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Timothy Demetri Brown, Pro Se v. Federal Bureau of Investigation

June 24, 2011

TIMOTHY DEMETRI BROWN, PRO SE, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

I. INTRODUCTION

Timothy Demetri Brown was convicted in 2002 on several charges related to his "participation in a major drug distribution conspiracy stretching from 1993 to 1999." United States v. Brown, 86 Fed. Appx. 749, 752 (5th Cir. 2004); see also United States v. Brown, No. 01-cr-10012 (W.D. La. Apr. 8, 2003). Currently serving a life sentence, Brown brings this complaint against the Federal Bureau of Investigation ("FBI") and several other governmental agencies, raising claims under the Administrative Procedure Act, 5 U.S.C. § 553 ("APA") and the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Defendants have moved to dismiss, and there are several other motions-including plaintiff's motion for a preliminary injunction and plaintiff's motion for partial summary judgment-before the Court. For the reasons stated below, all of plaintiff's motions will be denied, except his motion for leave to amend which will be granted in part and denied in part. His FOIA claim against the FBI, Am. Compl./Pet. Review 4, ECF No. 18, and FOIA claim against the Tax Division of the Department of Justice ("DOJ"), Second Am. Compl./Pet. Review 7, ECF No. 21-1 ("Second Am. Compl."), remain, but all other claims and defendants will be dismissed from the case. An order will be entered requiring defendants FBI and DOJ to produce Vaughn indexes for documents and files that are the subject of plaintiff's remaining FOIA claims.

II. BACKGROUND

Timothy Brown, along with his brother Christopher Michael Brown and coconspirator Kenneth Wayne Pearson, were convicted on charges of conspiracy and distribution of crack cocaine in 2002. See generally Brown, 86 Fed. Appx. 749. Plaintiff was also convicted on money laundering charges, and the trial court ordered him to forfeit certain property belonging to him as part of the judgment. Id. at 752. Plaintiff's direct appeal and a collateral attack were both denied, id., and while Kenneth Pearson's conviction was vacated by the Supreme Court, Pearson v. United States, 543 U.S. 1116 (2005) (remanding for rehearing in light of the Court's decision in United States v. Booker, 540 U.S. 220 (2005)),plaintiff's petition for writ of certiorari was denied, Brown v. United States, 546 U.S. 1118 (2006).

Incarcerated at Talledaga Federal Correctional Institution ("FCI-Talledaga"), after some time in the general population, plaintiff was transferred to the prison's Special Management Unit ("SMU"), a separate section used to manage inmates that "present unique security and management concerns." Attach. 1 to Pl.'s Reply Defs.' Mem. Points and Authorities Opp'n Pl.'s Mot. Leave Am. and Supplement Compl./Pet. Review 2, ECF No. 27-1 ("Attach. Pl.'s Reply"). "A multi-phase program whose mission is to teach self-discipline, pro-social values, and the ability to successfully coexist with [other inmates]," Attach. 1 Mot. Prelim. Inj. and Order Show Cause, ECF No. 29-1 ("Attach. Prelim. Inj."), visitors to the unit have restricted privileges and limited interaction with other prisoners. Id. Although he was generally dissatisfied with the SMU's amenities, plaintiff was particularly irritated by his mandated participation in "self-study, individual, and group activities provided by Psychology Services," id., characterizing his stay at the SMU as a "forced psychological treatment prolonged isolation regiment [sic]," Mot. Prelim. Inj. and Order Show Cause 1, ECF No. 29 ("Mot. Prelim. Inj."). The program was apparently minimally successful, because at some point between February 23 and April 8, 2011, plaintiff was transferred out of FCI-Talledaga to the Administrative Max facility in Florence, Colorado ("ADX-GP").

While in Talledaga, plaintiff filed suit against the FBI, asserting three claims under FOIA and one asking the government to resolve what he termed "federal questions." United States v. Brown, 675 F. Supp. 2d 122 (D.D.C. 2009). Two of the FOIA claims concerned records related to a book Mr. Brown was allegedly writing, and the other referred to plaintiff's request for FBI records on himself. Id. at 124. The federal questions, which are similar to two of the APA claims he brings here, asked the court (1) whether the government properly exercised jurisdiction over the property that plaintiff forfeited and (2) what the legal status of the statutes under which plaintiff was convicted is. Id. The court dismissed the FOIA claims for lack of administrative exhaustion, and the federal question claim was dismissed because it sought relief not available under FOIA. Id. at 123--24. Mr. Brown moved the court to reconsider and sought leave to amend, but the motions were denied because he provided no basis for reconsideration and unduly delayed seeking leave to amend. United States v. Brown, 744 F. Supp. 2d 120 (D.D.C. 2010).

