UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ALVIN B. TRUESDALE, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1862 (PLF) ) UNITED STATES DEPARTMENT ) OF JUSTICE, et al., ) ) Defendants. ) ____________________________________)

OPINION

This matter is before the Court on defendants’ motion to dismiss.1 The Court has

considered the motion and plaintiff’s opposition thereto, and will grant defendants’ motion in

part and deny it in part.

II. BACKGROUND

A. Plaintiff’s Conviction and Sentence

“On February 6, 1992, the grand jury for the United States District Court for the

Western District of North Carolina returned a thirty count indictment against twenty-one

individuals, charging nineteen of them with participation in a conspiracy to possess with intent to

distribute cocaine, in violation of

. The ringleader, Alvin Truesdale, was also

charged with maintaining a CCE [continuing criminal enterprise] in violation of

1 Also before the Court are 13 non-dispositive motions filed by plaintiff, all of which will be denied. and several other federal crimes.” United States v. McManus,

(4th Cir.

1994). “At trial, persuasive evidence showed that Alvin Truesdale ran a large drug operation in

Charlotte, North Carolina, involving several drug houses and links with drug suppliers in Florida

and New York and that each of the appellants here played some role in the conspiracy.”

. “Alvin Truesdale was convicted of the twenty-two charges against him remaining at the

time of trial.”

“The district court, applying the United States Sentencing Guidelines,

sentenced Alvin Truesdale to life imprisonment plus twenty-five years.”

Truesdale’s CCE and firearms convictions were affirmed on appeal; but the

Fourth Circuit “remand[ed] the case to the district court with instructions to vacate his § 846

conspiracy conviction and resentence [him,] and direct[ed] the court to make specific findings

with regard to: 1) the amount of cocaine attributable to Alvin Truesdale, and 2) whether the two

prior offenses were properly used to calculate his criminal history category.” United States v.

McManus,

. After having conducted a hearing on resentencing, the district court

set aside the conspiracy conviction, found that between 50 and 150 kilograms of cocaine were

involved, found that the two prior convictions were properly considered in determining

Truesdale’s criminal history category, and imposed a sentence identical to the sentence originally

imposed. United States v. Truesdale,

(4th Cir.) (table) (per curiam), cert. denied,

(1996). The Fourth Circuit affirmed the resentencing on appeal. See id.

Plaintiff now is serving a term of life imprisonment without parole on Count 1

(CCE); concurrent terms of 20 years’ imprisonment on Counts 3-9 (cocaine possession and

distribution offenses) and Counts 15-16, 19 and 21-23 (money laundering offenses); concurrent

terms of three years’ imprisonment on Counts 17, 20 and 24 (money laundering offenses) and

2 Counts 29-30 (submission of fraudulent tax returns); a term of five years’ imprisonment on

Count 10 (using and carrying a firearm during and in relation to a drug trafficking crime) to run

consecutively to Count 1; and a term of 20 years’ imprisonment on Count 11 (using and carrying

a firearm during and in relation to a drug trafficking crime) to run consecutively to Count 10.

Pl.’s Resp. to the Defs.’ Mot. to Dismiss the Compl. and Mem. of P. & A. in Support Thereof

(“Pl.’s Opp’n”), Ex. 3 (Amended Judgment in a Criminal Case, Case No. 3:92CR34-01-P) at 1,

7.

With the exception of Count 15, all of the offenses concluded on or after

November 1, 1987, the effective date of the Sentencing Reform Act of 1984 (“SRA”),

(a)(1),

, amended by

,

(1985). See Pl.’s Opp’n, Ex. 3 at 1, 7. Among other things, the SRA eliminated the possibility

of parole for all federal criminal offenses. The CCE statute provided that anyone convicted of

having been a “principal administrator, organizer, or leader of the [continuing criminal]

enterprise or is one of several such principal administrators, organizers, or leaders,” if the

quantity of controlled substance exceeded a certain amount and if the enterprise’s gross receipts

during any 12-month period exceeded $10 million shall be sentenced to life in prison. See

(b). Because the money laundering offense in Count 15 concluded in October 1987,

see Pl.’s Opp’n, Ex. 3 at 1, plaintiff was eligible for parole on that charge, and, indeed, has been

paroled from the sentence imposed for Count 15 to serve the remaining sentences. See

Ex. 1

(July 16, 2002 Notice of Action); see also Compl. ¶ 17.

