UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MELVIN ANDERSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0413 (PLF) ) FEDERAL BUREAU OF PRISONS, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff has moved for leave to amend his complaint in this Freedom of

Information Act (“FOIA”) case to include “additional claims and allege new factual allegation

[sic] and grounds for relief.” Motion for Leave to File Amended Complaint, at 1 [Dkt. No. 14].

Specifically, plaintiff seeks to add (1) additional facts relating to the contents of and justification

for his request for the documents that are the subject of this FOIA action, (2) a new claim under

the Privacy Act, and (3) a new demand for monetary damages. Plaintiff’s motion will be denied

as futile.

The Court will “freely give leave [to amend] when justice so requires,” Fed. R.

Civ. P. 15(a)(2), and “‘[i]t is common ground that Rule 15 embodies a generally favorable policy

toward amendments.’” Howard v. Gutierrez,

(D.D.C. 2006) (quoting Davis

v. Liberty Mutual Ins. Co.,

, 1136–37 (D.C. Cir. 1989)). Where amendment would

be futile, however, the Court may in its discretion deny such a motion. See Vreven v. AARP,

(D.D.C. 2009) (quoting Foman v. Davis,

(1962)).

Amendment of a complaint is futile where the proposed amendment does not modify the substance of the complaint, Hantzis v. Grantland, No. 08-cv-2190,

, at *1 n.2

(D.D.C. Oct. 30, 2009), or where the complaint as amended would “not survive a motion to

dismiss or for judgment on the pleadings,” Jung v. Assoc. of Am. Med. Colls.,

(D.D.C. 2005).

First, plaintiff seeks to plead additional facts concerning the contents of, and

implying the reasons why he has requested, the documents that he has requested under the FOIA.

See Proposed Amended Complaint ¶¶ 11–62 [Dkt. No. 14-1]. By seeking to plead such facts,

plaintiff is clearly attempting to use his FOIA suit as a vehicle to air dissatisfaction with his

transfer from one federal prison facility to another. That dissatisfaction is irrelevant to his FOIA

claim, the disposition of which simply depends on whether defendant properly searched for and

properly released or withheld responsive records. Engelking v. DEA,

, 980–81

(D.C. Cir. 1997) (noting that “a requester’s personal need for information is immaterial” to FOIA

decisions); Farrugia v. Exec. Office for U.S. Attorneys, Civil Action No. 04-294,

, at *4 n.6 (D.D.C. Feb. 14, 2006) (noting that “the identity of the requester and the

purpose for the request are irrelevant to FOIA decisions”) (citing DOJ v. Reporters Comm. for

Freedom of the Press,

, 770–71 (1989)). Amendment of the complaint to include

this irrelevant pleading would do nothing to modify the substance of the complaint, rendering the

plaintiff’s proposed amendment to include those facts futile.

Second, plaintiff seeks to plead several new claims, all of which stem from

allegations that defendant violated the Privacy Act by fabricating incident reports that led to

plaintiff’s transfer. Proposed Am. Compl. ¶¶ 66–95. Plaintiff thus seeks to have defendant

correct its reports under 5 U.S.C. § 552a(e)(5) by removing the alleged fabrications. Id.

2 Unfortunately for plaintiff, inmate records held by the Bureau of Prisons (“BOP”), including

those reports, are exempt from Section 552(a)(e)(5) of the Privacy Act. See 5 U.S.C. § 552a(j)

(authorizing agencies to make exemptions);

(listing BOP exemptions); Martinez

v. BOP,

(D.C. Cir. 2006) (“The BOP has exempted its Inmate Central Record

System from the accuracy provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5).”); White v. U.S.

Probation Office,

(D.C. Cir. 1998) (“BOP inmate records systems are

exempt from the amendment provisions of the [Privacy] Act.”). Plaintiff’s proposed Privacy Act

claim therefore would not survive a motion to dismiss, see Fed. R. Civ. P. 12(b)(6), rendering

Plaintiff’s proposed amendment to include that claim futile.

Finally, plaintiff seeks to add a demand for damages of $750,000.00. See

Proposed Am. Compl., at 17. “It is well[ ]settled that monetary damages are not available under

FOIA.” Ross v. United States,

(D.D.C. 2006) (citing Johnson v. Exec.

Office for U.S. Attorneys,

(D.C. Cir. 2002) (“FOIA . . . provides requesters

with the potential for injunctive relief only . . . .”)). Plaintiff’s proposed demand for monetary

damages therefore would not survive a motion to dismiss, see Fed. R. Civ. P. 12(b)(6), rendering

plaintiff’s proposed amendment to include that demand futile.

3 Because amendment of plaintiff’s complaint would be entirely futile, the Court

will deny the motion to amend. A separate Order consistent with this Memorandum Opinion

shall issue this same day.

/s/ PAUL L. FRIEDMAN United States District Judge

DATE: February 3, 2011

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