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

____________________________________ ) VERNON NO RMAN EARL E, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0422 (PL F) ) ERI C HOL DER, et al. , ) ) Def endants. ) ____________________________________)
OPI NI ON Plaintiff, a fe dera l prisoner proc eeding pro se , commence d this action ag ainst
sever al individual District of Columbia and fede ral de fenda nts, seekingmonetary

damag es and the “c orre ction of [his] files and [r]ecords, a s ref lective of [hi s] [ District of Columbia] sentenc es . . . .” Civil Com plaint (“Compl.”) a t 10. Plaintiff states that this action “ar ises” under the 1 Fr eedom of

Information Ac t (“F OIA”) , 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Id
. at 5. The Court re cently

g rante d plaintiff’s motion to withdraw any claims brought ag ainst the individual feder al def

endants unde r

Bivens v . Six Unknown Named A gents of Federal Bure au of Narcotics , 403 U.S. 388 (1971). SeeMemorandum Opinion and O rder of September

9, 2011 [Dkt. # 29] . In addition, the Court rec ently dismiss ed the c laims ag ainst the District of Columbia defe ndants. See Orde r of Septembe r 28, 2011 [Dkt. # 31]
.

The fe dera l defe ndants move collec tively to dismi ss the complaint. Upon consideration of the parties’ submissi ons, and for the followingrea sons, the Court will gra nt the instant moti on to dismi ss the rema ining F OIA and Privac y Act cla ims.
Plaintiff is curre ntly

incar cer ated at the McCrea ry United States Penitentiary 1 (“U SP”) in Pi ne Knot, Ke ntucky
.I . BA CKGROUND The a lleg ed fa cts rele vant to the instant motion are as f ollows. On Dec ember

18, 2006, plaintiff’s ca se mana g er at USP Big Sandy in Inez, Kentucky , J enife r F ultz , conducte d “a Reclassification on Pl aintiff usingthe male c ustody Classification form . . . .” Compl. at 5. F ultz “cha ng e[d] my

curr ent conviction to prior c onviction and ac tivated a se ntence which ca n not be ag g reg ated be cause its [ sic] a fede ral sente nce, a nd my prese nt sentence is a District of Columbia . . . sentenc e.” Id . Plaintiff alleg es that F ultz was re taliating a g ainst him for havingfiled “se vera l Grieva nces a g ainst her” and that she “ informed plaintiff be fore his Classification that she [was] g oing to g ive [him ] 24 poi nts to keep him in the penitentiary settings.” Id . Plaintiff
unsucce ssfully

appea led the cla ssification and, on Aug ust 9, 2007, “the B .O.P. Direc tor” alleg edly “conc ur[red] with the incorrec t calculation of plaintiff[’s] criminal [h] istory score base [si c] on prior conviction which is the c orre nt [ sic] sentence nowbeen [sic] serve [sic] by the plaintiff.” Id ., ¶ 3; seeCompl. Att ach. [Dkt. # 1-1] at 21 (Response to Administrative Remedy ). 2 On Octobe r 4, 2007, plaintiff wa s transfe rre d to his curre nt fac ility , USP McCrea ry , wher e he w as informe d that he had 27 points, “up 3 points from the 24 a t [ USP Big Sandy ].” Compl . at 5, ¶ 4. When plaintiff prote sted the ac cura cy of the scor ing, he alleg edly was direc ted to view his prese ntence investigation report (“ PSR ”). Id . at 6. Afte r re viewingthe repor t, plaintiff deter

mined that he wa s score d incorre ctly based on a

n alleg ed improper ag g reg ation of his fede ral sente nce of 30 months for esca

pe with his District of Columbia sentenc e. Id . Acc ordingto plaintiff, the “30 month[] sentenc e has e ffe ctively taken the pla ce of
In rulingon a Rule 12(b) (6) motion to dismi ss, the Court may consider “ any 2 documents either

