Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

MEMORANDUM^** 

Lynn Marshall McCloud was a Nevada state prisoner when he brought a pro se Section 1983 civil rights action. Pending appeal, he completed his prison term. His action against the United States, the Director of the FBI and the Director of the Department of Justice was based on a contention that the Bureau disseminated false information to a Nevada state judge for use in sentencing after McCloud pleaded guilty to a felony burglary in March 1988.

The Nevada Parole and Probation Department requested from the FBI a report of McCloud's criminal activity. This was supplied in the Bureau's regular form which reflected 30 arrests over a period of 21 years. It showed that McCloud had been arrested in seven California cities, two Nevada cities, as well as several in Nashville, Tennessee and others in New Jersey, Colorado, Nebraska and Illinois.

The Nevada state judge imposed a sentence of four years on the state burglary charge, allowing credit for 304 days as requested by McCloud.

McCloud's Section 1983 complaint alleged that the presentence report given to the Nevada judge was "grossly inaccurate and misleading" in that the FBI rap sheet included nine arrests which were not prosecuted to judgment. Apparently some charges were dismissed or not prosecuted at the election of the prosecutor but jail and prison sentences were imposed in others. McCloud's full name, properly spelled, was shown as to each arrest item.

At sentencing in the Nevada state court, McCloud was represented by a deputy public defender. She pointed out to the Nevada judge that some of the arrests listed had not gone to trial or judgment. She noted that McCloud's prior arrest record had been supplied by the FBI.

The probation officer commented, "The arrests that the defendant disputes do appear on his official rap sheet and that's a matter he would have to take up with the FBI."

McCloud did just that by a letter to the Director of the Bureau requesting expungement "of the portions of my arrest record which do not depict final dispositions." He listed nine of them between 1968 and 1989. Some of those he listed do in fact depict their dispositions. The Bureau acknowledged his request received on February 12, 1990 and as of March 13, 1990 indicated "This matter is receiving attention and you will be advised at the earliest possible date regarding the concerns raised in your letter."

Without waiting for further information, McCloud pursued this civil rights complaint against the United States, the Director of the FBI and Director of the U.S. Department of Justice. The prayer of his complaint seems to be that due process required the expungement from his rap sheet of references to nine arrests which did not result in convictions. There is no constitutional violation in maintaining and disbursing records of arrests which do not result in convictions. Hammons v. Scott, 423 F. Supp. 625 (N.D. Cal. 1976). See also Pruett v. Levi, 622 F.2d 256 (6th Cir. 1980); Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974). Maintaining and disseminating information about arrests is justifiably part of the FBI's mandate. 28 U.S.C. § 534 (1990); 28 C.F.R. Sec. 20.1 et seq. (1989).

The FBI has a duty to take reasonable measures to safeguard the accuracy of the information in its criminal files before disseminating them. Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974). The mere existence of an inaccuracy in FBI criminal files is not sufficient to state a claim of a constitutional violation. Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (citation omitted). A claim is stated only if the FBI violates a duty owed to that person, such as contravening its own regulations by sending out information which it knows to be false. Id. at 257. Since the FBI has not received official information that the listings on McCloud's rap sheet are incorrect or incomplete, McCloud's action is premature.

The defendant does not dispute the accuracy of his convictions going back to 1967 and as recently as December 1986. One charge, possession of stolen property, filed contemporaneously with the Nevada burglary charge, was dismissed pursuant to plea negotiations and it was so reported in the Report of Presentence Investigation.

McCloud would have us believe that the Nevada state judge may have or must have relied on evidence of prior convictions that were false or the nine arrests that were not taken to judgment. We are unimpressed. The judge's remarks at sentencing show no such reliance. In giving the four-year sentence on the burglary charge, the Nevada judge may well have had in mind the numerous felony and misdemeanor convictions which the defendant had not denied.

The probation officer who prepared the presentence report advised the sentencing judge:

Mr. McCloud does appear to be a reasonably intelligent individual. Unfortunately, he has used his intelligence to victimize others and manipulate others. His record is unrelenting and speaks for itself.

The Department stands on the recommendation of six years.

The characterization was apt. There is nothing in the FBI report to correct and nothing to expunge. It reported accurately McCloud's long record of arrests which was all it purported to do.

It might be suggested that this pro se appellant could amend his complaint to state a claim. By no stretch of our judicial imagination could he do so.

AFFIRMED.