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.

Banks v. Lappin

March 9, 2009

FREDERICK BANKS, PLAINTIFF,
v.
HARLEY LAPPIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendants' renewed motion for summary judgment and plaintiff's renewed cross-motion for summary judgment. The Court grants the former, denies the latter, and enters judgment for defendants.

I. BACKGROUND

A. Plaintiff's Remaining Freedom of Information Act and Privacy Act Claims Plaintiff brought this action in part under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Defendants argued that all of plaintiff's FOIA and Privacy Act claims were subject to dismissal because he had not exhausted his administrative remedies prior to filing the instant civil action. See Mem. of P. & A. in Support of Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. or for a More Definite Statement [#17] at 7-10. Defendants already have established that plaintiff failed to exhaust administrative remedies with respect to FOIA requests submitted to the United States Department of the Treasury ("Treasury"), the Transportation Security Agency ("TSA"), the Passport Office of the United States Department of State ("Passport Office"), the Library of Congress ("LOC"), and the Federal Bureau of Prisons ("BOP"). Banks v. Lappin, 539 F. Supp. 2d 228, 236 (D.D.C. 2008). Further, it was determined that plaintiff failed to exhaust administrative remedies with respect to his Privacy Act requests to the BOP, the Passport Office, and the TSA. Id. It was unclear on the previous record whether the Justice Department's Executive Office for United States Attorneys ("EOUSA"), had received plaintiff's FOIA and Privacy Act request. Id. at 237. The Court granted defendants' motion in part, and dismissed the FOIA claims against the Treasury, the TSA, the Passport Office, the LOC, and the BOP, as well as the Privacy Act claims against the BOP, the Passport Office, and the TSA. Id. In the instant motion, defendants have addressed the remaining Privacy Act claims against the Treasury and the LOC, and the remaining FOIA claim against the EOUSA. See Memorandum of Points and Authorities in Support of Defendants' Renewed Motion for Summary Judgment ("Defs.' Renewed Mot.") at 4-5.

The Treasury's declaration clarifies that the agency treats FOIA requests and Privacy Act requests in the same manner. Defs.' Renewed Mot., Amd. Gilmore Decl. ¶ 6. Upon receipt of a request under either Act, "an electronic record is created by entering relevant information from the request into a tracking database." Id. ¶ 5. The declaration repeats that agency staff's search of the tracking database using plaintiff's name and derivations of his name as search terms yielded no records. Id. ¶ 6. In addition, the declaration reports that "[a]ll of the respective bureau FOIA contacts searched the name and organization fields of their respective databases," and found no records pertaining to plaintiff. Id. ¶ 8.

Similarly, the LOC's declaration clarifies that agency staff searched its Records Management System (RMS) "for any Privacy Act request by [Plaintiff] at the [LOC] from the beginning of calendar year 2007 to present."*fn1 Defs.' Renewed Mot., Fernandezlopez Decl. ¶ 7. No records were located. Id. ¶ 8.

Lastly, the EOUSA's declaration explains that it "received no request from [plaintiff] -- whether FOIA or Privacy Act -- other than those dealt with" in a separate civil action before this Court. Defs.' Renewed Mot., Declaration of John F. Boseker ¶ 7; see Banks v. Dep't of Justice, 538 F. Supp. 2d 228, 235-37 (D.D.C. 2008) (granting defendants' summary judgment motion with respect to plaintiff's FOIA claims against the EOUSA).

In his opposition, plaintiff merely repeats his assertions that he sent Privacy Act requests to the Treasury and the LOC. Pl.'s Reply in Opp'n to Defs.' Renewed Mot. for Summ. J. ("Pl.'s Opp'n") at 1-2 & Ex. (Amd. Banks Decl.) ¶¶ 1-2.

An agency may meet its burden on summary judgment by submitting affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. The declarations from the Treasury and the LOC adequately establish that each conducted a reasonable search of its records and determined that plaintiff had not submitted a Privacy Act request. Likewise, the EOUSA's supporting declaration establishes that plaintiff submitted no FOIA request other than those requests which are the subject of an unrelated civil action. "Without any showing that the agency received the request, the agency has no obligation to respond to it." Hutchins v. Dep't of Justice, No. 00-2349, 2005 WL 1334941, at *1-2 (D.D.C. June 6, 2005). Plaintiff presents neither an argument nor evidence sufficient to withstand defendants' renewed motion, and the motion will be granted on this matter.

B. Constitutional Claim Against Harley Lappin

1. Failure to Exhaust Administrative Remedies

Plaintiff brings a constitutional claim against Harley Lappin, BOP's Director, in his individual capacity under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Compl. at 3-4. Defendants argue that plaintiff must exhaust his administrative remedies on such a claim as is required under the Prison Litigation Reform Act ("PLRA") before filing a civil action in court. See Defs.' Renewed Mot. at 6-7.

In relevant part, the PLRA provides that:

[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such ...


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.