Alan SCOTT, Plaintiff, v. Joyce K. CONLEY, et al., Defendants.
Civil No. 09-2372 (RCL)
United States District Court, District of Columbia.
April 9, 2013.
ROYCE C. LAMBERTH, Chief Judge.
Seterus also argues that the letter from Mr. Emerson is not a qualified written request. Seterus characterizes the letter as a challenge to the legitimacy of the mortgage and not as an inquiry regarding the status of payment. See Mot. to Dismiss at 3 (citing MorEquity, Inc. v. Naeem, 118 F. Supp. 2d 885, 901 (N.D. Ill. 2000) (letter to mortgage servicer that challenges validity of loan and mortgage documents but does not inquire as to the status of the account balance is not a qualified written request)). Contrary to Seterus‘s assertion, however, Mr. Emerson‘s letter does request payment records. The letter asks for a copy of “[a]ll account servicing records payment records, transaction histories, account histories, accounting records, ledgers and documents that relate to the accounting of this Loan from the inception of this Loan to the present date.” Compl., Ex. A (Letter) 139. Therefore, Seterus‘s motion to dismiss Count V is ill-founded and will be denied.
Seterus also moves to dismiss Count II (declaratory judgment). Count II asserts that Seterus does not have authority to collect on the loan because the loan was obtained through fraud and asks the Court to declare the loan void. In essence, Count II is a prayer for relief based on Count III, which makes the same fraud claim.
Seterus moved to dismiss the fraud claim for failure to plead with particularity as required by
IV. CONCLUSION
For the reasons stated above, Defendant‘s motion to dismiss will be granted in part and denied in part. Counts I, III, and IV are withdrawn, and Count II will be dismissed. Count V remains. A memorializing Order accompanies this Opinion.
Kenneth A. Adebonojo, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
Before the Court is plaintiff Alan Scott‘s Motion [77] for Reconsideration, the defendants’ Opposition [83] thereto, and Scott‘s Reply [89]. Additionally, the Court now considers defendants’ third Motion [83] to Dismiss, Scott‘s Opposition [89] thereto, and the defendants’ Reply [92]. Although the Court grants Scott‘s motion for reconsideration as to his Bivens claims, the Court nevertheless dismisses the Bivens claims because of a lack of personal jurisdiction over certain defendants, a failure to identify the John Doe defendants, and because the remaining defendants enjoy qualified immunity. The Court also dismisses Scott‘s Privacy Act claims for failure to state a claim.
I. BACKGROUND
Alan Scott is a former federal prisoner with a string of convictions for fraudulent activity. His “approximately 23 convictions,” include fraud, identity theft offenses, conspiracy to commit mail fraud, and making false statements to banks. Defs.’ Reply to Pl.‘s Opp‘n to Defs.’ Second Motion to Dismiss [hereinafter Defs.’ Second Reply], Ex. A (Decl. of Leslie Smith) ¶ 9 [hereinafter Smith I Decl.], ECF No. 74-1. Most recently, while incarcerated for other crimes, Scott engaged in a scheme to defraud class action claims administrators and members of class action settlements by filing false claims in class action settlements of securities fraud cases. Id. In May 2008, he pleaded guilty to Conspiracy to Commit Mail Fraud in violation of
After this conviction, Scott was transferred to a Communications Management Unit (“CMU“) at FCI Terre Haute. According to Scott, the “CMU” is under the control of the Correctional Programs Division and the Counter Terrorism Unit (“CTU“) of the Federal Bureau of Prisons (“BOP“) and houses inmates in restrictive
Scott subsequently brought this action against assorted BOP officials in their individual capacities under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and against BOP under the Privacy Act, see
Scott alleges that BOP officials, including staff of the Washington, D.C.-based CTU and the wardens of individual prisons, violated his First and Fifth Amendment rights by blocking certain incoming and outgoing correspondence while he was in custody. For these injuries, Scott sought declaratory and injunctive relief, and compensatory and punitive damages. Compl. ¶ 32. He further alleged that BOP violated the Privacy Act,
II. DEFENDANT SCOTT‘S MOTION FOR RECONSIDERATION REGARDING BIVENS CLAIMS
In its September 2012 Memorandum Opinion, the Court noted that Scott had conceded his Bivens claims were moot in light of his release. Scott v. Conley, at 9-10. Scott now argues that he previously conceded only that his request for injunctive relief was moot and that his remaining request for monetary damages prevents a finding of mootness of the claims. Pl.‘s Mot. Recons., see also Pl.‘s Opp‘n to Defs.’ Second MTD 2, ECF No. 62 [hereinafter Pl.‘s Second Opp‘n]. The Court agrees.
A court may revise its interlocutory decisions “at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
Circumstances that may warrant reconsideration under this standard include “whether the court ‘has patently misunderstood a party, has made a decision outside the adversarial issues presented to
The “as justice requires” standard gives the trial court great discretion. Judicial Watch v. Dep‘t of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006). Additionally, “[i]nterlocutory orders are not subject to the law of the case doctrine and may always be reconsidered prior to final judgment.” Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997).
