Skinner v. United States Department of Justice & Bureau of Prisons

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2009 Decided October 27, 2009

No. 05-5284

FRANK A. SKINNER,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE AND BUREAU OF

PRISONS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv01376)

Yvonne M. Williams, appointed by the court, argued the

cause as amicus curiae in support of appellant. With her on the

brief was Anthony F. Shelley, appointed by the court.

Frank A. Skinner, pro se, filed the briefs for appellant.

W. Mark Nebeker, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney at the time the brief was filed, and R.

Craig Lawrence, Assistant U.S. Attorney. Lisa S. Goldfluss,

Assistant U.S. Attorney, entered an appearance.

2

Before: GARLAND, Circuit Judge, and EDWARDS and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A Bureau of Prisons hearing

officer found prisoner Frank Skinner guilty of possessing drug

paraphernalia and imposed sanctions that included the loss of 40

days of good-time credits. Skinner sued the agency under the

Privacy Act, 5 U.S.C. § 552a, seeking damages and amendment

of his prison records. The district court dismissed both claims

on the ground that inmate records are exempt from the relevant

provisions of the Act. We affirm that reasoning with respect to

Skinner’s claim for amendment of his records. We affirm the

court’s dismissal of Skinner’s damages claim on the alternative

ground that such a claim is not cognizable unless Skinner first

secures relief through a writ of habeas corpus.

I

Frank Skinner is a federal prisoner who was housed at a

Bureau of Prisons (BOP) facility in Atlanta, Georgia. On

November 27, 2001, staff at the facility searched Skinner’s cell

and locker and found a white powder that tested positive for

cocaine. Skinner v. U.S. Dep’t of Justice, No. 04-1376, 2005

WL 1429255, at *1 (D.D.C. filed June 20, 2005). BOP

conducted an internal disciplinary hearing on January 28, 2002.

At the hearing, Skinner testified that the substance found in his

locker was “[T]ide washing powder,” which the hearing officer

noted in his report. See Discipline Hearing Officer Report (Feb.

5, 2002). The officer, however, found that Skinner had actually

possessed cocaine and imposed sanctions that included the loss

3

of 40 days of good-time credits,1 60 days of disciplinary

segregation, the denial of visitation rights for a year, and the

denial of commissary privileges for 180 days. BOP also

referred the matter to the FBI, which declined to prosecute

Skinner because the case would not “result in a criminal

prosecution of greater penal consequences than which can be

imposed by the BOP administrative remedies and actions.”

Letter from T. Jackson to G. Duncan (Feb. 12, 2002).

Skinner filed a number of administrative appeals within

BOP, and on July 8, 2002, he also filed a Freedom of

Information Act request with the FBI. The FBI informed

Skinner that its records contained 18 pages that were responsive

to his request. Because the documents had originated with BOP,

the FBI referred the request to BOP, which released the

documents to Skinner on August 15. One of the documents was

the referral form BOP had sent to the FBI. The form contained

a typed paragraph stating that chemical tests conducted by BOP

indicated the white powder in Skinner’s locker was cocaine.

Below that paragraph was the following handwritten notation:

“Actually laundry detergent.” Referral of an Inmate Matter for

Investigation (Dec. 12, 2001). There is no evidence in the

record regarding who made the notation or what was meant by

it. Skinner alleges that it reflects the results of an

“independ[e]nt analysis” of the powder by the FBI, Pl.’s Mot. to

Alter or Amend J. at 2, but also acknowledges that “[n]one of

the suspected contraband was forwarded” to the FBI “for

laboratory testing,” Pl.’s Authentication or Identification to

Compl. Doc. Ex. “A.”

1

Pursuant to 18 U.S.C. § 3624(b), a federal prisoner who

complies with disciplinary regulations is eligible to receive credits --

known as good-time credits -- of up to 54 days per year toward the

service of the prisoner’s sentence.

