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Cunningham v. U.S. Department of Justice

United States District Court, District Circuit

August 21, 2013

U.S. DEPARTMENT OF JUSTICE, et al., Defendants.


ROSEMARY M. COLLYER, District Judge.

Benjamin Cunningham complains of alleged violations of the Freedom of Information Act, 5 U.S.C. § 552 et seq., and misconduct by federal officers during a 2005 search of his home in New York. Mr. Cunningham appears pro se. He recently has filed a slew of motions, see Dkt. Nos. 16, 19, 20, 26, 27, 32, 34, 36, 37, 38, 39, 40, 41, 42, and 44, that seek to obtain summary judgment, compel various Defendants and other non-parties to produce records or affidavits, and sanction certain Defendants for perceived wrongdoing. For the reasons discussed below, the Court will dismiss this case and deny the motions as moot.


A. Background

Mr. Cunningham is a repeat litigator, which gives the Court the advantage of knowing the origins of his claims. See, e.g., Cunningham v. O'Neill, Case No. 13-960(RMC), 2013 WL 3753554 (D.D.C. July 17, 2013).[1] According to Mr. Cunningham, Deputy Marshals of the United States Marshal Service (USMS) executed a search warrant and entered his New York City residence in 2005. In the process of their search, the Deputy Marshals handcuffed Mr. Cunningham while looking for his fugitive brother. Still handcuffed, Mr. Cunningham fled his home and ran into a bus carrying city transit officer-candidates. Those officers held Mr. Cunningham until the Deputy Marshals retrieved and, ultimately, released him. See Cunningham v. U.S. Congress House Ethics Comm., Civil Case No. 12-1935(RMC) (Compl. [Dkt. 1]).[2] Defendants state that no criminal charges were ever filed against any law enforcement officer(s) in connection with these events, Am. Mot. for Summ. J. (Def.'s Mem.) [Dkt. 24] at 2, a fact Mr. Cunningham does not contest. Mr. Cunningham's subsequent efforts to be designated a crime victim under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, proved unsuccessful. Pl.'s Mot. to Compel, Ex. 1 [Dkt. 7-1] at 27.[3]

Mr. Cunningham has brought at least three suits regarding these alleged events in two other jurisdictions. In the Southern District of New York, Mr. Cunningham sued the individual Deputy Marshals and a New York Police Department detective for alleged Fourth and Fifth Amendment violations, and, in a separate suit, he sought a writ of mandamus compelling the Federal Crime Victim Office to provide him crime-victim benefits and counseling, to pay his medical bills related to injuries he sustained on the day his home was searched, and to reimburse him for cash allegedly taken during the 2005 search of his home. The former suit was dismissed in favor of the defendants on summary judgment and the U.S. Court of Appeals for the Second Circuit dismissed the ensuing appeal as frivolous. See Cunningham v. McCluskey, Civil Action No. 05-10169(DAB), 2011 WL 3478312 (S.D.N.Y. Aug. 8, 2011) (adopting magistrate judge's report and recommendation and determining that qualified immunity barred Mr. Cunningham's Fourth Amendment claim and the availability of a remedy under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., rendered his Fifth Amendment due process claim non-cognizable), appeal dismissed, Civil Action No. 11-3597 (2d Cir. Feb. 14, 2012) (mandate), cert. denied, 133 S.Ct. 124 (Oct. 1, 2012). The latter suit was dismissed as well. See Cunningham v. Gillis, Civil Action No. 09-cv-1768 (S.D.N.Y. Feb. 25, 2009) (Order [Dkt. 3]) (finding no factual or legal basis for requiring the Federal Crime Victim Office to extend crime victim benefits to Mr. Cunningham). Before the U.S. Court of Federal Claims, Mr. Cunningham filed a breach of contract action, claiming that, among others, the magistrate judge and district court judge in McCluskey had improperly handled the case and conspired against him. The Court of Federal Claims dismissed the case for lack of jurisdiction, and the Federal Circuit affirmed. Cunningham v. United States, Civil Action No. 11-330C, 2011 WL 5825147 (Fed. Cl. Nov. 16, 2011), aff'd, 479 F.Appx. 974 (Fed. Cir. 2012).