The Court agrees that it misunderstood Scott‘s previous concession—he conceded only that his claims were injunctive relief based on alleged Constitutional violations were moot. Moreover, Scott‘s claim for monetary damages is not moot post-incarceration. Thus, the Court will grant his motion for reconsideration and revive his Bivens claims. Nevertheless the Court finds the claims must be dismissed on other grounds.
III. RECONSIDERATION OF BIVENS CLAIMS
A. Sovereign Immunity Does Not Bar Consideration
BOP argues that, if Scott‘s Bivens claims are construed as “against the BOP and the individually-named defendants in their official capacities, sovereign immunity bars such claims and dismissal is proper under
“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, 463 U.S. 206, 212 (1983). However, sovereign immunity does not bar Bivens claims against federal officials in their individual capacities. Simpkins v. Dist. of Columbia Gov‘t, 108 F.3d 366, 369 (D.C. Cir. 1997) (”Bivens actions are for damages. They cannot be viewed as actions against the government. Unlike official-capacity suits, the sovereign‘s immunity from damages is therefore not a defense.“). Moreover, “[i]t is well established that Bivens remedies do not exist against officials sued in their official capacities,” Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) (emphasis added), or against the employing agency or the United States, Corr. Services Corp. v. Malesko, 534 U.S. 61, 72 (2001).
The Court does not read Scott‘s Bivens claims as against the BOP or against the named defendants in their official capacities. Rather, he sues the named individual defendants in their individual capacities, subject to the defense of qualified immunity. See Malesko, 534 U.S. at 72. Any request for injunctive relief against the individuals in their official capacities remains moot. Thus, the Court has jurisdiction over Scott‘s Bivens money damages claims.
As an initial matter, it is not clear that a Bivens remedy is available to Scott. The Supreme Court has shown considerable reluctance to expand Bivens, particularly where administrative remedies are available to complainants. See Malesko, 534 U.S. at 66-74 (noting Court‘s “consistent[] refus[al] to extend Bivens liability” and declining to extend it to actions for damages against private prison officials in part because inmates in private facilities have “full access to [BOP] remedial mechanisms“). The Court will assume for the purposes of this motion that a Bivens remedy is available, but nevertheless finds that Scott‘s claim fails for other reasons.
1. Court Lacks Personal Jurisdiction Over Defendants Schultz, Jett, Lockett, and Cozza-Rhodes
At the time of filing, defendant Schultz was the warden of FCI Fairton in New Jersey, Jett was the former warden of FCI Terre Haute in Indiana, Lockett was the current warden at FCI Terre Haute, and Cozza-Rhodes was the current Associate Warden at FCI Terre Haute. Defendants Lockett, Jett, and Cozza-Rhodes waived service of process, see ECF No. 15-17, and Schultz was served by certified mail, see ECF No. 7. Scott has not alleged that any of these defendants were domiciled in, or had their principal place of business in the District of Columbia, as required under the District‘s general personal jurisdiction statute. See
While “strictly speaking, under
The District‘s long-arm statute,
The Constitution also limits a court‘s exercise of personal jurisdiction over an
Here, plaintiff has not alleged facts from which the Court could conclude that personal jurisdiction exists over these defendants. “Plaintiff must allege specific facts on which personal jurisdiction can be based; [he] cannot rely on conclusory allegations.” Walton v. Fed. Bureau of Prisons, 533 F. Supp. 2d 107, 112 (D.D.C. 2008) (internal citation and quotation marks omitted). Scott has not alleged that Schultz, Jett, Lockett, or Cozza-Rhodes meet any of the enumerated requirements of the D.C. long-arm statute such as transacting business or supplying services in the District. Moreover, he has not suggested that these defendants committed tortious injury and regularly do or solicit business here. Furthermore, it is of no moment that defendants are employees of a federal agency headquartered in the District. Scinto v. Fed. Bureau of Prisons, 608 F. Supp. 2d 4, 7-8 (D.D.C. 2009) aff‘d, 352 F. App‘x 448 (D.C. Cir. 2009) (“[T]he mere fact that [a non-resident defendant] is an employee of the BOP, the headquarters office of which is in the District, does not render [the defendant] subject to suit in [his or her] individual capacity in the District of Columbia.” (internal citations omitted)).
Moreover, Scott has not alleged facts from which the Court could find a Constitutional basis for exercising personal jurisdiction. Scott has not contended there are any contacts by the defendants with the District of Columbia, much less contacts rising to the level necessary to meet the “minimum contacts” requirement of International Shoe. Although Scott‘s opposition to the motion to dismiss states that three other defendants “all maintain their offices within the District and all of their activities with respect to plaintiff‘s allegations of constitutional misconduct took place within the District of Columbia,” Scott never alleges that Schultz, Jett, Lockett, or Cozza-Rhodes have similar minimum contacts with the District. See Pl.‘s Second Opp‘n 3. That Lockett, Jett, and Cozza-Rhodes waived service of process does not alter this conclusion. See
Finally, Scott has not suggested or shown that he can cure these defects through discovery and he has already had the opportunity to propound interrogatories. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000) (“[I]f a party demonstrates that it can supplement its jurisdictional allegations through discovery, then jurisdictional discovery is justified.“).