4

On August 13, 2004, Skinner filed a pro se complaint in the

United States District Court for the District of Columbia,

alleging that the powder found in his locker was laundry

detergent rather than cocaine, that the FBI referral form

indicated as much, and that his BOP file was therefore

inaccurate. He requested two remedies under the Privacy Act,

5 U.S.C. § 552a. First, he sought money damages for the

punishments BOP had imposed on the basis of its finding that he

possessed cocaine. Second, Skinner alleged that the “[a]genc[y]

did not meet requirements of [the] Privacy Act by indicating that

[the] inmate disputed information in his files.” Compl. at 1.

The district court treated this as a request for amendment of

Skinner’s records. Skinner, 2005 WL 1429255, at *1 & n.2.

BOP filed a motion to dismiss for failure to state a claim or,

in the alternative, for summary judgment. BOP argued, first,

that the complaint should be dismissed because BOP had

exempted inmate records from the relevant provisions of the

Privacy Act. Second, BOP maintained that Skinner’s

amendment claim was barred because he had failed to exhaust

administrative remedies. Finally, in a footnote, BOP offered a

“third and independent ground for dismissal.” Citing Razzoli v.

Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000), the agency

contended that Skinner’s “claims could only be filed in the

context of a habeas corpus action.” Mem. in Support of Defs.’

Mot. to Dismiss and/or for Summ. J. at 10 n.2. On June 20,

2005, the district court granted the motion to dismiss on the first

ground urged by BOP: that the records were exempt.

On July 12, 2005, Skinner filed an appeal of that judgment,

and on August 5 he filed a “Motion to Alter or Amend

Judgment” with the district court, arguing that the disciplinary

hearing he was challenging had taken place before BOP

promulgated the exemption that the court applied to his damages

claim. A panel of this court ordered the appeal held in abeyance

5

so that the district court could consider Skinner’s motion, which

the district court ultimately denied on March 31, 2008. On

October 16, 2008, BOP filed a motion for summary affirmance

in this court, which we denied. Thereafter, we appointed amicus

curiae to present arguments in support of Skinner’s position.

II

The Privacy Act imposes a set of substantive obligations on

agencies that maintain systems of records, including the

requirement that records used in making determinations about

individuals be accurately maintained. See 5 U.S.C. § 552a(e)(5).

The Act also provides civil remedies for its violation, including

court-ordered amendment of records and money damages. The

district court dismissed both Skinner’s amendment and damages

claims for failure to state a claim upon which relief can be

granted. See FED. R. CIV. P. 12(b)(6). Our review is therefore

de novo. Razzoli, 230 F.3d at 374. We address Skinner’s claim

for amendment in Part II.A and his claim for damages in Part

II.B.

A

Skinner’s suit seeks amendment of his inmate records,

although the kind of amendment he seeks is not entirely clear.

In places, Skinner’s pleadings appear to request an amendment

indicating that he possessed laundry detergent rather than

cocaine. See Amicus Curiae Br. 11 (noting that Skinner filed

administrative appeals “to have his records amended to

accurately reflect that the substance found in his locker was

laundry detergent”). In other places, the pleadings suggest that

he merely wants his file to include the form containing the

handwritten notation, “[a]ctually laundry detergent.” See

Amicus Curiae Reply Br. 5. Regardless of the nature of the

amendment sought, this claim is quickly dispatched.

6

Privacy Act § 552a(e)(5) requires agencies to ensure that

any records used in “making any determination about any

individual” are “maintain[ed] . . . with such accuracy, relevance,

timeliness, and completeness as is reasonably necessary to

assure fairness to the individual in the determination.” 5 U.S.C.

§ 552a(e)(5). Section 552a(d) requires agencies to entertain

requests for amendment of records that are not “accurate,

relevant, timely, or complete.” Id. § 552a(d)(2). If an agency

rejects a request for amendment, the subject of the contested

record can bring suit in federal court and obtain de novo

consideration of whether amendment is warranted. Id.

§ 552a(g)(1)(A), (g)(2)(A). If the court so finds, it “may order

the agency to amend the individual’s record.” Id.

