The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED IN
PART, DENIED IN PART (Docs.19, 31)
FINDINGS AND RECOMMENDATIONS REGARDING SCREENING OF PLAINTIFF'S COMPLAINT OBJECTIONS DUE: 28 DAYS
On April 2, 2012, Plaintiff Jasdev Singh ("Plaintiff") filed a complaint against the United States Department of Homeland Security ("Defendant" or "DHS") asserting claims pursuant to 5 U.S.C. § 552a. (Doc. 1.) Plaintiff is currently incarcerated at Adams County Correctional Complex ("ACCC") and is proceeding in this matter in propria persona. On December 6, 2012, Defendant filed a motion to dismiss, or in the alternative, a motion for summary judgment. (Docs. 19, 20.) On December 26, 2012, Plaintiff filed an opposition to Defendant's motion, a declaration in support of the opposition, and a statement of undisputed facts. (Docs. 24, 25, 26.) On January 9, 2013, Defendant filed a reply. (Doc. 30.) On January 28, 2013, Plaintiff filed a motion seeking leave to file a counter-declaration in response to the declaration of Yoshinori H.T. Himel filed in support of Defendant's reply brief. (Doc. 31.) On January 29, 2013, Defendant filed a Notice of Erratum to the reply brief. (Doc. 32.) On February 14, 2013, Plaintiff filed a response to Defendant's notice of erratum and a reply to Defendant's opposition to Plaintiff's motion to file a counter-declaration in sur-reply. (Doc. 33.) On February 25, 2013, Plaintiff filed a request for judicial notice. (Doc. 34.)
For the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion for leave to file a counter-declaration in sur-reply be GRANTED, and Defendant's motion to dismiss be GRANTED IN PART and DENIED IN PART. It is further RECOMMENDED that, upon sua sponte screening of the complaint pursuant to 28 U.S.C. § 1915A, Plaintiff's first, second, third, and sixth causes of action be dismissed without prejudice and with leave to amend, and Plaintiff's fourth cause of action be dismissed with prejudice and without leave to amend.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's complaint arises out of criminal proceedings in which
Plaintiff ultimately pled guilty to felony charges. Plaintiff is an
alien who claims that, in negotiating his plea agreement, and at other
times during the course of the criminal proceedings against him, it
was represented to him by the government, including an agent of the
U.S. Immigration and Customs Enforcement ("ICE"), that he would not be
subject to deportation based on his plea because he was granted asylum
by the San Francisco Immigration Court on April 5, 2000.*fn1
(Doc. 1, ¶¶ 10-12.) In exchange for his agreement to plead
guilty, the government recommended that Plaintiff be (1) placed in a
minimum security prison; (2) permitted to participate in a Residential Drug
Abuse Treatment Program ("RDAP"); and (3) permitted to participate in
a Residential Re-entry Program ("RRC"). (Cmplt., Doc. 1, ¶ 11.) The
Court ordered that Plaintiff be incarcerated for a period of 84 months
and recommended Plaintiff's placement in a minimum security prison and
his participation in RDAP and RRC. (Cmplt., Doc. 1, ¶
Despite assurances of his non-deportable status, following Plaintiff's sentencing, an immigration detainer was issued by ICE on December 7, 2011. (Complt., Doc. 1, ¶ 15; Doc. 1, p. 22, Exh. 1.) Plaintiff asserts that the issuance of the immigration detainer caused the Federal Bureau of Prisons ("BOP") to categorize Plaintiff with a Public Safety Factor ("PSF") for "deportable alien."*fn2
(Cmplt., Doc. 1, ¶ 13.) Plaintiff asserts that, pursuant to 18 U.S.C. § 3621(e), a PSF designation prevents an inmate from being designated to a minimum security facility and prohibits participation in the RDAP and RRC programs. (Cmplt., Doc. 1 ¶¶ 13-14.) As such, Plaintiff was transferred to ACCC, a low-security facility in Mississippi and is prohibited from being transferred to a facility closer to family or participating in the RDAP and RRC programs. (Doc. 1, ¶ 14.)
