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Lowe v. Drug Enforcement Adminstration

July 22, 2007

HARRY DEWAYNE LOWE, PLAINTIFF,
v.
DRUG ENFORCEMENT ADMINSTRATION, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Harry DeWayne Lowe, proceeding pro se, filed a Complaint seeking a response to the Freedom of Information Act ("FOIA") request he submitted to the Chicago office of the Drug Enforcement Administration (hereinafter "DEA") on February 4, 2006. Compl.*fn1 ¶ 1, Ex. A (2/4/06 FOIA Request). Plaintiff alleges that the DEA improperly withheld documents and agency files by failing to respond to his request within the twenty-day deadline set forth in the FOIA statute, enabling him to file suit in federal court rather than pursue administrative remedies. Compl. ¶¶ 3-4.

Presently before the Court is Defendant DEA's [5] Motion to Dismiss or in the Alternative for Summary Judgment, which is now fully briefed. Defendant argues in part that Plaintiff did not exhaust his administrative remedies. Def.'s [5] Mot. at 1. Based on the aforementioned filings, the Complaint, and the relevant statutes and case law, the Court finds that Plaintiff has not exhausted his administrative remedies as required pursuant to FOIA and accordingly shall GRANT Defendant's [5] Motion to Dismiss or in the Alternative for Summary Judgment.

I. BACKGROUND*fn2

Plaintiff is an inmate at the Federal Medical Center in Rochester, Minnesota. Plaintiff submitted a FOIA request dated February 4, 2006, and mailed on February 6, 2006, to the Chicago office of the DEA seeking records related to payments made to Edwin Rivas, an informant at his criminal trial. Compl.,*fn3 Ex. A (2/4/06 FOIA Request); Pl.'s Aff. ¶¶ 3, 4; Def.'s Stmt. of Facts ¶ 1. Specifically, Plaintiff requested "[a]ll public information, including but not limited to, all criminal case and file numbers relating to the following [seven] payments made to one, Edwin Rivas." Compl., Ex. A (2/4/06 FOIA Request); Pl.'s Aff. ¶ 3; Def.'s Stmt. of Facts ¶ 1. On March 12, 2006, having received no response from Defendant, Plaintiff sent a letter to the same DEA Chicago address indicating that he had not received any response and threatening possible court action. Compl., Ex. C (3/12/06 Letter); Pl.'s Aff. ¶ 6. On April 14, 2006, in the absence of a response from the DEA, Plaintiff filed suit pro se in the United States District Court for the Northern District of Illinois (Eastern Div.) seeking release of the documents. See [1] Transferred Documents at 2. On May 2, 2006, Judge Milton I. Shadur transferred the case to Judge Philip C. Reinhard of the United States District Court for the Northern District of Illinois (Western Div.), where Plaintiff had been convicted. See [1] Transferred Documents at 3, 19-21.On May 4, 2006, and again on May 26, 2006, Plaintiff moved to transfer this case to the United States District Court for the District of Columbia. [1] Transferred Documents at 3; Pl.'s Aff. ¶¶ 9, 11. Judge Reinhard granted Plaintiff's motion, transferring the case to this Court. [1] Transferred Documents at 4; Pl.'s Aff. ¶¶ 12-13.

Meanwhile, the Chicago office of the DEA faxed a copy of Plaintiff's February 4, 2006 request to the DEA's Freedom of Information Operations Unit (hereinafter, "SARO") on February 14, 2006. Def.'s Stmt. of Facts ¶ 2 (citing attached Declaration of Leila I. Wassom, DEA Paralegal Specialist (hereinafter "Wassom Decl.") ¶ 7). However, the original copy of Plaintiff's request containing Plaintiff's signature was forwarded from the Chicago office of the DEA and received by SARO on May 16, 2006. Def.'s Stmt. of Facts ¶ 3 (citing Wassom Decl. ¶ 7). See also Wassom Decl. ¶ 12 ("The SARO practice is to respond to and work from the original copy of the request. The original request is the only means of identifying the requester by the signature, and the content of the request."). On May 18, 2006, two days after SARO received Plaintiff's original FOIA request, it issued a Glomar response (refusing to either admit or deny the existence of the information requested) to Plaintiff that specifically informed Plaintiff of his right to administratively appeal the response. Def.'s Stmt. of Facts ¶ 5; Wassom Decl. ¶ 8, Ex. B (5/18/06 SARO Letter); Pl.'s Aff. ¶ 10. Plaintiff never filed an administrative appeal of SARO's response. Def.'s Stmt. of Facts ¶ 6; Pl.'s Opp'n at 3.

On September 1, 2006, Defendant filed its [5] Motion to Dismiss or in the Alternative for Summary Judgment. On October 2, 2006, Plaintiff filed an Opposition. On October 13, 2006, Defendant filed a Reply, such that Defendant's Motion is now ripe for adjudication by the Court.

II. LEGAL STANDARD

A. Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). Hence, although "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is impossible, and 'that a recovery is very remote and unlikely,'" id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the "threshold requirement" of Fed. R. Civ. P. 8(a)(2) is "that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief,'" id. at 1966 (quoting Fed. R. Civ. P. 8(a)(2)).

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). While the court must construe the Complaint in the Plaintiff's favor, it "need not accept inferences drawn by the plaintiff[] if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control).

B. Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, Defendant, as the moving party, "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Plaintiff, in response to Defendants' motion, must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324. Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials of the adverse party's pleading are not enough to prevent the issuance of summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The ...


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