UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARCELLUS R. FREEMAN, : : Plaintiff, : v. : Civil Action No. 19-cv-02569 (CKK) : FEDERAL BUREAU OF PRISONS, : : Defendant. :

MEMORANDUM OPINION

This matter is before the Court on Defendant’s Motion to Dismiss. For the reasons

discussed below, the Court will grant the Motion.

I. BACKGROUND

Plaintiff, Marcellus R. Freeman, proceeding pro se and in forma pauperis, initiated this

matter on September 10, 2019. See Compl., ECF No. 1. Plaintiff initially sued various judges,

prosecutors, employees of the Federal Bureau of Prisons (“BOP”), and the District of Columbia

Department of Corrections, alleging violations of the Privacy Act, see 5 U.S.C. § 552a. Id. at 1–

7, 10, 12. Plaintiff also alleged violations of the Fourth Amendment to the United States

Constitution pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

(1971). Id. at 2, 6, 11, 12. Plaintiff attested that Defendants improperly and

unlawfully used and disclosed his full social security number. Id. at 2, 6, 7, 9, 10. He demanded

monetary damages, including compensation for alleged breaches of contract, in addition to

declaratory and injunctive relief. Id. at 12–15.

On November 12, 2019, the Court dismissed all claims other than those proceeding

pursuant to the Privacy Act. See 11/12/19 Ord., ECF No. 7. The Court found that, insofar as

Plaintiff demanded monetary damages for alleged Bivens violations of his Fourth Amendment

1 rights, any such claims failed on the basis of sovereign and judicial immunity. Id. at 2. The Court

also found that the Complaint contained no factual allegations to support a claim for breach of

contract. Id. Last, the Court dismissed all Defendants other than BOP, finding that the only proper

defendant in a Privacy Act action is the agency maintaining the challenged record, and that the Act

does not cover federal courts, individuals, or District of Columbia government agencies. Id. at 1–

2.

The matter was then assigned to this Court on November 14, 2019 and, on November 22,

2019, an Order Establishing Procedures, ECF No. 9, issued. The Order provided instruction that

“[w]here a party fails to file a memorandum of points and authorities in opposition to a given

motion, the Court may treat the motion as conceded.” Id. ¶ 10(B). After an extension, on February

12, 2020, BOP – the single remaining defendant – filed a timely Motion to Dismiss and

Memorandum in Support (“MTD Mem.”), ECF Nos. 17, 17-1, in response to the Complaint. The

Court denied Plaintiff’s Motion to Appoint Counsel, ECF No. 16, on February 14, 2020, see Ord.,

ECF No. 18.

On the same date, the Court also issued an Order, advising Plaintiff of his obligations to

respond to Defendant’s Motion to Dismiss, pursuant to the Federal Rules of Civil Procedure and

the Local Civil Rules of this Court. See Feb. 14, 2020 Order (“Fox Neal Ord.”), ECF No. 19; see

also Neal v. Kelly,

(D.C. Cir. 1992); Fox v. Strickland,

(D.C.

Cir. 1988). The Court further ordered that Plaintiff file an opposition or other response to the

Defendant’s Motion to Dismiss by March 30, 2020. See Fox Neal Ord. at 2. Plaintiff was again

forewarned that if he failed to file a timely response, the Court would rule on the Motion without

the benefit of his position.

To date, Plaintiff has not filed any opposition or response, and has

not otherwise complied with this Court’s Order.

2 II. STANDARD OF REVIEW

Defendant moves to dismiss pursuant to Federal Rule 12(b)(6). In evaluating a motion to

dismiss under Rule 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) (internal citations omitted)

(quoting Schuler v. United States,

(D.C. Cir. 1979)); see also Am. Nat'l Ins. Co.

v. FDIC,

(D.C. Cir. 2011). Where an action is brought by a pro se plaintiff,

as in the instant matter, a district court has an obligation “to consider his filings as a whole before

dismissing a complaint,” Schnitzler v. United States,

(D.C. Cir. 2014) (citing

Richardson v. United States,

(D.C. Cir. 1999)), because such complaints are

held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

, 520–21 (1972). Nevertheless, a court need not accept inferences drawn by a plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the court accept a

plaintiff's legal conclusions. Browning v. Clinton,

(D.C. Cir. 2002).