3 B. Plaintiff’s Complaint

Plaintiff purports to bring this action in part under

and Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971), and alleges

violations of the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Thirteenth Amendments to the

United States Constitution. See Compl. ¶ 1. In addition, he brings claims under the Freedom of

Information Act (“FOIA”), see

, the Privacy Act, see 5 U.S.C. § 552a, and the

Federal Tort Claims Act (“FTCA”), see

et seq. See

. Conclusion Date of the CCE Offense

Count One pertains to the date on which the CCE offense (Count I of the criminal

indictment) concluded. Plaintiff maintains that he is an “old law” offender: he alleges that the

CCE offense concluded not later than January 1987, before the effective date of the SRA, and

therefore argues that he is eligible for parole. See Compl. ¶¶ 10-11, 15. According to plaintiff,

the Federal Bureau of Prisons (“BOP”), its Director, the former Attorney General of the United

States, the United States Parole Commission (“USPC”) and its members, and other federal

government employees fail to recognize his status as an “old law” offender and that, as a result,

his sentence is calculated incorrectly and he is improperly denied parole consideration.

. In addition, he alleges that the defendants “negligently and unlawfully

programmed the [BOP’s] SENTRY database with false information . . . claiming several

different dates for [his] old law charge,” all of which fall after November 1, 1987.

; see

.

4 2. Claims Regarding Government Records

Counts Two, Three and Four of plaintiff’s complaint pertain to defendants’

alleged failure to maintain a repository of records of convictions (such as plaintiff’s conviction

under

) as required under

, their refusal to release records under

the FOIA, and their failure to maintain the records themselves with the accuracy, completeness,

and timeliness required under the Privacy Act. See Compl. ¶¶ 32-43, 46-48, 51-57. Plaintiff

brings these claims against the individual defendants in their individual capacities under Bivens,

as well as against the United States Department of Justice (“DOJ”) and the BOP.

3. Tort Claims

In Count Four, plaintiff alleges that defendants negligently and unlawfully failed

to establish a repository of records of convictions as required under

. See

Compl. ¶¶ 60-62. Plaintiff also alleges that BOP staff negligently accepted as true or failed to

verify any document or other record reflecting plaintiff’s charge or conviction of any drug

trafficking offense or violent offense concluding on February 15, 1998. See

.

With respect to all claims, plaintiff demands monetary damages. Compl. ¶ 30; see

. With respect to the FOIA claims, he demands the immediate release of

unredacted records pertaining to his criminal convictions,

, and the establishment of a

repository of records under

.

. Under the Privacy Act, plaintiff demands

injunctive relief requiring the BOP “to immediately program [its] SENTRY data base and/or

adjust [its] records to show the correct date for Count 1 of [plaintiff’s] old law charge and

conviction is January 1987,” and to recalculate his sentence accordingly.

.

5 II. DISCUSSION

A. Review Under Rule 12(b)(6)

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

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

Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(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,

(1974). “When ruling on a defendant’s motion to dismiss, a judge must accept as true

all of the factual allegations contained in the complaint.” Atherton v. District of Columbia Office

of the Mayor,

(D.C. Cir. 2009) (quoting Erickson v. Pardus,

(2007)) (other citations omitted). 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,

. As

the Supreme Court recently stated, “[t]o 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.’”

Ashcroft v. Iqbal, __ U.S. __, __,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

). A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw a reasonable inference that the defendant is liable for the

misconduct alleged.”

(quoting Bell Atl. Corp. v. Twombly,

). A complaint alleging facts that are “‘merely consistent with’ a defendant’s liability, . . .

