Toolasprashad v. Bureau of Prisons

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 11, 2002 Decided April 19, 2002

No. 00-5424

Latchmie Toolasprashad,

Appellant

v.

Bureau of Prisons, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 99cv02034)

Jeffrey Raskin, Student Counsel, argued the cause as

amicus curiae on the side of appellant. With him on the

briefs were Steven H. Goldblatt, appointed by the court as

amicus curiae, and Sheri Klintworth, Student Counsel.

Latchmie Toolasprashad, appearing pro se, filed the briefs

for appellant.

Edward D. Alkalay, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-

tant U.S. Attorney.

Before: Tatel and Garland, Circuit Judges, and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: In this case, we consider whether a

prisoner's transfer and reclassification in retaliation for exer-

cising his First Amendment rights could, if proven, constitute

"adverse determinations" under the Privacy Act. Answering

yes and finding that the prisoner adequately alleges the other

elements of a Privacy Act damages claim, we reverse the

district court's dismissal and remand for further consider-

ation.

I.

"Because we review here a decision granting [a] motion to

dismiss, we must accept as true all of the factual allegations

contained in the complaint[s]." Swierkiewicz v. Sorema, 122

S.Ct. 992, 995 n.1 (2002). Viewed through that lens, the facts

are as follows:

On September 22, 1997, the Bureau of Prisons transferred

Appellant, Latchmie Toolasprashad, from the Federal Correc-

tional Institution ("FCI") in Allenwood, Pennsylvania to the

FCI in Marianna, Florida, and reclassified him as a "special

offender." Compl. p 13. According to Toolasprashad, the

Bureau based both the transfer and the reclassification deci-

sions on an internal Request for Redesignation, or transfer

memorandum, written by several FCI-Allenwood staff mem-

bers. The memorandum asserts that Toolasprashad had a

"significant documented history of harassing and demeaning

staff members" at FCI-Allenwood; that he failed "to pro-

gram properly" there; and that he demonstrated "disruptive

behavior" and "clearly disrupted the orderly running of [the]

institution." Id. Ex. 2 at 1. Calling these assertions "fabri-

cated and falsified," Id. p 4, Toolasprashad points to various

Program Review Reports and work evaluations that, he ar-

gues, demonstrate he was a model prisoner during the events

at issue here. For example, the Literacy Coordinator at

FCI-Allenwood "commend[ed]" him "for his superior work

performance ... as a GED and college tutor," observing that

he "worked meritoriously without consideration of pay or

rewards," and that he went "above and beyond his normal

work to assist others." Pl.'s Mot., Aff. & Notice to Ct. Ex. 6

at 2. In addition, a Program Review Report indicates that he

"programmed well, receiving good evaluations and displaying

positive motivation." Compl. Ex. 6 at 1.

According to Toolasprashad, the staff members' falsifica-

tion of the transfer memorandum capped a series of incidents

in which some of the same individuals "harass[ed]" and

"intimidate[d] him," ridiculed his Hindu heritage, and engi-

neered his dismissal from his job tutoring inmates in the

Institution's education department. Id. p 8; see also Am.

Compl. p 5; Pl.'s Mot., Aff. & Notice to Ct. Ex. 8 at 2

(alleging that prison "staff" called Toolasprashad "a 'rag

head,' 'cow worshipper,' and 'sand nigger' "). In response to

these incidents, Toolasprashad filed a series of administrative

grievances and contacted public officials to complain about his

treatment at FCI-Allenwood--actions he claims spurred the

offending staff members to become even more abusive and to

falsify the transfer memorandum on which the Bureau subse-

quently relied in transferring and reclassifying him.

Toolasprashad alleges that the transfer to FCI-Marianna

and reclassification as a "special offender" adversely affected

him in several ways. To begin with, he could no longer

receive regular visits from his seriously ill parents, who live in

Hollis, New York--a short drive from Allenwood, but several

days' drive from Marianna, Florida. In addition, he was

denied parole, in part because the distance made it difficult

for FCI-Allenwood "staff representatives" who would have

testified on his behalf to "come to Marianna and represent

[him] before the parole board." Compl. Ex. 3 at 4. Due to

the stress of the transfer, moreover, Toolasprashad became

severely depressed, had difficulty sleeping, and developed an

eating disorder. Finally, as a "special offender," he became

ineligible for certain jobs, including tutoring positions similar

to those he had at FCI-Allenwood.

