UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

___________________________________ ) MARK MI L L ER, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-513 ( PL F) ) FED ERAL

BU REAU OF PRI SONS et al. , ) ) Def endants. )

___________________________________ )

OPI NI ON Plaintiff Mark Miller is a prisone r in fede ral c ustody . He f iled a pro se complaint
asser ting a varie ty of statutory

and constitutional claims ag ainst the Fe dera l Bure au of Prisons (“B OP”) a

nd two BO P employ ees in their pe rsonal ca pacities for

a variety of alleg ed ac ts and injuries. The de fenda

nts have moved to dismiss the complaint under seve ral provisions of Rule 12(b) of the Fe dera l Rules of Civil Procedur e or, in the a lternative, unde r Rule 56 for summary judgme nt. The def

endants’ motion for summar y judgme nt will be gr anted.
I . BA CKGROUND Miller was a

rre sted, convicte d, and sente nced to imprisonment in 2005 in
connec tion with his conviction for posse ssion with int ent to distribute coca ine. Miller filed this complaint about eve nts that occurr ed in 2008 while he w as conf ined at a low se curity

BO P fac ility at the United States Medic al Center f or F eder al Prisoners in Spring field, Missouri. Miller reque sted a tra

nsfer to a minimum, i.e., lesser, se curity fac ility . Def

s.’ Mot. to Dismis s or for Summ. J . (“D efs.’ Mot.”), De clar ation of Eric Ba nta (Apr il 24, 2009) (“B anta De cl.”) Att. A,Sec. 3. Eric Ba nta, Miller’s ca se mana g er at the time and now a de fenda nt in this suit, prepar ed a transfe r re quest for Miller to a less restric tive environment, a minimum secur ity

fac ility , and submitt ed it to the BO P’s transfe r authority , the Desig nation and Sentenc e Computation Center in Grand Pra irie, Texas. Ba nta Dec l. ¶¶ 4-6 & Att. A. Section 5 of the tra nsfer reque st form require s BOP staff

to “[n] ote any

past or pre sent behavior and/or mana g ement conc erns.” Ba nta Dec l. Att. A, Sec. 5. B anta pr epar ed the tra nsfer reque st in accor dance with BOP proc edure , codified at Progr am Statement 5100.08, which instructs the pr epar er to include in Section 5 the inmate’s “history

of ar rests and disruptive be havior whic h may not hve re sulted in a conviction.” Ba nta Dec l. ¶ 7 & Ex . B. A ll of the information B anta include d in the transfe r re quest was derive d from Miller’s pr e-se ntence investigation report (“ PSR ”) pr epar ed bef ore se ntencingby the Probation Off

icer
. Id. ¶ 8. Amongthe information B anta r eporte d in Section 5 of the transf er r equest we re the following two incidents that had re sulted in charg es that we re later dismissed:

September 27, 1997, Mr . Miller was a rre sted for A g g rava

ted Assault, DrivingUnder

the Influenc e, L eavingthe Scene of an Acc ident, Stop S ign a

nd Speedingin L awr ence Kansa s. L awr ence police off icer s responde d to an ag g ravated assault ca ll in which the complainant advise d office rs Mark Miller e ntere d her a partment throug h the re ar slidingdoor, wa s holding a black se mi-automatic handgun, and wa s walkingaround the apar tment brandishingthe g un. The c omplainant noted Mr. Miller had be en at he r apa rtment ear lier in the eve ning a

nd had bee n in an ar g ument with his ex

g irlfriend. B oth Mr. Miller and his ex-gir lfriend lef t the apar tment, with Mr. Miller returninglater w ith a firea rm. The c omplainant repor ted she wa s frig htened by Mr. Miller and g ot her 16-monthold son, ex ited the apa

rtment and we nt to another a partment to ca ll the police. Othe r witnesses we re in the a partment obser

ving Mr
. Miller wieldingthe fire arm. The witnesses re ported Mr. Miller ha d left the a rea in a vehicle driving westbound. Ka nsas Univer sity police off icer s later located the vehic le wre cked at an intersec tion.

