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February 27, 1985


The opinion of the court was delivered by: William T. Hart, District Judge.


Brett Kimberlin is presently confined in the Metropolitan Correctional Center ("MCC") in Chicago based on his conviction in 1981 in an Indiana federal court for several violations of federal laws, including causing personal injury by means of an explosive device to Carl and Sandra DeLong. In 1983 Sandra DeLong, on behalf of herself and Carl (then deceased), won a civil judgment against Kimberlin in an Indiana state court in the amount of 1.61 million dollars based on the same facts which led to Kimberlin's criminal conviction. On November 21, 1983, Thomas Gahl, a U.S. probation officer for the federal district court of the southern district of Indiana and the officer assigned to the Kimberlin case, sent a letter to the warden of the MCC to inform that institution of the civil judgment entered against Kimberlin. Patrick Leddy, then Kimberlin's case manager at the MCC, read that letter and informed Gahl and Kennard Foster*fn1, one of the prosecutors in Kimberlin's criminal case, that Kimberlin had been sending funds from his prison commissary account to a female outside the prison. Gahl then allegedly relayed that information to Sandra DeLong and/or Paula Kight, DeLong's attorney. In March of 1984 Sandra DeLong, through her attorney Paula Kight, obtained a writ of attachment against all monies in Kimberlin's prison commissary account in an attempt to satisfy the civil judgment. DeLong's affidavit supporting the motion for the writ stated that she had received information that Kimberlin was transferring $125 per month from his commissary account to an unidentified female civilian.

Kimberlin then filed a one-count complaint in this court, claiming that disclosing the information that he was sending money from his commissary account to someone outside the prison violated the Privacy Act, 5 U.S.C. § 552a.*fn2 Defendants Kight and DeLong answered the complaint, and then all the defendants moved to dismiss the complaint or in the alternative for summary judgment, basically claiming that the Privacy Act had not been violated and that the Privacy Act did not authorize suits against individuals. Kimberlin then sought leave to amend his complaint and this court entered and continued that motion so that defendants could file briefs on whether the amended complaint, if accepted, would cure the defects of the original complaint. All defendants have now filed motions to dismiss or in the alternative for summary judgment against the proposed amended complaint.

Because the amended complaint includes all of the charges made in the original complaint (except for certain claims Kimberlin concedes are defective) this opinion will discuss only the proposed amended complaint. If it can withstand the motions against it, then it will stand as the complaint in this action. If not, then it will not be accepted, Hakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1984), and the original complaint must be dismissed as well since it has no more merit than the amended complaint.

The amended complaint retains the alleged violations of the Privacy Act as count 1, naming only the Bureau of Prisons and the Parole Commission as defendants (though of course the complaint alleges that these two entities acted through the other individual defendants)*fn3. A new second count alleges that Gahl, by disclosing the information to Kight and DeLong, violated Kimberlin's constitutional rights to privacy and due process and is liable as an agent of U.S. District Court under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). A new third count alleges that Gahl, Leddy, Kight and DeLong conspired to violate Kimberlin's rights to privacy and due process. No legal basis is identified in the third count but Kimberlin's supporting brief makes clear that a Bivens action is intended. Kimberlin has dropped his original request for injunctive relief, but asks for compensatory (i.e., pain, suffering, mental anguish and litigation expenses) and punitive damages, costs and attorney's fees.

I. Count 1: The Privacy Act Claim

The Privacy Act forbids any agency (defined in § 552(e) as essentially any part of the executive branch) to disclose information it has concerning an individual without that person's prior written consent, unless the information falls within one of the 12 exceptions appearing in § 552a(b). Each agency is required, with exceptions not relevant here, to keep an accurate accounting of the "date, nature, and purpose of each disclosure of a record to any person or to another agency made under subsection (b) . . . and the name and address of the person or agency to whom the disclosure is made" (§ 552a(c)). Section 552a(g) authorizes civil suits against agencies which fail to "comply with any . . . provision of [the Privacy Act], or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual." If the failure to comply is found to be intentional or willful a plaintiff can recover actual damages (but not less than $1000) and costs and attorney fees (§ 552a(g)(4)).

The remaining defendant Bureau of Prisons ("BOP") asserts that the only two systems of records that contain information regarding a prisoner's commissary account have been exempted from the civil remedies section (§ 552a(g)). That exemption, which appears at 28 C.F.R. § 16.97, was made pursuant to 5 U.S.C. § 552a(j)(2), which allows an agency head to promulgate rules exempting systems of records from certain provisions of the Privacy Act if (1) the principal function of the agency relates to "enforcement of criminal laws, including . . . the activities of correctional, probation, pardon, or parole authorities," and (2) the records consist of "reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision." Id.