Invoking the Privacy Act, Toolasprashad filed suit in the

United States District Court for the District of Columbia

against the Bureau of Prisons and several named Bureau

officials. Under the Act, an individual may "request amend-

ment of a record pertaining to him," 5 U.S.C. s 552a(d)(2),

and may obtain civil damages whenever an agency "intention-

al[ly] or willful[ly]" "fails to maintain any record concerning

[the] individual with such accuracy ... as is necessary to

assure fairness in any determination relating to ... the

individual[,] ... and consequently a determination is made

which is adverse to the individual," id. s 552a(g)(1)(C), (g)(4).

In his original and amended complaints, Toolasprashad re-

quested that the Bureau expunge the transfer memorandum

from his prison file and sought damages from both the

Bureau and individual staff members. The district court

granted the Bureau's motion to dismiss on the grounds that

(1) the transfer memorandum is located in the Inmate Central

Record System, which the Bureau has "properly exempted"

from the Privacy Act provision that permits requests for

amendment of flawed records, Toolasprashad v. Bureau of

Prisons, No. 99-2034, slip op. at 3 (D.D.C. June 20, 2000); (2)

"the Privacy Act does not provide a cause of action against

individual[ ]" defendants, id. at 2; and (3) Toolasprashad

could not establish two necessary elements of his damages

claim--that he was "aggrieved by an adverse [agency] deter-

mination" and that the agency acted "intentionally or willfully

in failing to maintain accurate records," id. at 4-6 (citing

Deters v. United States Parole Comm'n, 85 F.3d 655, 657

(D.C. Cir. 1996)). After filing a motion for reconsideration,

which the district court denied, Toolasprashad filed this ap-

peal.

In response to the Bureau's motion for summary affir-

mance, we affirmed the district court's dismissal of Toolas-

prashad's claim for injunctive relief and his claims against the

individual defendants. See Toolasprashad v. Bureau of Pris-

ons, No. 00-5424 at 1 (D.C. Cir. July 17, 2001) (order granting

partial summary affirmance). Observing that "[t]his court

has not yet addressed whether the transfer of a prisoner in

retaliation for the exercise of his constitutional rights could

constitute an 'adverse determination' under the Privacy Act,"

however, we denied summary affirmance with respect to

Toolasprashad's damages claim and appointed Professor Ste-

ven Goldblatt of the Georgetown University Law Center

Appellate Litigation Program as amicus to present arguments

with respect to this remaining issue. Id. at 1-2. We now

consider the issue de novo. E.g., Weyrich v. New Republic,

Inc., 235 F.3d 617, 623 (D.C. Cir. 2001).

II.

Before turning to the merits, we must address a procedural

issue, flagged by amicus, that implicates our jurisdiction: the

timeliness of the notice of appeal. Toolasprashad filed his

notice almost five months after the district court entered

judgment dismissing the original and amended complaints--

well outside the sixty-day window permitted by Federal Rule

of Appellate Procedure ("FRAP") 4(a)(1)(B). As amicus

points out, however, Toolasprashad's situation is not nearly as

dire as this suggests because seven days after the judgment

of dismissal, he filed a motion entitled "Motion Requesting an

Enlargement of Time to File a Motion and Brief for Recon-

sideration." Less than a month after the district court

granted this first motion, Toolasprashad filed the promised

motion for reconsideration, which the court denied. Because

Toolasprashad filed his notice of appeal fewer than sixty days

after the denial of his motion for reconsideration, the notice

constituted a timely appeal from that denial.