Thus, Scott has not shown that the Court has personal jurisdiction over Schultz, Jett, Lockett, or Cozza-Rhodes and claims against these defendants are dismissed without prejudice.
2. Personal Jurisdiction Over Conley and Smith and Lack of Adequate Service
BOP has previously argued that the Court lacks jurisdiction over “all Defen-
Alternatively, the government argues that the claims against these defendants should be dismissed for lack of proper service. When suing an officer in his individual capacity, a party must “serve the officer or employee under
Under
Service on Smith and Conley was ineffective in that they were not personally served. Rather, service was addressed to them in their “Individual Capacit[ies]” at the Correctional Programs Division office of the BOP in Washington, D.C. and an “Assistant General Counsel” signed for each. Scott complains that “[a]ny defect ... is lodged with the Clerk‘s Office and the U.S. Marshals Service,” on whom he depended on for service as an in forma pauperis plaintiff. Pl.‘s Second Opp‘n 3 (citing
Scott appears to have the better argument on this point. Courts in our Circuit and others have refused to hold in forma pauperis plaintiffs responsible for service defects where they have relied on the Clerk of Court and the Marshals Service.3
Nevertheless, these defendants have qualified immunity, as discussed below.
3. Court Will Dismiss Claims Against “John Doe” Defendants
The Court will no longer consider Scott‘s claims against unnamed John Doe defendants.
As a general matter, a court will not entertain a suit unless the defendant has been made a party by service of process. Courts do grant an exception ... for “John Doe” defendants, but only in situations where the otherwise unavailable identity of the defendant will eventually be made known through discovery. Newdow v. Roberts, 603 F.3d 1002, 1010-11 (D.C. Cir. 2010) (citations omitted). “In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
Scott has had an opportunity for discovery. See Order, Mar. 8, 2011, ECF No. 45 (granting motion to compel answers to interrogatories). Indeed, Scott previously attempted to substitute BOP employee David Schiavone in place of John Doe #1 based on interrogatory answers. Pl.‘s Mot. to Substitute, ECF No. 67. The Court denied this motion as moot based on its ruling that the Bivens claims themselves were moot. See Order, Sept. 27, 2012, ECF No. 75.
Despite having received answers to interrogatories, Scott has never identified
Although it would likely be error for this Court to dismiss claims against John Doe defendants without giving Scott a chance for discovery, this is not the situation at hand. Cf. Gillespie, 629 F.2d at 642-43 (holding that district court abused its discretion in dismissing complaint without requiring a reply to interrogatories appellant had filed). Moreover, although the Court has revived Scott‘s Bivens claims thus raising the possibility that Schiavone could be named as a defendant, Scott would need to renew his motion to substitute. Such a motion would fail given that the Court finds that the remaining defendants have qualified immunity from suit and Schiavone would enjoy immunity for the same reasons.
4. Remaining Defendants Are Shielded by Qualified Immunity
Defendants argue that the named individual defendants have qualified immunity from suit. Smith and Conley are the only defendants remaining after the Court‘s dismissal of the claims above and the Court agrees they are immune from suit.
“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Such “qualified” or “good faith” immunity is an affirmative defense that must be pleaded by the defendant. Id. at 815. The doctrine represents an attempt to balance the competing values of ensuring a remedy for constitutional violations committed by government officials and reducing the social costs of suits against innocent government actors. The Supreme Court has emphasized that the doctrine furthers the Court‘s admonition that “insubstantial claims should not proceed to trial.” Id. at 815-16. “When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
At the time of the alleged violations, defendants Conley and Smith were higher-level officials within BOP. Conley was the Assistant Director of the BOP‘s Correctional Programs Division and Smith was the Chief of the Counter Terrorism Unit.4 Compl. ¶ 2. Scott alleges that Smith live monitored his calls, determined whether his social mail should be approved or rejected, and determined whether his visitors would be approved. Compl. ¶¶ 7. In an amended complaint, he argues that Conley also acted to reject certain correspondence and access to books. Am. Compl. ¶¶ 17(A)-(B) (“[D]efendants Jett, Lockett[, and] Cozza-Rhodes acting in concert and conspiracy with defendants Conley, Smith and John Doe‘s # 1, 2, [and] 3 committed ... overt acts” including rejecting incoming mail and photographs, blocking outgoing mail, etc.) These are the sorts of discretionary
Qualified immunity will shield these defendants from money damages “unless [Scott] pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S. Ct. at 2080. This Court has discretion as to which prong of this analysis to consider first and will consider the second prong now. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
An official‘s conduct “violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.‘” Id. at 2083 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Courts need not identify “a case directly on point,” but “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. Here, Scott has not put forth facts to show that the alleged conduct violates “clearly established law” under either a First or Fifth Amendment theory.5
Notes
a. No “clearly established” First Amendment right
Scott‘s First Amendment claims sound in freedom of speech and association. Compl. ¶¶ 16-26 (complaining of restrictions on communication with financial institutions, receipt of certain books and receipts, correspondence with particular addresses, and receipt of photographs); see id. ¶¶ 15-16, 19 (appearing to concede that BOP may lawfully restrict certain inmate-to-inmate mail but complaining that defendants improperly categorized certain correspondence as inmate-to-inmate). However, no “clearly established law” protects Scott from the conduct complained of. In fact, a significant body of caselaw suggests that the defendants’ actions were lawful, though the Court need not decide the legality of the actions in order to determine that they did not violate “clearly established” law.
“Prison walls do not ... separat[e] prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987) (citing Procunier v. Martinez, 416 U.S. 396, 405 (1974)). However, in considering prisoners’ constitutional claims, courts should bear in mind that they are “ill equipped to deal with the increasingly urgent problems of prison administration and reform” and that “the problems of prisons in America are complex ... and not readily susceptible of resolution by decree.” Procunier, 416 U.S. at 404-05. “Prison administration is, moreover, a task that
The Supreme Court has noted that “freedom of association is among the rights least compatible with incarceration ...” and that “[s]ome curtailment of that freedom must be expected in the prison context.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125-26 (1977); Hewitt v. Helms, 459 U.S. 460 (1983)). In Jones, the Court stated
First Amendment associational rights ... must give way to the reasonable considerations of penal management.... [N]umerous associational rights are necessarily curtailed by the realities of confinement. They may be curtailed whenever the institution‘s officials, in the exercise of their informed discretion, reasonably conclude that such associations ... possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment.
Freedom of speech may also be lawfully restricted to some degree in the prison setting. The Supreme Court has held, for example, that a prison policy denying “newspapers, magazines, and photographs’ to a group of specially dangerous and recalcitrant inmates” survived First Amendment scrutiny where prison officials sufficiently justified the need for the policy under the Turner test outlined below. Beard v. Banks, 548 U.S. 521, 524-25 (2006); see also Thornburgh v. Abbott, 490 U.S. 401 (1989) (holding that regulations “authoriz[ing] prison officials to reject incoming publications found to be detrimental to institutional security” satisfied Turner test and were facially valid).
The Supreme Court in Turner v. Safley held that four factors are relevant to whether a prison regulation infringing on a constitutional right withstands challenge: [1] whether the regulation has a ‘valid, rational connection’ to a legitimate governmental interest; [2] whether alternative means are open to inmates to exercise the asserted right; [3] what impact an accommodation of the right would have on guards and inmates and prison resources; and [4] whether there are ‘ready alternatives’ to the regulation. Overton, 539 U.S. at 132 (quoting Turner, 482 U.S. at 89-91). This inquiry is intended to be “responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.‘” Turner, 482 U.S. at 85.
Defendants assert that the monitoring of and restrictions on Scott‘s mail were intended to advance a legitimate penological interest in prevention of criminal activity and maintenance of the security of the prison. Defs.’ Second Mem. 33-34. Scott had numerous previous convictions for fraudulent activity and had been convicted of conspiracy to commit mail fraud based on his conduct while in prison. Defendants assert that Scott also mailed one letter making a threatening remark against a BOP staff member, id., though Scott responds that he was found not guilty of this charge. Pl.‘s Second Opp‘n 2. Additionally, certain of Scott‘s correspondence were rejected because defendants believed they constituted an attempt to evade BOP restrictions on inmate-to-inmate
Targeted restrictions on incoming and outgoing mail clearly bear a “valid, rational connection” to the legitimate government interest of preventing criminal activity and discipline and compliance with existing BOP regulations. See Thornburgh, 490 U.S. at 404 (upholding regulation on incoming mail allowing warden to reject a publication “only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity“). Scott had previous convictions for mail and bank fraud offenses and it was not unreasonable for defendants to impose restrictions on his use of the mail to prevent continuing criminal activity in this area.6
Moreover, the policy, as alleged by Scott, was applied on a case-by-case basis. The Supreme Court has previously upheld such tailored limitations. Id. at 416 (“[W]e are comforted by the individualized nature of the determinations required by the regulation.“).
Furthermore, the particular restrictions do not appear to have been indefinite; Scott concedes that in at least one instance BOP removed a previously imposed restriction on certain mail activities after finding it to be no longer justified. See Pl.‘s Second Opp‘n 7-8 (noting that defendant Lockett unblocked correspondence to and from Scott‘s alleged home address following further review and a determination that Scott had not used that address to communicate with other inmates).