After Plaintiff was transferred to ACCC, his defense counsel contacted the Chief of Unit Management at ACCC to request that Plaintiff be transferred to a facility closer to his family. (Cmplt., Doc. 1, ¶ 18.) Plaintiff's counsel's letter states, in relevant part:
The purpose of my contact with you is to address what appears to be an oversight, relative to BOP's determination on Mr. Singh's eligibility to participate in the RDAP program. First, and as a preliminary matter, prior to the entry of his plea[,]
Mr. Singh was housed at the Lerdo facility in California. An item of particular concern in Mr. Singh's agreement to enter his plea was his all but certain admission into the RDAP program. In our conversation of yesterday afternoon, you confirmed that your facility (Adams) does not/is not equipped to allow participation in the RDAP program. This brings me to the essential purpose of this letter: to request that Mr. Singh be transferred to a facility which does offer the RDAP program, and specifically, a facility in (or at least closer to) California, so that Mr. Singh's three (3) daughters and wife can visit him.
In corresponding with our client and his family, I have learned that Mr. Singh has made significant efforts to address this housing "problem," so to speak, to no avail. Specifically, I am informed that he has already (in writing and otherwise), notified his case Manager (Ms. Tyler), his counselor (Mr. Kennedy), and has at least attempted to address it with his BOP representative -- Ms. "Mott Donna." Regrettably, his status and housing location has remained unchanged. In reviewing the documentation appurtenant to Mr. Singh's above described efforts, I located a note (which I am informed that you prepared) that states that you determined Mr. Singh is "ineligible" for participation in RDAP because you are under the impression that Mr. Singh is an "illegal alien." Enclosed herewith please find a copy of Mr. Singh's "Green Card." As you can see, Mr. Singh is a legal resident of the United States, and has had legal status at all times relevant to his case. (Cmplt., Doc. 1, Exh. 3, p. 30-31.)
On December 20, 2011, ACCC's Warden responded to Plaintiff's counsel as follows: I am in receipt of your inquiry dated December 2, 2011[,] regarding inmate Jasdev Singh (64003-097). In this correspondence, you make inquiry as to why Mr. Singh is not eligible for participation in a RDAP program. Furthermore, you address what "appears to be an oversight" in designating Mr. Singh to [ACCC] and request this inmate's transfer to a more suitable facility.
As outlined in Bureau of Prisons Program Statement 5111.01, inmates at Hearing Sites (pending hearing) and inmates at Release Sites (with orders of deportation) shall not normally be considered for transfer for program participation (i.e., education programs, drug treatment), or for nearer release purposes. As this is the case with your client, inmate Singh has been provided with a copy of the Bureau Immigration and Customs Enforcement (BICE) detainer which has been placed against him. Regarding the practices of BICE, your inquiry can certainly be more thoroughly addressed by contacting BICE directly. Accurate contact information is provided below for your reference: Jean ICE Office Attention: Special Agent in Charge 830 Pinehill Road Jena, LA 71342 (Cmplt., Doc. 1, Exh. 4, p. 33.)
On January 17, 2012, Plaintiff mailed a letter to an ICE facility located at 1010 East Whatley Road, Oakdale, LA, 71463 requesting that ICE amend its records and rescind the immigration detainer. (Cmplt, Doc. 1, ¶ 20.) Receiving no response to this request, on February 2, 2012, Plaintiff sent a letter to an ICE facility located at 830 Pinehill Road, Jena, LA, requesting removal of the immigration detainer, but received no response to his request. (Cmplt., Doc. 1, ¶ 21.)
