UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUSTIN SADLER,

Plaintiff, v. Civil Action No. 18-1695 (TJK) U.S. DEPARTMENT OF JUSTICE et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Justin Sadler, a federal prisoner proceeding pro se and in forma pauperis, has

sued Defendants Department of Justice and the Federal Bureau of Prisons (BOP) for allegedly

misclassifying him as a sex offender. But for the reasons below, Sadler has failed to state a

claim for some of the causes of action in his complaint, and the Court lacks subject-matter

jurisdiction over the others. The Court will therefore dismiss the complaint in its entirety.

I. Factual and Procedural Background

Sadler alleges that Defendants have improperly classified him in prison databases as a

sex offender even though he “has not been convicted of such an offense.” ECF No. 1 (“Compl.”)

at 1. This classification is one of various Public Safety Factors (PSFs) that prison officials may

assign to an inmate whose “current offense, sentence, criminal history or institutional behavior

. . . requires additional security measures be employed to ensure the safety and protection of the

public.” BOP Program Statement P5100.08, Inmate Security Designation and Custody

Classification, ch. 5 at 7 (Sept. 12, 2006), https://www.bop.gov/policy/progstat/5100_008.pdf.

According to Sadler, his sex-offender PSF limits certain of his privileges and puts his safety at

risk. See Compl. at 1. Sadler alleges that he “asked [Defendants] to remove the false

classification from his files,” but they “failed to do so.” Id. at 2. Sadler sued Defendants in July 2018. Id. His complaint pleads causes of action under (1)

the Privacy Act of 1974, 5 U.S.C. § 552a; (2) the Freedom of Information Act (FOIA),

; and (3) the Fifth and Eighth Amendments to the Constitution.

at 1–2. He seeks

compensatory damages “in an amount commensurate with the Privacy Act,” an injunction

compelling Defendants to remove his sex-offender PSF, and a declaratory judgment that he “is

legally innocent of any previously charged or indicted offenses with underlying allegations of

sexual misconduct.”

Defendants moved to dismiss Sadler’s complaint under Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). ECF No 13-1 (“Mot.”). Sadler opposed their motion,

and Defendants replied. See ECF No. 16 (“Opp’n”); ECF No. 17.

II. Legal Standards

In considering a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a court must

“treat a complaint’s factual allegations as true . . . and must grant a plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000) (citations omitted) (quoting Schuler v. United States,

(D.C. Cir. 1979)). When a plaintiff proceeds pro se, a district court must “consider his

filings as a whole before dismissing a complaint,” Schnitzler v. United States,

(D.C. Cir. 2014), because pro se complaints are held “to less stringent standards than formal

pleadings drafted by lawyers,” Haines v. Kerner,

(1972). Nevertheless, the

Court need not draw inferences in favor of a plaintiff, pro se or otherwise, if those inferences are

not supported by the facts alleged. See Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994).

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must establish that the

Court has subject-matter jurisdiction. See Lujan v. Defs. of Wildlife,

(1992).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “sufficient factual

2 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal,

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

(2007)).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.”

In considering whether a plaintiff

has met this standard, “the Court ‘may only consider 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.’” Hiligh v. Sands,

(D.D.C.

2019) (quoting Gustave–Schmidt v. Chao,

(D.D.C. 2002)).

III. Analysis

A. Privacy Act

Sadler first alleges a cause of action under the Privacy Act. See Compl. at 2. That statute

“regulates the ‘collection, maintenance, use, and dissemination of information’ about individuals

by federal agencies.” Wilson v. Libby,

(D.C. Cir. 2008) (quoting Doe v. Chao,

(2004)). Sadler does not specify how Defendants violated the Privacy Act by

including the sex-offender PSF in his records. 1 But his claim fails for reasons other than that

lack of specificity.

BOP regulations exempt all records contained in its Inmate Central Records System from

Privacy Act obligations.

(j). And PSFs are housed within the Inmate Central

Records System. See Program Statement P5100.08, ch. 5 at 7; BOP Program Statement 5800.17,

Inmate Central File, Privacy Holder, and Parole Mini-Files, at 17 (Apr. 3, 2015),

1 Defendants suggest that Sadler may seek to invoke 5 U.S.C. § 552a(d), (e)(5), or (f). Mot. at 3 & n.1. Subsection (d) allows a plaintiff to request that an agency amend an erroneous record about him; subsection (e)(5) allows a plaintiff to sue if the agency makes an adverse determination based on an erroneous record; and subsection (f) allows a plaintiff to sue if he is harmed by regulations issued under the Privacy Act. See 5 U.S.C. § 552a(g)(1)(A), (C), (D).