The only procedural question, then, is whether Toolas-

prashad also timely appealed the district court's underlying

dismissal. Two procedural rules govern this issue: FRAP 4,

which provides that "the time to file an appeal runs ... from

the entry of the order disposing" of a motion for relief from

judgment under Federal Rule of Civil Procedure ("FRCP")

60 "if the motion is filed no later than [ten] days ... after

the judgment is entered," Fed. R. App. P. 4(a)(4)(A)(vi) (em-

phasis added); and FRCP 6, which provides that the district

court "may not extend the time" for filing a FRCP 60 motion,

Fed. R. Civ. P. 6(b). As the latter rule makes clear, the

district court lacked authority to grant Toolasprashad's mo-

tion for enlargement of time. Thus, if we strictly applied the

rules, we could review only the district court's denial of

reconsideration because Toolasprashad filed his motion for

reconsideration outside FRAP 4's ten-day window, so his

notice of appeal from the dismissal of his complaint was

untimely.

Amicus suggests that we may avoid this procedural dilem-

ma by construing the motion for enlargement of time itself as

a FRCP 60 motion for relief from judgment, and the subse-

quent motion as a memorandum in support thereof. For

several reasons, we think this approach makes sense. First,

the former motion, which Toolasprashad filed within ten days

of the original dismissal, expressly states, "[t]his case should

not have been dismissed.... The Court erred as a matter of

law that the defendants cannot subject prisoners to 'retalia-

tion' by preparing fabricated and fictitious documents[,]" Pl.'s

Mot. Req. Enlarg. Time at 1-2. This is virtually the same

argument Toolasprashad later raised in his official motion for

reconsideration. See Mot. Req. Recons. at 25-26 ("[P]laintiff

could not be retaliated against by the [FCI-]Allenwood defen-

dants for exercising his constitutional rights to petition the

government for redress.... The evidence is clearly in favor

of plaintiff that the defendants retaliated against plaintiff and

the Court cannot ignore same."). In addition, we have an

obligation to construe pro se filings liberally, Richardson v.

United States, 193 F.3d 545, 548 (D.C. Cir. 1999), particularly

as in this case the procedural confusion arose in part because

the district court overstepped its authority in granting an

extension of time, cf. Ruggiero v. FCC, 278 F.3d 1323, 1328

(D.C. Cir. 2002) (finding that liberal construction of filings

"ma[de] particular sense" because appellant relied on this

court's procedural order in failing to submit a second petition

for review). Under this liberal construction, because Toolas-

prashad filed the motion for enlargement of time within the

ten-day period established by FRAP 4, "the time to file [his]

appeal r[an] ... from the entry of the order" denying recon-

sideration. Fed. R. App. P. 4(a)(4)(A)(vi). Accordingly, Too-

lasprashad timely appealed both the denial of reconsideration

and the underlying dismissal, and both district court decisions

are properly before us.

III.

To state a claim for money damages under the Privacy Act,

a plaintiff must assert that an agency failed to maintain

accurate records, that it did so intentionally or willfully, and

consequently, that an "adverse" "determination [wa]s made"

respecting the plaintiff. 5 U.S.C. s 552a(g)(1)(C). That is,

the plaintiff must allege: inaccurate records, agency intent,

proximate causation, and an "adverse determination." Before

turning to the "adverse determination" issue we asked amicus

to brief, we consider whether Toolasprashad's original and

amended complaints adequately allege the first three ele-

ments, keeping in mind "the accepted rule that a complaint

should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief."

Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

In Deters v. United States Parole Commission, we ex-

plained that analysis of the inaccurate records element of a

Privacy Act claim depends on whether the "truth" underlying

the challenged statements "is clearly provable or relatively

easily ascertainable." 85 F.3d at 658 (internal quotation

marks and citation omitted). In "typical" cases, 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 accu-

rate.' " Id. (quoting Doe v. United States, 821 F.2d 694, 699

(D.C. Cir. 1987) (en banc)). In contrast, in "atypical" 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). Given

the posture of this case--a motion to dismiss--we neither

should nor need decide the typicality issue, however, as it

turns on the kind and sufficiency of proof. For our purposes,

it is enough that Toolasprashad challenges as false a specific

assertion in the transfer memorandum that could, depending

on the evidence, be easily ascertainable--namely, that he had

a "significant documented history of harassing and demeaning

staff members at [FCI-Allenwood]." Compl. Ex. 2 at 1

(emphasis added).