On March 13, 2012, in a third request to remove the immigration detainer, Plaintiff sent a letter to an ICE facility located at 800 Truxton Avenue, Suite 109, Bakersfield, CA, 93301, asking that the immigration detainer be removed based on assurances during his plea negotiation that he was "non-deportable." (Cmplt., Doc. 1, ¶ 22.) Plaintiff sent a copy of this March 13, 2012, letter to 1010 East Whatley Road, Oakdale, LA, 71463; the U.S. Attorney's Office located at 2500 Tulare Street, Fresno, CA, 93721; and Plaintiff's counsel in Fresno, California. (Cmplt, Doc. 1, ¶ 23.)*fn3
On April 2, 2012, Plaintiff filed this action, asserting seven causes of action: (1) violation of accuracy and disclosure provisions pursuant to 5 U.S.C. § 552a(e)(6); (2) violation of the Privacy Act's rules of conduct pursuant to 5 U.S.C. § 552a(e)(9); (3) failure to establish appropriate administrative, technical and/or physical safeguards pursuant to 5 U.S.C. § 552a(e)(10); (4) access criminal penalties pursuant to 5 U.S.C. § 552a(i)(1); (5) declaratory and injunctive relief pursuant to 5 U.S.C. § 552a(g)(2)(A); (6) damages pursuant to 5 U.S.C. § 552(a)(g)(1)(A)-(D); and
(7) intentional/reckless infliction of emotional distress.*fn4
III. PLAINTIFF'S MOTIONS AND REQUESTS
A. Plaintiff's Motion for Leave to File a Counter-Declaration in Sur-reply
On January 28, 2013, Plaintiff filed a motion seeking leave to file a counter-declaration in sur-reply to the declaration of Mr. Himel in support of Defendant's reply brief. (Doc. 31.) Plaintiff asserts that he has not had "an opportunity to respond to the specific and central issue raised for the first time in Defendant's Reply brief" that neither Jena, Louisiana, Oakdale, Louisiana, or Bakersfield, California, have ICE field offices at the locations where Plaintiff claims he sent his Privacy Act requests for record amendment. Plaintiff seeks leave to file a counter-declaration to show that (1) the "accurate" address to contact the ICE office at Jena, Louisiana, was provided by ACCC's Warden; (2) Plaintiff does not have access to the internet to verify whether the address provided by the Warden was inaccurate; and (3) no other available resources at ACCC indicates that the ICE facilities in Oakdale, Jena, and Bakersfield where Plaintiff directed his requests are not field offices. (Doc. 31, p. 2-3.)
On January 29, 2013, Defendant filed an "Erratum to Reply Filed January 9, 2013, and Response to Request to File Surreply." (Doc. 32.) Defendant's erratum notes that the reply brief filed on January 9, 2013, was missing its page 11, and the missing page was attached to the erratum filing. Defendant also objected to Plaintiff's request to file a counter-declaration in sur-reply because the Local Rules authorize no sur-replies, and Plaintiff's "claimed ignorance on the issue he raised, ICE field offices, is unpersuasive because his attorney, who received the contract warden's letter, had the Internet access plaintiff says he lacks." (Doc. 32.) Defendant also argues that such "excuses are immaterial to subject[-]matter jurisdiction." (Doc. 32.)
On February 14, 2013, Plaintiff filed a response to Defendant's erratum and a reply to Defendant's opposition to Plaintiff's motion for leave to file a counter-declaration in sur-reply. (Doc. 33.) Plaintiff asserts that he sent another request for record amendment to the ICE field office located at 1250 Poydras, Suit 325, New Orleans, LA, 70113, but as of the date of his filing, he had not received any response.
The issue of whether Plaintiff has properly exhausted his administrative remedies under the Privacy Act was raised in the motion to dismiss. Plaintiff's opposition, supporting declaration, and statement of undisputed facts set forth the steps he took to request that DHS amend his records, and the opposition makes the assertion that the locations where Plaintiff sent his letters were field offices, satisfying DHS' regulations for seeking record amendment. (Oppo., Doc. 24, p. 12-16.)*fn5 DHS' reply brief maintains that none of the locations where Plaintiff sent his letters is a DHS "field office," thus Plaintiff failed to satisfactorily initiate or complete the administrative process to request record amendment. As there is no hearing on this motion pursuant to Local Rule 230(l), fairness dictates that Plaintiff have an opportunity to address DHS' argument in this regard. Thus, Plaintiff's motion for leave to file a counter-declaration in sur-reply should be GRANTED.
B. Plaintiff's Request for Judicial Notice
On February 25, 2013, Plaintiff filed a request for judicial notice pursuant to Federal Rule of Evidence 201. (Doc. 34.) The document Plaintiff seeks to have judicially noticed is a "Notice to Appear" issued by DHS on February 13, 2013, requiring Plaintiff to appear at the Oakdale Federal Detention Center located at 1900 E. Whatley Road, Oakdale, Louisiana, 71463, for removal proceedings under Section 240 of the Immigration and Nationality Act. (Doc. 34, Exh. 1.) The document is signed by "John Hartnett, Assistant Field Office Director." (Doc. 34, p. 7.) Under his signature, the document lists "Jena, LA" as the City and State. (Doc. 34, p. 7.) Plaintiff asserts the document shows that John Hartnett, an Assistant Field Office Director, is located in Jena, Louisiana, and this establishes that Jena, Louisiana, is an ICE field office. (Doc. 34, p. 2-9. ("Plaintiff requests the Court to take Judicial Notice of the fact that, John Hartnett, Assistant Field Office Director, in Jena, Lousiana issued the said Notice to Appear.").)