attache d to or incorpor ated in the c omplaint . . . without convertingthe motion to dismi ss into one for summary judgme nt.” Bake r v. He nderson , 150 F. Supp. 2d 13, 15 (D.D.C. 2001) ( citations omitt ed). 2plaintiff[’s] corr ent [sic] sentenc e, and pla ce pla intiff[’s] D.C.D.C. as prior c onvictions, which

would make [the D.C.] sentences stop [r] unning.” Id . Plaintiff say s he informe d his then-ca se manag er, T. B rowde r, and the case manag er c oordinator, T. Sheldra ke, that they

could “a ctivate nothing c oncer

ning the . . . fede ral sente nce” until he had completed se rvice of the D.C. sente nce. Id . The c ase ma

nag ers a lleg edly

told plaintiff that he would nee d to write “the probation off ice to [ challeng e] the files and re cords[’] incorrec tness.” Id . Plaintiff alleg edly demande d that the
case manag ers c ontact the pr obation office pursuant to B urea u of Prisons (“B OP”) policy and the Privacy Act. Id . He then f

iled g rieva

nces, “ but to no avail.” Id .; see ge nerallyCompl. Att achs. Alleg edly , on April 16, 2008, in response to plaintiff’ s appea l to BOP’s ce ntral off ice, “ the F.B .O.P. director r efuse [d] to act on its own policy to instruct its employ ees to do their duty . . . .,” which, a ccor ding to plaintiff, w as to contac t the probation off ice to cor rec t information contained in his PSR. Id . at 7.

Plaintiff further

alleg es that on August 15, 2008, he filed a F OIA/PA reque st with BO P “for c orre ction of Records or ‘Ame ndment Request’ . . . .” Id . at 8. He r ece ived a r esponse “re fusingto addre ss [ the] iss ue” on Septe mber 17, 2008. Id . On Octobe r 1, 2008, plaintiff appea led the denia l of his reque st “to amend a nd corr ect [his] rec ords and f iles” to “[then-B OP] Direc tor Har ley

G. L appin,” who a cknowledg ed the a ppeal by letter of N ovember

21, 2008. Id
. On Fe bruar

y 13, 2009, plaintiff “r ece ived a c ommunication from the Of fice of privac y

and Civil L iberties, in the U.S. Depa rtment of [J ]ust ice, a ssigningan appe al number.” Id . Plaintiff sent that office a letter

on Marc h 4, 2009, complainingabout the dela y . This civil action was for mally filed on Mar ch 15, 2010. 3

In his certific ate of

service attache d to the complaint, plaintiff states that he 3 mailed the complaint fr om his prison on J anuar y 21, 2010. Under

the so-ca lled mailbox rule

(continued...) 3I I . DI SCUS SI ON A. The FOIA Claim As an initial matter, the Court finds that the c omplaint establishes no basis for exercisingjurisdiction under the F OIA. The Court’s jurisdiction under the FO IA extends only

to claims arisingfrom the imprope r withholding of ag ency rec ords. See V

azquez v. U.S. D ep’t of Justice , 764 F. Supp. 2d 117, 119 (D.D .C. 2011) (citing5 U.S.C. § 552(a)(4) (B ); McG ehee v. CIA , 697 F.2d 1095, 1105 ( D.C. Cir. 1983)). Plaintiff has not alleg ed that he r equeste d the disclosure of r ecords and wa s denied. See5 U.S.C. § 552(a)(6) (A)( I ) (r equiringan ag ency to “dete rmine within 20 day s . . . after the re ceipt” of

a prope rly

submitt ed F OIA re quest “whe ther to comply with the reque st” and to notify the re quester a ccor dingly ). Rather , he cha lleng es the
acc urac y of ag ency

