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Fulton v. Executive Office for U.S. Attorneys

June 15, 2006


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge


Document Nos. 18, 20, 24


The plaintiff, proceeding pro se, has brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Pending before the court are the defendants' motion for summary judgment, the plaintiff's motion for partial summary judgment, and the plaintiff's motion for a more definite statement. Because the plaintiff has failed to exhaust his administrative remedies, court grants the defendants' motion and the case is dismissed without prejudice. Because the defendants have not violated the FOIA time limits, the court denies the plaintiff's motion for partial summary judgment. The court also denies the plaintiff's motion for a more definite statement because it is moot.


On February 26, 2005, the plaintiff sent a FOIA request to the Drug Enforcement Administration ("DEA") seeking the agency's documents in his name. Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. ("Defs.' Mot.") Attach. 1 ("Odegard Decl.") ¶5; Defs.' Mot. Ex. 1. The plaintiff requested arrest records, investigative reports, evidentiary and scientific information, lab results on exhibits admitted at his criminal trial, and a "copy of a phone call" referred to in an agent's affidavit. Odegard Decl. ¶ 6; Defs.' Mot. Ex. 1.*fn2 In his request, the plaintiff agreed to pay all reasonable costs associated with the search and copying of the documents. Id. The DEA acknowledged the plaintiff's request on June 30, 2005, informing him of the considerable backlog in processing FOIA requests. Defs' Mot. Ex. 3.

The DEA maintains its investigative records under a case number and not the name of an individual. Odegard Decl. ¶ 9. In his request, the plaintiff only provided the DEA with trial exhibit numbers and not his case number. Id. ¶ 10. As a result, the DEA had to coordinate with the United States Attorneys' Office in Lubbock, Texas, the office which prosecuted the plaintiff, to connect the exhibit numbers to the specific pieces of evidence in the plaintiff's request. Id. DEA personnel then did a page by page manual search of the relevant investigative record in an effort to find the records of laboratory tests sought by the plaintiff. Id. ¶ 11. From June 2005 to August 2005, DEA personnel conducted the search for records responsive to the plaintiff's request. Id. ¶ 12. The search took approximately 24 hours to complete. Id. ¶13.

On June 29, 2005, the plaintiff filed the complaint in this action. He alleges that the defendants have not responded to his FOIA request in a timely manner as required by the statute and its accompanying regulations. Compl. ¶ 10. On September 22, 2005, the DEA informed the plaintiff that it had located 12 pages of documents responsive to his request. Defs.' Mot. Ex. 4. The DEA also advised the plaintiff that the search for the records had taken 22 hours and that further searching and a release of the 12 pages would not occur until he agreed to pay $605.50. Id.*fn3 In response to this letter, the plaintiff sought a waiver of the processing fees pursuant to 28 C.F.R. § 16.11(k)(2)(i)-(iv). Defs,' Mot. Ex. 5.*fn4

The DEA denied the plaintiff's request on November 4, 2005. Defs.' Mot. Ex. 6. The agency concluded that the plaintiff had not met the required standard for a fee waiver. Id. The plaintiff was advised that he could appeal this decision to the Office of Information and Privacy ("OIP") in the Department of Justice. Id. The plaintiff did not appeal the denial of his fee waiver request. Odegard Decl. ¶ 18.


A. Legal Standard for Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. And the non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the ...

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