As for the issue of agency intent, we disagree with the

district court that "the record would not support a finding

that defendants acted willfully or intentionally." Toolas-

prashad, No. 99-2034, slip op. at 5. Toolasprashad alleges

that certain Bureau staff members "fabricated and falsified"

the transfer memorandum to punish him for, among other

things, filing administrative grievances. Compl. p 4. If prov-

en, retaliatory fabrication of prison records would certainly

meet Deters' definition of a willful or intentional Privacy Act

violation--a violation "so patently egregious and unlawful that

anyone undertaking the conduct should have known it unlaw-

ful." 85 F.3d at 660. It makes no difference that other

Bureau staff members, in deciding to transfer Toolasprashad,

may "have reasonably relied on the memorandum." Toolas-

prashad, No. 99-2034, slip op. at 6. Reasonable reliance by

some employees cannot immunize an agency from the Privacy

Act consequences of employing other individuals who (alleg-

edly) deliberately falsify records.

The third required element of a Privacy Act damages claim,

causation, merits even less attention. The Bureau argues

that Toolasprashad "fails to allege with any admissible evi-

dence that the allegedly inaccurate Request for Redesig-

nation was the proximate cause of his transfer." Appellees'

Br. at 35. In its district court motion to dismiss, however,

the Bureau stated just the opposite: "[P]laintiff was trans-

ferred based on the Request for Redesignation in his file."

Def.'s Mem. Supp. Mot. to Dismiss at 7. The Bureau sug-

gests no reason why it should not be held to its original

characterization of the facts, at least for purposes of this

appeal.

Having concluded that Toolasprashad adequately asserts

the first three elements of a Privacy Act claim for damages,

we turn to the central issue in this case: whether the

Bureau's decisions to transfer and reclassify Toolasprashad in

retaliation for his filing grievances could constitute "adverse

determinations" under the Privacy Act. The Act provides

little guidance as to the intended breadth of the phrase

"determination ... adverse to the individual." We have

recognized, however, that in the prison context, "adverse

determination" denotes, at least, a decision that negatively

"affect[s an] inmate's rights...." Deters, 85 F.3d at 659. At

this early stage in the proceedings, therefore, if Toolasprash-

ad satisfactorily alleges deprivation of his constitutional

rights, his claims must survive the Bureau's motion to dis-

miss. Indeed, at oral argument, the Bureau never disputed

that, in the abstract, an allegation that an agency intentional-

ly and willfully falsified a document to violate an individual's

First Amendment rights would support a Privacy Act claim.

To determine whether Toolasprashad alleges a deprivation

of rights, we consider two questions: Was he exercising his

First Amendment rights when he filed the grievances? If so,

was the Bureau's alleged response sufficiently severe to con-

stitute actionable retaliation? The answer to the first ques-

tion is undoubtedly yes. Prisoners, as the Supreme Court

has held, retain their First Amendment "right to petition the

Government for a redress of grievances." Turner v. Safley,

482 U.S. 78, 84 (1987) (citing Johnson v. Avery, 393 U.S. 483

(1969)). This right extends not just to court filings but also

to the various preliminary filings necessary to exhaust admin-

istrative remedies prior to seeking judicial review. As the

Fifth Circuit explained, "[a]ccess to courts entails not only

freedom to file pleadings but also freedom to employ ...

those accessories without which legal claims cannot be effec-

tively asserted." Ruiz v. Estelle, 679 F.2d 1115, 1153 (5th

Cir. 1982), partially vacated on other grounds, 688 F.2d 266,

267 (5th Cir. 1982). Thus, although prison officials may limit

inmates' ability to file administrative grievances provided the

limitations are "reasonably related to legitimate penological

interests," Turner, 482 U.S. at 89, officials may not retaliate

against prisoners for filing grievances that are "truthful[ ] and

not otherwise offensive" to such interests, Crawford-El v.

Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), rev'd on other

grounds, 523 U.S. 574 (1998). On remand, of course, the

Bureau may offer any evidence tending to support its defense

that it transferred Toolasprashad because his actions were

indeed "offensive" to "legitimate penological interests."