B. Mr. Cunningham's FOIA Requests

Mr. Cunningham now has turned to the Freedom of Information Act (FOIA) in an attempt to locate documents to prove his claims. In 2012, Mr. Cunningham filed FOIA Requests Nos. 12-3595, 12-4031, 1206853, and 13-00146. All of these requests pertained either to the 2005 search of his home or the refusal to designate Mr. Cunningham a crime victim.

1. FOIA Request No. 12-3595

On July 26, 2012, Mr. Cunningham sent a FOIA request to the Department of Justice's (DOJ) Executive Office for U.S. Attorneys (EOUSA) asking for a copy of its "written decision... concerning [Mr. Cunningham's] pro-se filed Misconduct Complaint" against Assistant U.S. Attorney (AUSA) Peter M. Skinner, who defended USMS in McCluskey. See Defs.' Ex. 9 (Luczynski Decl.) [Dkt. 21-9] ¶ 4; Luczynski Decl., Ex. A [Dkt. 21-10]. EOUSA designated the request as FOIA Request No. 12-3595 and directed the U.S. Attorney's Office for the Southern District of New York (USAO-SDNY) to perform a search for responsive records. Luczynski Decl. ¶ 5; Defs.' Ex. 11 (Smith Decl.) [Dkt. 21-11] ¶ 5. USAO-SDNY searched the Legal Information Office Network System (LIONS), which indicates whether a case is open or closed and whom to contact concerning the identification of responsive records, and the Public Access to Court Electronic Records (PACER), which provides additional case information. Smith Decl. ¶¶ 2, 5. USAO-SDNY then sent an email to AUSA David Kennedy, Chief of the Civil Rights Unit at USAO-SDNY, requesting all records pertaining to Mr. Cunningham. On October 1, 2012, USAO-SDNY reviewed, compiled and sent responsive records to EOUSA. Id. ¶¶ 5-6. On October 24, 2012, EOUSA released to Mr. Cunningham 33 pages in full and withheld four pages under FOIA Exemption (b)(5).[4] Luczynski Decl. ¶ 5. EOUSA also notified Mr. Cunningham that its review had located potentially responsive records that originated from USMS, the DOJ Office of Inspector General (OIG), the Department of Health and Human Services (HHS), and the Federal Bureau of Investigation (FBI). It stated that the additional records had been referred to these entities, which would respond directly to Mr. Cunningham. Id.; Luczynski Decl., Ex. B [Dkt. 21-10].[5]

2. FOIA Request No. 12-4031

On August 10, 2012, Mr. Cunningham sent a complaint to the FBI. Luczynski Decl. ¶ 6. It stated that Marie O'Rourke of the Federal Crime Victims Ombudsman Office, AUSA Kennedy, and FBI Special Agent (SA) Kristina Norris had "refused to provide their written decision concerning [Mr. Cunningham's] federal crime victim status." Luczynski Decl., Ex. C [Dkt. 21-10]. The FBI treated the letter as a FOIA request and forwarded it to EOUSA on September 26, 2012. On that date, Mr. Cunningham asked EOUSA to expedite the request. Luczynski Decl. ¶¶ 6-7; Luczynski Decl., Ex. D [Dkt. 21-10]. Two weeks later, EOUSA assigned number 12-4031 to Mr. Cunningham's August 10, 2012, complaint letter (FOIA Request No. 12-4031) and informed Mr. Cunningham that it would not expedite his request but instead process it in the order it was received. Luczynski Decl. ¶ 8; Luczynski Decl., Ex. E [Dkt. 21-10].

