United States District Court, M.D. Pennsylvania
September 2, 2005.
LATCHMIE TOOLASPRASHAD, Plaintiff,
BUREAU OF PRISONS, Defendant.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On July 30, 1999, Plaintiff Latchmie Toolasprashad, an inmate
in the custody of the Federal Bureau of Prisons, filed this
action in the United States District Court for the District of
Columbia. The proceedings in that court included the filing of
dispositive motions and an appeal by Toolasprashad to the United
States Court of Appeals for the District of Columbia Circuit.
See Toolasprashad v. Bureau of Prisons, 286 F.3d 576 (D.C. Cir.
2002). Toolasprashad is proceeding pro se and in forma
As a result of the rulings in those courts, all but one of
Toolasprashad's claims were resolved in favor of the Defendants.
In his only remaining claim, Toolasprashad alleges that the
Bureau of Prisons violated the Privacy Act, 5 U.S.C. § 552a, when
it transferred him to a correctional institution far from his
parents' home, and it reclassified him as a "special offender" based upon false information in a Bureau of Prisons's memorandum.
On October 18, 2002, the Federal Bureau of Prisons filed in the
United States District Court for the District of Columbia a
motion for summary judgment with respect to that claim or, in the
alternative, to transfer the case to this court. By order dated
July 29, 2003, the United States District Court for the District
of Columbia transferred the matter to this court. In its order
the court "decline[d] to reach the merits of the case and
therefore [left] resolution of the summary judgment motion to the
transferee court." (Order of July 29, 2003, p. 2, n. 1)
The Clerk of Court assigned this case to us but referred it to
Magistrate Judge J. Andrew Smyser for consideration. Although the
order transferring this case was entered on July 29, 2003, the
case file was not received in this court until March 22, 2005. On
April 15, 2005, Magistrate Judge Smyser filed a report
recommending that the summary judgment motion be granted and the
After being granted an extension of time in which to do so, on
July 18, 2005, Toolasprashad filed the following documents: 1)
"Plaintiff's Request to Accept Overlength [sic] Combined
Objections and Brief to the Report and Recommendation and Notice
to Court"; 2) "Plaintiff's Combined Objections and Brief to the
Report and Recommendation"; and 3) exhibits in support of those
objections. On August 2, 2005, the Bureau of Prisons filed a brief opposing Toolasprashad's objections. On August 3, 2005,
Toolasprashad filed "Plaintiff's Supplemental Motion and Brief To
Plaintiff's Combined Objections and Brief to the Report and
Recommendation." On August 11, 2005, Toolasprashad filed
"Plaintiff's Second Supplemental Combined Motion and Brief to
Plaintiff's Combined Objections and Brief to the Report and
Recommendation." On August 22, 2005, Toolasprashad filed a reply
brief, thereby ripening his objections for disposition.
When objections are filed to a report of a Magistrate Judge, we
make a de novo determination of those portions of the report or
specified proposed findings or recommendations made by the
magistrate judge to which there are objections. United States v.
Raddatz, 447 U.S. 667 (1980); 28 U.S.C. § 636(b)(1); M.D. Pa.
Local Rule 72.31. Furthermore, district judges have wide
discretion as to how they treat recommendations of the Magistrate
Judge. Id. In providing for a de novo review determination
rather than a de novo hearing, Congress intended to permit
whatever reliance a district judge, in the exercise of sound
discretion, chooses to place on a Magistrate Judge's proposed
findings and recommendations. Id. See also Mathews v. Weber,
423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.
As a threshold matter we note that the Bureau of Prisons has
not objected to the length of Toolasprashad's combined objections and supporting brief (consisting of forty-two pages) or to the
documents he filed on August 3, 2005 (entitled "Plaintiff's
Supplemental Motion and Brief To Plaintiff's Combined Objections
and Brief to the Report and Recommendation"), or the document
filed on August 11, 2005 (labeled "Plaintiff's Second
Supplemental Combined Motion and Brief to Plaintiff's Combined
Objections and Brief to the Report and Recommendation"). In the
absence of any objection to those documents, and in light of
Toolasprashad's pro se status, we will reluctantly consider
those filings in their entirety in our de novo review of the
Bureau of Prisons's motion for summary judgment.