Finally, although Scott argues that the reasons given for blocking certain mail were pretextual, Compl. ¶¶ 17, 19, he provides no factual basis for this claim. He also does not argue that defendants acted in a discriminatory or otherwise unconstitutional manner.7
Scott also had alternative means to exercise his rights. He could communicate with other inmates but simply could not do so through a third party. He could send
Accommodating Scott‘s First Amendment rights could have had an adverse effect on prison security and the public. Defendants’ restrictions were intended to prevent fraudulent activity against outside entities, conduct in which Scott had already engaged while in prison. Moreover, allowing inmate-to-inmate correspondence without regard to BOP regulations could affect internal prison security. For example, defendants allege that at one point, Scott attempted to teach other inmates how to circumvent BOP mail procedures. Defs.’ Second Mem. 10. The Court need not resolve whether all of defendants’ allegations or suspicions about Scott are correct. The issue is whether their conduct violated clearly established law which requires only that the restrictions have a “valid, rational connection” to a legitimate governmental interest and satisfy the Turner test.
Finally, the Court is not aware of “ready alternatives” to the restrictions and Scott has not put forward any. Scott concedes that defendants individually evaluated each piece of mail and offered an administrative remedy process, which Scott in some cases employed. The Constitution does not require that inmates have unfettered mail access, nor does it prevent BOP from exercising discretion as to what constitutes a risk to the institution or the public.
Thus, Conley and Smith enjoy qualified immunity from suit based on an alleged violation of Scott‘s First Amendment rights.
b. No “clearly established” Due Process right
Scott has also failed to demonstrate that defendants’ actions could have violated any “clearly established” due process right. Although Scott provides no details, the Court reads his Complaint as alleging a procedural due process violation based on the deprivation of his property (books, mail, etc.) through mail restrictions.8
The Fifth Amendment provides that no person shall be “deprived of life, liberty or property, without due process of law.” U.S. Const. amend. V. “The touchstone of due process is protection of the individual against arbitrary [government] action.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (citing Dent v. West Virginia, 129 U.S. 114, 123 (1889)). “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (internal quotation marks omitted). Thus, to state a procedural due process claim, a plaintiff must show he was deprived of a life, liberty, or property interest, that government action resulted in the deprivation, and that he did not receive the process he was due.
The Court will assume for purposes of this motion that Scott has adequately al-
As with other prisoners’ rights cases, unique concerns arise in the context of prisoners’ due process claims because a prisoner has already been deprived of much of his liberty through the process of conviction and incarceration. “[T]he due process rights of prisoners are not absolute, but must be accommodated to the legitimate security needs of a corrections institution.” Caldwell v. Miller, 790 F.2d 589, 609 (7th Cir. 1986) (citing Bell v. Wolfish, 441 U.S. 520, 554 (1979); Wolff, 418 U.S. at 555-57). Thus, “to the extent that prison officials further their interest in security and order in a reasonable and non-arbitrary manner, property claims of inmates must give way.” Id. (citing Harris v. Forsyth, 735 F.2d 1235 (11th Cir. 1984))
Courts have routinely refused to find unconstitutional government actions that deprive prisoners of property so long as an adequate post-deprivation remedy exists. See Dickson v. Mattera, 38 F. App‘x 21, 22 (D.C. Cir. 2002) (finding that appellant could not state a due process claim where his possessions were seized upon his arrest but never returned; adequate post-deprivation remedies were available); Brief of Appellant, Dickson v. Mattera, 38 Fed. Appx. 21 (D.C. Cir. 2002) (No. 01-7120), 2001 WL 36038388 (describing facts of case); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that unauthorized intentional deprivation of prisoner‘s property by state penal institution officer did not violate Fourteenth Amendment Due Process Clause since respondent had adequate state post-deprivation remedies); Parratt v. Taylor, 451 U.S. 527, 541 (1981) (holding that negligent deprivation of state prisoner‘s property did not violate Due Process because, although under color of state law, the deprivation was not pursuant to established state procedures and adequate post-deprivation procedures existed), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).
The Court acknowledges that cases like Hudson and Parratt differ somewhat from the case at hand in that they deal with either negligent, or intentional but unauthorized, deprivations of property. Here, Scott appears to allege that the defendants acted intentionally, but with authorization. Nevertheless, the Court is aware of no “clearly established” law suggesting that a post-deprivation remedy would be inadequate where the policy is intended to prevent the introduction of harmful materials into the prison or to prevent ongoing criminal activity. The same rationales supporting a post-deprivation remedy in Hudson and Parratt would appear to support the adequacy of a post-deprivation remedy here.
