Scott v. Conley

937 F.Supp.2d 60

Alan SCOTT, Plaintiff,

v.Joyce K. CONLEY, et al., Defendants.

Civil No. 09–2372 (RCL).

United States District Court, District of Columbia.

April 9, 2013.

Alan Scott, Boston, MA, pro se.

Kenneth A. Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is plaintiff Alan Scott's Motion [77] for Reconsideration, the defendants' Opposition [83] thereto, and Scott's Reply [89]. Additionally, the Court now considers defendants' third Motion [83] to Dismiss, Scott's Opposition [89] thereto, and the defendants' Reply [92]. Although the Court grants Scott's motion for reconsideration as to his Bivens claims, the Court nevertheless dismisses the Bivens claims because of a lack of personal jurisdiction over certain defendants, a failure to identify the John Doe defendants, and because the remaining defendants enjoy qualified immunity. The Court also dismisses Scott's Privacy Act claims for failure to state a claim.

I. BACKGROUND

Alan Scott is a former federal prisoner with a string of convictions for fraudulent activity. His “approximately 23 convictions,” include fraud, identity theft offenses, conspiracy to commit mail fraud, and making false statements to banks. Defs.' Reply to Pl.'s Opp'n to Defs.' Second Motion to Dismiss [hereinafter Defs.' Second Reply], Ex. A (Decl. of Leslie Smith) ¶ 9 [hereinafter Smith I Decl.], ECF No. 74–1. Most recently, while incarcerated for other crimes, Scott engaged in a scheme to defraud class action claims administrators and members of class action settlements by filing false claims in class action settlements of securities fraud cases. Id. In May 2008, he pleaded guilty to Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. §§ 1341 and 1349 and was sentenced to an additional 32 months in prison. Id.

After this conviction, Scott was transferred to a Communications Management Unit (“CMU”) at FCI Terre Haute. According to Scott, the “CMU” is under the control of the Correctional Programs Division and the Counter Terrorism Unit (“CTU”) of the Federal Bureau of Prisons (“BOP”) and houses inmates in restrictive conditions that allow increased monitoring of their communications. Compl. ¶ 6; Smith Decl. ¶ 5. Scott was placed there when BOP determined that his offense conduct and other “misuse/abuse of legal mail,” required “heightened controls and review” of his “contact with persons in the community.” Smith Decl. ¶ 10.

Scott subsequently brought this action against assorted BOP officials in their individual capacities under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and against BOP under the Privacy Act, see5 U.S.C. § 552a. See Compl., ECF No. 1; Am. Compl., ECF No. 6; Second Am. Compl., ECF No. 55.

Scott alleges that BOP officials, including staff of the Washington, D.C.-based CTU and the wardens of individual prisons, violated his First and Fifth Amendment rights by blocking certain incoming and outgoing correspondence while he was in custody. For these injuries, Scott sought declaratory and injunctive relief, and compensatory and punitive damages. Compl. ¶ 32. He further alleged that BOP violated the Privacy Act, 5 U.S.C. § 552a, by maintaining a system of records in violation of the Act, disclosing information to third parties without his consent, and refusing to disclose to him information collected about him. Compl. ¶¶ 27–31; Am. Compl. ¶ 28(A). Defendants have twice previously moved to dismiss the case. See Defs.' Mot. to Dismiss, ECF No. 20 [hereinafter Defs.' First MTD] (denied as moot when Court granted Scott's Mot. for Leave to Amend Compl., ECF No. 34); Defs.' Second Mot. to Dismiss, ECF No. 59 [hereinafter Defs.' Second MTD]. In September 2012, this Court granted in part the Second Motion to Dismiss, dismissing Scott's Bivens claims as moot after his December 2010 release from custody but finding that the Court lacked sufficient information to resolve the Privacy Act claims. Scott v. Conley, 893 F.Supp.2d 6, 9–11 (D.D.C.2012). Scott now moves for reconsideration of the Court's September 2012 holding that his Bivens claims are moot. Pl.'s Mot. Recons., ECF No. 77. BOP opposes this motion and renews its motion to dismiss the case. See Defs.' Third Mot. to Dismiss and Opp'n to Pl.'s Mot. Recons., ECF No. 83 [hereinafter Defs.' Third MTD].

