Kates v. King et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED THAT Magistrate Judge Smysers R&R (Doc. 7) is ADOPTED. Mr. Kates complaint (Doc. 1) is DISMISSED and the Clerk of Courts is directed to mark the case as CLOSED.Signed by Honorable A. Richard Caputo on 1/2/12. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID E. KATES
NO. 3:11-CV-951

Plaintiff,
v.

(JUDGE CAPUTO)

JOE E. KING, et al.,
(MAGISTRATE JUDGE SMYSER)
Defendants.
MEMORANDUM
Before the Court is Magistrate Judge Smyser’s report and recommendation (“R&R”)
(Doc. 12) on plaintiff Kates’ pro se complaint.

Mr. Kates, a federal prisoner, alleges

violations of the Privacy Act, Program Statement 5800.11, and various constitutional rights
relating to the failure of defendants to properly address discrepancies in his presentence
investigation report (PSI). Magistrate Judge Smyser, reviewing the complaint under 28
U.S.C. § 1915A, recommends the complaint be dismissed because: (1) United States
Probation Offices are not subject to the Privacy Act and the Bureau of Prisons has
exempted its Inmate Central Record System (“ICRS”) from the Act; (2) defendants fulfilled
requirements of 5800.11; and (3) the allegations of constitutional violations fail to state a
claim. The Court agrees with the Magistrate Judge’s recommendations and will dismiss
the complaint.
BACKGROUND
Mr. Kates is a federal prisoner proceeding pro se. His complaint alleges the
following.
Defendant Joe E. King is a United States probation officer in the Northern District
of Texas. Defendant Jolene R. Whitten is the Chief of the United States Probation Office

in the Northern District of Texas. Defendant L. Cunningham is a supervising attorney at
the United States Penitentiary at Lewisburg. Defendant B.J. Hamilton is a case manager
at USP Lewisburg. Defendant K.A. Metzger is a counselor at USP Lewisburg.
In 1997 or 1998, Mr. King prepared and signed the PSI used in Mr. Kates’
sentencing in the Northern District of Texas. The PSI contains inaccurate information
about Mr. Kates’ prior convictions. As a result of those inaccuracies, Mr. Kates was
classified as a habitual offender and his sentence was increased by 240 months. In
March 2010, Mr. Kates learned about the Bureau of Prison’s Program Statement 5800.11,
which allows an inmate to review and challenge information in his PSI and central file.
Mr. Kates then obtained the indictments in his two prior convictions which he believes
prove the PSI is inaccurate. Mr. Kates then contacted his case manager, Carl Lafargue,
about the errors in his PSI. Mr. Lafargue contacted Mr. King and Mr. Kates informed the
other defendants of the discrepancies as well. Defendants have however refused to
investigate Mr. Kates’ claims or correct the error.
Mr. Kates then initiated this action. He alleges violations of the Privacy Act,
Program Statement 5800.11, and various constitutional rights. He seeks compensatory
and punitive damages, as well as an injunctive order directing the PSI be corrected.
Reviewing the complaint under 28 U.S.C. § 1915A, the Magistrate Judge recommend its
dismissal and Mr. Kates filed objections.
STANDARD OF REVIEW
Where objections to the magistrate judge’s report are filed, the Court must conduct
a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d

2

1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are
both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de
novo review, the Court may accept, reject, or modify, in whole or in part, the factual
findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens
v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the
statute permits the Court to rely on the recommendations of the magistrate judge to the
extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980);
Goney, 749 F.2d at 7; Ball v. United States Parole Comm’n, 849 F. Supp. 328, 330 (M.D.
Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined
by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at
7. At the very least, the Court should review uncontested portions for clear error or
manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
DISCUSSION
The Court will adopt the Magistrate Judge’s R&R. The United States Probation
Offices and the Bureau of Prisons’ ICRS are exempt from the Privacy Act, and the
defendants fulfilled their obligations under 5800.11. Additionally, Mr. Kates has failed to
state a claim for any constitutional violation under the standard of Federal Rule of Civil
Procedure 12(b)(6).
Under 28 U.S.C. § 1915A:
(a) Screening.--The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims
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or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
A.

