1 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 D efendant ’s M otion to D ismiss

. F or the reasons discussed below, the Court will grant th e M otion.
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 Col umbia 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 , 403 U.S. 388 (1971). Id. at 2, 6, 11, 12

. Plaintiff attested that D efend ants improperly and unlawfully used and disclosed his full social security number

. Id. at 2, 6, 7, 9, 10. He demanded monetary damages, including compensation fo r 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 thos e proceeding pursuant to the Privacy Act. See 11/12/19 Ord., ECF No. 7. Th e Court found that, insofar as
P laintiff demanded monetary damages for alleged Bivens violations of his Fourth Amendment2 rights, any such claims failed on the basis of sovereign and judicial immunity. Id. at 2. The Court also found that the C omplaint contained no factual allegations to support a claim for breach of

contract. Id. Last, the Court dismiss ed all D efendants other than BOP, finding that t he 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 t his 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 memorand um of points and authorities in opposition to a given motion, the Court may treat the motion as conceded .” Id

. ¶ 10(B). After an ex tension, on February 12, 2020, BOP

– the single remaining defendant

– filed a timely Motion to D ismiss and Memorandum in Support (“MTD Mem.”) , ECF No s . 17, 17

- 1, in response to the C omplaint. The Court denied Plaintiff’s Motion to Appoint C ounsel, E CF 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 Ru les of Civil Procedure and the Local Civil R ules of this Court. See Feb. 14, 2020 Order (“Fox Neal Ord.”), ECF No. 19; s ee also Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland , 837 F.2d 507, 509 (D.C. Cir. 1988). The Court further ordered that Plaintiff file an oppos ition 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 M o tion without the benefit of his position. Id. To date, Plaintiff has not filed any opposition or response, and has not otherwise complied with this Court’s Order

.3 II. ST ANDARD 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 infer ences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co.

v. FDIC , 642 F.3d 1137, 1139 (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 , 761 F.3d 33, 38 (D.C. Cir. 2014) (citing Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999)), because such complaints are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner , 404 U.S. 519, 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 , 292 F.3d 235, 242 (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 , 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (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.” Id. at 678. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference th at defendant is liable for the misconduct alleged.” Id. at 678. “The4 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels and conclusions” or a “formulaic recitation of th e elements of a cause of action[.] ” Id. ( quoting Twombly , 550 U.S. at 555). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinari ly 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 , 226 F. Supp. 2d 191, 196 (D.D.C. 2002) ( citing EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624

– 25 (D.C. Cir. 1997)).
III. DISCUSSION Plaintiff alleges that D efendant “willfully produced, filed, and stored” his social security number, and “failed to report the full display” of Pl aintiff’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 D efendant exposed his social security numbe r “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 c aused and continue[s] to cause Plaintiff to suffer and sustain intentional infliction o f emotional distress which has potentially devastating consequences in viol ation 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 whic h displayed Plaintiff’s private, personal, and confidential social security number.” Id. Plain tiff seeks a determination as to : (1) whether or not D efendant violated BOP policy “by displaying” his social security number “in its entirety within the [BOP] record system for the5 purpose of identifying Plaintiff [; ]” and ( 2) whether or not D efendant “failed to report the fact 1 ” that P laintiff’s social security number “was on display in [the] Federal Bure au 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 , 535 F.3d 697, 707 (D.C. Cir. 2008) (quoting Doe v. Chao , 540 U.S. 614, 618 (2004)). Subsection (g)(1) of the Privacy Act establishes the circumstances in which a pl aintiff may seek civil remedies and recognizes “a civil action f or agency misconduct fitting within any of four categories [and] makes separate provision for the redress of each.” Chao , 540 U.S. at 618; 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 , 540 U.S. at 618. “The two remaining categories deal with derelictions having consequences beyond the statutory violations per se .” Id. at 619. “Subsection (g)(1)(C) describes an agency’s failu re to maintain an adequate record on an individual, when the result is a determination ‘adverse’ to that person.” Id. “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 .” Id. Suits under s ubsections (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.” Id. (citing 5 U.S.C. § 552a(g)(4)). Here, P laintiff ostensibly attempts to bring claims for (1) improper

1 Plaintiff does cite to any authority to support his contention that D efendant had a ny legal obligation to “report” the alleged publication of his social security number.6 disclosure; and (2) correction of the purported improper material within D efendant’s systems of records

.

a. Improper Disclosure s A claim for improper disclosure arise s under “catchall” subsection § 552 a(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 ag ency's disclosu re was willful or intentional. Logan v. Dep't of Veterans Affairs , 357 F. Supp. 2d 149, 154 (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 P laintiff had no t adequately pled that (1) the records at issue and his social security number were , in fact, made publicly available ; and (2) the informatio n was publicly dissem inated by BOP

