The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendant's motion to dismiss claims pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment pursuant to Rule 56. On March 31, 2009, the Court issued an Order granting defendant's motion in part and denying it in part without prejudice. This Opinion explains the reasoning behind that Order.
Plaintiff William Henry Harrison was in prison serving a federal sentence when he filed this pro se complaint against the defendant, the Federal Bureau of Prisons ("BOP").*fn1
The complaint alleges that the BOP's conduct in adopting telephone rates and commissary prices violated Harrison's constitutional due process and equal protections rights, as well as the notice and comment and judicial review provisions of the Administrative Procedure Act ("APA"). Compl. at 1-2 (citing 5 U.S.C. §§ 553 and 706 [sic]). By two subsequent amendments to his complaint, Harrison also asserted violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, with respect to seven different FOIA requests.
The defendant has raised the affirmative defense of res judicata with respect to the telephone rate claims, identifying a decision by a sister court that addressed those claims on the merits and dismissed them with prejudice. See Memorandum in Support of Defendant's Motion to Dismiss or for Summary Judgment ("Def.'s Mot.") at 12-13. It seeks dismissal of the complaint or summary judgment with respect to the due process, equal protection, and APA claims arising from the BOP's commissary pricing. Id. at 13-20. It has moved for summary judgment with respect to all seven FOIA requests. Id. at 24-43.
The plaintiff maintains that res judicata does not bar his telephone rate claims. See Plaintiff's Response in Opposition to Defendant's Motion ("Opp'n") at 4. He also argues that because the defendant has not proved that it complied with its own regulation regarding commissary pricing, the Court should order the BOP to produce information regarding commissary pricing in response to a FOIA request that is not part of this action. This information, he asserts, will help him to substantiate his allegations. Id. at 6, 8. As to his FOIA claims, the plaintiff finds fault with most of the searches and categorically asserts that "no... exemption was lawfully invoked" by the defendant. Id. at 9. He also states that he did not receive any substantive responses to three of his seven FOIA requests at issue in this action. Id. at 15. The defendant has confirmed that several months ago it re-sent to the plaintiff its prior responses with respect to those three FOIA requests. See Defendant's Reply to Plaintiff's Opposition ("Def.'s Reply") at 10.*fn2
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under Rule 12(b)(6). The Court noted that "Federal Rule of Civil Procedure 8(a)(2) requires only '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[.]'" Id. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). 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." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court stated that there was no "probability requirement at the pleading stage," Bell Atlantic Corp. v. Twombly, 550 U.S. at 556, but "something beyond... mere possibility... must be alleged[.]" Id. at 557-58. The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," id. at 555, or must be sufficient "to state a claim for relief that is plausible on its face." Id. at 570. The Court referred to this newly clarified standard as "the plausibility standard." Id. at 560 (abandoning the "no set of facts" language from Conley v. Gibson). Twombly "leaves the long-standing fundamentals of notice pleading intact." Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15.
On a motion to dismiss under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007); see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The complaint "is construed liberally in the plaintiffs' favor, and [the Court should] grant plaintiffs the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint; nor must the Court accept plaintiff's legal conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
On a motion for summary judgment under Rule 56 of the Federal Rules, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial ---- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. The nonmoving party, however, 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). Rather, the non-movant must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original). In the end, "the plain language of Rule 56(c) mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In a FOIA suit, an agency is entitled to summary judgment once it bears its burden of demonstrating that no material facts are in dispute and that all information responsive to the request either has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To establish that its search for responsive records was adequate, an agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). A search need not be exhaustive, Miller v United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985), and an agency's failure to find a particular document does not undermine the determination that the search was adequate, Wilber v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, Washington Bureau v. United States Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). The adequacy of a search is not determined by its results, but by the method of the search itself, Weisberg v. Dep't of Justice, 745 F.2d at 1485, and a court is guided in this determination by principles of reasonableness, Oglesby v. Dep't of the Army, 920 F.2d at 68.
A court may award summary judgment to a FOIA defendant solely on the basis of information provided by an agency in sworn statements with reasonably specific detail that justify the nondisclosures, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.1981). An agency's sworn statement is entitled to a presumption of good faith. SafeCard Servs., Inc. v. Sec. and Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). To successfully challenge such a showing by the defendant agency, the plaintiff must do more than merely establish some ...