If the rule exempting these two systems of records were proper under § 552a(j)(2), then Kimberlin's Privacy Act claim would have to be dismissed. However, that section requires that the exempting rule give reasons for the exemption. The only reason given at 28 C.F.R. § 16.97 for exempting these two systems of records from the civil remedy section is that the records are exempt from § 552a(d). Section 552a(d), however, relates only to access to records by the individual whom the records are about, and says nothing concerning disclosure of records to third parties. Therefore, while an adequate justification has perhaps been given for preventing access to these systems of records by the subject of the records (though the justification is difficult to understand when a prisoner's own commissary account is involved), no justification has been given for exempting these systems of records from the conditions of disclosure to third parties imposed by § 552a(b). Since no adequate reason has been given, these two systems of records have not been properly exempted from the kind of civil action Kimberlin's complaint presents. This case therefore differs from Shapiro v. Drug Enforcement Administration, 721 F.2d 215, 217 (7th Cir. 1983), judgment vacated on other grounds sub nom. United States Department of Justice v. Provenzano, ___ U.S. ___, 105 S.Ct. 413, 83 L.Ed.2d 242 (1984), where the reason given for denying an individual access to his Drug Enforcement Administration files — that "access to such records would alert a subject to the existence of an investigation and thereby impede law enforcement efforts" — was found to be "sufficiently specific" to satisfy the reason-giving requirement of § 552a(j)(2).

The BOP also argues that Leddy's disclosure to Gahl was proper under the "routine use" exception of § 552a(b)(3). "Routine use" is defined in § 552a(a)(7) as "the use of such record for a purpose which is compatible with the purpose for which it was collected." As required by § 552a(e)(4)(D), the BOP has published the routine uses of the records in the two systems involved in this case. One of the systems of records the government contends contains the disclosed information (the Inmate Central Records System) has as one of its routine uses "to provide information relating to federal offenders to federal . . . probation officials." Privacy Act Issuances, 1981 Comp., Vol. II at 241. This routine use would appear to justify the disclosure to Gahl, who was Kimberlin's probation officer at the time. However, in the regular briefing on this motion Kimberlin claimed that the Inmates Central Records System did not contain the information concerning Kimberlin's disposition of his commissary funds, and the supplemental briefs the parties were invited to file to clarify that question indicate that Kimberlin is correct, so that routine use is not available to the BOP.

Routine uses of both systems of records include (1) "to provide information source to officers and employees of the Department of Justice who have a need for the information in the performance of their duties", and (2) "to provide information source to state and federal law enforcement officials for investigations, possible criminal prosecutions, civil court actions, or regulatory proceedings". Privacy Act Issuances, supra at 240-41. The first routine use does not apply here since Gahl is not an officer or employee of the Justice Department, 18 U.S.C. § 3654.*fn4 Whether the second routine use applies depends on whether Gahl, as a probation officer, is a "federal law enforcement official." The parties have offered no definition of that term and neither the statute nor the regulations define it.

Although probation officers have a duty to assist prisoners and probationers and to that extent are like social workers, the Supreme Court has recognized that a probation officer "is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers." Minnesota v. Murphy, ___ U.S. ___, 104 S.Ct. 1136, 1145, 79 L.Ed.2d 409 (1984) (quoting Fare v. Michael C., 442 U.S. 707, 720, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979)). Federal probation officers have the power to arrest a probationer, which certainly is a function for a law enforcement official. 18 U.S.C. § 3653. And though as noted the Privacy Act does not define "law enforcement", the inclusion of probation officers in the phrase "any activity pertaining to the enforcement of criminal laws" in the general exemption section (§ 552a(j)(2)) does suggest that Congress viewed probation officers as belonging to the class of law enforcement officials. From these facts the court concludes that as a matter of law Gahl was acting as a law enforcement official within the meaning of the regulation: he was attempting to see that Kimberlin not escape the consequences of his crime and that the victims be compensated according to their lawfully obtained civil judgment. Therefore, the disclosure of the information concerning Kimberlin's commissary account funds was made pursuant to a routine use exception and did not violate the Privacy Act.

Kimberlin also complains that the BOP did not properly account for the disclosure to Gahl as required by § 552a(c). This claim received no discussion by the parties, but it is no basis for recovery here. The civil remedies section allows suit to be brought for any violation of the Privacy Act which has "an adverse effect on an individual" (§ 552a(g)(1)(D)). Kimberlin alleges no adverse effect from the alleged failure to record the disclosure to Gahl and indeed he could not. As Congress explained, the purpose of the record-keeping requirement was to "permit an individual to determine what records pertaining to him are . . . disseminated by" an executive agency. 88 Stat. 1896 (1974). Kimberlin does not allege he tried to find out what disclosures had been made concerning him and in any ...

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