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Darrell James Debrew v. Michael Atwood

March 19, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


This matter is before the Court on Defendants' Motion to Dismiss or in the Alternative for Summary Judgment [Dkt. #31] and plaintiff's Motion for Summary Judgment [Dkt. #35], Request to Amend Complaint [Dkt. #36], Motion for Stay Until All Freedom of Information Act Requests Are Fulfilled by Federal Bureau of Prisons [Dkt. #37], and Motion to Change Venue [Dkt. #41]. For the reasons discussed below, defendants' motion will be granted in part and denied in part, and the remaining motions will be denied.


A. Freedom of Information Act Claims

Plaintiff brings this action in part under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the Federal Bureau of Prisons ("BOP"), a component of the United States Department of Justice ("DOJ").*fn1 He challenges the BOP's responses, or lack of responses, to FOIA requests submitted to the BOP in 2007, 2008 and 2009.

1. Memoranda Pertaining to the DNA Act*fn2

According to plaintiff, on June 24, 2008, he sent FOIA requests for memoranda concerning the DNA Act to the Low Security Correctional Institution at Butner, North Carolina ("LSCI Butner"), the BOP's Mid-Atlantic Regional Office in Annapolis Junction, Maryland, and to the BOP's Central Office in Washington, D.C. Compl. ¶¶ 13, 16, 20. Staff at LSCI Butner returned the request via institutional mail, id. ¶ 14, and plaintiff received a notice from the Mid-Atlantic Regional Office informing him "that he had to contact the BOP Central Office" in order to pursue his request, id. ¶ 18.

The Central Office received plaintiff's request on June 30, 2008, assigned it a tracking number (FOIA Number 2008-8573), and promptly returned the request without processing it. Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss or in the Alternative for Summ. J. ("Defs.' Mem."), Ex. B ("Moorer Decl.") ¶ 7. The Central Office determined that the request did "not adequately describe" the records plaintiff wanted, and plaintiff was instructed to "submit another request" when he "determined the specific Program Statement" of interest. Moorer Decl., Ex. 4 (Letter to plaintiff from the BOP's FOIA/PA Office dated July 10, 2008) at 1. According to the BOP's declarant, "[p]laintiff has not followed-up with the [BOP] regarding this request and the [BOP's] response." Id. ¶ 7.

2. Code 408*fn3

On September 5, 2007, plaintiff submitted a FOIA request to the BOP's Central Office for "[a]ll documentation concerning making Conducting A Business (408) a prohibited act." Compl. ¶ 23; see Moorer Decl., Ex. 5 (Freedom of Information/Privacy Act Request dated September 5, 2007). The Central Office responded to the request, which was assigned Request No. 2007-10012, by releasing "Program Statement 5270.07 that covers prohibited act Code 408." Moorer Decl. ¶ 9; see id., Ex. 6 (Letter to plaintiff from W.M. Hunt, Chief, FOIA/PA Section, BOP) at 1. Plaintiff acknowledged receipt of the Program Statement, see Compl. ¶ 24, and complained that the BOP "failed to adequately supply information" in response to the request, id.

¶ 26, by providing "documents as to how Code 408 came into existence," id. ¶ 25. Plaintiff was advised of his right to pursue an administrative appeal to the Justice Department's Office of Information Policy ("OIP"). Defs.' Mem., Moorer Decl. ¶ 9. The OIP affirmed the determination. Pl.'s Mot. for Summ. J. and Resp. to Defs.' Mot. for Summ. J. and Dismissal ("Pl.'s Opp'n"), Ex. 16 (Letter to plaintiff from Anne D. Work, Deputy Chief, Administrative Appeals Staff, OIP, dated November 28, 2008).

3. Administrative Remedy Index for LSCI Butner

On June 24, 2008, plaintiff submitted to LSCI Butner a request for "the Administrative Remedy Index for LSCI Butner," Compl. ¶ 27, and, according to plaintiff, "said request has remained unanswered and unfulfilled," id. ¶ 28. The BOP's declarant averred that there was no record of receipt by the Central Office of a request "for the Administrative Remedy on or about June 24, 2008." Moorer Decl. ¶ 12.