rec ords, which is the e x clusive province of the Privac y Act. See Chung v

. U.S. Dep’ t of Justice , 333 F.3d 273, 274 ( D.C. Cir. 2003) (af firmingdismiss al of c onstitut ional claims ag ainst DOJ officials as “e ncompassed w ithin the remedial sche me of the Privac y Act.”) (citation omitted); accord Lynn v . Lappin , 593 F. Supp. 2d 104, 105-06 (D .D.C. 2009) (dismissing constitutional claims)(citations omitted); see also Blazy v . Tenet , 194 F.3d 90, 96 (D.C. Cir. 1999) (e x plaining that “[u] nlike FOIA, the Privac y Act' s primary

purpose is not disclosure. Rather , ‘the main purpose of the Privac y Act' s disclosure re quirement is to allow individuals on whom information is being c ompiled and re trieved the opportunity to reviewthe information and r equest that the a g ency corr ect a ny inacc urac ies.’ ”) (quoting Henk e v. U nited States Dep't of Commerce , 83 F.3d 1453, 1456- 57 (D.C. Cir. 1996)).

(...continued) 3 applicable to actions filed by prisoners, the Court a cce pts this date as the filingdate f or purpose s of mea suringthe statutory limit ations period. 4For these re asons, the Court dismisses any claims purporte dly

“ar ising” under the FOIA for la ck of jurisdiction. B. The Privacy Act Claim Def endants see k dismiss al of the Privac y Act cla im on the gr ounds that (1) the Privacy Act does not a

uthorize claims ag ainst individuals; (2) the claim is time-barr ed; (3) the B OP has exempted its inm ate c entra l file – wher e plaintiff’ s PS R is maintained – from the Privacy Act’s a mendment and a ccur acy

provisions; and (4) the Privac y Act is not the proper
avenue for c halleng ing the acc urac y of information contained in the PSR. 1. The Proper

Def endants Def endants c orre ctly

argue that the Privac y

Act does not a

uthorize claims ag ainst individuals. SeeMem. of P. & A . in Support of Fed. D efs.’ Mot. to Dismi ss (“De fs.’ Mem.” ) at 6-7; Martinez v. Bure au of Prisons , 444 F.3d 620, 624 ( D.C. Cir. 2006) (“[T]he district court proper ly dismiss ed the na

med individual defe ndants bec ause no c ause of action exists t hat would entitle appellant to re lief fr om them under the Privac y Act or F OIA.”) (citations omitted); accord Lynn v. Lappin , 593 F. Supp. 2d at 105-06 ( dismiss ing “ the constitutional claims and the cla ims ag ainst the individual defenda nts to the ex tent that they are sued in their individual capa cities.”) (citations omitted). The Court ther efor e dismisses the complaint ag ainst the individual officials and substitutes the Depa

rtment of Just ice ( “DOJ”), of which B OP is a component, as the pr oper defe ndant. See Sonds v . Huff, 391 F. Supp. 2d 152, 155 (D.D .C. 2005) (substituti ngDOJ as the sole defe ndant in FOIA ac tion naming individual def endants).

52. The Statute of L imitations The Privac y

Act author izes a lawsuit to enfor ce any liability cre ated under this section
. . . [i f it is] brought

. . . within two y ear s from the date on which the cause o f ac t i o n arises, except t h at wher e an ag ency has materia lly and willfully misrepr es ented any information require d under this section to be disclosed to an individual and the information so misrepre sented is materia l to establishment of th e l i ab i lity of the ag ency to the individual under this section, t he action may be brought at any time within two y ear s afte r d i s co v ery by the individual of the misrepre sentation. 5 U.S.C. § 552a(g )(5)
. See Tijerina v. W alters , 821 F.2d 789, 798 ( D.C. Cir. 1987) (the Privac y Act' s statute of limitations begins to run whe n the plaintiff knew or had r eason to know of the alleg ed violation). De fenda nts wrong ly