Pursuant to Federal Rule of Evidence 201, a trial court may take jducial notice of a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). As discussed in Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005), with regard to Rule 201, the advisory committee notes explain that "[a] high degree of indisputability is the essential prerequisite" to taking judicial notice of adjudicative facts and that "the tradition [of taking judicial notice] has been one of caution in requiring that the matter be beyond reasonable controversy." Fed. R. Evid. 201(a), (b), advisory committee's notes. While the existence and authenticity of a document which is a matter of public record is judicially noticeable, the veracity and validity of the contents of such documents are not. See, e.g., Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001) (a court may take judicial notice of another court's opinion, but not of the truth of the facts recited therein).
Here, the "Notice to Appear" is a DHS record in removal proceedings against Plaintiff, and records and reports of administrative bodies are subject to judicial notice. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991). DHS has not objected to Plaintiff's request, nor disputed the authenticity of the document. The court may take judicial notice of the existence of the document, but to the extent that Plaintiff requests the Court take judicial notice of the facts contained within the document, the Court may not do so. Plaintiff's request for judicial notice should be granted as to the existence of the Notice to Appear, but not as to the veracity and truthfulness of the facts recited therein.*fn6
A. Defendant's Motion to Dismiss for Failure to Exhaust Should Be Considered Under Rule 12*fn7 Defendant files its motion to dismiss pursuant to Rule 12 and, alternatively, under Rule 56.
Defendant seeks dismissal of three of Plaintiff's claims based on lack subject matter jurisdiction, which are properly considered under Rule 12(b)(1). For the remainder of Plaintiff's claims, Defendant asserts that none is exhausted under the Prisoner Litigation Reform Act of 1995 ("PLRA").
"[T]he PLRA does not impose a pleading requirement" on plaintiff, but rather "creates a defense," with respect to which "defendants have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because "[t]he failure to exhaust non-judicial remedies that are not jurisdictional should be treated as a matter in abatement," it "is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Id.; see also Ritza v. Int'l Longshoremen's &Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (finding that while no defense described in 12(b)(1) through (7) encompasses failure to exhaust, federal courts traditionally have entertained certain pre-answer motions not expressly provided for by rule, and authority to hear such motions lies within the federal court's inherent power to regulate actions pending before it). The proper motion to bring when asserting failure to exhaust administrative remedies, therefore, is an unenumerated 12(b) motion. In considering an unenumerated motion to dismiss, "the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1120.
Plaintiff's complaint sets forth six causes of action that purport to state claims under the Privacy Act, 5 U.S.C. § 552a. The Privacy Act "regulate[s] the collection, maintenance, use, and dissemination of information by [federal] agencies" and provides a private cause of action against federal agencies for violating the Act's provisions. Doe v. Chao, 540 U.S. 614, 618 (2004); 5 U.S.C. § 552a(g)(1) (explaining any individual may bring a civil action against the agency for violation of the Act). The proper defendant in a Privacy Act action is an agency, not individual employees. Armstrong v. U.S. Bureau of Prisons, 976 F. Supp. 17, 23 (D.D.C. 1997) (noting the term agency "does not include individual officers or employees of an agency"); Wheeler v. Gilmore, 998 F. Supp. 666, 668 (E.D.Va. 1998) (noting "an agency is the only proper defendant under the Act and, therefore, individuals may not be named as defendants in such actions").
The Privacy Act allows individuals to make a written request for records maintained by government agencies, id. § 552a(d), and compels the government to maintain accurate information within these records, id. § 552a(e)(5). When an agency fails to comply with the Act, the statute provides civil remedies, places jurisdiction within the federal court, and authorizes the court to order injunctive relief, actual damages, or attorney's fees, depending upon the circumstances. Id. § 552a(g).
As discussed below, there are different types of civil claims available to an individual under the Privacy Act, based on the particular failure of the agency at issue. Id. § 552a(g)(1)(A)-(D).
Category A claims are those seeking amendment of any agency's records. Pursuant to 5 U.S.C. § 552a(d)(2), each agency that maintains a system of records shall permit an individual to request amendment of a record pertaining to him. Id. The agency is required to acknowledge such a request in writing within 10 days after the date of receipt of such a request. The agency may either make the requested correction or inform the individual of its refusal to amend the record in accordance with the request, the reasons for the refusal, and the procedures available for the individual to seek review of that refusal by the head of the agency or the officer designated by the head of the agency. Id. § 552a(d)(2)(A)-(B).