4. Financial Reports for the Trust Fund

On August 13, 2009, plaintiff allegedly submitted to the Central Office a request for "Financial Reports for the Trust Fund for 2006-2009," Compl. ¶ 30, and the Central Office "has failed to provide the requested records," id. ¶ 31. The BOP, however, had no record of receipt of this request. Moorer Decl. ¶ 13.

5. Public Law 104-134

Plaintiff allegedly submitted a FOIA request to the Central Office on August 13, 2009, for "Section 108 to Department of Justice, General Provisions, Public Law 104-134," Compl. ¶ 32, which apparently has not been released to him. The BOP had no record of receipt of this request either. Moorer Decl. ¶ 15.

6. Telephone Records

On May 15, 2007, plaintiff submitted a request for "copies of all phone records," and on June 12, 2007 the BOP's Mid-Atlantic Regional Office responded. Compl. ¶ 34; see Moorer Decl., Ex. 8 (Letter to plaintiff from M. Fuseyamore, Regional Counsel, Mid-Atlantic Region, BOP, dated June 12, 2007). Plaintiff complained that the BOP released only "copies of the phone numbers he had called, instead of the actual phone calls, as requested." Compl. ¶ 35. Plaintiff pursued an administrative appeal of this decision, Moorer Decl., Ex. 9 (Letter to OIP,

U.S. Department of Justice, from plaintiff dated June 1, 2007), indicating that he sought the recordings of the conversations which "are monitored and recorded" by the BOP. Id.

Noting that the BOP "no longer ha[d] the actual recordings of [plaintiff's] phone conversations," the OIP affirmed the BOP's decision. Moorer Decl., Ex. 11 (Letter to plaintiff from P. Jones, Supervisory Administrative Specialist, OIP, dated July 12, 2007) at 1. Even if the recordings were available, the OIP noted that the recordings "would be exempt from release pursuant to 5 U.S.C. § 552(b)(7)(C) as the telephone recordings were compiled for law enforcement purposes." Id., ¶ 17.

B. Constitutional Claims

1. Alleged Violations of the First Amendment

Apparently plaintiff is a published author, Compl. ¶ 39, whose book entitled Keisha is available for purchase online, see id. ¶ 40. Plaintiff alleges that he was found guilty of a disciplinary violation (Code 408 (Conducting a Business)) and was "ordered to remove his Web-Page from the World Wide Web and not use the mail in regards to his books and manuscripts," ¶ 39, in violation of his First Amendment right to freedom of expression, id. ¶ 41.

2. Alleged Violations of the Fifth Amendment

Also with respect to his publishing activity, plaintiff states that he "was found guilty of Code 408 (Conducting a Business) because [he] receiv[ed] a Royalty Check . . . for [his] book entitled Keisha," id. ¶ 40, and he alleges that his "property rights have been limited in violation of the Fifth Amendment," id. ¶ 41.

Plaintiff alleges a second violation of the Fifth Amendment, the Takings Clause, id. ¶ 38, by defendants' refusal to credit individual inmate accounts with interest income derived from depositing "inmate funds in the . . . Commissary Fund and/or Trust Fund" in interest-bearing accounts, id. ¶ 37.

3. Alleged Violations of the Eighth Amendment

Plaintiff alleges that defendants subject him to cruel and unusual punishment in violation of the Eighth Amendment by having no population caps on BOP facilities, id. ¶ 44, leading to prison overcrowding, id. ¶ 47. In addition, plaintiff contends that defendants violate his rights by marking up the prices of commissary items, telephone calls and other fees, id. ¶¶ 53-56, without a commensurate increase in inmate incentive pay, see id. ¶¶ 50-51.

C. Relief

Plaintiff demands a declaratory judgment, injunctive relief, and monetary damages totaling $10 billion. ...

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