-2-Wit nesses a t the scene advised off

icer s Miller had fled the scene on foot. Miller was located runningtoward Wescoe Hall on the University

campus. The arr esting office r noted Mr. Miller appea red intoxi cate d and wa s vomiti ngon himself. Inside Mr. Miller’s pants poc ket was a 9 mm maga zine with nine 9 mm bullets. The handgun possessed by Mr. Miller was loc ated ne ar Murphy Hall on the Univer sity

campus. The gun was identified a s a Rug er 9 mm pistol. L aw e nforc ement off icer s determined the Ruge r 9 mm pistol was the same pistol used duringthe May 5, 1997 incident [also involvi ngMiller]. The motion t o dismiss filed by the prosec utor indicates the la b repor t reg arding

blood analy sis was not re ceive d in time for the jury trial. In addition, essential witnesses we re not located. On Dec ember

24, 1999, Mr. Miller was a rre sted for F irst Deg ree Murder in Oklahoma City , Oklahoma. Char g ing doc uments ref lect on Dec ember

24, 1999, Oklahoma City police off

icer s were dispatched to a

shooting c all at an a

partment c omplex in northwest Oklahoma City . When office rs ar rived they found the a

partment occupie d by

sevente en individuals and four people ha

ve bee n shot. One of the victims was transpor ted to an ar ea hospital whe re he later die d. Prior to his death, the victim told an office r he w as shot by “Gr eedy”. The three other victims wer e tra nsported to ar ea hospitals and survived their injuries. Witnesses advised of fice rs that approximately

four to twelve black male subjects surrounde d the exterior of the a

partment building and opene d fire on the apar tment witnesses identified the subjec ts as Bloods g ang members. One of the g angmembers wa s identified by the occupa nts of the apa

rtment as “G ree dy ”. Two w itnesses/victims stated they

saw “ Gre edy” standingoutside the apa rtment with a g roup of blac k male subjec ts seconds prior to the shooting
. Throug h investigation “Gre edy” wa s identified as Gr eg ory L ewis and wa s found to have ha d past conflicts with the oc cupants of the apar tment. Office rs lear

ned that on De cembe r 17, 1999, three of the victims were involved in an alter cation with “Gr eedy” in which “Gr eedy” wa s beate n up. Since that time, the victims/witnesses stated that they

had bee n threatened a

nd hara ssed by

“Gr eedy”. L ater in the investigation officer s determined Ma rk Miller used the alias name of Gre g ory

L ewis and the street moniker “Gr eedy”. The char g e of F irst Deg ree Murder was dismissed at the re quest of the state due to lac k of evide nce.

-3-Compl., Att . 1; Ba nta Dec l. Att. A; see also Opp’n Att. C (memorializing a statement by

J ohn J acobse n, first assistant district attorney for Okla homa County

and Oklahoma

City , Oklahoma, explaining that the first de g ree murder c harg e ag ainst Miller was droppe d beca use “Miller’ s alibi chec ked out.”)
. 1 None of the information re ported in Section 5 of the tr ansfe r re quest rela ted to events that
occur red later than 2000. See id. The B OP’s transfe r authority denied the r equest. B anta De cl. ¶ 9. Miller promptly

filed an “ Inmate Reque st to S taff” challeng ing “ all the alleg ations for wr ong doing in the dismissed cha rg es in my

PSI as fa lse . . . .” B anta De cl. Att. E. Shortly there afte r, at Miller’s r equest, B anta a sked the U.S. probation officer who authore d Miller’s PSRto reviewthe ac cura cy of the a rre st information in the PS R. Banta Dec l. ¶¶ 10- 11. The probation officer verifie d the ac cura cy

of the infor

mation. Id. ¶ 11. As a r esult of the cha lleng e to the ac cura cy of Miller’s c riminal history information in his PS R, Mill er’ s unit team under

took “a c omprehe nsive re- revie w.” Opp’ n Att. M. This review r esulted in an incre ased “ history

of violence (“H OV”) ” scor e for Miller, based on a

n incident in 2002 that was not refle cted in his arr est history in the transfe r re quest. Id. ¶ 12. A fe w months later, in re sponse to a re quest from Miller for a tra nsfer to a Residential DrugAbuse Prog ram (“ RDAP”), B anta pr epar ed anothe r transf er r equest; this time the transf er w as appr oved by