6 ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

(quoting Bell Atl. Corp. v. Twombly,

) (brackets omitted).

B. The Doctrine of Collateral Estoppel Bars Relitigation of the Issue of the Date on Which the CCE Offense Concluded

Defendants argue that plaintiff’s complaint must be dismissed as barred by the

doctrine of collateral estoppel. See Defs.’ Mot. at 7-10.

“Under collateral estoppel, once an issue is actually and necessarily determined by

a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a

different cause of action involving a party to the prior litigation.” Montana v. United States,

(1979) (citing Parklane Hosiery Co. v. Shore,

, 326 n.5 (1979)); see

Ashe v. Swenson,

(1970); Agudas Chasidei Chabad of United States v.

Russian Fed’n,

(D.C. Cir. 2008) (“Issue preclusion can be applied only as to

an issue resolved against the party sought to be estopped and necessary to the judgment.”). “The

Supreme Court has defined issue preclusion to mean that ‘once a court has decided an issue of

fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit

on a different cause of action involving a party to the first case.’” Yamaha Corp. of Am. v.

United States,

(D.C. Cir. 1992) (quoting Allen v. McCurry,

(1980)), cert. denied,

(1993). “To preclude parties from contesting matters that

they have had a full and fair opportunity to litigate protects their adversaries from the expense

and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on

judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United

States,

.

7 As the District of Columbia Circuit has stated:

Collateral estoppel requires three elements . . . [1], the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case[; 2], the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case [; and] [3], preclusion in the second case must not work a basic unfairness to the party bound by the first determination.

Martin v. Dep’t of Justice,

(D.C. Cir. 2007) (quoting Yamaha Corp. of Am. v.

United States,

); Otherson v. Dep’t of Justice,

(D.C. Cir.

1983). “[O]nce an issue is raised and determined, it is the entire issue that is precluded, not just

the particular arguments raised in support of it in the first case.” Citizen Potawatomi Nation v.

Salazar,

(D.D.C. 2009) (quoting Yamaha Corp. of Am. v. United

States,

(emphasis in original)); Bailey v. DiMario,

(D.D.C. 1995). Defendants demonstrate that the issue of the date on which the CCE concluded

has been litigated and resolved against plaintiff in a habeas corpus action filed under

in the United States District Court for the Western District of Louisiana. See Truesdale v.

Menifee, Civ. No. 05-1308-A (W.D. La. Mar. 27, 2006) (Judgment), aff’d,

(5th Cir. June 27, 2007) (per curiam), cert. denied, __ U.S. __,

(2008).2

In his habeas corpus action in Louisiana, plaintiff alleged that he was held

unlawfully because the respondents failed to recognize his “old law” status with respect to the

2 The Court may take judicial notice of the records of another court. See Covad Commc’ns Co. v. Bell Atl. Corp.,

, 1222 (D.C. Cir. 2005); Does I through III v. District of Columbia,

(D.D.C. 2002). Defendants attach a copy of the Magistrate Judge’s Report and Recommendation and the Judgment as exhibits to their motion to dismiss. See Defs.’ Mot., Ex. 1-2. Plaintiff attaches a copy of the district court’s April 18, 2006 Order denying his request for reconsideration or to alter or amend the judgment as an exhibit to his opposition. See Pl.’s Opp’n, Ex. 2.

8 CCE conviction (Count I of the criminal indictment), because the respondents changed the date

of the CCE offense in BOP’s SENTRY database such that the offense date erroneously appears

as later than January 1987, and because the BOP and the USPC failed to consider him for parole

on the CCE sentence. Truesdale v. Menifee, No. 05-1308-A, slip. op. at 5-6, 8-9 (W.D. La. Jan.