Summary judgment is appropriate only when there is no genuine
issue of material fact which is unresolved and the moving party
is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c). Summary judgment should not be granted when there is a
disagreement about the facts or the proper inferences which a
fact finder could draw from them. Peterson v. Lehigh Valley Dist.
Council, 676 F.2d 81, 84 (3d Cir. 1982). "When a motion for
summary judgment is made and supported as provided in . . . [Rule
56], an adverse party may not rest upon mere allegations or
denials of the adverse party's pleading. . . ." Fed.R.Civ.P.
Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met
by the moving party pointing out to the court that there is an
absence of evidence to support an essential element as to which
the non-moving party will bear the burden of proof at trial.
Id. at 325.
Rule 56 provides that, where such a motion is made and properly
supported, the adverse party must show by affidavits, pleadings,
depositions, answers to interrogatories, and admissions on file
that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).
The United States Supreme Court has commented that this
requirement is tantamount to the non-moving party making a
sufficient showing as to the essential elements of his or her
case that a reasonable jury could find in its favor. Celotex
Corporation vs. Catrett, 477 U.S. 317, 322-23 (1986).
When addressing a motion for such a judgment, our inquiry
focuses on "whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(emphasis added). As summarized by the Advisory Committee On
Civil Rules, "[t]he very mission of the summary judgment
procedure is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial."
Fed.R.Civ.P. 56 advisory committee note to 1963 Amendment. We will apply those principles to the Bureau of Prisons's
motion for summary judgment. Before doing so, however, we will
set forth the undisputed material facts relating to
Toolasprashad's sole remaining claim.
Toolasprashad arrived at the Federal Correction Institution at
Allenwood (hereinafter "Allenwood") on October 17, 1994. On
January 27, 1995, he received an Incident report charging him
with, inter alia, "insolence towards staff." The underlying
incident is described in the report as follows:
On 01/27/95 at approximately 09:10 a.m. I was giving
Inmate Toolasprashad a legal call. I informed him
that he could call his lawyer but not his congressman
as he requested. Inmate Toolasprashad became irate
stating I'll get you motherfuckers give me a BP8.
(January 27, 1995, Incident report, p. 1) The Disciplinary
Hearing Officer concluded that Toolasprashad had committed the
charged offense and he sentenced Toolasprashad to two weeks of
extra duty and the loss of commissary privileges for two weeks.
In an incident report dated March 10, 1995, Toolasprashad was
charged with "conduct which disrupts or interferes with the
orderly running of the institution which most resembles lying or
providing false information to a staff member." The underlying
incident at issue in that report is described as follows:
. . . [T]he S.I.S. received a copy of a written
correspondence sent from Inmate Toolasprashad to his
Unit Team in which he alleges he was "sexually and
brutally molested by my unit team,. . . ." On
02/24/95 at approx. 1:30 p.m., Inmate Toolasprashad
signed a medical treatment refusal which stated,
[sic] ". . . I have not been sexually attacked or molested by anyone at this institution,. . . ." This
is the second time Inmate Toolasprashad provided
false information. . . .
(March 10, 1995, Incident Report, p. 1) At the disciplinary
hearing on that charge, Toolasprashad stated that he did not
intend the statement that he was "sexually and brutally molested"
to be taken literally. The Disciplinary Hearing Officer concluded
that Toolasprashad had committed the offense as charged and
sentenced Toolasprashad to 15 days disciplinary segregation and
loss of commissary privileges for 60 days.