asser t that “[f] ailing to f

ile a Privac y

Act cla im within the two-year

statute of limitations period effe ctively deprive s the court of

subject matter jurisdiction . . . .” Def

s.’ Mem. at 8. The Privacy Act' s statute of limitations i s not jurisdictional; it therefor e is subject to equitable tollingin appropriate circ umstances, " most commonly when the plaintiff ' despite all due dilig ence . . . is unable to obtain vital information bea ringon the exis tence of his claim.' " Chung v. Dep’ t of Justice , 333 F.3d 273, 278 ( D.C. Cir. 2003) (quoting Currier v. Radio Free Europe , 159 F.3d 1363, 1367 ( D.C. Cir. 1998)). “B eca use statute of limit ations issues often depe nd on contested que stions of fact . . . the Court may g rant a motion to dismi ss as untimely

only if the complaint on its fac e is conc lusively time-barr ed . . . or if no
rea sonable pe rson could disagree on the date on which the ca use of a ction acc rued.” Ramirez v. Dep’ t of Justice , 594 F. Supp. 2d 58, 62-63 (D .D.C. 2009) (c itations and internal quotation marks omitted). Def

endants a rgue that plaintiff kne w about his claim “a s ear ly as Nove mber 5, 2007,” and that “the latest date that the ca use of a ction perta ining to the [PS R] could have arose 6[si c] is on the date he f iled the Request for

Administrative Remedy , on Dec ember 3, 2007.” Def s.’ Mem. at 8. The response to plaintiff’s grieva nce, how ever , informed plaintiff that he could appe al the dec ision to t he Reg ional Direc tor at B OP’s Mid-Atlantic Reg ional Offic e, which he did. Compl. Attach. at 4 (Par t B-Re sponse); id . at 5 (Reg ional Administrative Remedy Appea l). Def

endants have not re futed plaintiff’ s documented a dminist rative pur suits si nce discoveringthe impact of the alleg ed inac cura cies on his classific ation score , see ge nerally Compl. Att achs., the last of which, a ccor ding to plaintiff, oc curr ed on August 15, 2008, when he submitt ed a r equest unde r the Privac y Act for BO P to amend or cor

rec t his recor ds. Compl. at 8. 4 Fur thermore , defe ndants have not disputed plaintiff’s contention that the fina l ag ency action
occur red on Septe mber 17, 2008, whe n the B OP Direc tor denied his administrative a ppeal. Id
. Finally , the Court will not fault plaintiff for see king a final ag ency

decision that, if succ essful, would have ne g ated his nee d to file a law suit. See H idalgo v. FBI

, 344 F.3d 1256, 1258- 59 (D.C. Cir. 2003) (“ ‘ Ex haustion of administrative re medies is g ener ally require d befor e filingsuit in fede ral c ourt so that the ag ency has an oppor

tunity to exercise its discretion and e x pertise on the matter a nd to make a f

actua l rec ord to support its decision.’ ”) (quoting Oglesby v . United States Dep't of the Army , 920 F.2d 57, 61 ( D.C. Cir. 1990)) (other citation omitted).

On a motion to dismi ss under Rule 12(b) (6), the Court “ must acce pt as true a ll of 4 the fa ctual alleg ations contained in the c omplaint.” Erickson v . Pardus , 551 U.S. 89, 94 (2007) ; see also Be ll Atlant ic Corp. v. Twombly , 550 U.S. 544, 555 (2007); Phillips v. Fulwood , 616 F.3d 577, 581 ( D.C. Cir. 2010). The c omplaint “is construed libera lly in the [pl aintiff' s] favor, and [the Court should] g rant [the plaintiff] the benefit of a ll inferenc es that ca n be der ived from the fa cts alleg ed.” Kowal v. MCI Commc'ns Corp. , 16 F.3d 1271, 1276 ( D.C. Cir. 1994). Neve rtheless, the Court ne ed not ac cept infe renc es dra wn by the plaintiff if those infe renc es ar e unsupported by

fac ts alleg ed in the complaint, nor must the Court ac cept the pla intiff' s leg al conclusions. See id. at 1276; Browning v. Clint on , 292 F.3d 235, 242 ( D.C. Cir. 2002).

