false statements. He also alleges

that BOP violated the "access provision" of the Privacy Act,

5 U.S.C. 552a(d)(1), because BOP did not turn over to him

copies of Adams's notes allegedly containing Hinkle's

comments. After Kellett filed requests for admissions, the

district court granted BOP's motion to stay discovery.

BOP filed a motion to dismiss, which the district

court converted to a motion for summary judgment. Kellett v. _______

United States, 856 F. Supp. 65, 68 (D.N.H. 1994). BOP ______________

supported its motion with three affidavits -- from Patrick

Casey (Sizer's predecessor at Allenwood), deputy regional





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director Conner, and inmate appeals administrator Megathlin.

Kellett objected to the affidavits on several grounds.

The district court granted summary judgment. As to

the accuracy claim, the court held that the alleged

inaccuracies in Kellett's file had not proximately caused the

decision to deny CCC placement:

Kellett's denial of CCC placement was
justified on the basis of the seriousness
of his underlying offense and the length
of his sentence, regardless of the amount
of loss involved or the nature of the
obstruction of justice conviction. The
evidence makes it pellucid that $800,000
loss figure and the erroneous
circumstances regarding the obstruction
of justice were not substantially relied
on in rendering the decision to deny CCC
placement. Even if these factors were
considered to some degree their
consideration would have been harmless
since there was sufficient cause to deny
Kellett CCC placement based on the
seriousness of the underlying offense and
brevity of the sentence received.

Id. at 71. The court did not consider Kellett's objection to ___

the trio of affidavits. Additionally, the district court

noted, but did not hold, that Kellett "would have difficulty"

establishing that BOP had willfully and intentionally

maintained inaccurate records. As to the access claim, the

court held that applicable regulations exempted Kellett's

records from the access provisions of the Privacy Act. Id. ___

at 68-69. This appeal followed.






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II. II. ___

DISCUSSION DISCUSSION __________

After reciting the standard of review, we will

address separately Kellett's accuracy and access claims.

A. Standard of Review ______________________

We review the district court's grant of summary

judgment de novo, considering the facts in the light most __ ____

favorable to the nonmoving party. Udo v. Tomes, 54 F.3d 9, ___ _____

12 (1st Cir. 1995). Summary judgment should be granted when

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). "Even in cases where

elusive concepts such as motive or intent are at issue,

summary judgment may be appropriate if the nonmoving party

rests merely upon conclusory allegations, improbable

inferences, and unsupported speculation." Medina-Munoz v. ____________

R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). __________________________

"Brash conjecture, coupled with earnest hope that something

concrete will eventually materialize, is insufficient to

block summary judgment." Dow v. United Bhd. of Carpenters & ___ ___________________________

Joiners, 1 F.3d 56, 58 (1st Cir. 1993). _______







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B. The Accuracy Claim ______________________

To establish a violation of the accuracy provision

of the Privacy Act, a plaintiff must show that: (1) the

agency failed to maintain accurate records; (2) an adverse

agency decision resulted from the failure to maintain

accurate records; and (3) the agency's actions were willful

and intentional. See, e.g., White v. Office of Personnel ___ ____ _____ ____________________

Management, 840 F.2d 85, 87 n.1 (D.C. Cir. 1988). For __________

purposes of the decision below and this appeal, BOP has

assumed that Kellett's record contains both the inaccurate

loss figure and the inaccurate characterization of Kellett's

behavior leading to the obstruction-of-justice charge.

As noted above, the district court held that

Kellett had failed to establish the requisite causation. On

appeal, Kellett challenges the district court's holding

because, among other reasons, the court relied on affidavits

alleged to violate Fed. R. Civ. P. 56(e). We affirm on

different grounds, see Acha v. United States, 910 F.2d 28, 30 ___ ____ _____________

(1st Cir. 1990) (a court of appeals may affirm on any ground

presented by the record), and thus do not reach the merits of

Kellett's arguments regarding causation. After careful

review of the record, we conclude that, as to the









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obstruction-of-justice charge, Kellett has failed to

establish that BOP's actions were willful and intentional.3

A plaintiff may establish a willful Privacy Act

violation by showing that the agency acted without grounds

for believing its action to be lawful, or in "flagrant

disregard" for rights under the Act. See, e.g., Wilborn v. ___ ____ _______

Department of Health & Human Servs., 49 F.3d 597, 602 (9th _____________________________________

Cir. 1995). To survive summary judgment, the evidence must

demonstrate conduct "greater than gross negligence" or

conduct showing "reckless behavior and/or knowing violations"

of the Privacy Act. Moskiewicz v. Department of Agric., 791 __________ ____________________

F.2d 561, 564 (7th Cir. 1986). It is not enough to show that

an agency may have undertaken voluntary actions which

inadvertently violated some provision of the Act. Albright ________

v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984). _____________

Kellett fails to support his claim with any

evidence establishing that BOP's acts were willful or

intentional. Principally, Kellett fails to identify any

reasonable basis for BOP officials to question the accuracy

of Hinkle's statements. To be sure, Kellett repeatedly

expressed concern that Hinkle was vindictive, but we see

nothing in the record upon which to suggest that the


____________________

3. As to the inaccurate loss figure, the record is devoid of
any indication that BOP officials relied on it in making
their adverse determination. Accordingly, Kellett has failed
to carry his burden and summary judgment was appropriate.

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officials ever thought there was a possibility that Hinkle

may have misrepresented the circumstances surrounding the

obstruction-of-justice charge. The only BOP decisionmaker

who actually knew that Kellett disputed Hinkle's statement ____

was national inmate appeals administrator Megathlin.

Megathlin, however, did not rely on the inaccurate

information in making his adverse decision. Rather, as noted

above, he denied Kellett's placement on the basis of the

general nature of Kellett's offenses and on the length of

Kellett's sentence. Simply stated, there is no basis upon

which to conclude that BOP officials willfully or

intentionally maintained inaccurate information regarding

Kellett. Thus, summary judgment was appropriate. Cf. Hill __ ____

v. United States Air Force, 795 F.2d 1067 (D.C. Cir. 1986). _______________________

C. The Access Claim ____________________

The Privacy Act requires an agency maintaining a

"system of records" to give individuals, upon request, access

to their records or to information about them contained in

the system. 5 U.S.C. 552a(d)(1). If the agency refuses to

comply with such a request, an individual may sue the agency

for injunctive relief, seeking production of the records. 5

U.S.C. 552a(g)(1)(B) & (g)(3)(A). An agency may exempt a

system of records, 5 U.S.C. 552a(j), if the system of

records meets certain criteria, 5 U.S.C. 552a(j)(2)(A)-(C).

Records are exempt if, inter alia, they are "reports _____ ____



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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)(C). Such BOP reports have been exempted from both

the access provisions of the Privacy Act and access suits

brought thereunder. See 28 C.F.R. 16.97(a), (b)(3) & (9). ___

Because the records containing Hinkle's comments fall within

the scope of 552a(j)(2)(C), the district court properly

granted summary judgment.

III. III. ____

CONCLUSION CONCLUSION __________

For the foregoing reasons, the decision of the

district court is affirmed. affirmed. ________



























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