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Razzoli v. Federal Bureau of Prisons

September 7, 2007


The opinion of the court was delivered by: Judge Kosik


I. Introduction

Kevin Razzoli, an inmate currently confined at the United States Penitentiary at Allenwood, Pennsylvania, originally filed this case under the Privacy Act, 5 U.S.C. 552a, in the United States District Court for the District of Columbia on August 24, 2005. Named as Defendants are the Federal Bureau of Prisons ("BOP"), the United States Parole Commission ("USPC") and the United States Probation Departments in Washington, D.C. and Chicago, Illinois. In the complaint, Plaintiff contends that Defendants violated the Privacy Act when they willfully and knowingly failed to maintain accurate records which, as a consequence, resulted in adverse determinations being made against him. Specifically, he refers to alleged falsified records relied upon (1) which caused him to be placed in the Special Housing Unit at FCI-Allenwood as well as (2) which were used to make a parole determination. As relief, he seeks damages and expungement of certain records.

On January 10, 2006, upon consideration of a motion to transfer/motion to dismiss filed by Defendants, the District of Columbia transferred the case to this court. Resolution of the motion to dismiss was reserved for decision by this court. Plaintiff appealed the transfer order to the United States Court of Appeals for the District of Columbia Circuit. On June 19, 2006, the Court of Appeals issued an Order finding that the District of Columbia court did not abuse its discretion in transferring this case to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). Presently pending before this court for resolution are Plaintiff's motion for preliminary injunction (Doc. 5) and motion to expedite this civil action (Doc. 6.) Also pending is Defendants' motion to dismiss (Doc. 11).

II. Background

Plaintiff has filed at least nine (9) actions in this court. A condensed version of the factual background will be set forth, as gathered from not only the instant action, but also the dockets in the other cases, in an effort to set the stage for a discussion of the instant claims.*fn1 On December 1, 1987, Plaintiff received a General Court-Martial from the United States Navy. Specifically, he was found to have attempted to murder another member of the Navy, willfully hold this person against his will, and wrongfully impede his trial by court-martial. He was sentenced to 25 years imprisonment. Between November of 1998 and February of 2001, the Naval Clemency and Parole Board ("NCPB") reviewed his case and did not grant clemency. Plaintiff's parole was not reviewed by the NCPB because he was transferred to a Federal Correctional Institution on July 13, 1990.

Plaintiff has been paroled on four (4) occasions. On each occasion, he has violated parole, and parole was subsequently revoked.*fn2 He was last paroled on July 27, 2006, to this district from USP-Beaumont, Texas. Less than one week later, he violated parole conditions which ultimately resulted in the revocation of his parole. He was sentenced to 14 months of imprisonment with a presumptive parole date of October 3, 2007.

Plaintiff filed the instant action wherein he basically reasserts many of the allegations underlying his former lawsuits in this court, and uses them as a basis for attempting to establish a cause of action under the Privacy Act, 5 U.S.C. § 552a. While his complaint is both confusing and disjointed, the following allegations have been extracted. He argues that on February 9, 2004, he was improperly arrested by United States Parole Officers without an arrest warrant in violation of the Fourth Amendment. He states that on April 22, 2004, he signed an expedited parole revocation agreement which established the fact that he was going to be released on parole on September 28, 2004. He states that this agreement was approved by Judge Carol Amon of the Eastern District Court of New York. He claims that on June 29, 2004, he was transferred to FCI-Allenwood where records were falsified and resulted in his placement in the "hole" for retaliation purposes for filing a civil action (Civil No. 00-1417) in this court in April of 2001. He claims that on August 10, 2004, he was ordered "locked up" again based upon a false and erroneous retaliatory incident report charging him with threats of bodily harm against Case Manager Dewey. He claims that the false incident report was thereafter used by the USPC to retard his release date from September 28, 2004 (the date he claims was guaranteed by the expedited parole agreement he previously signed) to November 27, 2004. He claims that the USPC has continuously manipulated language in his parole records to draw an adverse determination. Plaintiff alleges that in June of 2005, US Parole Officer France-Smith of Chicago used "manufactured documents" in his file to make an adverse determination. Based on the foregoing, Plaintiff contends that his rights under the Privacy Act were violated and he requests relief in the form of millions of dollars and the expungement of certain records.

III. Discussion

A. Motion for Injunctive Relief (Doc. 5)

On October 5, 2006, Plaintiff filed a motion requesting this court to order Defendants to "cease and desist" in denying him phone privileges, confiscating his commissary account funds and limiting his visits. He also appears to claim he is denied the ability to photocopy documents in order to meet the court's filing requirements.

In determining whether to grant a motion seeking preliminary injunctive relief, the Third Circuit has delineated the following four factors: (1) that there is a reasonable likelihood of success on the merits; (2) that irreparable harm will result if the court denies relief; (3) that even greater harm will not befall the non-moving party if the court should grant relief; and (4) that granting preliminary relief will be in the public interest. Forum For Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219, 228 (3d Cir. 2004; S& R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 374 (3d Cir. 1992)(citing Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197-98 (3d Cir. 1990). The moving party bears the burden of demonstrating these factors. See Dorfman v. Moorhous, Civ. A. No. 9306120, 1993 WL 483166 at *1 (E.D. Pa. Nov. 24, 1993).

Having reviewed the record in light of the standard articulated above, the court concludes that injunctive relief is unwarranted. Specifically, the court finds that Plaintiff first fails to demonstrate his likelihood of success on the merits. While he alleges that he is being improperly denied certain privileges including use of the phone and visiting, this court has previously found that these restrictions were the result of sanctions imposed following the "shank" incident, as thoroughly discussed in this court's previous Memorandum and Order of January 11, 2006, in Civil Action No. 3:04-2495. In said opinion, the court addressed Plaintiff's claim that a shank was "planted" in his cell in an effort to thwart his release on parole. It was found that any challenge to the disciplinary hearing proceedings and resulting sanctions had to be administratively exhausted, and thereafter pursued in a separate lawsuit. It was further found that any challenge to the retardation of his parole based upon the guilty finding regarding the new incident report would stand based on the unchallenged DHO proceedings. Plaintiff cannot attempt to "come in the back door" and attack the sanctions imposed following the disciplinary hearing by pursuing injunctive relief in this action.

Further, any argument by Plaintiff that he is denied supplies, phone use or copying ability is undermined by both a review of the docket in this case, and the fact that Plaintiff places phone calls to chambers on occasion. ...

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