7Acc eptingthat the final a dverse decision occ urre d on September 17, 2008, when

arguably plaintiff would have finally obtained vital information bea ringon the exist ence of a claim, the Court finds that plaintiff’s submission of the complaint for f iling on January

21, 2010
was we ll within t he two-year limit ations period. De fenda nts’ motion to di smiss t he Privac y Act claim as time-ba

rre d there fore is denied.

3. BO P’s Ex empted F iles The Privac y

Act re quires fe dera l ag encie s to maintain recor ds used in making deter minations “with such acc urac y , rele vance , timeliness, and completene ss as is rea sonably
nece ssary to assure f

airne ss to the individual in t he dete rmination [about the indivi dual]. . . .” 5 U.S.C. § 552a(e) (5). Sec tion 552a(d) a llows indivi duals ac cess to ag ency rec ords about themselves and to r equest the a mendment of re cords " they believe to be inacc urate , irrele vant, untimely , or incomplete." Doe v . Fede ral Bureau of Inve stigati on , 936 F.2d 1346, 1350 ( D.C. Cir. 1991). Subsections (g )(1) (A) a nd (C) authorize civil ac tions to enforce the amendme nt provisions, and subsection (g )(4) provides for monetary damag es, costs and attorney s’ fe es whe re the ag ency

has ac ted intentionally

or willfully
. See D oe v. F ed. Bureau of I

nvestigation , 936 F.2d at 1350; accord D eters v. U nited States Parole Comm’n , 85 F.3d 655, 660- 61 (D.C. Cir. 1996); Sellers v. Bure au of Prisons , 959 F.2d 307, 310- 12 (D.C. Cir. 1992).

Notwithstanding the fore g oing r emedies, la w enf orce ment ag encie s, such as B OP,
are authorized by

statute to exempt certain re cord sy stems from ce rtain re quirements of the Privacy Act. See M

urray v. Fe d. Bureau of Prisons , 741 F. Supp. 2d 156, 161-62 (D .D.C. 2010). I t is settled that inmate rec ords maintained by BO P, including pre sentenc e re ports, have be en exempted from the Privac y Act’s a ccur acy

and ame ndment require ments (subsections (d) and

8(e) (5)) and fr om its damag es provision (subsec tion (g )). See5 U.S.C. § 552a(j) (a uthorizi ng ag encie s to make exemptions); 28 C.F.R. § 16.97 (list ing B OP exempti ons); Martinez v. BOP , 444 F.3d at 624 (“The BO P has exempted its I nmate Centra l Record Sy stem from the a ccur acy provisions of the Privacy

Act, 5 U.S.C. § 552a(e )(5) .”); W hite v. U.S. Probation Office , 148 F.3d 1124, 1125 (D.C. Cir. 1998) (“ BO P inmate rec ords sy stems are exempt from the amendment provisions of the [P rivac y ] Act.”); Murray v . Fed. Bure au of Prisons , 741 F. Supp. 2d at 162 (conc luding that “ the complaint fa ils to st ate Privac y Act cla ims upon which relief can be g rante d with respec t to . . . information maintained in the [ex empted] Inmate Centra l Record Sy stem . . . .”); Truesdale v. U.S. De

p’t of Justice , 731 F. Supp. 2d 3, 10-11 (D .D.C. 2010) (c iting ca ses); Ramirez v. D ep’t of Justice , 594 F. Supp. 2d at 65 (“ regulations ex empt BO P's Inmate Centra l Records Sy stem (J USTI CE/BOP-005) . . . f rom subsections (d) a

nd (g ) . . . . Having e x empted its
rec ords from the substantive pr ovision reg ardingthe ag ency' s rec ordkee ping oblig ations, BOP eff ectively deprive s liti g ants of a r emedy for a ny harm c aused by

the ag ency' s substandard
rec ordkee ping.” ); Lopez v. Huff , 508 F. Supp.2d 71, 77 (D.D .C. 2007) (“To the extent that plaintiff is seekingto have his [presentenc e investig ation repor t] amende d, such re lief is not available beca