DSCC. Banta De cl. ¶ 14 & Ex . I , Sec. 3; see also Opp’n at 13 (“Plaintiff re quested . . . the dr ugprog ram.” ). Miller wa s transfe rre d to a RDAP prog ram located in a medium secur ity

institution near his home of rec ord, which is one se curity level more
The doc ument appende d to Mill er’ s opposition as Attachment C was also appe nded to 1 his complaint as Attachment 2, but the c ritical information is i lleg ible in the copy attache d to the complaint. -4-restric tive than a low se curity fac ility
. Id. Acc ordingto the BO P website, Miller is curre ntly housed at the F eder al Corre ctional Institut ion in Seag oville, Texas, a low security institution that has a satellite camp for

prisoners with a minimum security classification. Mil ler ha s not notified this Court of his chang e of a ddress.

Miller sues B anta a

nd Marty Ander son, his warde n at the time, for “ knowing ly including f

alse infor mation in the reque st for transf er.” Compl. at 1; see also id. at 2. He f urther alleg es that af

ter he filed his reque st for an a dminist rative r emedy challeng ing the alleg edly false information, he wa s subjected to re taliation in the following w ay s: (1) that B anta a nd Ander son incre ased his HOVscore ; (2) that he w as plac ed for one nig ht in a Special HousingUnit (“SHU” ) without cause; (3) that he wa s transfe rre d to a medium secur ity institution; and (4) that his civil complaint was re moved from the outg oing pr ison mail. Com pl. at 2. Ba sed on these a lleg ations, he asse rts claims under the Privacy Act, 5 U.S.C. § 552a, the Administrative Proce dure A ct (“A PA”), 5 U.S.C. §§ 701 et seq. , the Prison L itigation Refor m Act (“ PL RA”), 42 U.S.C. § 1997, and the F irst and Four th Amendments to the Constitution. Com pl. at 2. He se eks $50 milli on in damag es and a sks that his “files be c orre cted.” Id. at 3. In addition to filing B anta’ s 2 decla ration addr essingthe merits of the a lleg ations, the defe ndants have also filed a de clar ation establishing that Mill er did not exhaust the BO P’s inmate administrative re medy proce ss before filing this lawsuit with respe ct to three of his alleg ations of re taliation: (1) that he wa s place d in

In his oppositi on, Miller contends that B anta a nd Ander son have submitted fa lse 2 statements in this li tigation and asks this Court to i nstitut e cr iminal procee dings a g ainst them. Ander son did not submi t any statements to this Court and there is no evide nce that Ba nta’s decla ration includes a

ny false statements. The Court finds no support whatsoever in this rec ord for Miller’ s acc usations; indeed, Miller’s ac cusations of fa lse statements appe ar to be not only without merit, but also frivolous if not malicious. -5-the SHU without cause ; (2) that he w as transf err ed to a hig her se curity

institution; and (3) that his civil complaint was re moved from the outg oing pr ison mail. Defs.’ Mot., De clar ation of Joe McGuire (May

12, 2009) (“ McGuire Dec l.”) ¶¶ 5-6.
I I . L EGAL

STANDARDS On a motion to dismi ss, a pro se complaint is to be liberally construed in f

avor of the plaintiff. Haines v. Kerne r, 404 U.S. 519, 520 (1972). In deter mining whe ther a

complaint fails to state a c laim upon which re lief may be g rante d, a cour

t ge nera lly

“must acc ept as true all of the fa ctual alleg ations contained in the c omplaint,” Erickson v . Pardus, 551 U.S. 89, 94 (2007), a nd “g rant plaintiffs the be nefit of a ll inferenc es that ca n be der ived from the f

acts alleg ed,” but ne ed not ac cept e ither a pla intiff’s leg al conc lusions, or infere nces dr awn by the plaintiff if those infe renc es ar e unsupported by fac ts alleg ed in the complaint, Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 ( D.C. Cir. 1994). “To survive a motion to dism iss, a complaint must contain sufficient f actua l matter, ac cepte d as true, to state a cla im to relief that is plausible on its face . . . . A claim has f acia l plausibili ty

when the pla intiff pleads fa ctual conte nt that allows the cour

t to draw the r easona

ble infer ence that the def

endant is liable for

the misconduct alleg ed.” Ashcroft v. Iqbal, 129 S.Ct . 1937, 1949 (2009) ( internal quotation marks and citations omitted).