. See MTD Mem. at 5. Plaintiff broadly alleges that the relevant “files and records [are] currently on display to public r ecord,” Compl. at 15, and that Defendant received his social secu rity number from other agencies and improperly display ed it without notifying him, see id. at 10. The Court agrees that the C omplaint is a bit speculative regarding the actual public access , if any, to this information, and as what specific actions D efendant took to

2 In furtherance of his improper disclosure cla im, 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 , 258 F. Supp. 3d 159 , 162 (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 provisi ons 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 S ecurity 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, P laintiff’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 , 248 F. Supp. 3d 172 , 182 (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

.7 publicly reveal it

. See Hill v. Smoot , 30 8 F. Supp. 3d 14 , 23 (D.D.C. 2018) (finding that “ plain tiff has at most pleaded facts ‘consistent with’ an improper disclosure, but that ‘ stops short of the line between possibility and plausi bility of entitlement to relief’ under the Privacy Act.”) (citing Twombly , 550 U.S. at 557 ). In this regard, the Court notes that t he Privacy Act does not prohibit all nonconsensual disclosures of information fo und in an individual's records. Krieger v. D ept. of
Justice , 529 F. Supp. 2d 29 , 47 (D.D.C. 2008). Similarly, the alleged intentionality of D efendant’s purported actions is mostly unclear from the face of the C omplaint. 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 , 732 F.2d 181, 189 (D.C. Cir. 1984). To establish that D efendant acted willfully or intent ionally, P laintiff must show that it “acted with something greater than gross negligence.” Tijerina v. Walters , 821 F.2d 789, 799 (D.C. Cir. 1987); White v. Office of Pers. Mcpnt ., 840 F.2d 85, 87 (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

st atements, do not suffice.” Iqbal , 556 U.S. at 678. Assuming arguendo that P laintiff ha s 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 , 567 F. Supp

. 2d 150, 156 (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 , 529 F. Supp. 2 d at 53 (finding that t he “D.C. Circuit has held that emotional trauma alone is sufficient to qualify as an8 adverse effect under Section 552a( g)(1)(D) of the [Privacy] Act.”) (citing Albright , 732 F.2d at 186) (internal quotation marks omitted). Here, P laintiff 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 all ow a claim for damages based on . . . emoti onal 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 , 218 F. Supp. 3d 64, 82 (D.D.C. 2016). Plaintiff also states that the disclosure may hypotheti cally 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 pr oven
pe cuniary or economic harm[,] ’ ” Glass v. U.S. Dep't of Justice, 279 F. Supp. 3d 279 (D.D.C. 2017) (quoting FAA v. Cooper , 566 U.S. 284, 299 (2012) (emphasis omitted) ), and any damages which have not yet matured raise the fundamental issue of standing, see L ujan v. Defs. of Wildlife , 504 U.S. 555, 560 (1992) (noting that “ t he 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 w ill 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 , 936 F.2d 1346, 1350 (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. Id. at9 1350; accord Deters v. United States Parole Comm'n , 85 F.3d 655, 660

– 61 (D.C. Cir. 1996); Sellers v. Bureau of Prisons , 959 F.2d 307, 310

– 12 (D.C. Cir. 1992).
In addition to monetary damages, P laintiff requests that his socia l security number be
“re moved from . . . files and records curren tly 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. P robation Office , 148 F.3d 1124, 1125 (D.C

. Cir. 1998) (citing Deters , 85 F. 3d at 658 n. 2) ; see also Earle v. Holder , 815 F. Supp. 2d 176, 181

- 82 (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 dam ages provision (subsection (g)[.] ”) (citing 5 U.S.C. § 552a(j) (authorizing agencies to make exemptions) and 28 C.F.R. § 16.97 (listing BOP exe mptions)); Brown v. BOP , 602 F. Supp. 2d 173, 175 (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.”); Jenni ngs v. BOP , 657 F. Supp. 2d 65, 71 (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 , 815 F. Supp. 2d at 181 (citing 5 U.S.C. § 552a(j) ). Even if this exempt ion were somehow inapplicable, P laintiff’s claims for damages base d on vagaries of emotional harm, without more, are insufficient under the Privacy
Act. See § ( a ) ( “ Improper Disclosures ” ), supra .10 Thus, P laintiff’s demand for correction or redaction of BOP’s reco rds will also be dismissed.
IV. CONCLUSION For the foregoing reasons, and without any argument in opposition, D efen dant’s Motion to Dismiss is granted, and the C omplaint is dismissed for failure to state a claim

. A separate O rder accompanies this Memorandum Opinion.

________/s/_____________

_____ COLLEEN KOLLAR

- KOTEL LY Date: August 12, 2020 United States District Judge