Privacy Act claims

The Privacy Act requires that an agency of the United States government,
“maintain all records which are used by the agency in making any determination about any
individual with such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5).
The appropriate defendant in a Privacy Act lawsuit is a federal agency, not an individual.
See 5 U.S.C. § 552a(g)(1)(emphasis added); see also Ramirez v. Dep't of Justice, 594
F.Supp.2d 58, 61-62 (D.D.C.2009). Additionally, the “United States Probation Offices are
units of the federal courts [which are not considered agencies under the Privacy Act] and
therefore are not subject to the Privacy Act.” Ramirez v. Dep't of Justice, 594 F.Supp.2d
at 62. Magistrate Judge Smyser therefore found that Mr. Kates could not bring a claim
under the Privacy Act against any of the defendants in their individual capacity nor against
the United States Probation Office and its employees in either their official or individual
capacities.
The Privacy Act also permits agencies to exempt certain of their systems of records
from many of the obligations it imposes. 5 U.S.C. § 552a(j). By regulation, the Bureau of
Prisons has exempted the ICRS from numerous subsections of the Privacy Act including
subsection (e)(5) (the accuracy provision) and subsection (g) (the remedies provision). 28
C.F.R. § 16.97(j) and §16.979(a)(4). An inmate’s PSI is located in the inmate’s Central File

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which is part of the Bureau of Prisons’ ICRS. Lee v. Bureau of Prisons, 751 F.Supp.2d
101, 013 (D.D.C. 2010). Since the Privacy Act does not apply to the ICRS, the complaint
fails to state a claim under the Privacy Act against the Bureau of Prisons defendants
Cunningham, Hamilton, and Metzger in their official capacities. In his objections, Mr.
Kates contends that the defendants are liable under the Privacy Act, but the relevant
federal regulations and case law are otherwise.
B.

Program Statement 5800.11

Additionally, defendants Cunningham, Hamilton, and Metzger abided by the
procedures of 5800.11.
Section 15 of Program Statement 5800.11 deals with an inmate’s review of his
central file. It provides that an inmate has the option to look at materials maintained in his
central file and it provides a procedure for doing so. P.S. 5800.11(15). Inmate challenges
to the accuracy of the information in their central file are covered by P.S. 5800.11(15)(c).
It states, in pertinent part, that:
An inmate may challenge the accuracy of the information in his or her Inmate
Central File. Unit team staff shall take reasonable steps to ensure the accuracy
of challenged information, particularly when that information is capable of being
verified. The inmate is required to provide staff with sufficient information in
support of a challenge (names of persons to contact, government agency,
etc...).
When an inmate provides such information, staff shall review the alleged
error(s) and take reasonable steps to ensure the information is correct.
For example, if an inmate challenges information in the Presentence
Investigation Report (PSI), staff should inform the appropriate U.S. Probation
Office (USPO) in writing of the disputed information, and request that a written
response also be provided. USPO procedures, however, do not allow for
changes or addendums to be made to the Presentence Investigation
Report after sentencing since it is a court document.
P.S. 5800.11(15)(c).
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In his complaint, Mr. Kates alleges he alerted his case manager to errors in his PSI
but that defendants never responded. However, the documents attached to his complaint
show that the United States Probation Office of the Northern District of Texas did respond.
They stated that the PSI had been accepted by the court and, since it was a court
document, it could not be changed. Mr. Kates therefore did receive a response.
Defendants Cunningham, Hamilton, and Metzger were not required to do anything more
under P.S. 5800.11. Again, Mr. Kates’ insistence that his requests were not acted upon
ignores the Program Statement’s clear prohibition on changes to court documents outlined
immediately above.
Additionally, the Magistrate Judge found Mr. Kates’ allegations that defendants’
delay had unnecessarily prolonged his detention and was tantamount to cruel and unusual
punishment and false imprisonment unsupported by any facts. The Court agrees. Mr.
Kates’ made claims his PSI was incorrect, it was investigated, and he was told it could not
be corrected because it is a court document. Finally, the Magistrate Judge found leave
to amend would be futile since only the court that sentenced the plaintiff can alter the PSI.
The Court agrees on this as well.
CONCLUSION
The Court will adopt the Magistrate Judge’s R&R and Mr. Kates’ complaint will be
dismissed for the reasons cited above. An appropriate order follows.

1/3/12
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID E. KATES
NO. 3:11-CV-951

Plaintiff,
v.

(JUDGE CAPUTO)

JOE E. KING, et al.,
(MAGISTRATE JUDGE SMYSER)
Defendants.
ORDER
NOW, this

3rd

day of January, 2012, IT IS HEREBY ORDERED THAT

Magistrate Judge Smyser’s R&R (Doc. 7) is ADOPTED. Mr. Kates’ complaint (Doc. 1) is
DISMISSED and the Clerk of Courts id directed to mark the case as CLOSED.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge