UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________ ) LAWRENCE T. TYLER, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-1107 (EGS) ) U.S. FEDERAL BUREAU ) OF PRISONS et al., ) ) ) Defendants. ) _________________________________ )

MEMORANDUM OPINION

Plaintiff is a federal prisoner appearing pro se. In the Complaint styled as brought under

the Privacy Act, the Freedom of Information Act (“FOIA”), and the Administrative Procedure

Act (“APA”), plaintiff challenges the accuracy of information contained in his presentence

investigation report (“PSI”) and the alleged adverse effect it is having on his custody in Folkston,

Georgia. Plaintiff has sued the U.S. Bureau of Prisons (“BOP”), BOP contractor GEO Group,

Inc., which operates the facility where plaintiff is incarcerated, and several GEO employees in

their official capacities.

Pending are the separate motions of BOP and the GEO defendants to dismiss. Each

motion seeks dismissal under Federal Rule of Civil Procedure 12(b)(3) for improper venue and

Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Also pending is

plaintiff’s motion for partial summary judgment as to liability. The Court finds that this venue is

1 proper but that plaintiff has stated no viable claim. 1 Therefore, the defendants’ motions will be

granted, plaintiff’s motion will be denied, and this case will be dismissed for the reasons

explained more fully below.

I. BACKGROUND

A jury in the U.S. District Court for the Southern District of Texas convicted plaintiff of

one count of conspiracy to commit health care fraud, seven counts of health care fraud, and one

count of money laundering. United States v. Tyler, 626 Fed. App’x 511, 512 (5th Cir. 2015) (per

curiam). As a result, plaintiff is serving a 72-month prison sentence. In addition, plaintiff must

serve three years of supervised release and pay restitution. Id.

Plaintiff has expended an inordinate amount of ink on irrelevant facts pertaining to his

trial and convictions. See Compl. at 4-36. Relevant to this action are plaintiff’s allegations that

(1) his custody is based on “inaccurate” and/or “incomplete” information in the PSI with regard

to “loss amount” and his U.S. citizenship, and (2) defendants have taken no “reasonable steps” to

verify the challenged information. Id. at 37-38. As a result, plaintiff alleges, he has suffered

“adverse determination[s] . . . such as longer detention, and a restitution award of

$1,238,823.08.” 2 Id. at 37.

II. LEGAL STANDARD

A defendant may move to dismiss a complaint for failure to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering such a motion, the “complaint is

1 The venue provisions of both the Privacy Act and the FOIA identify the federal district court in the District of Columbia as a proper venue for such claims. See 5 U.S.C. § 552a(g)(5) (Privacy Act);

(a)(4)(B) (FOIA). 2 To the extent that plaintiff is challenging part of his sentence, this district court is not a reviewing court and thus lacks jurisdiction over such matters. Plaintiff’s recourse with regard to the amount of restitution ordered lies, if at all, in the sentencing court. See

(“Federal custody; remedies on motion attacking sentence”).

2 construed liberally in the plaintiff[’s] favor, and [the Court] grant[s] plaintiff[ ] the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994) (citation omitted). “However, the [C]ourt need not accept

inferences drawn by [the] plaintiff[ ] if such inferences are unsupported by the facts set out in the

complaint.”

Nor must the Court accept “a legal conclusion couched as a factual allegation,”

nor “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted); see also Aktieselskabet AF 21. November 2001 v.

Fame Jeans Inc.,

, 17 n.4 (D.C. Cir. 2008) (noting that the D.C. Circuit has “never

accepted legal conclusions cast in the form of factual allegations” (internal quotation marks

omitted)). Ordinarily on a Rule 12(b)(6) motion, the Court considers only “the facts alleged in

the complaint, documents attached as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao,

(D.D.C. 2002) (citing EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997)).

“To survive a [Rule 12(b)(6)] 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.’ ” Iqbal,

(quoting Bell Atlantic Corp. v. Twombly,

(2007)). A claim is

facially plausible when the pleaded factual content “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

. Although a pro se

complaint “must be held to less stringent standards than formal pleadings drafted by lawyers,”

Erickson v. Pardus,

(2007) (per curiam) (internal quotation marks and citation

omitted), it too “must plead ‘factual matter’ that permits the court to infer ‘more than the mere

3 possibility of misconduct,’ ” Atherton v. District of Columbia Office of the Mayor,

(D.C. Cir. 2009) (quoting Iqbal,

).

III. DISCUSSION

Because plaintiff’s claims are predicated on the alleged incorrectness of his PSI contained

in his prison file, judicial review is authorized solely under the Privacy Act. See Griffin v.

Ashcroft, No. 02-5399,

, at *2 (D.C. Cir. Sept. 3, 2003) (affirming “the

district court’s dismissal of appellant’s constitutional claims based on the BOP’s alleged

maintenance and use of inaccurate information because such claims are encompassed within the

Privacy Act’s comprehensive remedial scheme”) (citing Chung v. U.S. Dep’t of Justice,

(D.C. Cir. 2003)). For this reason, the Court hereby dismisses (1) any APA claim,

since “a plaintiff cannot bring an APA claim to obtain relief for an alleged Privacy Act

violation,” Westcott v. McHugh,

(D.D.C. 2014), and (2) the claims against

the named individual defendants and GEO Group, Inc., since “the Privacy Act does not apply to

government contractors,” Metro. Life Ins. Co. v. Blyther,

(D.D.C. 2013)

(citing cases). See Abdelfattah v. U.S. Dep't of Homeland Sec.,

, 533 n.4 (D.C. Cir.

2015) (“[T]he Privacy Act creates a cause of action against only federal government agencies

and not private corporations or individual officials.”) (citations omitted), and Martinez v. Bureau

of Prisons,

(D.C. Cir. 2006) (concluding that “the district court properly

dismissed the named individual defendants because no cause of action exists that would entitle

appellant to relief from them under the Privacy Act or FOIA”) (citations omitted)).

In addition, plaintiff has mentioned the FOIA but has not alleged that BOP withheld

agency records to state a claim under FOIA. See Banks v. Lappin,

(D.D.C. 2008) (“Federal jurisdiction over a FOIA claim is dependent upon a showing that an

4 agency improperly withheld agency records.”) (citing Kissinger v. Reporters Comm. for

Freedom of the Press,

(1980)). Accordingly, any FOIA claim is dismissed as

well.

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). As a general rule, an individual may access an agency’s records or

information in a system of records pertaining to him and request that such records be amended.

See 5 U.S.C. § 552a(d). 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)).

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 ostensibly 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

5 the process of enforcement of the criminal laws from arrest or indictment through release from supervision.

5 U.S.C. § 552a(j)(2). It is established that BOP’s Inmate Central Records System, which

contains, among other things, an inmate’s PSI, has been properly exempted from the Privacy

Act’s amendment and maintenance requirements, and that “effectively deprive[s] a litigant of a

remedy for any harm caused by the BOP’s substandard recordkeeping.” Lee v. Bureau of

Prisons,

(D.D.C. 2010) (citing

(a)(4) and

§ 16.97(j); Skinner v. Dep’t of Justice,

(D.C. Cir. 2009) (affirming

dismissal of a claim for amendment of records maintained in the Inmate Central Records

System); Martinez v. Fed. Bureau of Prisons,

(D.C. Cir. 2006) (per curiam)

(affirming dismissal of claims against the BOP because it had exempted the Inmate Central

Records system from the accuracy provision of the Privacy Act, 5 U.S.C. § 552a(e)(5); White v.

U.S. Probation Office,

(D.C. Cir. 1998) (per curiam) (concluding that the

Privacy Act’s amendment provision does not cover amendment of a PSI); Risley v. Hawk,

(D.C. Cir. 1997) (per curiam) (denying injunctive relief on the ground that

regulations exempt BOP records, including allegedly false medical records, from amendment

provision of Privacy Act); Sellers v. Bureau of Prisons,

(upholding dismissal of

claim for amendment of prisoner’s PSI under § 552(d)); see also Harrison v. Fed. Bureau of

Prisons,

(D.D.C. 2017) (holding “as a matter of law” that because the

BOP’s Inmate Central Records System “appears to house all inmate records related to

sentencing, [public safety factors], housing, custody classification, security designations, and the

6 like,” subsections (d)(1), (e)(5), and (f) of the Privacy Act “afford inmates and former inmates no

cause of action regarding such records”) (citations omitted)). 3

IV. CONCLUSION

For the foregoing reasons, the Court concludes that plaintiff has stated no claim for relief

under the Privacy Act, the FOIA, or the APA. As a result, the defendants’ motions to dismiss

under Rule 12(b)(6) are granted and plaintiff’s motion for partial summary judgment is denied as

moot. A separate order accompanies this Memorandum Opinion.

SIGNED: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

DATE: May 31, 2018

3 Regardless of the record system’s exemption, BOP has fulfilled any plausible duty under the Privacy Act by verifying the accuracy of the restitution amount via the sentencing order and the validity of the immigration detainer lodged by the Department of Homeland Security. See Decl. of Wendi Sorrell ¶¶ 6-9 [Dkt. # 23-2]. Cf. Martinez,

(noting with approval that BOP had “contacted the [U.S. Parole Commission] and the [U.S. Probation Office] and was advised that [its] records regarding appellant were accurate”); but see Earle v. Holder,

(D.D.C. 2011), aff'd, No. 11-5280,

(D.C. Cir. Apr. 20, 2012) (questioning the continuing vitality of the “Sellers directive to verify easily verifiable information in BOP records, . . . as it was decided before [BOP] exempted the relevant system of records from the accuracy provision”) (citing Sellers,

) (other citations and internal quotation marks omitted)). Therefore, plaintiff’s motion for partial summary judgment “as to the liability of defendants” for “failing to take reasonable steps to verify the inaccurate information,” Mot. for Partial Summ. J. at 1 [Dkt. # 12], is moot.

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