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Percy Edward Moore v. Federal Bureau of Investigation et al

August 13, 2012


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


In this action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff sues multiple components of the Department of Justice ("DOJ"), as well as the Central Intelligence Agency ("CIA"), and the Executive Office of the President ("EOP") for the production of his records. Pending is the motion of the Federal Bureau of Investigation ("FBI"), the Bureau of Prisons ("BOP"), the U.S. Parole Commission ("USPC"), the CIA, and the EOP to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment under Rule 56. Defs.' Partial Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. # 30]. Also pending is the separate motion of the Executive Office for U.S. Attorneys ("EOUSA") and DOJ's Criminal Division to dismiss or for summary judgment. Defs.' Supp. Mot. to Dismiss, or in the Alternative, for Summ. J. ("Defs.' Supp. Mot.") [Dkt. # 33]. Upon consideration of the parties' submissions and the entire record, the Court will grant both motions for summary judgment and enter judgment for the defendants.*fn1


Plaintiff Percy Edward Moore filed this action on October 4, 2010, in the Western District of Wisconsin, which transferred the case to this Court on June 8, 2011. Plaintiff seeks the production of "[a]ll files that contain the name Percy Edward Moore, all investigative, medical, [and] criminal files . . . all reports, documents, recordings, [and] videos." Compl. [Dkt. # 1] ¶ 2. Attached to the complaint are plaintiff's separate FOIA requests that he allegedly sent from the Federal Medical Center ("FMC") in Rochester, Minnesota, where he is incarcerated, to the FBI's Chicago Field Office (in March 2010), the BOP (in April 2010), the CIA (in April 2010), the EOP (in April 2010), the Criminal Division (in July 2010), EOUSA (in August 2010), and the USPC (in September 2010). In addition, plaintiff requested by letter to the CIA dated May 18, 2010, "information to make easier to locate consciousness-altering technology, or behavioral modification techniques, information regarding the program, and used by Nixon and

J. Edgar Hoover[,] any up to date research on the technology records of legal cases made public of it' [sic] use in society." Compl. Attach. [Dkt. # 1-1], ECF 3. The defendants' respective responses are as follows:

* After the filing of this action, the FBI searched its FOIPA Document Processing System for plaintiff's March 2010 request to the Chicago Field Office. Decl. of Dennis Argall [Dkt. # 30-4] ¶ 4. The FBI located several of plaintiff's requests "dating back to 2006, as well as two requests [] dated March 6, 2010, which plaintiff mailed to FBIHQ and the Chicago Field Office . . . ." Id. ¶ 5. The search revealed that by letters of March 26, 2010, and April 5, 2010, the FBI informed plaintiff that it had conducted a search and "determined that there are no additional records responsive to your request" that were not released "in relation to past requests." Id., Exs. A & B; see also Decl. of David M. Hardy [Dkt. # 41-1] ¶ 13 (confirming same).

* In response to the instant complaint, BOP conducted a search to determine if it had received the underlying FOIA request. It initially located only a referral from the U.S. Marshals Service in response to a FOIA request plaintiff had filed there in 2010, which was not the request attached to the instant complaint. Second Decl. of Carmen Rinella ("2d Rinella Decl.") [Dkt. # 30-5] ¶¶ 14-16. BOP processed the underlying FOIA request on January 4, 2011, when it "became aware of the litigation and request." Id.

¶ 18. By letter dated February 22, 2011, BOP informed plaintiff that his request for a fee waiver was denied, and it assessed him an estimated fee of $100 for the approximately 1,100 pages of responsive records that were located following a search at FMC Rochester. Id. ¶¶ 19-20 & Ex. F. The letter informed plaintiff that in order to proceed with his request, BOP would need him to confirm his willingness to pay the assessed fee, modify the request to reduce the fee, or request "the first one hundred pages free and/or two hours of search time whichever comes first." Ex. F at 1-2. Plaintiff was further told that BOP "will suspend processing of this request until we receive your response." Id. at 2. Since plaintiff had not responded to the letter by September 8, 2011, BOP closed his request file. 2d Rinella Decl. ¶¶ 21-23.

* The USPC conducted a search and informed plaintiff by letter of September 16, 2010, that it had located no responsive records "because he had yet to have an initial parole hearing." Decl. of Anissa H. Banks [Dkt. # 30-7] ¶ 8 & Ex. 2. The letter explained that "[t]he Commission reviews material copied from [BOP] files . . . in preparation for [a] parole hearing" and returns the material to BOP when that review is completed. It is only after a hearing that material forwarded from BOP "is indexed by the inmate's name, incorporated in the Commission's system of records and becomes a parole file." Ex. 2; see also Banks Decl. ¶ 4.

* The CIA conducted a search and informed plaintiff by letter of May 25, 2010, that it had located no responsive records, and "with respect to responsive records that would reveal a classified connection to the CIA, in accordance with section 3.6(a) of Executive Order 12958, as amended," it could neither confirm nor deny their existence. The CIA invoked FOIA exemptions 1 and 3 and Privacy Act exemptions (j)(1) and (k)(1) as the bases for the latter response.*fn2 Decl. of Susan Viscuso [Dkt. # 30-6] ¶¶ 11-12 & Ex. F. Plaintiff filed an administrative appeal by letter of June 2, 2010, which the agency closed upon plaintiff's filing of this action. Viscuso Decl. ¶¶ 13-17.

* The Criminal Division conducted a search and informed plaintiff by letter of September 30, 2010, that it had located no responsive records. Suppl. Mot., Decl. of E. Thomas Roberts [Dkt. # 33-1] ¶ 12 & Ex. 6. It further informed plaintiff that it was referring his request to the Organized Crime Drug Enforcement Task Force for processing and a direct response to plaintiff because it had become "an independent entity reporting directly to the Deputy Attorney General." Ex. 6. Plaintiff unsuccessfully appealed the Criminal Division's determination to DOJ's Office of Information and Privacy ("OIP"). See Exs. 7, 8.

* By letter of August 3, 2011, EOUSA informed plaintiff that it had located one box of "documents in your criminal case" in the United States Attorney's Office in the Northern District of Illinois and that a box typically contains between 2000 and 4000 pages of records. Decl. of David Luczynski [Dkt. # 33-3], Ex. E. Plaintiff was further informed that "it is clear that charges will exceed $25" and that "[i]f you wish to reduce the amount of fees, you may reformulate your request." Id. Either way, plaintiff was told that he had 30 days to respond to the letter or his request would be closed. The letter included a form for plaintiff to choose his options and to return it to EOUSA. Id. As of October 19, 2011, EOUSA had received no response from plaintiff. Luczynski Decl. ¶ 8.


Summary judgment is appropriate upon a showing that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on ...

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