While incarcerated at Allenwood, Toolasprashad worked in the
Education Department assisting inmates. On December 22, 1995,
Jack Marquis, then Acting Supervisor of the Education Department,
wrote a memorandum in which he requested that Toolasprashad's job
be changed. Marquis states the following in the memorandum:
"[t]his job change is based on Toolasprashad being resentful and
hostile to supervision and instruction"; Toolasprashad's "ability
to work with education staff is negative, hostile, and annoying";
and Toolasprashad's "conduct is having a negative affect on his
ability to be a liaison between students and staff in the
department." (Marquis Memorandum of December 22, 1995)
On June 12, 1996, Warden Margaret Harding sent a memorandum to
the Regional Director of the Northeast Region of the Bureau of
Prisons requesting that Toolasprashad be transferred to another
institution. Warden Harding requested the transfer based on Mr. Toolasprashad's poor adjustment at this
facility since his arrival on 10-17-1994. Mr.
Toolasprashad is unable or unwilling to properly
relate to a significant number of staff despite our
sincere efforts to establish a professional
relationship. He will not communicate verbally to
members of his unit team and believes that the
administration is not responsive to his needs. We
believe that his unwillingness to communicate hinders
his programming here. A transfer to another
appropriate facility will allow him to develop a more
positive relationship with staff and provide an
atmosphere more conducive to programming.
Toolasprashad was not transferred as a result of that request.
On November 1, 1996, Toolasprashad was placed in Administrative
Detention pursuant to an order
for INSOLENCE TOWARDS STAFF. Insolence towards a
staff member creates disrespect for authority and
undermines staff's ability to control their area of
responsibility, and properly maintain the security of
their area and the institution. Such conduct will not
(Memorandum of November 1, 1996) (Emphasis in original)
On August 25, 1997, Lieutenant Joseph Reed, a Special
Investigative Supervisor, prepared a memorandum recommending that
Toolasprashad be transferred to another institution. Reed states
in the memorandum that the transfer is sought because of
Toolasprashad's poor institutional adjustment, his familiarity
with and attentiveness towards certain staff members and prior
incidents involving Toolasprashad. Reed further asserts that
Toolasprashad continually harassed and attempted to intimidate
staff at Allenwood. Reed's memorandum notes that
[d]ocumentation exists within Inmate Toolasprashad's
Central File, the Education Department, and the
[Special Investigative Supervisor] Office to support
the position of the [Special Investigative Supervisor] Office that
Inmate Toolasprashad has continually harassed and
attempted to intimidated [sic] staff since his
arrival to [sic] this institution.
(Reed Memorandum of August 25, 1997, p. 2)
The final item to consider is the memorandum written by J.
Adami and submitted to the Northeast Region of the Bureau of
Prisons on or about September 8, 1997, which is the only document
Toolasprashad cites in support of his Privacy Act claim. Adami
prepared the memorandum "based upon [his] belief that inmate
Toolasprashad was having problems adjusting to the institution,
and a report of the Special Investigative Supervisor (SIS) which
confirmed [his] belief." (Adami Declaration, p. 1, ¶ 4) Because
it forms the entire basis of Toolasprashad's Privacy Act claim,
we will quote the entire relevant portion of the document. The
document provides in relevant part as follows:
Rationale for Redesignation: On August 25, 1997,
the SIS completed an investigation regarding the
disruptive behavior displayed by Inmate
Toolasprashad. Specifically, Inmate Toolasprashad has
a significant documented history of harassing and
demeaning staff members at this institution. Inmate
Toolasprashad arrived at this facility on October 17,
1994. Since his arrival, there have been four (4)
separate SIS investigations relating to his
manipulative behavior. Staff members at this facility
have sincerely encouraged Inmate Toolasprashad to
program properly at this facility. However, he has
continued to demonstrate a personal vendetta. It
should be noted that he has been denied a transfer
for Adjustment purposes, Code 330, on two (2)
separate occasions. In his most recent denial it was
recommended that he be submitted as a Close
Supervision Transfer, if appropriate. Although we are
not suggesting that Inmate Toolasprashad is
prohibited from expressing his opinions, he has
clearly disrupted the orderly running of this
institution. We concur with the SIS Office, and recommend a Close Supervision Transfer, Code 323.