Prior to denial of his motion for reconsideration and to amend, plaintiff initiated this suit, asserting two APA claims against the FBI, one APA claim against the Department of Justice and one FOIA claim against the FBI. Compl./Pet. Review, ECF 1 ("Compl."). His first APA claim argued that the FBI's determination that 21 U.S.C. §§ 841 and 846-the statutes under which plaintiff was convicted-were criminal laws was in error and sought an order correcting that erroneous determination. The second suggested that the government had improperly asserted jurisdiction over the property that he forfeited in the original case, United States v. Brown, No. 01-cr-10012 (W.D. La. Apr. 8, 2003), and his third concerned the DOJ's refusal to respond to a petition he sent asking them to promulgate clear and concise rules for United States Attorney's Offices ("USAO") to determine when it is proper to prosecute someone under the Controlled Substances Act. Compl. The only FOIA claim plaintiff brought at that time was related to recordings of an FBI buy-bust that plaintiff alleges he was subject to, recordings which plaintiff claims would show that he was not part of the drug trade. Id. Defendants moved to dismiss, arguing that the plaintiff did not have standing to bring the APA claims; that some of his claims were barred by claim preclusion; that defendant failed to state a claim under the APA; and that plaintiff could not impliedly invalidate his criminal conviction through civil suit. Defs.' Mot. Dismiss, Nov. 8, 2010, ECF No. 11 ("Mot. Dismiss"). Thereafter, plaintiff filed a motion for partial summary judgment on the FOIA claim, Mot. Partial Summ. J., ECF No. 15 ("Part. Summ.J."), a motion to strike the motion to dismiss, and a motion for more definite statement for that motion, Mot. Strike and Mot. More Definite Statement, ECF No. 16 ("Mot. Strike").

On November 30, 2010 plaintiff amended his complaint, adding a FOIA claim against the Bureau of Prisons for failing to provide administrative records for Program Statement 5217.01, which describes the rules and aims of the SMUs. Am. Compl. 5. Mr. Brown also included an APA claim against BOP for failing to respond to his petition to repeal Program Statement 5217.01. Id. Two weeks later plaintiff filed a motion to amend his complaint in which he sought to add seven additional FOIA claims against a variety of agencies. Second Am. Compl. 5-7. Defendant Bureau of Prisons ("BOP") moved to dismiss plaintiff's first amended complaint on December 20, Def. Federal Bureau of Prisons' Mot. Dismiss, ECF No. 22 ("BOP Mot. Dismiss"), and opposed his motion to amend on January 3, 2011. Plaintiff then filed a motion for preliminary injunction on Feb. 10, 2011, asking the Court to enjoin BOP from including plaintiff in the SMU, which Brown claimed constituted torture and forced psychological treatment, Mot. Prelim. Inj.

IV. DISCUSSION

Before the Court are defendants' Motion(s) to Dismiss, ECF Nos. 11, 22, Plaintiff's Motion for Partial Summary Judgment, ECF No. 15, Plaintiff's Motion to Strike/Motion for a More Definite Statement, ECF No. 16, Plaintiff's Motion for Leave to Amend, ECF No. 21, and Plaintiff's Motion for Preliminary Injunction/Order to Show Cause, ECF No. 29. For the reasons set out below, the Court will deny all of plaintiff's motions excepting his motion for leave to amend, which will be granted as to Claim XII against the Tax Division of the DOJ. The Court will grant defendants their motions to dismiss, although not insofar as they request that defendant FBI be dismissed from the case.

A. Plaintiff's Standing to Assert APA Claims

Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and a Rule 12(b)(1) motion for dismissal presents a threshold challenge to a court's jurisdiction. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). In evaluating such a motion, the Court must "accept as true all of the factual allegations contained in the complaint," Wilson v. District of Columbia, 269 F.R.D. 8, 11 (D.D.C. 2010) (citing Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993)), and should review the complaint liberally while accepting all inferences favorable to the plaintiff. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). At the same time, the Court may consider relevant materials outside the pleadings, Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005), and must remain cognizant that "the plaintiff's factual allegations in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wilson, 269 F.R.D. at 11 (quotations omitted). In defending against a Rule 12(b)(1) motion, the plaintiff bears the burden of demonstrating that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).