As the Court explained in Parratt, where a taking of property occurs as a result of a random, unauthorized act by a state employee, “[it] is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.... Indeed, in most cases, it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” 451 U.S. at 541. Similarly, in Hudson, the Court noted that
[Parratt‘s] reasoning applies as well to intentional [but unauthorized] deprivations of property. The underlying rationale of Parratt is that when deprivations of property are effected through random
The Supreme Court does not appear to have considered whether a post-deprivation remedy would suffice where an authorized, intentional taking of property is effected to secure prison security and safety and to prevent criminal activity. However, the rationales of Parratt and Hudson would seem applicable in such a case. It would be “impracticable” to force prison officials to wait until dangerous or criminal items have been introduced into the prison or sent by inmates into the community before acting. Providing prisoners with pre-deprivation remedies before confiscating those items could jeopardize prison safety and order as well as the safety of the public. Moreover, prisons have no advance warning of what items will be arriving in or sent through the mail. There would thus appear to be no practical way to provide pre-deprivation remedies for prisoners in this context and Scott has not suggested any method to the court.
Scott concedes that a post-deprivation process exists and that he has utilized it. See Compl. ¶ 17. Moreover, he alleges no facts to suggest that this process is inadequate, stating only that “[a]dministrative review was sought to no avail.” Second Am. Compl. ¶ 17(B)(k); see also id. ¶ 17(B)(m). However, “[t]he adequacy of a postdeprivation remedy does not turn on the plaintiff‘s satisfaction with the outcome.” Jones v. Burton, 173 F. App‘x 520, 522 (7th Cir. 2006) (citing Easter House v. Felder, 910 F.2d 1387, 1406 (7th Cir. 1990) (en banc)).
Thus, Scott has not shown that a clearly established due process right could have been violated by the defendants’ actions. Scott and Conley thus have qualified immunity from suit and the Bivens claims against them will be dismissed.
IV. PRIVACY ACT CLAIMS
Scott lodges claims under various sections of the Privacy Act including
In considering defendants’ prior motion to dismiss, the Court refused to resolve arguments regarding Scott‘s Privacy Act claims. Defendants had contended that the relevant system of records was exempt from the Privacy Act provisions under which Scott sought relief. See Defs.’ Second Mem. 38. The Court noted that “without a clear understanding of the ‘system of records’ at issue, the Court cannot determine whether the system is exempt from any provisions of the Privacy Act.” As discussed in more detail below, defendants still have not provided sufficient information from which the Court can determine whether Scott‘s claims relate to only one system of records and whether that system is exempt from relevant Privacy Act provisions. Nevertheless, the Court finds that Scott‘s Privacy Act claims merit dismissal on other grounds.
The Privacy Act places certain requirements on federal agencies maintaining “system[s] of records ... from which information is retrieved by the name of the individual....”
The Privacy Act explicitly provides for judicial review. Because the Court discusses these provisions in some detail, the relevant subsections are reprinted below:
(g)(1) Civil remedies. — Whenever any agency
(A) makes a determination under subsection (d)(3) of this section not to amend an individual‘s record in accordance with his request ...;
(B) refuses to comply with an individual request [for access to records] under subsection (d)(1)
(C) fails to maintain any record concerning an individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the rights or benefits to the individual that may be made on the basis of such record ...; or
(D) fails to comply with any other provision of this section ... in such a way as to have an adverse effect on an individual
the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
(2)(A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual‘s record....
(3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant....
(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—
(A) actual damages ...; and
(B) the costs of the action together with reasonable attorney fees....
As the statute notes, courts may enjoin the agency from withholding records and order production and amendment of records. Id.
The head of agencies that principally enforce criminal laws, including correctional agencies, may exempt systems of records from Privacy Act provisions, including provisions related to access, copying, amendment, and accuracy of records. Id.
B. Claims Under 5 U.S.C. § 552a(e)(1) : “Relevant and Necessary” Information
Scott alleges that BOP violated the Privacy Act‘s requirement that an agency “maintain ... only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President....”
BOP responds that “the [CMU‘s] records are maintained in an authorized system of records that is exempt from the Privacy Act.” Defs.’ Mem. P. & A. in Support of Defs.’ MTD and Opp‘n to Pl.‘s Mot. for Recons. 2, ECF No. 83 [hereinafter Defs.’ Third Mem.]. BOP does little more to argue for dismissal of this particular claim, focusing its efforts on Scott‘s other Privacy Act claims.
The Court finds that dismissal of this claim is warranted. It is unclear if Scott brings his suit under the civil remedy provisions of
The Privacy Act provides for four separate and distinct civil causes of action, see
5 U.S.C. § 552a(g) , two of which provide for injunctive relief—amendment lawsuits under (g)(1)(A) and access lawsuits under (g)(1)(B)—and two of which provide for compensatory relief in the form of monetary damages—damages lawsuits under (g)(1)(C) and (g)(1)(D).
U.S. Dep‘t of Justice, Overview of the Privacy Act of 1974 (2012 ed.), available at http://www.justice.gov/opcl/1974privacyact-overview.htm.
