Toolasprashad, L. v. Bur Pris, et al, No. 00-5424 (D.C. Cir. 2002)

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.