Boatwright v. Williams Kimbrough et al

Filing 7

ORDER Dismissing Plaintiff's complaint. Ordered by Judge C. Ashley Royal on 5/6/11. (lap)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARK BOATWRIGHT,

:
:
Plaintiff,
:
:
v.
:
:
BERNICE WILLIAMS-KIMBROUGH, :
Director of U.S. EEOC, and JOHN DOE, :
Commissioner, et al.,
:
:
Defendants.
:
___________________________________ :

Civil Action
No. 5:11-cv-061

ORDER
Currently before the Court is Plaintiff Mark Boatwright’s Amended Complaint [Doc. 5 &
6]. In his original Complaint, Plaintiff alleged a violation of the Privacy Act, 5 U.S.C. §552a. After
reviewing this Complaint, however, the Court found that it was unclear whether Plaintiff had stated
a valid claim under § 552a(g) and accordingly directed Plaintiff to amend his Complaint and more
fully allege how the government failed to fulfill its record-keeping obligation in his case and how
he was injured by this failure.
In his Amended Complaint, Plaintiff now alleges that, in response to multiple requests for
documents, the Equal Employment Opportunity Commission (“EEOC”) advised him that it had
either destroyed the requested documents or that the EEOC District Office was otherwise unable to
locate the file as referenced by Plaintiff. Plaintiff filed multiple internal appeals with the EEOC
seeking production of documents. These appeals were all denied for the same reasons. Based on
this, Plaintiff asserts that the EEOC unlawfully destroyed the requested document before it was
authorized to do so by the Privacy Act and thus failed to fulfill its record-keeping obligation

pursuant to the Act. Plaintiff further claims that, as a result of this failure, he was deprived of the
ability to review his records or challenge the information contained within them. Plaintiff seeks to
recover compensatory damages in the amount of Seven-Hundred Million Dollars.
As the Court explained in its prior Order on March 23, 2011 [Doc. 4], to state a valid claim
under the Privacy Act, Plaintiff must allege that “(1) the government failed to fulfill its
record-keeping obligation; (2) the agency acted intentionally or willfully in failing to perform its
obligation; (3) the failure proximately caused an adverse effect on an individual; and (4) that
individual suffered actual damages.” See Speaker, 623 F.3d at 1381; §552a(g)(1). “Intentional or
willful” conduct by the government is defined as an “action so patently egregious and unlawful that
anyone undertaking the conduct should have known it was unlawful, or conduct committed without
grounds for believing it to be lawful or action flagrantly disregarding others’ rights under [§ 552a].”
Pippinger v. Rubin, 129 F.3d 519, 530 (10th Cir.1997) (quotation omitted). Alleging negligence,
or even gross negligence, is insufficient to state a claim under the Privacy Act. Buck v. Industrial
Com'n of Utah, 51 Fed. Appx. 832, 835-36 (10th Cir. 2002) (dismissing complaint against EEOC
for failure to state a claim where allegations fell short of the “intentional or willful” standard) (citing
Andrews v. Veterans Admin., 838 F.2d 418, 425 (10th Cir.1988)).
In his Amended Complaint, Plaintiff fails to allege that the EEOC’s conduct in destroying
the requested files was anything more than mere negligence or an innocent administrative error. He
does not assert any fact suggesting that the EEOC’s failure to maintain the requested files was an
“action so patently egregious and unlawful that anyone undertaking the conduct should have known
it was unlawful, . . . conduct committed without grounds for believing it to be lawful, or [an] action
flagrantly disregarding others’ rights under [§ 552a].” Pippinger, 129 F.3d at 530. His allegations
simply fall short of the “intentional or willful” standard. See Buck, 51 Fed. Appx. at 835-36. For

this reason, Plaintiff’s Amended Complaint fails to state a claim under the Privacy Act. Indeed,
“Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for
[its employees’] alleged negligence or other malfeasance in processing an employment
discrimination charge.” Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir.1997); see also Buck, 51 Fed.
Appx. 835.
Accordingly, Plaintiff’s Complaint is hereby DISMISSED, pursuant to 28 U.S.C.
§1915(e)(2)(b), for failure to state a claim upon which relief may be granted.

SO ORDERED this 6th day of May, 2011.

S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

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