§ 552a(g)(2)(A); see generally Doe v. United States, 821 F.2d

694, 697 & n.8 (D.C. Cir. 1987) (en banc).

But the Privacy Act also permits agencies to exempt certain

of their systems of records from many of the obligations it

imposes. 5 U.S.C. § 552a(j). In 1976, BOP exempted its Inmate

Central Records System from § 552a(d)’s amendment provision.

See 28 C.F.R. § 16.97(a); Exemption of Record Systems Under

the Privacy Act, 41 Fed. Reg. 12,640, 12,650 (Mar. 26, 1976).

As the district court found, as our precedents make clear, and as

amicus acknowledged at oral argument, that exemption prevents

us from ordering the amendment of an inmate’s records. See

White v. U.S. Probation Office, 148 F.3d 1124, 1125 (D.C. Cir.

1998); Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997);

Oral Arg. Recording at 2:48-3:12. Accordingly, we affirm the

district court’s dismissal of Skinner’s amendment claim.

B

Skinner also seeks damages for the consequences of the

alleged inaccuracy in his records.

7

As we have noted, Privacy Act § 552a(e)(5) requires

agencies to ensure that all records “used by the agency in

making any determination about any individual” are maintained

“with such accuracy, relevance, timeliness, and completeness as

is reasonably necessary to assure fairness to the individual in the

determination.” 5 U.S.C. § 552a(e)(5). Section 552a(g)(1)(C)

permits an individual to bring a civil action against an agency if

the agency “fails to maintain any record concerning [the]

individual with such accuracy, relevance, timeliness, and

completeness” and “consequently a determination is made

which is adverse to the individual.” Id. § 552a(g)(1)(C). If the

court finds that the agency “acted in a manner which was

intentional or willful,” the United States is liable for “actual

damages sustained by the individual as a result of” the agency’s

failure to properly maintain the record. Id. § 552a(g)(4); see

generally Doe, 821 F.2d at 697 n.8. In sum, to make out a claim

for damages, a “plaintiff must allege: inaccurate records, agency

intent, proximate causation, and an ‘adverse determination.’”

Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C.

Cir. 2002); see Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657

(D.C. Cir. 1996).

The district court dismissed Skinner’s damages claim on the

same ground upon which it dismissed his amendment claim: that

BOP had exempted inmate records from the provisions of the

Privacy Act. But while BOP’s 1976 regulation exempted prison

records from Privacy Act § 552a(d), the provision regarding

amendment of inaccurate records, that regulation did not exempt

BOP records from § 552a(e)(5), the provision creating the duty

to accurately maintain records “used . . . in making any

determination.” See Deters, 85 F.3d at 658 n.2; Phillips v.

Hawk, No. 98-5513, 1999 WL 325487, at *1 (D.C. Cir. Apr. 14,

1999). And as we explained in Sellers v. Bureau of Prisons, the

damages provision of Privacy Act § 552a(g) provides a remedy

for violations of § 552a(e)(5). 959 F.2d 307, 310 (D.C. Cir.

8

1992); see Deters, 85 F.3d at 657.

On August 9, 2002, BOP did promulgate a regulation

exempting its records from § 552a(e)(5). See 28 C.F.R.

§ 16.97(j); Privacy Act of 1974: Implementation, 67 Fed. Reg.

51,754 (Aug. 9, 2002). Skinner’s lawsuit was filed after that

date, but his complaint is premised on a BOP disciplinary

determination that took place seven months earlier. As a

consequence, Skinner contends that it would be impermissibly

retroactive to apply the § 552a(e)(5) exemption to his lawsuit.

We need not resolve this issue, however, because there is

another ground for dismissal that is clearly established by a

series of decisions of both the Supreme Court and this circuit.

Under those precedents, Skinner’s civil damages claim is barred

unless and until he successfully challenges the disciplinary

hearing on which it is based through an action in habeas corpus.