3 https://www.bop.gov/policy/progstat/5800_017.pdf. Accordingly, as numerous courts have held,

PSFs are exempted from the Privacy Act as a matter of law. See, e.g., Harrison v. Federal

Bureau of Prisons,

, 180–81 (D.D.C. 2017). As the court in Harrison

explained:

“[a]ll information pertaining to a prisoner’s security level and custody classification is maintained in the Inmate Central Records System,” and that system of records is exempt from the provisions of the Privacy Act on which Harrison relies. Vaden v. U.S. Dep’t of Justice,

(D.D.C. 2015) (quotations and alterations omitted); see 5 U.S.C. § 552a(j)(2) (authorizing the exemption); see also

(j) (the exemption itself). The BOP’s Program Statement on Inmate Security Designation and Custody Classification explains that PSFs are normally applied at intake on the inmate’s BP–337 form, and may then be amended through the use of Form BP–338. See Program Statement P5100.08, ch. 5 at 7. And the Program Statement on the Inmate Central Records System explicitly states that forms BP–337 and BP–338 reside on that system. See Program Statement 5800.17 at 15–17. In fact, that system appears to house all inmate records related to sentencing, PSFs, housing, custody classification, security designations, and the like. See

The Court, accordingly, must join numerous other courts in holding, as a matter of law, that the Privacy Act subsections (d)(1), (e)(5), (f), and others afford inmates and former inmates no cause of action regarding such records.

Sadler argues that Defendants have produced “no evidence” showing that the relevant

records are housed within the Inmate Central Records System. Opp’n at 3. But as the Harrison

court explained, under BOP policy that is where all information pertaining to Sadler’s security

level and custody classification is kept, and Sadler suggests no reason for the Court to doubt that

is the case here. Sadler cannot state a claim under the Privacy Act because the records at issue

are exempt from its provisions as a matter of law. The Court must therefore dismiss his Privacy

Act claim under Rule 12(b)(6).

B. FOIA

Sadler also asserts a cause of action under the FOIA. See Compl. at 1. Opp’n at 3–4.

“The FOIA ‘mandates that an agency disclose records on request, unless they fall within one of

nine exemptions.’” Electronic Privacy Info. Ctr. v. DHS,

(D.C. Cir. 2015)

4 (quoting Milner v. Dep’t of Navy,

, 565 (2011)). Relevant here, an agency must

disclose records “on request.” Id.; see also

(a)(3)(A). But nowhere in Sadler’s

complaint or opposition does he directly assert that he ever filed a FOIA request. And nowhere

does he allege facts from which the Court could conclude that it is plausible that he did—for

example, when he made such a request, how he made it, to whom he directed it, or what records

he requested. The most he does is assert in his opposition that the BOP has “omit[ted]

significant details of its own knowledge of [his] FOIA request.” Opp’n at 4 (emphasis added).

On this record, the Court cannot find that Sadler has met the pleading requirements under Rule

12(b)(6), even applying the relaxed standard that his pro se status warrants. It will therefore

dismiss this claim under Rule 12(b)(6). 2

C. Constitutional Claims

Finally, Sadler invokes the Fifth and Eighth Amendments to the Constitution. See

Compl. at 1. To the extent he seeks money damages based on these constitutional claims, the

federal government’s sovereign immunity deprives the Court of subject-matter jurisdiction,

absent an express waiver. FDIC v. Meyer,

(1994); see also Harrison,

. Sadler identifies no such waiver, nor does one appear applicable here.

To the extent Sadler seeks injunctive relief, he appears to rely on the Administrative

Procedure Act (APA), 5 U.S.C. §§ 701–06. He cites Simmat v. U.S. Bureau of Prisons, in which

the Tenth Circuit concluded that the APA waived sovereign immunity for nonmonetary

constitutional claims against the federal government. See Opp’n at 4;

(10th

2 Sadler also makes a cursory request to amend his complaint under Federal Rule of Civil Procedure 15(a). Opp’n at 4. But he did not attach a proposed amended complaint as required by Local Civil Rules 7(i) and 15.1, nor—far more importantly—did he explain why the Court should grant him leave to amend or preview the facts he would allege in an amended complaint to meet the pleading standard under Rule 12(b)(6). The Court will therefore deny this request as well.

5 Cir. 2005). But as the Court recognized in Harrison, that decision does not save Sadler’s

particular claims because the APA does not apply to them.

“[W]hat the APA gives, another provision—18 U.S.C. § 3625—takes away.” Harrison,

. Under

, the APA does not apply to any decision about

an inmate’s “imprisonment.” See also

. Imprisonment includes “rules

governing ‘the place of the prisoner’s imprisonment,’

§ 3621(b), and the consideration of ‘the

history and characteristics of the prisoner’ in making that assignment, id. § 3621(b)(3).”

Harrison,

. PSFs, which are classifications based on a prisoner’s history

and behavior, are thus within category of imprisonment decisions exempt from APA review. Id.;

see also Burnam v. Marberry, 07–cv–97,

, at *7 (W.D. Pa. Sept. 10,

2008), aff’d,

(3d Cir. 2009).

For these reasons, no waiver of sovereign immunity applies to Sadler’s constitutional

claims, whether for monetary or injunctive relief. The Court thus concludes that it lacks subject-

matter jurisdiction over them. Accordingly, it must dismiss them under Rule 12(b)(1).

IV. Conclusion

Because Sadler has failed to state a claim under the Privacy Act or FOIA, and the Court

lacks subject-matter jurisdiction over his constitutional claims, the Court will grant Defendants’

Motion to Dismiss, ECF No. 13, and dismiss the complaint. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: September 23, 2019

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