(Memorandum of September 8, 1997) A "Close Supervision Transfer,"
or "Code 323 Transfer,"
is used to remove an inmate from an institution as a
result of disciplinary problems which are not severe
enough to warrant an incident report, or which do not
fit into any specific code of misconduct. In other
words, inmate Toolasprashad was transferred from
FCI-Allenwood because of his generally disruptive
nature to the security and safe operations of the
(Adami declaration, p. 1-2, ¶¶ 4, 5) In further support of the
September 8, 1997, memorandum, Adami asserts in his declaration
that "[a]dditionally, inmate Toolasprashad had given the
impression to both staff and inmates that he may have been
involved in an improper relationship with a staff member." (Id.,
p. 2, ¶ 10)
With those facts in mind, we turn to the elements of a Privacy
Act claim. A plaintiff pursuing such a claim is required to
(1) he has been aggrieved by an adverse
determination; (2) the [agency] failed to maintain
his records with the degree of accuracy necessary to
assure fairness in the determination; (3) the
[agency]'s reliance on the inaccurate records was the
proximate cause of the adverse determination; and (4)
the [agency] acted intentionally or willfully in
failing to maintain accurate records.
Deters v. U.S. Parole Comm'n, 85 F.3d 655, 657 (D.C. Cir. 1996)
(citing Dickson v. Office of Personnel Management, 828 F.2d 32,
37 (D.C. Cir. 1987); Rose v. United States, 905 F.2d 1257
(9th Cir. 1990)). For the purposes of this order, we will consider Toolasprashad
to have fulfilled the first element. His transfer and
redesignation were adverse determinations.
The second element, concerning the accuracy of the questioned
record, "depends on whether the `truth' underlying the challenged
statements `is clearly provable or relatively easily
discernible.'" Toolasprashad v. Bureau of Prisons, 286 F.3d 576,
583 (D.C. Cir. 2002). Courts have held that "where truth can
readily be ascertained, it is `feasible, necessary, and proper,
for the agency and, in turn, the district court to determine
whether each filed item of information is accurate." Id. (quoting
Deters v. United States Parole Comm'n, 85 F.3d 655, 658 (D.D.C.
1996); Doe v. United States, 821 F.2d 694, 699 (D.C. Cir. 1987)).
In other cases,
where truth is harder to determine, "neither the
agency nor the court . . . is required to `find and
record truth.' Instead, it suffices to `adjust [the]
file equitably to reveal actual uncertainty.'"
Id. (quoting Doe, 821 F.2d at 701).
The Privacy Act distinguishes "records" from "decisions" and it
"does not permit a court to alter documents that accurately
reflect an administrative action, no matter how contestable the
conclusion may be." Douglas v. Agricultural Stabilization &
Conservation Service, 33 F.3d 784, 785 (7th Cir. 1994). The
statute "is not . . . a vehicle for amending the judgments of
federal officials or of other parties as those judgments are reflected in records maintained by federal agencies." Pellerin v.
Veteran's Admin., 790 F.2d 1553, 1555 (11th Cir. 1986).
We are of the view that Adami's memorandum of September 8,
1997, contains a combination of subjective judgments and
objective, factual assertions. We will apply the appropriate
standard to each challenged aspect of the document.
Toolasprashad contends that Federal Bureau of Prisons should
not have relied upon the September 8, 1997, memorandum to
transfer him from Allenwood or reclassify his inmate status. He
specifically alleges that
[t]he "entire" memo of September 8, 1997, was
completely fabricated by the defendants which was
adversely used against the plaintiff, ie [sic],
midnight retaliatory transfer, catagorized [sic] as a
special offender, discriminated against for work and
program assignments, etc.
(Complaint, p. 7, ¶ 13)
Magistrate Judge Smyser reasoned that the Bureau of Prisons is
entitled to summary judgment on Toolasprashad's Privacy Act claim
because the evidence of record sufficiently confirms each
material assertion set forth in the September 8, 1997,
memorandum. Because Toolasprashad's objections track the
Magistrate Judge's analysis, we will also consider each
challenged statement in the memorandum of September 8, 1997.
Before doing so, we are compelled to address one additional
threshold matter. Toolasprashad states in the second paragraph of
his objections that he does not have in possession the necessary records to
file this objections [sic] and in order to meet the
Court's deadline he is submitting same. During
searches of plaintiff's living area over the years
the records/files have been taken by guards, [a]
little at a time.
