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Kimberlin v. United States Department of Justice

April 9, 1986

BRETT C. KIMBERLIN, PLAINTIFF-APPELLANT,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 2873 - William T. Hart, Judge.

Author: Cummings

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*

CUMMINGS, Chief Judge.

Plaintiff appeals from the dismissal of his Privacy Act and Bivens claims. He argues that the dissemination of information about his prison commissary account violated the Privacy Act. He further claims that the communication of that information violated his rights to due process and privacy. We affirm.

I. STATEMENT OF THE CASE AND FACTS

Brett Kimberlin, a prisoner, initially filed a one-count complaint claiming that a disclosure by his prison case manager Leddy to his probation officer Gahl that plaintiff was sending money outside the prison from his commissary account violated the Privacy Act, 5 U.S.C. § 552a. The original defendants*fn1 moved to dismiss, contending that the Privacy Act had not been violated because the disclosure was permitted as a routine use under the Act. Kimberlin then asked to file an amended complaint. The motion was continued while the parties briefed whether or not the amended complaint would cure the defects in the original complaint. The district court's order dismissing the action refers only to the proposed amended complaint. Kimberlin v. United States Department of Justice, 605 F. Supp. 79, 81 (N.D. Ill. 1985).

The amended complaint continued to assert the Privacy Act violation, naming the Bureau of Prisons (BOP) and the Department of Justice (DOJ) as additional defendants. An additional two counts alleged that disclosure of the information to private citizens violated plaintiff's constitutional rights to privacy and due process and that a conspiracy existed among the individual defendants to violate his constitutional rights. Kimberlin seeks compensatory and punitive damages as well as costs and attorneys' fees.

The district court dismissed all three counts of the proposed amended complaint, holding, inter alia, (1) there was no violation of the Privacy Act because the routine use exception of 5 U.S.C. § 552a(b)(3) applied; (2) the Bivens due process action failed because Kimberlin did not have a reasonable expectation of privacy in his commissary account; and (4) the conspiracy count failed because no constitutional violation occurred.

Kimberlin was convicted in 1981 for detonating an explosive device and is currently residing at the Chicago Metropolitan Correctional Center (MCC). In 1983, Sandra DeLong won a civil judgment against Kimberlin on behalf of her husband Carl, subsequently deceased, in the amount of 1.61 million dollars for injuries he suffered in the explosion. Thomas Gahl, the probation officer assigned to Kimberlin, sent a letter to the warden of the MCC to inform him of the civil judgment. Kimberlin's prison case manager, Patrick Leddy, in turn informed Gahl that Kimberlin was regularly sending funds from his prisoner commissary account to someone outside the prison. Gahl informed Mrs. DeLong and her attorney, Paula Kight, of the transfers. DeLong then obtained a writ of attachment against the plaintiff's commissary account based on an affidavit alleging the Kimberlin was sending $125 a month to a civilian outside the prison.

On appeal Kimberlin makes several arguments. First, he argues that the routine use exception in the Privacy Act does not apply for two reasons: (a) there is an implicit requirement therein that the law enforcement official be acting within his or her duty to the courts; and (b) a probation officer is not a "law enforcement official." Second, he contends that the Bivens actions are viable because the communication violated his constitutional rights.

II. THE PRIVACY ACT

Congress enacted the Privacy Act, 5 U.S.C. § 552a, in order to protect the privacy of personal and financial data maintained in federal information systems. The Act regulates the "collection, maintenance, use, and dissemination of information by such agencies." Statement of Purpose, Act of Dec. 31, 1974, Pub. L. No. 93-579, § 2, 88 Stat. 1896. The Inmate Commissary Account Records System is such an informational system protected by the Privacy Act.*fn2 Therefore, unless the formation falls into the category of the routine use exception of 5 U.S.C. § 552a(b)(3), a written consent is required before disclosure or use. 5 U.S.C. § 552a(b).

A routine use is defined as the use of a record compatible with its collection purpose. 5 U.S.C. § 552a(a)(7). The Bureau of Prisons has published a list of routine uses of the Inmate Commissary Account System*fn3 in the federal register pursuant to 5 U.S.C. § 552a(c)(4)(D). As shown in note 3, this includes (d) "to provide information source to state and federal law enforcement officials for investigations, possible criminal prosecutions, civil court actions, or regulatory proceedings" (emphasis added). If the dissemination from Leddy to Gahl falls within this routine use exception, then no Privacy Act violation occurred. Plaintiff advances two arguments for the inapplicability of the exception. First, he asserts that the routine use exception carries an implicit requirement that the law ...


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