The series of cases begins with Preiser v. Rodriguez, in

which the Supreme Court held that a state prisoner cannot sue

prison authorities under 42 U.S.C. § 19832 for injunctive relief

to compel restoration of good-time credits because victory in

such a suit would shorten the prisoner’s sentence. 411 U.S. 475

(1973). As the Court explained, when a “state prisoner is

2

Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983.

9

challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he

is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas

corpus” even if his claim comes within the literal terms of

§ 1983. Id. at 500; see id. at 489-90. In Heck v. Humphrey, the

Court extended this rule to a § 1983 suit seeking money

damages -- but neither an injunction nor release -- for an

unconstitutional conviction. 512 U.S. 477, 479, 487 (1994).

Heck instructed courts to dismiss such a damages action if

success would “necessarily imply the invalidity of [the]

conviction or sentence[,] . . . unless the plaintiff can demonstrate

that the conviction or sentence has already been invalidated” --

for example, by reversal on direct appeal or issuance of a writ of

habeas corpus. Id. at 487.

In Edwards v. Balisok, the Court applied Preiser and Heck

to a case analogous to Skinner’s: a state prisoner’s § 1983

challenge to the procedures employed in a disciplinary

proceeding that resulted in revocation of his good-time credits.

520 U.S. 641 (1997). The prisoner sought neither restoration of

those credits nor damages for their loss; he sought only damages

for violations of procedural due process at his hearing. Id. at

645. Nonetheless, the Court concluded that his action was

barred because “[t]he principal procedural defect complained of

. . . would, if established, necessarily imply the invalidity of the

deprivation of his good-time credits,” and would therefore

shorten his sentence “absent a new hearing.” Id. at 646-47. The

prisoner had alleged that his hearing officer, motivated by

“deceit and bias,” id. at 647, had “concealed exculpatory witness

statements” and otherwise denied him the opportunity to defend

himself, id. at 644, 646. If those allegations were proven, the

Court said, the disciplinary decision could not stand. See id. at

647. Accordingly, “‘a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence.’”

10

Id. at 643 (quoting Heck, 512 U.S. at 487).

In Muhammad v. Close, the Court summarized this line of

cases as follows. “Challenges to the validity of any confinement

or to particulars affecting its duration are the province of habeas

corpus . . . .” 540 U.S. 749, 750 (2004). If success in a

“damages action would implicitly question the validity of

conviction or duration of sentence, the litigant must first achieve

favorable termination of his available state, or federal habeas,

opportunities to challenge the underlying conviction or

sentence.” Id. at 751.

The Preiser-Heck-Balisok trilogy involved suits by state

prisoners under 42 U.S.C. § 1983. In Razzoli v. Bureau of

Prisons, this court applied Balisok to a federal prisoner’s claim

for damages under the Privacy Act’s accuracy provisions.

Prison officials had found cocaine and a razor blade in Razzoli’s

cell and imposed “a sanction that included the loss of 60 days

statutory good time credit.” 230 F.3d at 373. Razzoli alleged

“that the BOP staged the incident.” Id. at 373. “The theory of

Razzoli’s Privacy Act claim,” we explained, was “that BOP and

the Parole Commission violated 5 U.S.C. § 552a(e)(5) by

maintaining in their files and using a false record, the report of

the drug possession incident, even though they knew it to be

false.” Id. at 374. We concluded that this claim “clearly runs

afoul of Balisok” because, “[i]f BOP knowingly preserved and

acted upon a totally invented record of drug possession, plainly

the recision of good time would have to be overturned, thus

accelerating Razzoli’s release.” Id.3 Accordingly, we affirmed

the dismissal of Razzoli’s Privacy Act claim, instructing that he

3

Although we noted that there was “the possibility of renewed

revocation of the good time credit in a new [untainted] hearing,” that

possibility did not change the analysis. Razzoli, 230 F.3d at 375; see

Balisok, 520 U.S. at 646-47.