The widely accepted standard for assessing whether

"harassment for exercising the right of free speech [is] ...

actionable"--our second question--depends on whether the

harassment is "[ ]likely to deter a person of ordinary firmness

from that exercise." Crawford-El, 93 F.3d at 826; see also,

e.g., Dawes v. Walker, 239 F.3d 489, 493 (2nd Cir. 2001)

(citing this standard); Pieczynski v. Duffy, 875 F.2d 1331,

1333 (7th Cir. 1989) ("Harassment of a public employee for

his political beliefs violates the First Amendment unless the

harassment is so trivial that a person of ordinary firmness

would not be deterred from holding or expressing those

beliefs."). We think the allegedly retaliatory reclassification

and transfer meet this standard.

To begin with, Toolasprashad claims that his reclassifica-

tion as a "special offender" prevented him from obtaining

tutoring jobs at FCI-Marianna akin to those at which he

excelled at FCI-Allenwood, see supra at 3 (citing Toolas-

prashad's work evaluations from FCI-Allenwood). In addi-

tion, he alleges that his transfer to FCI-Marianna distanced

him from his ill parents and from Bureau staff members who

could have testified on his behalf at his parole hearing. If, as

we held in Crawford-El, small "pecuniary losses ... in the

form of the costs of shipping ... boxes and replacing cloth-

ing" are sufficient to "deter a person of ordinary firmness ...

from speaking again," 93 F.3d at 826, then surely Toolas-

prashad's alleged deprivations also meet this standard.

The Bureau offers several counter-arguments, none of

which is convincing. For example, it notes that Toolasprash-

ad's "ability to exercise his First Amendment rights has not

been impaired by his transfer." Appellees' Br. at 24. This

fact, though undisputed, is immaterial. The relevant question

is not whether a transfer actually interferes with a particular

prisoner's ability to exercise his rights but whether the threat

of a transfer would, in the first instance, inhibit an ordinary

person from speaking. See Crawford-El, 93 F.3d at 826.

Equally irrelevant is the Bureau's long-recognized discretion

to decide where to house prisoners. See, e.g., Olim v. Waki-

nekona, 461 U.S. 238, 245 (1983) (holding that inmates have

no "justifiable expectation" of being "incarcerated in any

particular prison"). "[A]n ordinarily permissible" exercise of

discretion "may become a constitutional deprivation if per-

formed in retaliation for the exercise of a [F]irst [A]mend-

ment right." Crawford-El, 93 F.3d at 846 (Henderson, J.,

concurring). " 'Despite the fact that prisoners generally have

no constitutionally-protected liberty interest in being held at,

or remaining at, a given facility,' " therefore, the Bureau may

not transfer an inmate "to a new prison in retaliation for

exercising his or her First Amendment rights." Vignolo v.

Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997) (quoting Pratt

v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)). Finally, we are

unpersuaded by the Bureau's argument that because the

transfer memorandum was not binding, the document cannot

form the basis of an "adverse determination" under the

Privacy Act. The Bureau relies on a question posed in

Deters: "If [a preliminary parole assessment] is not binding

on the hearing panel, can it really be deemed an 'adverse

determination,' i.e., one affecting the inmate's rights ...?"

85 F.3d at 659. Here, though, because the Bureau trans-

ferred Toolasprashad in reliance on the transfer memoran-

dum, see supra at 8, it cannot reasonably argue the memoran-

dum had no effect on his rights.

Thus, in claiming retaliatory reclassification and transfer,

Toolasprashad asserts deprivation of his First Amendment

rights and, consequently, an "adverse determination" under

the Privacy Act. We need not reach the more difficult

question of whether reclassification or transfer would consti-

tute an "adverse determination" in the absence of a First

Amendment deprivation because the only claim before us that

the Bureau acted intentionally or willfully--a prerequisite, as

noted above, for a Privacy Act damages claim--relates to the

staff members' alleged retaliation against Toolasprashad for

exercising his First Amendment rights.

Overall, therefore, because Toolasprashad satisfactorily al-

leges inaccurate records, agency intent, proximate causation,

and an "adverse determination"--the four required elements

of a damages claim--his case survives the Bureau's motion to

dismiss. Whether he can ultimately prevail is an issue for

another day.

The judgment of the district court is reversed and this

matter is remanded for further proceedings consistent with

this opinion.

So ordered.