As the plaintiff ha s been pr eviously advised, see Orde r, May

27, 2009, when a court c onsiders matters outside the ple ading s that have be en pre sented with a motion to dismis s under Rule 12( b)(6) , “the motion must be treate d as one f or summary

judgme nt under Rule 56.” Fe d. R. Civ. P . 12(d). On a motion for summary

judgme nt, “[t] he inquiry

perf ormed is the

-6-threshold inquiry of dete rmining whether

there is a nee d for a

trial –– whethe r, in other wor ds, there are any

g enuine f

actua l issues that properly can be resolved only

by a finde r of f

act be cause they may rea sonably

be re solved in favor

of either party .” Anderson v. Liberty Lobby, I nc., 477 U.S. 242, 250 (1986). Summary judgme nt “should be re ndere d if the plea dings, the discovery and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue a s to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P . 56(c) (2). A mater ial fac t is one that is capable of af fec ting the outc ome of the litig ation. Anderson v. Liberty Lobby, 477 U.S. at 248. A g enuine issue is one where the “e vidence is such that a
rea sonable jury

could re turn a ve rdict for the nonmoving pa

rty ,” id. , as opposed to evide nce that “is so one-sided that one par ty must prevail as a

matter of la

w.” Id. at 252. A cour t consideringa motion for summary judgme nt must draw all “justifiable infere nces” from the e vidence in favor of the nonmovant. Id. at 255. The nonmovingparty , howeve r, must do more than simply “show that ther e is some metaphy sical doubt as to the materia l fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmova

nt must “set out specific spe cific f acts showinga g enuine issue f or trial.” Fe d. R. Civ. P . 56(e) (2). In the end, “ the plain languag e of Rule 56( c) ma ndates the e ntry

of summary judgme nt . . . ag ainst a par ty who fa ils to m ake a

showingsufficie nt to establish the exis tence of an e lement essential to that par ty ’s ca se, and on which that par ty will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

-7-I I I . DI SCUS SI ON A. The Unex hausted Retaliation Cl aims In pertinent pa

rt the PL RA provides that: [n] o action shall be br oug ht with respec t to prison conditions under section 1983 of this title, or any other F eder al law, by

a prisoner confine d to any

jail, prison, or other c orre ctional fa cility until such administrative re medies as a re a vailable a re e x hausted. 42 U.S.C. § 1997e(a) . This exhausti on require ment is mandatory and “a pplies to all prisoners seekingredr ess for pr ison circumstanc es or oc curr ence s.” Porter v. Nussle, 534 U.S. 516, 520 (2002). A pr isoner must complete the a dministrative r emedy proce ss “re g ardle ss of the re lief offe red through administrative ave nues.” Booth v. Churner, 532 U.S. 731, 740-41 (2001). In short, a prisoner

may file a c ivil action conce rningthe conditions of his confineme nt under fede ral lawonly

if he ha s first exhausted all the administrative re medies the B OP has made available
. See E lliott

v. Fe d. Bur. of Prisons, 521 F. Sup. 2d 41, 49-50 (D .D.C. 2007). While exhaustion i s a mandatory prer equisite of filinga civil ac tion, a plaintiff is not require d to plead that he has e x hausted his administrative re medies. Rather , exhaustion under the PL RA is proper ly treated as a

n aff irmative def

ense a nd analy zed as a motion for summary judgme nt. Jones v . Bock

, 549 U.S. 199, 216 (2007). The de fenda

nts have filed a

n ag ency decla ration establishingthat Miller did not ex haust his administrative remedie s with respec t to three of his c laims of reta liation — that he was plac ed in the SHU, that his complaint was re moved from the ma il, and that he wa s transfe rre d to a highe r sec urity