20, 2006) (Magistrate Judge Report and Recommendation). The court identified “the linchpin of

[plaintiff’s] claims [as] his assertion that the CCE ended prior to the effective date of the [SRA],”

and flatly rejected the argument based on “the evidence submitted by [plaintiff] himself,” as well

as the facts of the underlying criminal case as reported in the Fourth Circuit’s opinion affirming

plaintiff’s convictions.

slip. op. at 10, see

at 11-13 (quoting United States v. McManus,

). In relevant part, the Report and Recommendation stated:

The Indictment, with regard to the CCE charge in Count I clearly stated that the offense occurred, “From January 1987, and continuing thereafter, until the present . . .” The Indictment was filed on February 6, 1992. Further, the Amended Judgment dated January, 1995 specifically states that the CCE offense, set forth as Count I, concluded in February, 1992.

***

Thus, as can be seen from the [Fourth Circuit’s] recitation of facts, the acts supporting the CCE masterminded by [plaintiff] occurred for a period of time which, though commencing before the effective date of the SRA, continued up to the date that [plaintiff] and his cohorts were indicted, arrested, and brought to justice. Further, while the SRA applies only to offenses committed after November 1, 1987, it most definitely applies to continuing offenses in which acts comprising the crime occur both before and after [the SRA’s] effective date.

[Plaintiff’s] claims to the contrary are simply not supported by the record he himself has submitted. Further, . . . [plaintiff] faults the BOP and the [USPC] for their failures to “recognize” his Old Law status, for “changing” the date of the offense, and for violating their

9 “duty” to make a fact finding independent of the trial court’s findings with respect to the dates of the offense in question.

Of course, these allegations have support neither in fact nor law. Neither the BOP nor the [USPC] “changed” the dates of the offense. Further, [plaintiff] has pointed to no law, statutory or jurisprudential, which imposes a duty on these agencies to question the findings of the United States Courts.

slip. op. at 10, 13-14 (emphasis in original) (internal citations omitted). The district court

adopted the Magistrate Judge’s Report and Recommendation in full, denied and dismissed the

habeas petition with prejudice, and entered judgment in respondents’ favor. See Truesdale v.

Menifee, Civ. No. 05-1308-A (W.D. La. Mar. 27, 2006) (Judgment).

Plaintiff counters first by asserting that defendants “made themselves available

sub judice after taken [sic] it upon themselves to reopen the discussion concerning (among other

things) their unlawful establishment of a false date of offense in-regard to Count 1 (February 15,

1998) and . . . to erroneously compute [plaintiff’s] old law conviction on Count 1 as a new law

conviction without any direction from his sentencing court or judge.” Pl.’s Opp’n at 9 (emphasis

in original). For example, the USPC and the sentencing court use the date of February 1992, see

Ex. 1 (July 16, 2002 Notice of Action), Ex. 3 (Amended Judgment in a Criminal Case, Crim.

No. 3:92CR34-01-P) at 1. Plaintiff alleges that BOP’s SENTRY database has been “unlawfully

programmed . . . to show the date of Count 1 of TRUESDALE’s old law charge and conviction

concluded February 15, 1988[.]” Compl. ¶ 25. Here, plaintiff appears to argue that, because

different dates of conclusion for the CCE appear in various records, the issue of the CCE end

date has not been resolved. See id. at 6, 9. In his view, it follows that the habeas ruling does not

preclude consideration of the CCE conclusion date here.

10 Second, plaintiff argues that the habeas corpus action has no preclusive effect

because the Western District of Louisiana did not issue its ruling on the merits. Pl.’s Opp’n at 6.

Specifically, he argues that the court did not consider his objections to the Magistrate Judge’s

Report and Recommendation, see id. at 6-7, and that he did not have a full and fair opportunity to

litigate the issue. Id. at 10-11. Neither argument is persuasive.