II. DEFENDANT SCOTT'S MOTION FOR RECONSIDERATION REGARDING BIVENS CLAIMS

In its September 2012 Memorandum Opinion, the Court noted that Scott had conceded his Bivens claims were moot in light of his release. Scott v. Conley, at 9–10. Scott now argues that he previously conceded only that his request for injunctive relief was moot and that his remaining request for monetary damages prevents a finding of mootness of the claims. Pl.'s Mot. Recons., see also Pl.'s Opp'n to Defs.' Second MTD 2, ECF No. 62 [hereinafter Pl.'s Second Opp'n]. The Court agrees.

A court may revise its interlocutory decisions “at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed.R.Civ.P. 54(b). Rule 54(b) provides a procedural mechanism for reconsideration, but sets forth little guidance as to when such review is appropriate. To fill this gap, other members of this Court have held that such reconsideration is appropriate “ ‘as justice requires.’ ” Hoffman v. Dist. of Columbia, 681 F.Supp.2d 86, 90 (D.D.C.2010) (citation omitted).

Circumstances that may warrant reconsideration under this standard include “whether the court ‘has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.’ ” Ficken v. Golden, 696 F.Supp.2d 21, 35 (D.D.C.2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.2004)). Errors of apprehension may include a Court's failure to consider “controlling decisions or data that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995).

The “as justice requires” standard gives the trial court great discretion. Judicial Watch v. Dep't of Army, 466 F.Supp.2d 112, 123 (D.D.C.2006). Additionally, “[i]nterlocutory orders are not subject to the law of the case doctrine and may always be reconsidered prior to final judgment.” Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C.Cir.1997).

The Court agrees that it misunderstood Scott's previous concession—he conceded only that his claims were injunctive relief based on alleged Constitutional violations were moot. Moreover, Scott's claim for monetary damages is not moot post-incarceration. Thus, the Court will grant his motion for reconsideration and revive his Bivens claims. Nevertheless the Court finds the claims must be dismissed on other grounds.

III. RECONSIDERATION OF BIVENS CLAIMSA. Sovereign Immunity Does Not Bar Consideration

BOP argues that, if Scott's Bivens claims are construed as “against the BOP and the individually-named defendants in their official capacities, sovereign immunity bars such claims and dismissal is proper under Fed.R.Civ.P. 12(b)(1).” Defs.' Mem. P. & A. in Support of their Mot. to Dismiss Pl.'s Compl. and Am. Compls. 17, ECF No. 16 [hereinafter Defs.' Second Mem.]. Sovereign immunity is a jurisdictional issue. Because a lack of jurisdiction would require the Court to dismiss the claims, the Court must first consider this question. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, sovereign immunity does not bar Bivens claims against federal officials in their individual capacities. Simpkins v. Dist. of Columbia Gov't, 108 F.3d 366, 369 (D.C.Cir.1997) ( “Bivens actions are for damages. They cannot be viewed as actions against the government. Unlike official-capacity suits, the sovereign's immunity from damages is therefore not a defense.”). Moreover, “[i]t is well established that Bivens remedies do not exist against officials sued in their official capacities,” Kim v. United States, 632 F.3d 713, 715 (D.C.Cir.2011) (emphasis added), or against the employing agency or the United States, Corr. Services Corp. v. Malesko, 534 U.S. 61, 72, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).

The Court does not read Scott's Bivens claims as against the BOP or against the named defendants in their official capacities. Rather, he sues the named individual defendants in their individual capacities, subject to the defense of qualified immunity. See Malesko, 534 U.S. at 72, 122 S.Ct. 515. Any request for injunctive relief against the individuals in their official capacities remains moot. Thus, the Court has jurisdiction over Scott's Bivens money damages claims.B. Scott's Bivens Claim Fails for Other Reasons

As an initial matter, it is not clear that a Bivens remedy is available to Scott. The Supreme Court has shown considerable reluctance to expand Bivens, particularly where administrative remedies are available to complainants. See Malesko, 534 U.S. at 66–74, 122 S.Ct. 515 (noting Court's “consistent[ ] refus[al] to extend Bivens liability” and declining to extend it to actions for damages against private prison officials in part because inmates in private facilities have “full access to [BOP] remedial mechanisms”). The Court will assume for the purposes of this motion that a Bivens remedy is available, but nevertheless finds that Scott's claim fails for other reasons.

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