In order 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. Ashcroft v.

Iqbal,

(2009); accord Bell Atl. Corp. v. Twombly,

(2007). In

Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,

the tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.”

. “Second, only a complaint that states a plausible

claim for relief survives a motion to dismiss.”

.

A claim is facially plausible when the pleaded factual content “allows the court to draw the

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

. “The

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

possibility that a defendant has acted unlawfully.”

A pleading must offer more than “labels

and conclusions” or a “formulaic recitation of the elements of a cause of action[.]”

(quoting

Twombly,

).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily

consider 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.,

, 624–25 (D.C. Cir. 1997)).

III. DISCUSSION

Plaintiff alleges that Defendant “willfully produced, filed, and stored” his social security

number, and “failed to report the full display” of Plaintiff’s social security number “generated

throughout their systems[,] exposing Plaintiff to devastating consequences and unwanted

invasions of personal privacy.” Compl. at 7. More specifically, he alleges that Defendant exposed

his social security number “in its entirety on Pre-Sentence Investigation Reports and charging

instruments held on display in [D.C. Department of Corrections and BOP] records systems which

has caused and continue[s] to cause Plaintiff to suffer and sustain intentional infliction of

emotional distress which has potentially devastating consequences in violation of the Privacy

Act[.]” Id. at 9. He alleges that he became aware of these alleged infractions on August 23, 2019,

when he “reviewed documents generated from [BOP] systems which displayed Plaintiff’s private,

personal, and confidential social security number.” Id.

Plaintiff seeks a determination as to: (1) whether or not Defendant violated BOP policy

“by displaying” his social security number “in its entirety within the [BOP] record system for the

4 purpose of identifying Plaintiff[;]” and (2) whether or not Defendant “failed to report the fact 1”

that Plaintiff’s social security number “was on display in [the] Federal Bureau of Prisons Record

System, D.C. Department of Corrections System and the United States Attorney’s [O]ffice

system.” Id. at 6.

“The Privacy Act 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)). Subsection (g)(1) of the Privacy Act

establishes the circumstances in which a plaintiff may seek civil remedies and recognizes “a civil

action for agency misconduct fitting within any of four categories [and] makes separate provision

for the redress of each.” Chao,

; see also 5 U.S.C. § 552a(g)(1)(A)–(D).

“The first two categories cover deficient management of records: subsection (g)(1)(A)

provides for the correction of any inaccurate or otherwise improper material in a record, and

subsection (g)(1)(B) provides a right of access against any agency refusing to allow an individual

to inspect a record kept on him.” Chao,

. “The two remaining categories deal with

derelictions having consequences beyond the statutory violations per se.”

. “Subsection

(g)(1)(C) describes an agency’s failure to maintain an adequate record on an individual, when the

result is a determination ‘adverse’ to that person.”

“Subsection (g)(1)(D) speaks of a violation

when someone suffers an ‘adverse effect’ from any other failure to hew to the terms of the Act.”

Suits under subsections (g)(1)(C) and (D) require a showing that “the agency acted in a manner

which was intentional or willful” and that the plaintiff sustained “actual damages.”

(citing 5

U.S.C. § 552a(g)(4)). Here, Plaintiff ostensibly attempts to bring claims for (1) improper

1 Plaintiff does cite to any authority to support his contention that Defendant had any legal obligation to “report” the alleged publication of his social security number.

5 disclosure; and (2) correction of the purported improper material within Defendant’s systems of

records.

a. Improper Disclosures

A claim for improper disclosure arises under “catchall” subsection § 552a(g)(1)(D), 2 and

consists of four elements: (1) the information in question is a “record” is contained within “a

system of records[;]” (2) the agency improperly “disclosed” the information; (3) an adverse impact

resulted from the disclosure; and (4) the agency's disclosure was willful or intentional. Logan v.