Without question, the issue of the date on which the CCE concluded actually has

been litigated, and its resolution was essential to the Western District of Louisiana’s ruling on

plaintiff’s habeas corpus petition. The SRA “eliminated the possibility for parole for convicts

such as [plaintiff] convicted of violations of

. . . if it can be determined that the

criminal conduct in question occurred subsequent to the effective date of the [SRA].” Truesdale

v. Menifee, No. 05-1308-A, slip. op. at 9 (W.D. La. Jan. 20, 2006). The court in Louisiana found

that the CCE commenced prior to November 1, 1987 and concluded upon plaintiff’s indictment

in February 1992. As long as the date of the continuing criminal enterprise concluded after

November 1, 1987, the SRA applies. Morever, the court reached its decision after having

considered plaintiff’s objections to the Magistrate Judge’s Report and Recommendation. See

Truesdale v. Menifee, Civ. No. 05-1308-A (W.D. La. Mar. 27, 2006) (Judgment).

This Court concludes that the issue of the date on which the CCE concluded is

barred under the doctrine of collateral estoppel.

C. Plaintiff’s FOIA, Privacy Act, and Bivens Claims Against the Individual Defendants Must Be Dismissed

Plaintiff ties defendants’ violations of the FOIA and the Privacy Act to their

alleged failure to maintain a repository of records under

pertaining to his CCE

11 conviction. See Compl. ¶¶ 46-49, 51-58. This provision authorizes the Attorney General “to

establish in the [DOJ] a repository for records of convictions and determinations of the validity

of such convictions.”

(a). The repository’s records are not public records,

(c), but they “shall be prima facie evidence in any court of the United States . . .

that the convictions occurred and whether they have been judicially determined to be invalid on

collateral review.”

(c)(3). Plaintiff purports to hold defendants liable in their

individual capacities under Bivens for their collective failure to maintain and produce records on

his request from this repository. See Compl. ¶¶ 33, 37-38, 46-48. His reliance on Bivens and on

is misplaced.

Plaintiff alleges that defendants “knowingly, willfully, [and] intentionally . . .

refused to turn-over all responsive material as a result of TRUESDALE’s Freedom of

Information Act request for a copy of any and all records that show the Attorney General . . .

established in the Department of Justice a repository of records of TRUESDALE’s

conviction pursuant to

(a)(c)(3)(d) [sic],” Compl. ¶ 46; see

,

in violation of his First and Fifth Amendment rights.

. Insofar as plaintiff challenges

a federal agency’s failure to release records maintained by the agency upon his FOIA request, the

FOIA is his sole remedy, and the only proper defendant is the United States Department of

Justice. A Bivens remedy is not available where a statute provides a “comprehensive system to

administer public rights,” Spagnola v. Mathis,

(D.C. Cir. 1988) (en banc), and

the FOIA represents such a statutory scheme. Johnson v. Executive Office for United States

Attorneys,

(D.C. Cir. 2002); accord Barbosa v. Drug Enforcement Admin.,

, 110 n.1 (D.D.C. 2008). Nor can plaintiff sustain a Bivens claim against the

12 Attorney General, BOP’s Director, or any other federal government employee in his individual

capacity for a FOIA violation, because the FOIA does not permit claims against individual

federal officers. See, e.g., Isasi v. Office of the Attorney General,

(D.D.C.

2009).

Similarly, insofar as plaintiff alleges defendants’ willful and intentional failure “to

maintain a repository of records of TRUESDALE’s

conviction with such

accuracy, relevance, timelessness, and completeness as is necessary to assure fairness in any

determination relating to the qu[a]lification, character, rights, or opportunities of, or benefits to

the plaintiff/TRUESDALE that may be made on the basis of such records,” Compl. ¶ 55, the

claim falls exclusively “within the remedial scheme of the Privacy Act [.]” Chung v. United

States Dep’t of Justice,

(D.C. Cir. 2003). The Privacy Act authorizes a cause

of action against federal agencies only, and plaintiff cannot sustain a Privacy Act claim against

any federal government official in his individual capacity. See Martinez v. Bureau of Prisons,

(D.C. Cir. 2006); Armstrong v. Bureau of Prisons,

(D.D.C. 1997).