Thus, Scott cannot seek injunctive relief for this claim. Even if he were to seek damages, based on a purported violation of
Nothing in Scott‘s complaints suggests that BOP acted without grounds for believing its action to be lawful or that it flagrantly disregarded his rights under the Privacy Act. Where “this element of a Privacy Act damages claim was lacking in the complaint,” district courts may properly dismiss the complaint for failure to state a claim under
This claim is dismissed based on Scott‘s failure to allege that he suffered an adverse determination or effect as required under
C. Claims Under 5 U.S.C. § 552a(e)(7) : Records Describing First Amendment Exercise
Scott also argues that the records system described above violates
Again, Scott appears to seek only injunctive relief as to this claim, requesting only that BOP be enjoined from maintaining these records after his incarceration. See Am. Compl. ¶ 32A. He appears to rely on the civil remedy provision of
BOP does not dispute that the records describe Scott‘s First Amendment activities. However, it argues that BOP maintains these records pursuant to a valid law enforcement reason and that Scott has not alleged “actual damages,” as required for a request for damages.
BOP argues that the CMUs and associated monitoring of inmates’ communications with persons in the community is designed to “protect the safety, security, and orderly operation of Bureau facilities, and protect the public.” Defs.’ Third Mem., Ex. A (Decl. of Leslie Smith) ¶ 1.6, ECF No. 83-1 [hereinafter Smith II Decl.]. “CTU staff will determine whether intelligence worthy data has been identified through monitoring and will ensure the records are maintained for an indeterminate period of time.” Id. ¶ 15. Records of phone calls and copies of emails are retained for 180 days “unless found to be intelligence worthy.” Id. ¶ 15 n. 1.
Scott conclusorily alleges that BOP‘s monitoring of his First Amendment activities and maintenance of related records serves “no valid and legitimate penalogical [sic] reason ... after [his] release to the community.” Compl. ¶ 10. However, Scott never alleges that BOP lacked a valid law enforcement purpose in maintaining this information in the first place. See id.; see also Pl.‘s Reply to Defs.’ Third MTD 1-2, ECF No. 89 (“[T]he continuing maintenance, post-release, of recordings of plaintiff‘s phone calls, and copies of his emails and ... mail he sent or received while confined in the CMU serve no law enforcement purpose....“). However, the passage of time does not cause records to
Moreover, to the extent that Scott must allege he suffered an “adverse effect” from maintenance of these records, he has not done so.11
With respect to BOP‘s argument that Scott must allege “actual damages,” the Court does not read Scott‘s Complaint to request damages for this claim. Unlike claims for violations of
It is not at all clear to us that Congress intended to preclude broad equitable relief (injunctions) to prevent (e)(7) violations.... And in the absence of such an explicit intention, by creating a general cause of action (under (g)(1)(D)) for violations of the Privacy Act, Congress presumably intended the district court to use its inherent equitable powers—at least to remedy violations of (e)(7).
Nevertheless, his claim will be dismissed without prejudice because he has not alleged facts to suggest that BOP‘s system of records lacked a law enforcement purpose or that he has suffered any adverse effect as a result of BOP‘s alleged violation.
D. Plaintiff‘s Claim Under 5 U.S.C. § 552a(b) : Unauthorized Disclosure
Next, Scott alleges that BOP has released information about himself, without his consent, to persons not authorized to receive such disclosures in violation of
The Privacy Act prohibits an agency from “disclos[ing] any record which is contained in a system of records ... to any person ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.”
According to Scott, BOP has “given unsolicited notice and information to certain of plaintiff‘s creditors that plaintiff is incarcerated[,] and as a direct result of that unsolicited notice and information[,] plaintiff‘s long-standing account(s) were closed,” causing “an adverse and derogatory effect on plaintiff‘s credit scores.” Id. ¶ 32.
BOP‘s arguments regarding the legality of its actions are somewhat unclear. For example, BOP suggests there is rarely a violation of the Privacy Act where an official‘s knowledge of disclosed information comes from a source other than a system of records under the Privacy Act. Defs.’ Third Mem. 13. However, BOP never states that the source of the information was other than protected records. Similarly, BOP implies that its disclosure cannot amount to a Privacy Act violation because the information released was public.
BOP also seems to argue that its release was permissible because the Prison Security and Intelligence Record System (PSIRS) (JUSTICE/BOP-001) is exempt from Privacy Act provisions allowing for civil remedies. Id. at 14, 38 (citing 67 Fed. Reg. 117, 41449-41450). Thus, BOP implies, but does not directly state, that the information released was maintained in the PSIRS. Id. at 15. There are a number of problems with this argument. Pursuant to
BOP previously exempted its Custodial and Security Record System (CSRS) from numerous sections of the Privacy Act, including
However, BOP provides no support for its contention that a “modified and expanded” system of records remains exempt from Privacy Act requirements without complying anew with
Even assuming the PSIRS is exempt from Privacy Act provisions under
Scott‘s claim nevertheless fails. Again, to state a claim for damages, Scott must state facts to plausibly suggest that the BOP acted intentionally or willfully, which means something more than gross negligence. An agency is not “strictly liable for every affirmative or negligent action that might be said technically to violate the Privacy Act‘s provisions.” Laningham, 813 F.2d at 1242 (citation and internal quotation marks omitted).
