Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berry v. Federal Bureau of Investigation

United States District Court, D. New Hampshire

July 17, 2018

Jason Berry
v.
Federal Bureau of Investigation, et al.

          ORDER

          Landya McCafferty United States District Judge.

         Jason T. Berry brings claims for violation of the Privacy Act, 5 U.S.C. § 552a, against the Federal Bureau of Investigation (“FBI”) and one of its agents, Mark Hastbacka, alleging that Hastbacka improperly disclosed information about him to third parties. Berry also brings a Bivens claim against Hastbacka based on the same alleged conduct. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendants move to dismiss Berry's second amended complaint (doc. no. 34), arguing that Berry's claims fail as a matter of law. Berry objects.

         STANDARD OF REVIEW

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         BACKGROUND

         I. Factual Background[1]

         Berry is a former probation and parole officer for the state of New Hampshire. In this role, Berry assisted members of the FBI's Safe Streets Task Force in arrests and other tasks. On February 23, 2017, Berry sent a request under the Freedom of Information Act (“FOIA”) to the FBI office in Bedford, New Hampshire, seeking “any information regarding his personal information and historical documentation of his past involvement in the activities of the Safe Streets Task Force in New Hampshire.” Doc. no. 34 at ¶ 16.

         In response to Berry's FOIA request, Hastbacka called Berry's parents and left a voicemail on their home phone. In that voicemail, Hastbacka said that he was calling about some correspondence that Berry had sent. Hastbacka added that he had “tried to call [Berry] a couple of times, he's not picking up, and there's no voicemail.” Doc. no. 34 at ¶ 21. Hastbacka requested that he be called back and left a telephone number where he could be reached.

         Berry's parents were not aware that he had sent a FOIA request to the FBI. Upon hearing the voicemail, Berry's parents “were confused and concerned about being contacted by the Federal Bureau of Investigation about their son.” Doc. no. 34 at ¶ 23. Berry wrote Hastbacka and informed him that his call “has resulted in a ‘confusing' effect on him and his parents.” Id. at ¶ 26. In that letter, Berry also requested that Hastbacka tell him how he knew the identity of his parents and their contact information. Hastbacka, however, did not respond to this letter.

         II. Procedural Background

         Berry filed this lawsuit, proceeding pro se, against the FBI and Hastbacka in April 2017, alleging that Hastbacka and the FBI violated the Privacy Act by disclosing the existence of his FOIA request to his parents. Berry also brought a Bivens claim against Hastbacka, alleging that Hastbacka violated his privacy rights by disclosing his FOIA request. Berry amended his complaint in October 2017. That amendment added no new substantive allegations but did append a copy of the voicemail that Hastbacka left Berry's parents.

         Defendants moved to dismiss Berry's amended complaint, arguing that each of Berry's claims failed as a matter of law. The court granted defendants' motion to dismiss, holding that Hastbacka was not a proper defendant under the Privacy Act, the remedies that Berry sought against the FBI (damages for emotional distress and injunctive relief) were not available under the statute, and that no Bivens remedy existed for the disclosure of a person's private information. Doc. no. 31. The court, however, observed that Berry's complaint alluded to several other theories of liability. Because Berry is a pro se litigant, and because Berry had not had the opportunity to amend the substantive allegations in his complaint, the court granted defendants' motion to dismiss without prejudice to Berry filing another complaint that stated legally sufficient claims against Hastbacka or the FBI.

         On March 5, 2018, Berry filed his second amended complaint, which defendants now move to dismiss. See doc. no. 35.

         DISCUSSION

         In his second amended complaint, Berry alleges two claims for violation of the Privacy Act, 5 U.S.C. § 552a (Counts I and II). Berry brings Count I against the FBI and Count II against both Hastbacka and the FBI. In addition, Berry brings a Bivens claim against Hastbacka for violation of his Fourth Amendment rights (Count III).

         Defendants move to dismiss Count I, arguing that Berry has failed to allege any damages that would be available under the Privacy Act. Defendants also contend that Count II, which is brought under the Privacy Act's criminal penalties provision, 5 U.S.C. § 552a(i), fails because there is no private right of action under that provision. Finally, defendants move to dismiss the Bivens claim against Hastbacka, arguing that Berry has failed to allege a constitutional violation and that Hastbacka is entitled to qualified immunity. In response, Berry contends that he has sufficiently pled the claims in his second amended complaint.

         I. Privacy Act Claims (Counts I and II)

         In Count I, Berry asserts a claim against the FBI for violating section (b) of the Privacy Act, which generally prohibits agencies from disclosing records about a person without his prior consent. In Count II, Berry asserts a claim against the FBI and Hastbacka under section (i) of the Privacy Act, which makes it a criminal misdemeanor punishable by a fine of up to $5, 000 to disclose records in violation of the Act's requirements. § 552a(i)(1). Both claims are based on the allegation that Hastbacka violated the Privacy Act by contacting Berry's parents and disclosing to them that he had sent the FBI a FOIA request.

         Defendants argue that Berry has failed to state a plausible Privacy Act claim in Count I because he has not alleged that he suffered actual damages, which are the only damages available under the Act. In addition, defendants argue that Count II fails because § 552a(i) does not contain a private right of action that would allow Berry to bring suit.

         In response, Berry contends that he has suffered actual damages and that he should be permitted to proceed to discovery and trial on the issue of damages. Berry further contends that he is at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.