use the B OP has proper ly exempted its i nmate ce ntral files, whe re suc h documents
are kept, from the [Privacy Act’s] amendment re quirements.”) (citations omitted). In his oppositi on, plaintiff asser ts that he is not seekingto amend his PSRbut rathe r is claimingthat “the [retaliator y ] i mproper a ctivation and ag g reg ation of [his] fede ral sentenc e to push up [his ] custody points in order to kee p [hi m] in the penitentiary” violates his constitutional rights. B rief in Opp’ n to Fed. D efs.’ Mot. to Dismi ss [ Dkt. # 24] at 7. The Privacy Act, under

which plaintiff ha s established he is proc eeding , “allows for amendment of

fac tual or historical er

rors. It is not [ as plaintiff now se ems to urg e] a vehicle for amendingthe judg ments 9of fe dera l officials or . . . othe r[s] . . . as those judg ments are ref lected in r ecor ds maintained by fede ral a g encie s.” Kleiman v. De p’t of Energy , 956 F.2d 335, 337- 38 (D.C. Cir. 1992); see Allmon v. Fed. B ureau of Prisons , 605 F. Supp. 2d 1, 7 (D.D .C. 2009) (“The Privacy Act is not a means to cha lleng e the opinions or judg ments of the ag ency .”). D efe ndants’ motion to dism iss the Privacy

Act cla im under Rule 12(b)( 6), F ed. R. Civ. P., for failure to state a cla im therefor e must be g rante d. 4. Challeng ing the PSR

As noted, in response to plaintiff’s g rieva nce a bout the alleg ed inac cura cies in the PSR , BO P corre ctly

informed plaintiff on se vera l occa sions that it l acke d authority to modify

the document but that it could verify the disputed information with the U.S. Probation Offic e that had pre pare d the document. SeeCompl. Att ach. at 6 (Reg ional Administrative Remedy Appea l Part B- Response date d Fe bruar y 13, 2008). Plaintiff’s appe al was de nied bec ause he had not provided “ sufficie nt information,” for verific ation but merely

“conte nded the sc ore [was] wrong .” Id .; see also id. at 8 (Administrative Remedy Response date d April 16, 2008) (“ You cannot e x pect staf

f to submit a vague re quest to the probation off ice, c laiming the e ntire [PS R] is a fr aud.”)
. To the extent, then, that BOP had a duty to verify the ac cura cy

of plaintiff’s PSR,
see Sellers v. Bure au of Prisons , 959 F.2d a t 311-12, the Court finds, based in pa rt on its own strug g le to compre hend plaintiff’ s claim, that BO P reasona bly conclude d that it lacked the le vel of spec ificity

neede d to fashion an inquiry to the Probation Offic e. I n any event, a ppare ntly the Sellers direc tive to verify easily verifia ble information in B OP rec ords is no longe r controlling under the circ umstances pr esente d here , “ ‘a s it was decide d befor e the B urea u of Prisons

10exempted the rele vant sy stem of re cords f rom the ac cura cy

provision.’ ” Truesdale v. U.S. De p’t of Justice , 731 F. Supp. 2d at 10 (quoting Lane v. Fe d. Bureau of Prisons , No. 09-5228, 2010 WL288816 (D.C. Cir. J an. 7, 2010) (per c uriam)) ; see Clow v. Fed. B ureau of Prisons , No. 08cv01121, 2008 WL2885781, at *1 (D.D .C. J uly 25, 2008) (“ At the time of the Sellers decision in 1992, the BO P had not y et promulg ated the r egulation exempti ngits I nmate Centra l Records Sy stem from Section (e )(5) of the Privac y Act.”) (citing28 C.F.R. § 16.97 (1992)) . The Court there fore finds no violation of the Privacy Act ar ising fr om BOP’s re sponse to plaintiff’s issues with his P SR.
5. The Retaliation Claim

