### MARKALAN LANE, UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA
Plaintiff, ) ) ) ) 

### v. FEDERAL BUREAU OFPRISONS, 

### etai., Defendants. ) Civil Action No. 08-1269 (RJL) ) ) )

# ~ MEMORANDUM OPINION (June**~,** 

### 2009) In this civil action brought underthe Privacy Act, 5 U.S.C. 

### § 552a, plaintiff, proceeding prose, alleges that the Bureau ofPrisons' reliance on inaccurate information in his presentence investigation report has resulted in adverse decisions regarding his custody. I He seeks "amendment ofthe 2001 presentence report and money damages[.]" Compl at 4. Defendants
move to dismiss pursuantto Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure or for summaryjudgmentpursuant to Rule 56 [Dkt. No. 13]; plaintiffmoves for summaryjudgment [Dkt. No. 17]. Because BOP inmate records are exempt from the Privacy Act's amendment and damages provisions, and the Act provides no private right ofaction against the individually named defendants,2the Court grants defendants' Rule 12(b)(6) motion to dismiss and denies plaintiffs unsupported motion for summaryjudgment.

I Plaintiffis a federal prisoner serving a sentence of360 months' imprisonment imposed following his plea ofguilty to conspiracy to possess with intent to distribute methamphetamine and conspiracyto launder monetary instruments. UnitedStates v. Lane, 52 Fed. Appx. 838 (7th Cir. 2002).
2 In addition to BOP, plaintiffsues his warden, W.A. Sherrod, Administrator Harold Watts and Regional DirectorMichael K. Nalley. Butsee Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) ("[T]he district court properly dismissed the named individual defendants because no cause ofaction exists that would entitle appellant to relieffrom them under the Privacy Act[.]") (citations omitted).A courtmay dismiss a complaint onthe groundthat it fails to state a claim upon which reliefcanbe granted if, assuming the alleged facts to be true and drawing all inferences in the plaintiffs favor, it appears that the plaintiffcan prove no facts "consistentwith the allegations in the complaint"to support the claim. BellAtlantic Corp. v. Twombly, 550 U.S. 544,563, 127 S.Ct. 1955, 1969 (2007). "[T]he pleadings [must] suggest a 'plausible' scenario to 'sho[w] that the pleaderis entitled to relief[.]'" Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009) (quoting Twombly, 127 S.Ct. at 1966). The Privacy Act requires federal agencies to maintain records used in making determinations "with such accuracy, relevance, timeliness, and completeness as is reasonably necessaryto assure fairness to the individual in the determination [about the individual]
...." 5 U.S.C. § 552a(e)(5). Section 552a(d) allows individuals access to agencyrecords about themselves andto request the amendment ofrecords "theybelieve to be inaccurate, irrelevant, untimely, or incomplete." Doe v. Federal Bureau o/Investigation, 936 F.2d 1346,1350 (D.C. Cir. 1991). Subsections (g)(1)(A) and (C) authorize civil actions to enforce the amendment and accuracy requirements. In addition, subsection (g)(4) provides for monetary damages, costs and attorneys' fees where the agency is shownto have acted intentionally orwillfully. See Doe, 936 F.2d at 1350; accord Deters v. UnitedStates Parole Commission, 85 F.3d 655,660-61 (D.C. Cir. 1996); Sellers v. Bureau o/Prisons, 959 F.2d 307, 310-12 (D.C. Cir. 1992). An agency may be liable for "actual damages sustained by the individual as a result ofthe refusal or failure" to maintain accurate records and "consequently a determination is made which is adverse to the individual.
..." 5 U.S.C. § 552a(g)(1)(C) and (g)(4)(A).

2The Privacy Act authorizes law enforcement agencies to exempt "any system ofrecords within the agency" from certain provisions ofthe Privacy Act, including subsection(g). 5 U.S.C. § 522a m(2). Itis established that BOP has exempted its Inmate Central Records System containing, among otherrecords, presentence investigation reports, from the Privacy Act's accuracy and amendment requirements (subsections (d) and (e)(5)) and from its damages provision (subsection (g)). See 28 C.F.R. § 16.97(a)(4); White v. UnitedStates Probation Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam) ("Under regulations
...presentence reports and BOP inmate records systems are exempt from the amendment provisions ofthe Act"); accordMartinez, 444 F.3d at 624 ("The BOP has exempted its Inmate Central Record System from the accuracy provisions ofthe Privacy Act[.]") (citations omitted). Plaintifftherefore fails to state a claim upon which reliefcan be granted. See Ramirez v. Dep'tof Justice, 594 F. Supp.2d 58, 65 (D.D.C. 2009) ("Having exempted its records from the substantive provision regarding the agency's recordkeeping obligations, BOP effectively deprives litigants ofa remedy for any harm causedby the agency's substandard recordkeeping."); Lopez v. Huff, 508 F. Supp.2d 71,77 (D.D.C. 2007) ("To the extent that plaintiffis seeking to have his [presentence investigation report] amended, such reliefis not available because the BOP has properly exempted its inmate central files, where such documents are kept, from the [Privacy Act's] amendment requirements.") (citations omitted). Forthe foregoing reasons, defendants' motion to dismiss is granted and plaintiffs motion for summaryjudgment is denied. A separate Order accompanies this Memorandum Opinion.

# ~ RICH
.LEON United States DistrictJudge
3