institution. McGuire De cl. ¶¶ 5- 6. Miller has not shown otherw ise throug h aff idavit, declar ation or other c ompetent evidenc e. Ac cording ly , as there is no ge nuine issue of
-8-materia l fac t as to whether Miller failed to e x haust his administrative reme dies befor e filingsuit, and the de fenda

nts are e ntitled to judgment as a matter of la

w, judg ment will be awa

rded to the defe ndants on any

claims arisingfrom these three events.
B. Claims Arisi ng from the Alleged False Statem ents The de fenda

nts are e ntitled to judgment on any claims arisingfrom the a lleg ation that the def

endants knowing ly

included fa lse statements in the transf er r equest. Quite simply , Miller has not shown that the tra nsfer reque st included any

false statements. Miller does not offe r any evidenc e to dispute that he wa s, in fact, c harg ed with ag g ravated assault in 1997 and with first deg ree murder in 1999, a s was re corde d in his P SR and refle cted in B anta’ s transfe r reque st. W hile Miller objects to the fa ct that the first de g ree murder indictment is mentioned in the transf er r equest, his own submissions concede that he wa s, in fact, indicted f or first degree murder a nd that the cha

rg e wa s later dismissed. See Opp’n at 5-6 & Att. C. A charg e that wa s broug ht and dismissed is not a charg e that wa s never broug ht. Mill er’ s undisputed assertion that the def endants kne w that “the pla intiff had an a libi for the time of the murde r,” O pp’n at 5, doe s not mean — as Miller se ems to think, see id. at 5-6 — that one makes a false or inacc urate statement if one r eports that cha rg es we re br oug ht and later dismiss ed. On this rec ord, no
rea sonable jury

could find that the de fenda nts made fa lse or inac curate statements. The ref ore, the def endants a re e ntitled to judgment on any conce ivable cla im arising f rom Miller’s alleg ations of fa lse statements in the transf er r equest. 3
The de fenda

nts are c orre ct, in any

case , that Miller cannot maintain a claim under

the 3 Privacy Act re g ardinghis PS R beca use the B OP has exempted its I nmate Centra l Records Sy stem from the a ccur acy , amendment a nd reme dies provisions of the Ac t. See 28 C.F.R. § 16.97(a) (4); Brown v. Bureau of Prisons, 498 F. Supp. 2d 298, 302-03 (D .D.C. 2007). -9-C. Retaliation C laims Arising f rom the Rec alculated HOV Sc ore Miller alleg es that the re calc ulation of his HOV scor e wa s a for m of reta liation for filing a n administrative g rieva

nce. An inmate’s HOVscore is one of the c omponents used to calc ulate his custody

classification, and there fore , it may aff ect his plac e of imprisonment. Although the complaint is far f rom clea r, a liber al re adingsug g ests that Miller might have intended to asser

t claims under 42 U.S.C. § 1997d, the APA, and the First and F ifth Amendments to the Constit ution. See Compl. at 2. Neither the statutory

nor the c onstitut ional claims for 4 reta liation can survive the defe ndants’ dispositive motion. Miller’s invocation of 42 U .S.C. § 1997d i s misplaced. That provision prohibits reta liation for filing complaints ag ainst a state or a political subdivision of a state to re dress a “patter n or pra ctice” of “e g reg ious or flag rant c onditions which deprive [instit utionaliz ed] persons of a

ny rig hts, privilege s, or immuniti es sec ured or protec ted by

the Constitut ion or laws of the United States c ausingsuch per sons to suffer grievous har m.” 42 U.S.C. § 1997a(a) ; see 42 U.S.C. § 1997d (prohibiting re taliation for filingsuch a c omplaint). In multipl e re spects, this provision is not applicable to Miller’s suit. Furthe rmore, the anti-re taliation provision does not aff ord a pr ivate right of ac tion. See 42 U.S.C. § 1997j (“The provisions of this subchapte r shall in no way expand or restric t the authority of par ties other than the United States to enforc e the leg al rig hts which they

may have pur suant to exi sting lawwith reg ard to institutionaliz ed persons.” ) Miller also has no r ight of action under

the APA ar ising fr om the rec alculation of his
Nowher e does the complaint ref er to the F ifth Amendment. Rather , it refe rs to “due 4 proce ss” and the “ fourth ame ndment.” Compl. at 2. Since the F ourth Amendment prote ctions have no obvious a