On October 16, 2012, EOUSA directed USAO-SDNY to perform a search for records responsive to FOIA Request 12-4031. Smith Decl. ¶ 4; Smith Decl., Ex. A [Dkt. 21-12]. Because USAO-SDNY recently had performed a search in connection with FOIA Request No. 12-3595, USAO-SDNY asked only AUSA Kennedy and its Victim Witness Coordinator to search for records concerning Mr. Cunningham and his status as a federal crime victim. Neither AUSA Kennedy nor the Victim Witness Coordinator located any responsive records. Smith Decl. ¶ 7. EOUSA subsequently informed Mr. Cunningham on November 8, 2012, that its search pertaining to FOIA Request No. 12-4031 had not revealed any responsive records. Luczynski Decl. ¶ 9; Luczynski Decl., Ex. F [Dkt. 21-10].

Mr. Cunningham appealed this response to the Office of Information Policy (OIP), which oversees agency compliance with FOIA. On December 21, 2012, OIP affirmed EOUSA's handling and conclusion on FOIA Request No. 12-4031. Luczynski Decl. ¶¶ 10-12. It again told Mr. Cunningham that EOUSA "could not locate records responsive to his request" and concluded that EOUSA's search was "adequate" and "reasonable." Luczynski Decl., Ex. I [Dkt. 21-10].

3. FOIA Request No. 1206853

On December 5, 2012, Mr. Cunningham wrote again to the FBI, this time asking for a copy of his "Federal Crime Victim Status Written Decision." Defs.' Ex. 13 (Hardy Decl.) [Dkt. 21-13] ¶ 5; Hardy Decl., Ex. A [Dkt. 21-14]. The FBI designated this request FOIA Request No. 1206853 on January 29, 2013. The FBI searched the indices of its Central Records System (CRS) for responsive records and coordinated additional searches by the Office for Victim Assistance (OVA) and SA Norris. Hardy Decl. ¶¶ 6, 17-20; Hardy Decl., Ex. B [Dkt. 21-14]. CRS is the FBI's electronic repository for information compiled for law enforcement purposes as well as administrative, applicant, criminal, personnel, and other files. Hardy Decl. ¶ 11. It is accessed via General Indices and an Automated Case Support System (ACS), which consists of Investigative Case Management, Electronic Case File, and a Universal Index, by searching for the subject. Id. ¶¶ 11-15.

On February 1, 2013, the FBI informed Mr. Cunningham that it had not located any records responsive to FOIA Request No. 1206853. Hardy Decl. ¶ 7; Hardy Decl., Ex. C [Dkt. 21-14]. Mr. Cunningham appealed to OIP on February 6, 2013, but OIP closed the case after Mr. Cunningham filed the instant suit. See 28 C.F.R. § 16.9(a)(3). See also Hardy Decl. ¶¶ 8-9; Hardy Decl., Ex. D [Dkt. 21-14]; Hardy Decl. Ex., E [Dkt. 21-14]; Hardy Decl., Ex. F [Dkt. 21-14].

4. FOIA Request No. 13-00146

Mr. Cunningham's last FOIA request before this Court was sent to the DOJ's Office of Justice Programs (OJP) on January 23, 2013. He requested "all documents [concerning his status as a federal crime victim] and a copy of [his] Federal Crime Victim Status Written Decision." Defs.' Ex. 15 (Lee Decl.) [Dkt. 21-15] ¶ 3; Lee Decl., Ex. A [Dkt. 21-16]. OJP assigned number 13-00146 (FOIA Request No. 13-00146) to Mr. Cunningham's January 23 request and directed the Office for Victims of Crime (OVC) to conduct a search for responsive records. Lee Decl. ¶¶ 3, 5. Ultimately, both OJP and OVC conducted searches that located 50 pages of responsive material. Lee Decl. ¶¶ 5-8. On March 1, 2013, OJP produced the 50 pages in full to Mr. Cunningham. Id. ¶ 9; Lee Decl., Ex. F [Dkt. 21-21]. OJP realized on May 30, 2013, that it had ...

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