If the agency refuses to amend the record, an individual who disagrees with that determination may request review of the refusal, and the agency is required to review the refusal within 30 days from the date on which the individual requests review. If the reviewing official also refuses to amend the record in accordance with the request, the individual must be permitted to file with the agency a concise statement setting forth his or her reasons for disagreement with the refusal. The agency is then required to notify the individual of the provisions for judicial review of the reviewing official's determination. Id. § 552a(d)(3).
Once a determination under Section 552a(d)(3) has been made not to amend the individual's record or the agency fails to make a review in conformity with sub-section (d)(3), the individual may bring a civil action against the agency in the district courts of the United States. Id. § 552a(g)(1). In any suit brought under this provision, a court may order the agency to amend the records in accordance with the request or as directed by the court, and the court may assess against the United States reasonable attorney fees and other litigation costs incurred by a complainant who has "substantially prevailed." Id. § 552a(g)(2)(A)-(B).
Category B claims are access claims. Id. § 552a(g)(1)(B). Upon request by an individual to gain access to his record or to information pertaining to him contained in the system, the agency must permit him to review the record and have a copy made of all or any portion. Id. § 552a(d)(1). If an agency refuses to comply with an individual's request under subsection (d)(1) for access to the records, the individual may bring a civil suit against the agency in a U.S. district court. Id. at § 552a(g)(1)(B). As to the available remedies for a substantially prevailing individual, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld and may assess reasonable attorney fees and other litigation costs. To properly allege an access claim, a plaintiff must show (1) a request for records was made; (2) the request was denied; and (3) such denial or failure to act was improper under the Privacy Act. Id. at §§ 552a(d)(1), (g)(1)(B), (g)(3)(A)
Category C claims are maintenance claims. Id. at § 552a(g)(1)(C). A maintenance claim accrues when an agency fails to maintain any record concerning an individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, which results in an adverse determination to the individual. Where a court determines that an agency acted in an intentional or a willful manner, the United States shall be liable for actual damages sustained as a result of the refusal or failure, but not less than $1,000.The individual may also be awarded the costs of the action along with the reasonable attorney fees, as determined by the court.Id. at § 552a(g)(4)(A)-(B).
Category D claims are catch-all claims that accrue whenever an agency intentionally and willfully fails to comply with any other provision of the section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual causing actual damages. As a remedy for such a violation, an individual is entitled to actual damages arising from the agency's refusal or failure, but in any event, not less than $1,000, along with the costs of the action and the reasonable attorney's fees. Id. at § 552a(g)(4)(A)-(B). As with a maintenance claim, to state a catch-all claim under subsection (g)(1)(D), a plaintiff must establish: (1) a violation of a Privacy Act provision; (2) that the agency's decision was intentional or willful; (3) that the violation caused "adverse effects"; and (4) that the plaintiff suffered actual damages. Thompson v. Dep't of State, 400 F. Supp. 2d 1, 8 (D.D.C. 2005) (citing Albright v. United States, 732 F.2d 181, 184 (D.C. Cir. 1984)).
5. Plaintiff's Privacy Act Claims
Plaintiff's first three causes of action are category D catch-all claims for DHS' purported violations of subsections (e)(6), (e)(9), and (e)(10). Plaintiff's fourth cause of action seeks the imposition of criminal penalties against agency officials or employees as provided in Section 552a(i)(1). Plaintiff's fifth cause of action is a Privacy Act amendment claim, seeking declaratory and injunctive relief ordering DHS to amend Plaintiff's immigration records and remove the immigration detainer. Plaintiff's sixth cause of action seeks damages for his category D catch-all claims. Plaintiff's seventh cause of action is one for intentional infliction of emotional distress.
B. Administrative Exhaustion under the Privacy Act
Defendant asserts that Plaintiff's fifth and sixth causes of action are brought pursuant to 5 U.S.C. § 552a(g)(1)(A), but the Court lacks subject matter jurisdiction over these claims because Plaintiff has failed to exhaust his administrative remedies, which is jurisdictional. (Doc. 20, 11:26-12:5.) Defendant maintains that claims for record amendment pursuant to Section 552a(g)(1)(A) must be exhausted by first requesting that the agency amend the record and then seeking administrative appeal to the extent any request for amendment is refused. ...