pplication on these fa cts, the complaint will be construe d as one intendingto asser t a Fif th Amendment due pr ocess c laim. -10-HOV sc ore be cause BO P decisions involving custody classification and place of conf inement ar e expressly exempt by

statute from judicial re view under the APA. See 18 U.S.C. § 3625. Thus, the def endants a re e ntitled to judgment as a matter of la

w on the statute-ba sed cla ims of reta liation. The Constituti on-base d claims of re taliation cannot survive, e ither. As an initial matter,
as an a g ent of the sove reig n, the B OP is not l iable for damag es on any

constitutional claim. See Lane v. Pe na, 518 U.S. 187, 192 (1996) (holdingthat the United States and its ag encie s are immune from suit ex cept insofa r as Cong ress ha s expressly waived that immuni ty); FDIC v. Mey er, 510 U.S. 471, 484-86 (1994) ( holding that Cong ress ha s not waived fe dera l ag encie s’ immunit y from suit for damag es for alleg ed violations of the Constituti on). F eder al ag ents in their per sonal ca

pacities, on the othe r hand, ma y be liable f

or dama g es for

constitutional torts under a so-ca lled Bivens action. Her e, howe ver, the Court has no persona l jurisdiction over the 5 two individual defenda

nts, which would prec lude the cla ims goingforwa rd in this Court, in any
case . See Def

s.’ Mot. at 4-5. Even if this Court did have pe rsonal jurisdiction over Anderson a nd Ba nta, the constitutional claims would fail on their merits. The due proce ss claim nece ssarily fails bec ause it is settl ed law that a prisoner does not have a liberty

interest in his place of conf inement or custody classification that can be r edre ssed by the due pr ocess c lause of the constitution. Olim v. W akinek ona, 661 U.S. 238, 245 (1983); Perez v . Lappin, 675 F. Supp. 2d 35, 42 (D.D .C. 2009) (citingcase s). The F irst Amendment claim fa ils, as well, beca use Miller has not shown e ither that the individual defe ndants ac ted illeg itimately or with any

reta liatory

intent. See Pryor El v.
Bivens v . Six Unknown Age nts of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 5 -11-Kelly, 892 F. Supp. 2d at 274 (D .D.C. 1995) (g rantingjudgme nt to the defe ndant on a F irst

Amendment re taliation claim “[b] eca use Plaintiff fails to establish that the [gove rnment] impermissibly

infring ed upon his rig ht to eng ag e in a pr otected a ctivity , and bec ause Plaintiff does not alleg e that the a lleg edly reta liatory

action fa iled to advanc e leg itimate goa ls of the
corr ectional institution, . . . .”). The e vidence in this case shows only that Miller challeng ed the
acc urac y of his criminal history

and then g ot what he a sked for , namely , a re view of his cr iminal history . This reviewresulted in an updated ca lculation of his HOV sc ore. The re is no evide nce in this record to e stablish that the individual defenda nts set out to dis coura g e Miller fr om using the B OP’s administrative re medy proce ss to challeng e the a ccur acy of his criminal history

as repor ted in his PS R. To the contra ry , the re cord shows tha

t the defe ndants coope rate d with Miller’s re quest and unde rtook to review the fa cts. Miller may

regret the r esult, but in li g ht of the fa ct that he soug ht a re view of the acc urac y of his criminal history , he has f ailed to show reta liation by

the def endants in the re calc ulation of his HOV scor e.

I V. CONCLUSI ON For the re asons stated a

bove, and a fter c are ful consider ation of the pro se complaint liberally construed, the defe ndants’ motion to dism iss or for summary judgme nt, the plaintiff’s opposition and the defe ndants’ re ply there to, the defe ndants’ motion will be gr anted a nd the

-12-defe ndants will be awa rded judg ment on all claims. The plaintiff’ s motion seeking the initiation of cr iminal procee dings a g ainst the individual defenda nts will be denied. An Orde r consistent with this Opinion will issue this same day
.

/s/ PAULL . FRI EDMAN DATED: Ma

rch 29, 2010 United States District J udg e

-13-