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Brestle v. Lappin

United States District Court, District Circuit

June 20, 2013



RICHARD W. ROBERTS, District Judge.

Plaintiff, a federal prisoner proceeding pro se, claims that the Bureau of Prisons ("BOP") failed to provide documents in response to his Freedom of Information Act ("FOIA") request dated May 9, 2011.[1] Defendant, having released documents to plaintiff, moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or for summary judgment under Rule 56. Def.'s Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. [Dkt. # 18]. Plaintiff cross moves for summary judgment and requests attorney's fees. Summ. J. Pursuant to F.R.Cv.P., Rule 56(a) Award Attorney Fees [Dkt. # 33]. In addition, plaintiff has filed a document captioned "Plaintiff's Response to ECF No. 18 and Motion for Compulsory Joinder of Defendants Pursuant to F.R.Cv.P., Rule 19, 20, 21, & 25 and Motion for Joinder in Issue for FOIA and FTCA Tort Action Pending Before This Court" [Dkt. # 24], and a motion for "Contempt of Court" [Dkt. # 37]. The contempt motion will be denied as baseless because it seeks sanctions against "the defendant" for unspecified behavior. Mot. at 2. The motion for joinder will be denied as moot since plaintiff's FTCA claim forming the basis of a separate action has been transferred to the Southern District of Georgia, Brestle v. United States of America, No. 12-84 (D.D.C. May 14, 2012), and the proper defendant for this FOIA action has been substituted.[2] The joinder motion will be cited in this opinion as plaintiff's opposition ("Pl.'s Opp'n").

Upon consideration of the parties' submissions and the entire record, defendant's motion for summary judgment will be granted in part and deferred in part, and plaintiff's cross-motion for summary judgment and attorney's fees will be denied.


By letter dated May 9, 2011, plaintiff requested "any and all documents forwarded to case Manager Randy Courson, SIS' Officer Lt. Adams, or SIS' Lt. Davis, between the dates May 1, 2009, thru October 30, 2009, emanating from the office of A' Unit Secretary Ms. Ramona Poole...." Compl. Attach. Plaintiff emphasized that he wanted "all the relevant transmissions by Secretary Poole" and stated that all of the individuals mentioned in the request "were or are at the Federal Correctional Facility, FCI/FSL, Jesup, Georgia, 2680 Highway 301 South, " id., which is where plaintiff is incarcerated.

By letter of August 16, 2011, to BOP, plaintiff inquired about the status of his request, Def.'s Ex. 1 [Dkt. # 18-1]. Having received no response, plaintiff filed this civil action on October 5, 2011. By letter of October 14, 2011, BOP released three pages containing redacted material and informed plaintiff that information was withheld under FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b). Def.'s Ex. 3 [Dkt. # 18-3]. In response to this lawsuit, defendant conducted another search and released an additional 31 pages, some with redactions made pursuant to FOIA exemptions 6, 7(C) and 7(F). Decl. of Christine Greene [Dkt. # 18-6] ¶¶ 17, 19 & Vaughn Index; Def.'s Ex. 5 [Dkt. # 18-5].


Summary judgment may be appropriately granted when "the movant shows 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). Courts draw all reasonable inferences from the evidentiary record in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

"A district court must conduct a de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action." Milton v. U.S. Dep't. of Justice, 783 F.Supp.2d 55, 57 (D.D.C. 2011) (citing 5 U.S.C. § 552(a)(4)(B)). In a FOIA case, summary judgment in favor of an agency is warranted where the agency demonstrates that no material facts are in dispute, that it conducted a search of records in its custody or control that was reasonably forecast to divulge all relevant information, Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), and that the information found through the search either has been released to the requestor or is exempt from disclosure. See Skinner v. U.S. Dept. of Justice, 806 F.Supp.2d 105, 111 (D.D.C. 2011) (citing Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)).

When, as here, an agency's search is questioned, the agency is entitled to summary judgment upon a showing, through declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, that it conducted a search likely to locate all responsive records. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). Without contrary evidence of bad faith, the agency's amply detailed affidavits are sufficient to demonstrate compliance with the FOIA. Id. at 127. A search does not have to be exhaustive, and whether a search is adequate is determined by methods, not results. Weisberg, 745 F.2d at 1485. An agency's failure to locate a specific responsive document will not, on its own, render an otherwise reasonable search inadequate. See Brown v. FBI, 675 F.Supp.2d 122, 125-26 (D.D.C. 2009) (citing Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004)) (other citation omitted).


Plaintiff challenges the adequacy of BOP's search for responsive records and its invocation of FOIA exemptions 6 and 7 as justification for withholding information. Pl.'s Opp'n at 8-10. In support of summary judgment, defendant proffers the declaration of Christine Greene, who is a FOIA Paralegal at FCC Coleman, responsible for processing FOIA requests assigned to BOP's Southeast Regional Office. Greene Decl. ¶¶ 1, 6. Greene's statements are based on her "review of the official files and records... and [her] personal knowledge, including knowledge [she] acquired... through the performance of [her] official duties." Id. ¶ 5.

1. The Search for Records

Plaintiff argues that the search "was unreasonable and [] clearly not conducted in good faith because it fails to provide the investigative documents that demonstrate where the BOP properly performed its statutory duties...." Pl.'s Opp'n at 8. Greene states that she received plaintiff's request from the Central Office on September 8, 2011, and that same day, "scanned a copy of the request directly to the [now-retired] FOIA Coordinator at FCI Jesup" for him to conduct a search and report to her by September 19, 2011. Greene Decl. ¶¶ 9-10. The Coordinator forwarded the request to plaintiff's "current 2011 unit manager... and the captain, " since "[c]ase managers personally work with inmates on a day to day basis and handle their programming needs." Id. ¶¶ 9, 11. The unit manager, in turn, "forwarded the ...

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