An integral part of establishing a court's jurisdiction is meeting the "irreducible constitutional minimum of [Article III] standing . . . [which] contains three elements. First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of- the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Ass'n of Am. Physicians,358 Fed. Appx. 179, 180 (D.C. Cir. 2009) (quoting Lujan,504 U.S. at 560--61). "At the pleading stage, 'general factual allegations of injury resulting from the defendant's conduct may suffice,' and the court 'presumes that general allegations embrace the specific facts that are necessary to support the claim.'" Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (quoting Lujan, 504 U.S. at 561). However, "nondescript and conclusory allegations of injury are not the type of general factual allegations from which the Court may presume the specific facts necessary to ensure that the plaintiff has standing, and are insufficient to meet the plaintiff's burden of alleging an injury in fact that is concrete and particularized." Wright v. McPhie, No. 04-cv-1204, 2005 WL 3273556, at *3 (D.D.C. Sept. 27, 2005) (internal citations removed).

Under 5 U.S.C. § 553, "agencies are obligated to fully and promptly consider rulemaking petitions and provide a petitioner with a prompt reply." Mendoza v. United States Dep't of Justice, No. 89-cv-1979, 1990 U.S. Dist. LEXIS 10074, at *3 (D.D.C. 1990). See also WWHT, Inc. v. Fed. Commc'ns Comm'n, 656 F.2d 807, 813 (D.C. Cir. 1981) ("an agency must receive and respond to petitions for rulemaking.") However, "[t]he fact that Congress may have given all interested parties the right to petition . . . does not in turn automatic[ally] confer Article III standing when that right is deprived . . . the grant of a procedural right alone cannot serve as the basis for Article III standing unless the procedures in question are designed to protect some threatened concrete interest of [the petitioner] that is the ultimate basis of his standing." Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002) (internal citation removed); see also Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002) ("A party has standing to challenge an agency's failure to abide by a procedural requirement only if the government act performed without the procedure in question will cause a distinct risk to a particularized interest of the plaintiff."). Concurring in Fund, Judge Edwards suggested that the court would not deny standing "in cases where a statute or regulation affords a party such a particularized procedural right." Id. at 28. Because the Administrative Procedure Act is less than crystal-clear on plaintiff's statutory right to a response, even this broader interpretation will not automatically confer Article III standing over plaintiff's claim. See 5 U.S.C. § 555(e) ("Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request made in connection with any agency proceeding.") (emphasis added). Because Mr. Brown's request is not made in connection with any agency proceeding, the statute itself does not afford him the right to a response.

Defendants argue that Mr. Brown does not have standing to bring his APA claims because he does not have a threatened concrete interest in any of the petitions. Each APA claim will be examined individually.

1. Plaintiff's Challenge to 21 U.S.C. § 841 and 846

Plaintiff's first APA claim is essentially a restatement of one of the "federal questions" that was dismissed in his prior action. He contends that the FBI and USAO have erroneously determined that 21 U.S.C §§ 841 and 846 (the sections of the U.S. Code under which he was convicted and sentenced, Brown, 86 Fed. Appx. 749) are criminal laws. Am. Compl. 3. Arguing that these sections "have never been properly enacted by congress as criminal laws," id., and that they "have never been adopted for general federal police power jurisdiction," id., plaintiff asks the Court to "issue an order that the agency(s)' actions, decisions, claim and/or interpretation of Title 21 U.S. Code sections 841 and 846 is [sic] in error. . . . That [the sections] are NOT criminal laws," id. at 6. The claim will be dismissed for lack of subject-matter jurisdiction and because it is barred under Heck v. Humphrey, 512 U.S. 477 (1987), and its progeny.

To the extent that plaintiff argues that his continued incarceration under 21 U.S.C. §§ 841 and 846 constitutes an injury-in-fact and gives him standing, his claim is foreclosed by Heck and its progeny. In Heck, the Court held that a plaintiff could not recover damages under 42 U.S.C. § 1983 for an allegedly unconstitutional conviction unless "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." 512 U.S. at 486--87. Plaintiff argues that Heck applies only to damages under 42 U.S.C. § 1983, but "courts have extended Heck's rationale beyond the context of § 1983 to a variety of situations where a plaintiff has been convicted of a federal crime and later files a civil action which, if successful, would necessarily imply the invalidity of plaintiff's ...


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