Melvin Gale v. U. S. Department of Justice, Federal Bureau of Prisons

MIKVA, Circuit Judge.

Appellant Melvin Gale is a federal prisoner currently incarcerated in the federal penitentiary in Lewisburg, Pennsylvania. In 1976, Gale was convicted in the District Court of possession of an unregistered firearm and other charges and received a sentence of 3 to 9 years. After sentencing, he was taken to the District of Columbia Reformatory in Lorton, Virginia. Additional charges of burglary and grand larceny were then pending against him in the District of Columbia Superior Court. Gale was transferred from Lorton to Superior Court on several occasions in connection with his trial on these charges. On February 28, 1977, Gale was convicted. He received a sentence of 12 to 40 years on the burglary charge and a concurrent sentence of 3 to 9 years on the larceny charge. Later, he was transferred to Lewisburg where he now resides.1

Gale commenced this pro se action in September, 1979, by mailing a complaint and a motion for leave to proceed without prepayment of costs to the District Court. His complaint alleges that he wrote to the Justice Department’s Bureau of Prisons on February 5, 1979, requesting copies of the documents used to effect his transfers between Lorton and Superior Court. The complaint states that his request was unanswered and that he then forwarded an appeal to the office of the Deputy Attorney General on April 9. On April 18, the Director of the Justice Department’s Office of Privacy and Information Appeals wrote to Gale, saying that he could not act on any appeal until there had been an initial decision by the Bureau of Prisons, but that if the Bureau had still not responded to the request, Gale was entitled to treat the letter as a denial of his appeal.2 Gale alleged that as of August, 1979, he had not received the documents he had requested.

Gale asserted that he was entitled to receive the documents under the Freedom of Information Act, 5 U.S.C. § 552 (1976), and the Privacy Act, 5 U.S.C. § 552a (1976). He also alleged that the government’s failure to deliver the documents deprived him of constitutional rights protected by the Fifth Amendment’s due process clause and the Eighth Amendment. Gale seeks $150,000 in compensatory and punitive damages and attorney’s fees for a fellow inmate who assisted him in drawing up the complaint.

On September 26,1979, the District Court granted Gale permission to file the complaint without prepayment of costs, but simultaneously dismissed the action, citing 28 U.S.C. § 1915(d) (1976)3 and another case brought by Gale earlier in the year that had also been dismissed. Gale then filed a notice of appeal in the District Court and a motion for leave to appeal without prepayment of costs. This motion was denied by the District Court on the ground that the appeal is “frivolous and not taken in good faith.” See 28 U.S.C. § 1915(a) (1976). *226Pursuant to Fed.R.App.P. 24(a), Gale filed a motion in this Court seeking leave to appeal without prepayment of costs on November 19. On December 11, the Chief Judge ordered the government to respond to this motion. Based upon our review of the record and the government’s response, we now grant Gale’s motion.

While portions of the complaint are clearly frivolous,4 it does assert a cause of action under the Privacy Act, 5 U.S.C. § 552a(d)(l) (1976) (access by an individual to his record or to any information pertaining to him). Gale alleges that the Bureau of Prisons has refused to give him documents pertaining to him which are in the Bureau’s possession. It is reasonable to expect that the Justice Department’s files concerning a prisoner in federal custody5 will include records of his transfers from prison to court, and nothing in the complaint indicates otherwise. The District Court’s order contains no explanation other than the notation “See also Civil Action 79-84.”6

The government’s response to Gale’s motion does not deny that the complaint states a claim for relief under the Privacy Act. Rather, it argues that this case is moot because the Regional Director of the Bureau of Prisons wrote to Gale in March, 1979, stating that the requested information was not contained in Gale’s file. Since Gale’s complaint seeks not merely a response to his request but the documents themselves, the case would only be moot if the government had given Gale the documents.

The government’s assertion that it does not have these documents raises factual issues which cannot be resolved in this Court. The District Court did not consider this assertion, since it dismissed the action solely on the basis of the complaint. On remand, the government will be free to attempt to prove that it does not possess the documents requested by Gale.

Although Gale’s request refers to the documents as those “used by the District of Columbia Court ... to remove Melvin Gale from federal custody,” we do not necessarily agree with his claim that his removal from Lorton to Superior Court constituted a removal from federal custody. We do find that Gale has adequately described the documents used to transfer him. It is clear that Gale was transferred on several occasions pursuant to “come-up” orders issued by the Clerk of the Superior Court at the request of the United States Attorney’s office. See Gale v. United States, 391 A.2d 230, 232 (D.C.Ct.App.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979). Gale’s letter to the Bureau of Prisons specifies the dates of his transfers and states that they were made at the request of the “District of Columbia Court.” Mindful of the Supreme Court’s admonition that a pro se complaint should be held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), we believe that Gale’s letter is understandable as a *227request for the documents involved in his transfers, even if he may be mistaken in his legal conclusion that these transfers removed him from federal custody.

We are aware that Gale undoubtedly seeks these documents to assist him in making additional claims that his transfers were unauthorized. His likelihood of success on those claims is not at issue here. Gale’s reasons for seeking these documents are irrelevant to the question of whether the Privacy Act gives him a right to obtain them. Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1513 n.10, 44 L.Ed.2d 29 (1975).

CONCLUSION

We disagree with the District Court’s view that Gale’s appeal is frivolous. We therefore grant his motion to proceed without prepayment of costs. The District Court’s order dismissing the complaint is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

. Gale may serve the sentences imposed by both courts in a federal facility such as Lewis-burg since persons convicted in the courts of the District of Columbia are committed to the custody of the Attorney General of the United States, who may designate a federal institution as the place of confinement. D.C.Code § 24-425 (1973).

. Gale attached copies of the letters to his complaint.

. 28 U.S.C. § 1915(d) allows the court to dismiss an in forma pauperis action if it is “satisfied that the action is frivolous or malicious.”

. We perceive no basis for concluding that either the Fifth or the Eighth Amendment grants Gale a right to the documents in question. Furthermore, his claim for damages is meritless since the statutes upon which he relies do not provide a monetary remedy. The Freedom of Information Act does not create a cause of action for damages, and the provision of the Privacy Act which allows an individual to recover damages does not apply to an agency’s failure to furnish records that have been requested. See 5 U.S.C. § 552a(g)(4) (1976).

. Although Gale was taken to Lorton after his conviction in the District Court, he remained in the custody of the Attorney General of the United States pursuant to 18 U.S.C. § 4082 (1976).

. This refers to an action brought by Gale in the District Court in January, 1979, which alleged that the transfers between Virginia and the District of Columbia deprived him of various constitutional rights. Gale sought a declaration that the transfers were unauthorized, vacation of his sentences and dismissal of the indictment or a new trial, and compensatory damages for each day of his confinement after the first transfer. This action was dismissed by the District Court as frivolous, and Gale did not appeal. The District Court may have interpreted Gale’s complaint in the present case as making similar claims. Since Gale is seeking documents, however, his complaint states a claim that was not made in Civil Action 79-84.