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Michael Francis Murray v. Harley G. Lappin

August 5, 2011

MICHAEL FRANCIS MURRAY, PLAINTIFF,
v.
HARLEY G. LAPPIN, DEFENDANT.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action against a government agency for alleged violations arising under the Freedom of Information Act (hereinafter "FOIA"), as amended 5 U.S.C. § 552, et. seq. Plaintiff alleges that the agency's untimely and inadequate response entitles him to a court order for production of the requested materials plus attorney's fees and litigation costs. Complaint ("Compl."), ¶¶ 9, 12. At issue in this action are provisions of the FOIA which govern the adequacy of the agency's search, and the plaintiff's eligibility for attorney's fees and costs. Pending for determination by the undersigned United States Magistrate Judge is Defendant's Motion for Summary Judgment (Document No. 9). Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record, Defendant's motion will be granted.

BACKGROUND

At all times relevant hereto, Plaintiff, Michael Francis Murray, was an inmate at the Low Murray v. Lappin 2 Security Correctional Institution at Allenwood, and Defendant, Harley G. Lappin, was the Director of the Federal Bureau of Prisons. ("FBOP")

Plaintiff states that on March 17, 2009, he mailed a letter to Defendant, requesting documents illustrating an accounting of expenditures paid out of the Inmate Trust Fund for the installation and anticipated cost of operation of the newly installed Trust Fund Limited Inmate Communication System ("TRULINCS"). Plaintiff further sates that he requested that the information be limited to the Low Security Correctional Institution at Allenwood in White Deer, Pennsylvania. Pl.'s Exhibit A. Approximately thirty days later, on April 17, 2009, after no response from the FBOP, Plaintiff submitted a written administrative appeal of the FBOP's refusal to release the requested documents. Plaintiff asserts that he never received a response regarding his appeal.*fn1

On April 21, 2009, FBOP reassigned Plaintiff's original request from its Northeast Region to its Central Office, because the requested information was located in the Central Office. The following day, Alecia Sankey, Paralegal Specialist at the Central Office of the FBOP, received Plaintiff's request and proceeded to request the documents from the Administrative Division. Ms. Sankey did not contact Plaintiff regarding the status of his original request. On May 1, 2009, Ms. Sankey received five pages from the Administrative Division.*fn2

On May 28, 2009, after Plaintiff exhausted his administrative appeal and had not received any word from the FBOP, he filed a pro se complaint in court seeking a declaratory judgment Murray v. Lappin 3 and reasonable attorney's fees and litigation costs. On June 25, 2009, almost ninety days after Plaintiff's original request, Ms. Sankey mailed Plaintiff the responsive documents she received from the Administrative Division of the FBOP.*fn3

On September 10, 2009, in response to Plaintiff's complaint, Defendant filed its motion for summary judgment. Defendant contends that (1) its search was adequate under the FOIA, provisions; (2) Plaintiff, as a pro se litigant, is not entitled to attorney's fees, and (3) Plaintiff has not substantially prevailed under the FOIA and therefore is not entitled to litigation costs.

THE PARTIES' CONTENTIONS

Defendant moves for summary judgment on the grounds that there is no genuine issue of material fact as to (1) the adequacy of Defendant's search for documents under the FOIA and (2) Plaintiff's eligibility for and entitlement to attorney's fees and litigation costs. Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Defendant's Memorandum") at 4, 6.

Adequacy of the Search

Defendant maintains that summary judgment on the issue of the adequacy of the agency's search is appropriate because Defendant conducted a diligent and reasonable search for the responsive records. Defendant's Memorandum at 4. Defendant argues that a search is not unreasonable simply because it fails to reveal responsive information. Id. Defendant further posits that the mere fact that a document once existed does not mean that it now exists, nor does Murray v. Lappin 4 the fact that an agency created a document necessarily imply that the agency has retained it.

Id. at 4-5.

Plaintiff, in his opposition, maintains that because he was not able to calculate the answer to his inquiry, based on the responsive documents received from Defendant, then Defendant's search must be deemed inadequate. Plaintiff's Opposition at 9. Plaintiff claims if the Court cannot reasonably deduce the costs of TRULINCS system based on the ...


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