Plaintiff alleg es that in Dec ember 2006, J enife r F ultz , who was his ca se mana g er at USP BigSandy , reta liated ag ainst him for filing grieva nces a g ainst her by

threa teningto “g ive [hi m] 24 points to keep him in the penitentiary settings.” Compl. at 5. The “re taliatory fabr ication of prison re cords would c erta inly meet [the] definiti on of a w illful or intentional Privacy Act violation – a violation ‘so patently egreg ious and unlawful that a nyone under

taking the conduc t should have known it unlawful.’ ” Toolaspras had v. Bureau of Prisons , 286 F.3d 576, 584 (D.C. Cir. 2002) (quoting Deters v . United States Parole Commission , 85 F.3d at 660); see id ., at 583 (“ To state a c laim for money damag es under

the Privacy

Act . . . the plaintiff must alleg e: inacc urate rec ords, ag ency intent, prox imate ca

usation, and an a dverse deter mination.”) (interna l quotation marks omitted). 5

The Court notes that Toolaspras had may no longe r be c ontrolling be cause it was 5 decide d on April 19, 2002, four months bef ore B OP’s reg

ulation exempti ngits inm ate f iles from the Privacy

Act’s a ccur acy

and dama g es provision went into eff ect. See R amirez v. De

p’t of Justice , 594 F. Supp. 2d at 65 & n.8 (“[U]nder 5 U.S.C. § 552a(j)(2) , BO P's Inmate Centra l Records Sy stem is ex empt from subsec tion (e)( 5) of the Priva cy Act”) (citing28 C.F.R. § 16.97

(continued...) 11Plaintiff’s reta liation claim must fail, however , beca use he ha s not stated any fac ts establishing that F ultz threatened to – or did – fa bricate his rec ords and that he suffe red a n adver se dete rmination as a r esult of the fa brication. Nor ca

n plaintiff cr edibly

attribute his highe r
score of 27 points upon his arrival at USP M cCrea ry in October

2007 to Fultz or, for that matter, to any BO P employ ee. SeeCompl. at 6 (attributing the a lleg ed incor rec t scoringto “the spec ific [d] ocuments in his PS R”). In addition, plaintiff cannot c redibly argue that F ultz ’s alleg ed thre at
mere ly to score him at 24 “ would . . . inhibit an ordinary person” from exerc ising his Fir st Amendment right to file g rieva nces. Toolaspras had v. Bureau of Prisons , 286 F.3d a t 585; see id . at 584 (“ Prisoners . . . re tain their F irst Amendment ‘right to petition the Gove rnment for a redr ess of grieva

nces.’ ”) ( quoting Turner v. Safley , 482 U.S. 78, 84 (1987)). The Court theref ore finds that plaintiff has fa iled to state a c laim of reta liation under the Privac y Act. See A shcroft v. Iqbal , 129 S.Ct . 1937, 1949 (2009) ( to withstand a Rule 12(b)( 6) motion to dism iss, a complaint “must contain suffic ient fac tual matter, a cce pted as true , to ‘state a c laim to relief that is plausible on its face .’ ”) (citation omitted).
I I I . CONCLUSI ON

For the fore g oing r easons, the Court c oncludes that it lacks subjec t matter jurisdiction over plaintiff’s pur ported F OIA claim and that plaintiff has fa iled to state a c laim for relief under the Privacy

Act. The ref

ore, the Court gr ants the fe dera l defe ndants’ motion to

(...continued) 5 (j) (e ffe ctive August, 9, 2002)) (notingthat “[t] he var iation in langua g e betwe en subsec tions (e) (5) a nd (g )(1) (C) of the Priva cy Act is ‘of no substantive significanc e.’ ” ) (quotingDoe v

. United States , 821 F.2d 694, 698 n.10 ( D.C. Cir. 1987) (en ba nc))
. 12dismiss under Rules 12(b) (1) a nd 12(b)( 6) of the F eder al Rules of Civil P roce dure. Asepar ate Orde r ac companies this Opinion.
/s/_______________________ PAULL . FRI EDMAN DATE: September

30, 2011 United States District J udg e

13