Dep't of Veterans Affairs,

(D.D.C. 2004). A plaintiff is only entitled to

relief after establishing that “actual damages” were sustained as a result of the agency's alleged

Privacy Act violation. Chao, 540 U.S. at 620–21.

Defendant first argues that Plaintiff had not adequately pled that (1) the records at issue

and his social security number were, in fact, made publicly available; and (2) the information was

publicly disseminated by BOP. See MTD Mem. at 5. Plaintiff broadly alleges that the relevant

“files and records [are] currently on display to public record,” Compl. at 15, and that Defendant

received his social security number from other agencies and improperly displayed it without

notifying him, see id. at 10. The Court agrees that the Complaint is a bit speculative regarding the

actual public access, if any, to this information, and as what specific actions Defendant took to

2 In furtherance of his improper disclosure claim, plaintiff alleges that Defendant violated BOP “Program Statement 1350.2(6)(A) and 1350.2(7) [(D)(1, 2, and 3)].” Compl. at 7, 9. The BOP Program Statement P1350.02 (June 29, 1998) governs the agency’s “Donations, Acceptance of[;]” see also Gerhard v. BOP,

(D.D.C. 2017) (discussing primary purpose of the Program Statement), and is therefore completely inapplicable to the claims and issues raised in this matter. Plaintiff also alleges that Defendant violated unspecified provisions of BOP “Program Statement 1351.5[,]” Compl. at 10, which the Court presumes is a reference to BOP Program Statement 1351.05 CN- 2 (Mar. 9, 2016), governing the “Release of Information[.]” Subsection 513.31 of that Program Statement states that “Social Security Numbers may not be used in their entirety as a method of identification for any Bureau record system, unless such use is authorized by statute or by regulation adopted prior to January 1, 1975.” Here, Plaintiff’s contention that Defendant violated its own policy is merely a restatement of his Privacy Act claims, and generally, a plaintiff “cannot bring an APA claim to obtain relief for an alleged Privacy Act violation.” Harrison v. BOP,

(D.D.C. 2017) (collecting cases). The contention that Defendant violated Program Statement 1351.05 CN- 2 is thus deficient for the same reasons discussed infra.

6 publicly reveal it. See Hill v. Smoot,

(D.D.C. 2018) (finding that “plaintiff

has at most pleaded facts ‘consistent with’ an improper disclosure, but that ‘stops short of the line

between possibility and plausibility of entitlement to relief’ under the Privacy Act.”) (citing

Twombly,

). In this regard, the Court notes that the Privacy Act does not prohibit

all nonconsensual disclosures of information found in an individual's records. Krieger v. Dept. of

Justice,

(D.D.C. 2008).

Similarly, the alleged intentionality of Defendant’s purported actions is mostly unclear

from the face of the Complaint. An agency acts in an intentional or willful manner “either by

committing the act without grounds for believing it to be lawful, or by flagrantly disregarding

others’ rights under the Act.” Albright v. United States,

(D.C. Cir. 1984). To

establish that Defendant acted willfully or intentionally, Plaintiff must show that it “acted with

something greater than gross negligence.” Tijerina v. Walters,

(D.C. Cir. 1987);

White v. Office of Pers. Mcpnt.,

(D.C. Cir. 1988) (per curiam). Here, any

intentional conduct can only be contemplated by generous inference. Plaintiff alleges that

defendant “willfully” stored and displayed his social security number, Compl. at 7, however,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal,

.

Assuming arguendo that Plaintiff has properly pled the elements of improper disclosure,

he nonetheless fails to state a claim because he has not alleged that he suffered actual damages.

See Gamble v. Dep't of Army,

(D.D.C. 2008) (citing Chao, 540 U.S. at

620–25) (holding that “emotional anguish alone is insufficient, and that a plaintiff must show

actual damages to recover under the Privacy Act.”); see also Krieger,

(finding that the “D.C. Circuit has held that emotional trauma alone is sufficient to qualify as an

7 adverse effect under Section 552a(g)(1)(D) of the [Privacy] Act.”) (citing Albright,

) (internal quotation marks omitted).