11

could refile it only if he were “successful in overturning [BOP’s]

actions through a petition for habeas.” Id. at 376.4

Skinner’s claim for damages under the Privacy Act is

virtually indistinguishable from the claims barred in Balisok and

Razzoli. In order to obtain damages, Skinner must allege that

“the agency acted in a manner which was intentional or willful.”

5 U.S.C. § 552a(g)(4). And he does, contending that BOP

“willfully relied upon incomplete and inaccurate records to

discipline him unfairly for allegedly possessing cocaine.”

Amicus Curiae Br. 3; see id. at 9-10; Compl. at 3-4. In

particular, Skinner asserts that “BOP fabricated its drug test

results” and “purposely excluded the [allegedly exculpatory]

Referral Form from [his] records in order to retaliate against or

otherwise punish him” for an assault complaint he had filed

against a prison guard. Amicus Curiae Br. 28-29; see id. at 28

(citing Compl. at 2-3); Pl.’s Mot. to Alter or Amend J., Ex. A

(Regional Administrative Remedy Appeal). But “the due

process requirements for a prison disciplinary proceeding are . . .

not so lax as to let stand the decision of a biased hearing officer

who dishonestly suppresses evidence of innocence.” Balisok,

520 U.S. at 647. If Skinner were to succeed in demonstrating

that BOP intentionally or willfully maintained and acted upon a

false record of drug possession, “plainly the recision of good

time would have to be overturned, thus accelerating [Skinner’s]

release.” Razzoli, 230 F.3d at 374. As a consequence, he must

first proceed in habeas, notwithstanding that in this case he

seeks only damages and not restoration of good time. Id. at 372-

73; cf. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (holding

4

See White, 148 F.3d at 1125 (holding that a prisoner’s claim for

damages under the Privacy Act, alleging that his presentence report

contained inaccuracies requiring him to serve more time, was not

cognizable “unless the sentence has been invalidated in a prior

proceeding”).

12

“that a state prisoner’s § 1983 action is barred (absent prior

invalidation) -- no matter the relief sought (damages or equitable

relief) . . . -- if success in that action would necessarily

demonstrate the invalidity of confinement or its duration” (first

emphasis added)).

Skinner contends that, even if his claim for damages for loss

of good time must first proceed in habeas, the same is not true

of his claims for “damages for other, separate disciplinary

harms.” Amicus Curiae Reply Br. 27. But although those other

punishments -- namely, disciplinary segregation and the loss of

visitation rights and commissary privileges -- did not affect the

length of Skinner’s incarceration, they are not “separate” from

the punishment that did. As Skinner’s complaint avers, all of his

punishments resulted from the same “Incorrect Information” in

his file -- and from the same finding of guilt at the same hearing

on the basis of that information. Compl. at 1.5 Amicus

conceded as much at oral argument.6 Hence, because recovery

for the “other, separate disciplinary harms” depends on

overturning the adverse determination that also led to his loss of

good-time credits, if Skinner were to win damages for the

former, he would necessarily have demonstrated the invalidity

of the latter.

5

See Compl. at 3 (complaining of the “adverse effect in record

determining custody, classification, job, quarter assignment and the

los[s] of forty (40) days good conduct credits”); Amicus Curiae Br. 7

(stating that, “[a]s a result” of the hearing officer’s determination that

Skinner was guilty, he “was denied visitation for a year, denied

commissary privileges for 180 days, his good time credit was

discounted 40 days, and he was placed in segregation or solitary

confinement for 60 days”).

6

See Oral Arg. Recording at 6:22-50 (agreeing that the good time,

segregation, and commissary sanctions were all based on the same

finding that Skinner possessed cocaine rather than detergent).