The complaint fails to state FOIA, Privacy Act, and Bivens claims upon which

relief may be granted against the individual defendants. Therefore, these claims and parties will

be dismissed.

13 D. Plaintiff Has Exhausted One FOIA Claim

Defendants argue that plaintiff’s FOIA claim is subject to dismissal because he

failed to exhaust administrative remedies prior to the filing of the instant lawsuit. Defs.’ Mot. at

13-14.3

“Exhaustion of administrative remedies is generally required before seeking

judicial review” under the FOIA. Wilbur v. Central Intelligence Agency,

(D.C. Cir. 2004) (per curiam). Exhaustion allows “the agency [] an opportunity to exercise its

discretion and expertise on the matter and to make a factual record to support its decision.”

(quoting Oglesby v. United States Dep’t of the Army,

(D.C. Cir. 1990)).

Exhaustion under the FOIA is not a jurisdictional requirement, Hidalgo v. Fed. Bureau of

Investigation,

(D.C. Cir. 2003), but instead is a prudential consideration.

Wilbur v. Central Intelligence Agency,

. If a requester has not exhausted his

administrative remedies prior to the filing of a civil action, his claim is subject to dismissal. See

Hidalgo v. Fed. Bureau of Investigation,

.

Plaintiff alleges that defendants “refused to turn-over all responsive material as a

result of [his FOIA] request for a copy of any and all records that show the Attorney General of

the United States established in the Department of Justice a repository of records of [his]

conviction pursuant to 18 [U.S.C.] § 3662(a)(c)(3)(d) [sic].” Compl. ¶ 47. The

pleading refers to only one FOIA request, a request to which plaintiff received a response on

3 Defendants also argue that plaintiff “is attempting to re-litigate FOIA claims already fully adjudicated in Truesdale v. Ashcroft et al., Case No. 1:03-cv-01132-GK (D.D.C.).” Defs.’ Reply at 5. The Court has reviewed the FOIA requests at issue in the two cases, and it is unclear that the request in this case “is essentially the same,” id., as defendants suggest.

14 February 22, 2006. Id. ¶ 32. In response to defendants’ exhaustion argument, plaintiff submits a

copy of the BOP’s response to FOIA Request No. 2004-02303:

This is in response to your [FOIA] request for a copy of all documents that show[] the Attorney General has established in the Department of Justice a repository of records of requester’s CCE (

) conviction. Also all records that determine the validity of said conviction [sic].

We are uncertain as to what documents you are seeking from this agency. If you are seeking information about your conviction you can gain access to your central file at the institution. Otherwise we cannot conduct an adequate search for the information you provided here.

Pl.’s Opp’n, Ex. 4 (September 27, 2004 letter from W.M. Hunt, Chief, FOIA/PA Section, BOP).

This determination was affirmed on administrative appeal. See

at 16 & Ex. 6 (February 22,

2006 letter from M.A. Pustay, Deputy Director, Office of Information and Privacy, DOJ).

Although plaintiff apparently has filed other FOIA requests, see Pl.’s Opp’n, Ex. 7

(June 22, 2007 letter from J. Campbell, Supervisory Attorney, Southeast Regional Office, BOP,

regarding FOIA Request No. 07-4151); Ex. 10-11 (August 20, 2008 FOIA requests to the

Executive Office for United States Attorneys and to the United States Attorney’s Office for the

Western District of North Carolina; correspondence regarding Request No. 08-3036), these

requests are not mentioned in the complaint and therefore are not considered further.

Plaintiff has demonstrated that he has exhausted his administrative remedies with

respect to FOIA Request No. 2004-02303, thus defeating defendants’ motion to dismiss as to this

claim.

15 E. Plaintiff’s Privacy Act Claim Survives Defendants’ Motion to Dismiss

It appears that plaintiff’s Privacy Act claim arises from: (1) the existence of DOJ

and BOP records, particularly those maintained in BOP’s SENTRY database, which reflect the

fact of his CCE conviction and its conclusion date after November 1, 1987; and (2) defendants’

refusal to correct these records to show January 1987 as the date on which the CCE offense

concluded. He demands amendment of the SENTRY records “to show the correct date for Count

1 of TRUESDALE’s old law charge and conviction is January 1987.” Compl. ¶ 30.

