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Madison Pugh v. Federal Bureau of Investigation

June 23, 2011

MADISON PUGH, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

MEMORANDUM OPINION

Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the Federal Bureau of Investigation ("FBI").*fn1 This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff was convicted of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, and currently is serving a term of life imprisonment. See United States v. Pugh, No. 96-3954, 1998 WL 165143, at *1 (6th Cir. 1998).

Federal agents arrested him after "execut[ing] several search warrants, including a warrant executed at [plaintiff's] residence" in Akron, Ohio. Id. Special Agent James Hummel of the Drug Enforcement Administration ("DEA") apparently obtained the search warrant for plaintiff's residence based on information provided by two confidential informants. See Memorandum of Opinion and Order Denying Petitioner's Rule 60(b) Motion, Pugh v. United States, No. 1:99cv1546 (N.D. Ohio Aug. 20, 2004) at 3.

Between June 2006 and June 2009, plaintiff submitted four FOIA requests to the FBI seeking the identities of these two confidential informants, designated CS 4 and CS 5, who allegedly supplied information to Special Agent Hummel. See Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (Def.'s Mem.), Decl. of David M. Hardy ("Hardy Decl.") ¶¶ 5, 8, 13-14. As an example, plaintiff's first request read:

SPECIFICLY [sic] THE IDENTIFICATION OF DEA (SA) JAMES HUMMEL'S CONFIDENAL [sic] SOURCES NO. 4 AND 5 AS MENTION [sic] AS TO HAD PROVIDED INFORMATION RELATING TO MADISON PUGH IN AGENT HUMMEL'S 1995 AFFIDAVIT [illegible] 5:95-0511 IN THE CLEVELAND DISTRICT COURT. C.S. 4 AND 5 STATEMENTS APPEAR ON PAGES 12, 13, AND 14 OF SAID AFFIDAVIT. THESE STATEMENTS ARE RELATED DIRECTLY TO THE REQUESTER. NO OTHER INFORMATION OTHER THAN THESE NAMES IS NEEDED!!

Id., Hardy Decl., Ex. A (Freedom of Information/Privacy Act Request dated June 5, 2006) (emphasis in original). On each occasion, the FBI declined to process the request without proof of the third parties' death or a privacy waiver. Id., Hardy Decl. ¶¶ 6, 9, 15-16; see id., Ex. B, E and K (Letters to plaintiff from D.M. Hardy, Section Chief, Records Information and Dissemination Section, Records Management Division, FBI, dated, respectively, April 17, 2007, June 7, 2007, and August 13, 2009). Rather, the FBI neither confirmed nor denied the existence of records responsive to the requests. See, e.g., id., Hardy Decl., Ex. B ("This response should not be considered an indication of whether or not records responsive to [plaintiff's] request exist in FBI files."). Even if such records existed, the FBI asserted that the information would be exempt from disclosure under FOIA Exemptions 6 and 7(C). See id., Hardy Decl. ¶¶ 6, 9, 15-16. Plaintiff pursued administrative appeals, id. ¶¶ 7, 10 and 17, without success, id.¶¶ 12, 22; see id., Ex. H and Q (Letters to plaintiff from J.G. McLeod, Associate Director, Office of Information and Privacy, dated, respectively, October 17, 2007 and February 22, 2010).

Plaintiff alleges that the refusal to disclose the requested information deprives him of rights guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Compl. at 1-2, and has "result[ed] in the imprisonment of an actually innocent human being."*fn2 Id. at 2. In this FOIA action, he "requests release of the requested documents."*fn3 Id. at3.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

"If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . , the court may . . . grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." FED.R.CIV. P. 56(e). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and when they describe "the documents and the justifications for nondisclosure with reasonably specific detail . . . 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. Agency affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Monetary damages are not available under the FOIA, see Ross v. United States, 460 F. Supp. 2d 139, 151 (D.D.C. 2006) ("It is well-settled that monetary damages are not available under FOIA."); see also Anderson v. Fed. Bureau of Prisons, No. 10-0413, 2011 WL 346079, at *2 (Feb. 3, 2011) (denying motion to amend complaint raising a FOIA claim to add a demand for damages), and this claim will be dismissed.

Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, ...


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