(Objections, p. 1)
Toolasprashad has filed literally hundreds of pages of
documents in this case, including a substantial number of
documents in response to the Bureau of Prisons's summary judgment
motion. He fails to identify either the guards allegedly
responsible for the thefts, or the type of documents allegedly
taken. Because the record to be considered is essentially the one
developed before the United States District Court for the
District of Columbia, we summarily reject Toolasprashad's
contention that he was, for any reason, unable to respond
adequately to the Magistrate Judge's Report and Recommendation.
We will proceed to consider the merits of his objections, all of
which focus on the information presented by the Bureau of Prisons
to support the assertions made by Adami in his memorandum of
September 8, 1997.
Toolasprashad challenges the Bureau of Prisons's ability to
rely on any of the documents it references and has presented to
the court. The specific documents are the Incident Report dated
January 27, 1995; the Incident Report dated March 10, 1995; the
decision issued by the Disciplinary Hearing Officer as a result
of that report; the December 22, 1995, memorandum in which Marquis requests that Toolasprashad's job be changed; the June
12, 1996, memorandum from Warden Harding in which she requests
that Toolasprashad be transferred to another institution; the
November 1, 1996, detention order; and the August 25, 1997,
memorandum concerning the S.I.S.'s investigations into
Toolasprashad's conduct while at Allenwood. We hereinafter refer
to those documents collectively as the "supporting documents."
Toolasprashad contends that each supporting document is
"inaccurate," "incorrect," "blatantly false," an "outright lie,"
a "pure fabrication," or does not actually exist in his file. In
essence, Toolasprashad's objections to the Magistrate Judge's
Report and Recommendation constitute an attempt to splinter his
one Privacy Act claim into numerous separate Privacy Act
challenges to the accuracy of each and every supporting document
cited by the Bureau of Prisons.
As a matter of law, he is precluded from challenging the
supporting documents because he has not addressed, let alone
fulfilled, the requirement that he exhaust his administrative
remedies with respect to each and every challenged document.
See 5 U.S.C. §§ 552a(d)(2) and (d)(3); Duke v. U.S. 305 F.
Supp.2d 478, 488 (E.D. Pa. 2004) (DuBois, J.) ("Although the
Privacy Act does not expressly require a plaintiff to exhaust
administrative remedies prior to filing a civil suit, `that
requirement has been imposed by the courts as a general principle
of administrative law.'") The only document referenced throughout Toolasprashad's
complaint and administrative documents is the memorandum of
September 8, 1997, the memorandum from Adami to the Northeast
Region of the Bureau of Prisons.
Moreover, as a factual matter, the majority of the sources that
Toolasprashad references to dispute the accuracy of the
supporting documents are hearsay statements from other
individuals. With respect to the precise contents of his file he
concedes that he "does not control the file and could only tell
the Court what his review of the records yield [sic] and what his
Unit Team guards also informed him of." (Objections, p. 27)
Toolasprashad has failed to support with competent evidence his
challenges to the supporting documents.
For the reasons stated above, Toolasprashad may not expand the
scope of his claim as he has attempted to do in his objections.
The sole remaining claim in this case is based strictly on
whether the representations asserted by the Bureau of Prisons in
Adami's memorandum of September 8, 1997, are sufficiently
accurate to withstand the scrutiny imposed by the Privacy Act. We
will deny Toolasprashad's implicit effort to expand the scope of
this case to encompass a challenge to the accuracy of each and
every supporting document cited by the Bureau of Prisons. That
conclusion, in and of itself, is sufficient to overrule all of
Toolasprashad's objections, adopt Magistrate Judge Smyser's Report and Recommendation, and grant
the Bureau of Prisons's motion for summary judgment.
However, out of an abundance of caution we will proceed to
review the substantive merits of Toolasprashad's claim that he is
entitled to damages because of the inaccuracies in the memorandum
of September 8, 1997.