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

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

(D.C.

Cir. 1992) (stating that subsection (g) provides civil remedies for violations of subsection (e)(5)).

Notwithstanding the relief ostensibly available under the Privacy Act, the head of

an agency 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

16 authorities, and which consists of . . . reports 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). 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) of the Privacy Act. See

(a)(1), (4). In addition, under 5 U.S.C. § 552a(j)(2),

BOP’s Inmate Central Records System is exempt from subsection (e)(5), that is, the accuracy

provision of the Privacy Act. See

(j); see also

(k)(2).

Defendants argue that, insofar as plaintiff demands amendment of any record maintained in the

Inmate Central Records system, this relief is unavailable. See Defs.’ Mot. at 15-17.

Plaintiff, however, demands amendment of BOP’s SENTRY database, and it is

not clear whether SENTRY is among those systems of records exempt from the Privacy Act’s

amendment and accuracy provisions. For this reason, defendants’ motion to dismiss will be

denied without prejudice.

F. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Tort Claims

Defendants construe plaintiff’s negligence claims as tort claims against the United

States under the FTCA, and move to dismiss them on the ground that this Court lacks subject

matter jurisdiction. See Defs.’ Mot. at 17-18.

“It is axiomatic that the United States may not be sued without its consent and that

the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell,

(1983). Generally, the FTCA provides that the “United States shall be liable [for tort

claims] in the same manner and to the same extent as a private individual under like

17 circumstances.”

(a). It operates as a limited waiver of sovereign immunity,

rendering the United States amenable to suit for certain, but not all, tort claims. See, e.g.,

Richards v. United States,

(1962). For example, “the United States simply has not

rendered itself liable under [the FTCA] for constitutional tort claims.” Fed. Deposit Ins. Corp. v.

Meyer,

(1994). “Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit,”

, as well as to their employees where such

employees are sued in their official capacities, see

.

According to plaintiff, defendants’ negligence amounts to the violation of rights

protected under the First, Fourth, Fifth, Sixth, Seventh, Eighth and Thirteenth Amendments to

the United States Constitution. See Compl. ¶¶ 1, 63 (referring to the negligence of DOJ

employees alleged in ¶¶ 8-30). Because the FTCA does not waive liability for constitutional

torts, plaintiff’s FTCA claim cannot survive the defendants’ motion to dismiss. See, e.g., Jones

v. Delaney,

(D.D.C. 2009) (dismissing complaint against the United

States Department of Justice, the Federal Bureau of Investigation, and the United States Marshals

Service and any of its agents sued in his official capacity, and dismissing these defendants from

the case because they are immune from suit).

III. CONCLUSION

Plaintiff’s Bivens claims against all individual defendants are dismissed, and

defendants Michael B. Mukasey, Alberto Gonzales, Harley G. Lappin, Edward R. Reilly, Jr.,

Thomas W. Hutchinson, Steve Husk, Adrienne Poteat, Wanda M. Hunt, Melanie Ann Pustay,

and “John and Jane Doe” are dismissed as party defendants. Because plaintiff already has

18 litigated in the United States District Court for the Western District of Louisiana the issue of the

date on which the CCE concluded, the doctrine of collateral estoppel bars plaintiff from

relitigating this same issue here. Plaintiff’s FTCA claim must be dismissed for lack of subject

matter jurisdiction because the United States has not waived sovereign immunity for

constitutional torts. For these reasons, defendants’ motion to dismiss will be granted in part and

denied in part. Only plaintiff’s FOIA and Privacy Act claims against the DOJ survive.

An Order consistent with this Opinion will be issued this same day.

/s/ PAUL L. FRIEDMAN DATE: September 29, 2009 United States District Judge

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