13

Amicus insists that it is nonetheless possible to distinguish

the two types of discipline. In amicus’ view, we need not

determine that the white powder was detergent rather than

cocaine to vindicate Skinner’s damages claim; we need only

find that the records at Skinner’s hearing were inaccurate or

incomplete because they omitted the referral form. Had the

hearing officer seen the form, amicus continues, that might have

been enough to keep him from ordering Skinner held in

segregation, even if not enough to prevent him from revoking

Skinner’s good-time credits. Amicus Curiae Reply Br. 28. But

even on this theory, to obtain damages for being held in

segregation Skinner still must show that BOP intentionally or

willfully kept the allegedly exculpatory FBI form out of his

disciplinary hearing. See 5 U.S.C. § 552a(g)(4); Amicus Curiae

Reply Br. 3 (arguing that Skinner’s “prison segregation [was]

based on willfully inaccurate records”). And as we have

explained above, if he were to succeed in making such a

showing, that would “necessarily imply the invalidity of the

deprivation of his good-time credits” as well, Balisok, 520 U.S.

at 646-47. See Razzoli, 230 F.3d at 374.7

Finally, amicus urges us not to apply the habeas-channeling

rule here because the district court did not rely on it. Instead,

the court rested dismissal of Skinner’s complaint on BOP’s

7

Although Razzoli recognized that a state prisoner is confined to

habeas only if his successful claim would “necessarily imply” a

shorter period of confinement, 230 F.3d at 375 (internal quotation

marks omitted), it held that habeas is exclusive for a federal prisoner

“even when a non-habeas claim would have a merely probabilistic

impact on the duration of custody,” id. at 373. See Davis v. Bureau of

Prisons, No. 08-5053, 2009 WL 1791872, at *1 (D.C. Cir. June 5,

2009). This aspect of Razzoli is not relevant here because -- as

discussed in the text -- Skinner’s success in a damages action would

necessarily imply the invalidity of the revocation of his good-time

credits.

14

exemption of its records from the Privacy Act. But this court

can “affirm a correct decision even if on different grounds than

those assigned in the decision on review,” a principle

“particularly applicable when reviewing a dismissal for failure

to state a claim, [which is] a pure question of law which we

review de novo.” Razzoli, 230 F.3d at 376 (internal quotation

marks and citations omitted). Amicus does not dispute our

authority in this regard, but correctly notes that we generally do

not decide cases on grounds that were not raised in the district

court, absent exceptional circumstances. See Kurke v. Oscar

Gruss and Son, Inc., 454 F.3d 350, 358 & n.8 (D.C. Cir. 2006).

Indeed -- as amicus also correctly points out -- the Supreme

Court held in Muhammad v. Close that the government had

waived a habeas exclusivity argument by failing to raise it

below. 540 U.S. at 755.

But here the government did raise the habeas argument in

the district court, identifying it as a “third and independent

ground for dismissal.” Mem. in Support of Defs.’ Mot. to

Dismiss and/or for Summ. J. at 10 n.2. Although the

government raised the point only in a footnote, that footnote

cited the controlling precedent -- Razzoli -- and expressly

“reserve[d] the right to brief [the habeas] point at some later

stage of the litigation if such stage should come to pass.” Id.

That later stage never came to pass in the district court because

the court ruled for the government on the basis of the exemption.

But that stage has come in this court, and both the government

and Skinner (and amicus) have had a full opportunity to brief the

issue. Moreover, this case is not like Muhammad, where the

government’s habeas argument depended on a disputed question

of fact -- whether the plaintiff had actually lost any good-time

credits. 540 U.S. at 754-55. Rather, BOP’s argument here

raises only legal questions that we decide de novo. Thus, there

is no unfairness in our affirming on this alternative ground. Cf.

United States v. Bowman, 496 F.3d 685, 695 n.2 (D.C. Cir.

15

2007) (noting that an appellate court may not affirm on a ground

not relied upon by the district court if doing so would “unfairly

deprive [the plaintiff] of an adequate opportunity to respond”).

III

We affirm the district court’s dismissal of Skinner’s claim

for amendment of his records on the ground that those records

are exempt from the amendment provision of the Privacy Act.

We affirm the court’s dismissal of Skinner’s damages claim

because such a claim is not cognizable unless Skinner first

secures relief through a writ of habeas corpus.

So ordered.