The first comment in the memorandum to consider is that
"[s]pecifically, Inmate Toolasprashad has a significant
documented history of harassing and demeaning staff members at
this institution." The Court of Appeals for the District of
Columbia Circuit emphasized by italicizing the word "documented"
in its review of that statement. Toolasprashad v. Bureau of
Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002).
The issue of whether or not documents exist to support that
conclusion is a factual one. The supporting documents in the
record establish the accuracy of the factual component of that
statement. The issue of whether those documents pertain to
Toolasprashad "harassing and demeaning staff members" is a
subjective determination that is not necessarily based on
historical facts. We are of the view that the manner in which
Adami characterized the behavior at issue in the supporting
documents constitutes an opinion or a judgment which is not
subject to review under the Privacy Act. See Reinbold v. Evers,
187 F.3d 348, 361 (4th Cir. 1999) (an agency official's
opinions "may be subject to debate, but they are not subject to alteration
under the Privacy Act as long as the opinions are recorded
accurately"); White v. office of Personnel Management,
787 F.2d 660, 662 (D.C. Cir. 1986) (discussing agency's ability to retain
and rely upon a record containing a subjective evaluation).
The next statement to consider is that "[s]ince his arrival,
there have been four(4) separate SIS investigations relating to
his manipulative behavior." The portion of statement concerning
the number of investigations is purely factual. It is adequately
supported by the August 25, 1997, memorandum written by Reed, in
which each investigation is discussed. The portion describing
Toolasprashad's behavior as "manipulative" is a subjective
judgment. Magistrate Judge Smyser determined that the Bureau of
Prisons's description of Toolasprashad's behavior as
"manipulative" is a subjective assessment that is not subject to
judicial review under the Privacy Act. Such a determination is
supported by the record and we agree with it.
The next two statements to consider are that "[s]taff members
at this facility have sincerely encouraged Inmate Toolasprashad
to program properly at this facility. However, he has continued
to demonstrate a personal vendetta." (Memorandum of September 8,
1997, p. 1) Although Toolasprashad attempts to characterize those
sentences as being directed at the number of classes he has taken
and how well he has done in them, there are other ways to interpret that text. The Privacy Act does not
require an agency to support every conceivable manner in which a
record may be interpreted.
Adami explains the thrust of those statements in his sworn
declaration. He states that "Toolasprashad often sabotaged his
own attempts at programming by harassing staff and making false
accusations." (Adami Declaration, p. 2, ¶ 9) We are of the view
that the cited sentences read together relate more to
Toolasprashad's behavior and attitude, as opposed to any other
objectively verifiable facts. When viewed as such the statements
constitute an opinion. Based on the evidentiary record submitted
to us the opinion is sufficiently accurate.
The final statements to consider in the September 8, 1997,
memorandum are that Toolasprashad "has clearly disrupted the
orderly running of [Allenwood]," and that he "is considered to be
a management problem based on his blatant disrespect for
authority." (Memorandum of September 8, 1997, pp. 1-2) The former
statement is supported by the four investigations conducted by
the Special Investigative Supervisor into Toolasprashad's
conduct. The latter reflects an opinion which is sufficiently
accurate to withstand Toolasprashad's Privacy Act claim.
No reasonable trier of fact could conclude that any material
statement in the memorandum of September 8, 1997, is sufficiently inaccurate to entitle Toolasprashad to any relief pursuant to the
Privacy Act. The Bureau of Prisons is entitled to summary
judgment on Toolasprashad's Privacy Act claim. We will grant its
motion for that relief.
NOW, THEREFORE, IT ORDERED THAT:
1. Toolasprashad's objections (Document 14) to
Magistrate Judge Smyser's Report and Recommendation
2. Magistrate Judge Smyser's Report and
Recommendation (Document 2) is adopted in toto.
3. The Bureau of Prisons's motion filed on October
18, 2002, for summary judgment is granted.
4. The Clerk of Court shall enter judgment in favor
of the Federal Bureau of Prisons.
5. The Clerk of Court shall close this case.
6. Any appeal of this order shall be deemed
frivolous, without probable cause, and not taken in
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