Here, Plaintiff alleges only that the improper disclosure has “caused and continue[s] to

cause [him] to suffer and sustain intentional infliction of emotional distress.” Compl. at 9. But

“[t]he Privacy Act does not allow a claim for damages based on . . . emotional harm,” and “[a]s a

result, Plaintiff[] must specifically allege actual damages to survive a motion to dismiss for failure

to state a claim.” Welborn v. IRS,

(D.D.C. 2016). Plaintiff also states that

the disclosure may hypothetically result in other unknown and “potentially devastating

consequences[,]” however, a “vague description of the harms allegedly sustained as a result of [an

agency's] disclosure cannot support a demand for actual damages that must be ‘limited to proven

pecuniary or economic harm[,]’ ” Glass v. U.S. Dep't of Justice,

(D.D.C.

2017) (quoting FAA v. Cooper,

(2012) (emphasis omitted)), and any damages

which have not yet matured raise the fundamental issue of standing, see Lujan v. Defs. of Wildlife,

(1992) (noting that “the core component of standing is an essential and

unchanging part of the case-or-controversy requirement of Article III”).

Accordingly, the claim for improper disclosure will be dismissed.

b. Correction of Records

Section 552a(d) of the Privacy Act allows individuals to access agency records about

themselves and to request the correction of records “they believe to be inaccurate, irrelevant,

untimely, or incomplete.” Doe v. FBI,

(D.C. Cir. 1991). Subsections (g)(1)(A)

and (C) authorize civil actions to enforce the correction and amendment provisions, and subsection

(g)(4) provides for monetary damages where the agency has acted intentionally or willfully.

at

8 1350; accord Deters v. United States Parole Comm'n,

, 660–61 (D.C. Cir. 1996);

Sellers v. Bureau of Prisons,

, 310–12 (D.C. Cir. 1992).

In addition to monetary damages, Plaintiff requests that his social security number be

“removed from . . . files and records currently on display to public record[,]” Compl. at 15, but

such relief is unavailable as “presentence reports and BOP inmate records systems are exempt

from the amendment provisions of the [Privacy] Act.” White v. U.S. Probation Office,

(D.C. Cir. 1998) (citing Deters,

n. 2); see also Earle v. Holder,

(D.D.C. 2011) (“It is settled that inmate records maintained by BOP,

including presentence reports, have been exempted from the Privacy Act’s accuracy and

amendment requirements (subsections (d) and (e)(5)) and from its damages provision (subsection

(g)[.]”) (citing 5 U.S.C. § 552a(j) (authorizing agencies to make exemptions) and

(listing BOP exemptions)); Brown v. BOP,

(D.D.C. 2009) (“It is well

established that the Inmate Central Records System maintained by the [BOP] is exempt from the

amendment requirements and the civil remedies provisions of the Privacy Act.”); Jennings v. BOP,

(D.D.C. 2009) (“Insofar as plaintiff demands amendment of any record

maintained in the Inmate Central Files system, that is, amendment of the PS[R], custody

classification form, or security designation form, this relief . . . is unavailable.”).

Furthermore, BOP’s inmate records systems are also statutorily exempted from

subsection(g) – the damages provision – of the Privacy Act. Earle,

(citing

5 U.S.C. § 552a(j)). Even if this exemption were somehow inapplicable, Plaintiff’s claims for

damages based on vagaries of emotional harm, without more, are insufficient under the Privacy

Act. See § (a) (“Improper Disclosures”), supra.

9 Thus, Plaintiff’s demand for correction or redaction of BOP’s records will also be

dismissed.

IV. CONCLUSION

For the foregoing reasons, and without any argument in opposition, Defendant’s Motion to

Dismiss is granted, and the Complaint is dismissed for failure to state a claim. A separate Order

accompanies this Memorandum Opinion.

________/s/__________________ COLLEEN KOLLAR-KOTELLY Date: August 12, 2020 United States District Judge

10