Nothing in Scott‘s complaints suggests that BOP acted without grounds for believing its action to be lawful or that it flagrantly disregarded his rights under the Privacy Act. Where “this element of a Privacy Act damages claim was lacking in the complaint,” the district court may dismiss the complaint for failure to state a claim under. White, 840 F.2d at 87-88.
BOP previously explained that it disclosed Scott‘s status as a federal inmate to credit card companies because it believed he was using family and friends to open and manage financial accounts and to “make it appear as though credit card purchases were being made without [his] knowledge or consent.“. Smith I Decl. ¶ 12. BOP believed that Scott had correspondence “mailed to individuals in the community ... to avoid being identified by financial institutions as an inmate who was incarcerated.” Smith I Decl. ¶¶ 12-14. BOP previously justified its actions as “[p]ursuant to the CMU‘s enabling regulation and [BOP] routine use, 67 Fed. Reg. 9321” and as “an attempt to prevent further financial losses to these credit card companies, prevent further criminal activities, and in line with the mission of the CMU, which is the protection of the public.” Id. The most recent Declaration submitted by BOP states that
It was concerning that inmate Scott had participated in a scheme to commit fraud while serving a sentence in federal prison.... Inmate Scott was found to be using addresses in the community and concealing his status as an inmate from the credit card companies. This release was done ... to prevent ... crimes of fraud against these credit card companies and [to] protect the public.
Smith II, Decl. ¶ 7.
In short, Scott has failed to allege facts to suggest that BOP disclosed information in violation of the Privacy Act in a manner that was intentional or willful. Accordingly, this claim will be dismissed without prejudice.
E. Plaintiff‘s “Refus[al] to Disclose” Claim
Scott alleges that the BOP has “refused to disclose to plaintiff material (4 folders of records as of September 30, 2009) collected on or pertaining to plaintiff by [BOP].” Am. Compl. ¶ 28(A). He does not provide the Court with any detail regarding the basis for this allegation, the legal authority under which he seeks relief, or whether he seeks injunctive or monetary relief. In fact, the language above seems to be the only information in Scott‘s three complaints regarding this claim. Based on other pleadings, the Court assumes that this claim is based on a single Privacy Act
The Court‘s analysis of this claim will turn on the information and remedies sought and the provisions which Scott alleges that BOP violated. Scott has simply not stated enough facts in his complaints to make out a claim that BOP has unlawfully refused to disclose materials collected about him. The Court thus dismisses this claim without prejudice. Scott may amend his complaint to state a claim.
V. CONCLUSION
Although the Court grants Scott‘s motion for reconsideration as to his Bivens claims, these claims nevertheless fail. The Court lacks personal jurisdiction over defendants Lockett, Jett, Cozza-Rhodes, and Schultz and the claims against these defendants will be dismissed without prejudice. The claims against the “John Doe” defendants will also be dismissed as Scott has failed to identify these defendants after an opportunity for discovery. Although he could renew his motion to substitute David Schiavone for one John Doe defendant, such a motion would fail given that the Court finds that the remaining defendants have qualified immunity from suit and that the claims against them should be dismissed. Finally, Scott‘s Privacy Act claims fail for the reasons outlined above.
An Order consistent with this Memorandum Opinion issued on March 28, 2013. ECF No. 93.
ROYCE C. LAMBERTH
CHIEF JUDGE, UNITED STATES DISTRICT COURT
Jarrod BECK, Keerthi Reddy, and Erin Galloway, Plaintiffs, v. TEST MASTERS EDUCATIONAL SERVICES, INC., Defendant.
Civil Action No. 04-1391 (JDB).
United States District Court, District of Columbia.
April 9, 2013.
Aref v. Holder, 774 F. Supp. 2d 147, 163 (2011). Judge Urbina cited a range of cases supporting this contention. See, e.g., Williams v. Mierzejewski, 401 F. App‘x 142, 145 (7th Cir. 2010) (“We give considerable deference to a prison official‘s determination that a communication between a prisoner and the outside world constitutes a security threat.” (citing Thornburgh, 490 U.S. at 407-08)); Perez v. Fed. Bureau of Prisons, 229 F. App‘x 55, 57 (3d Cir. 2007) (holding that “restrict[ing] telephone calls to one per week [for] prisoners who have a history of using the telephone to conduct criminal activity is clearly reasonable because it relates to the legitimate penological goal of public and institutional safety“); Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (explaining that imposition of a ten-person calling list is rationally related to legitimate governmental objective of reducing criminal activity); Searcy v. United States, 668 F. Supp. 2d 113, 122 (D.D.C. 2009) (holding that “regulations restricting inmates’ telephone use are reasonable as long as they further the government‘s legitimate penological interests, including the safety and security of correctional institutions, inmates, staff, and the public” (citation omitted)).[T]he weight of the relevant case law supports the conclusion that the types of communications restrictions imposed by the CMUs are rationally related to the legitimate penological interest of promoting the safety of correctional institutions and the public.