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Cunningham v. U.S. Department of Justice

United States District Court, D. Columbia.

April 16, 2014


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BENJAMIN CUNNINGHAM, Plaintiff, Pro se, Bronx, NY.

For UNITED STATES DEPARTMENT OF JUSTICE, Defendant: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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ROSEMARY M. COLLYER, United States District Judge.

Benjamin Cunningham, who is a serial pro se litigant in this Court, complains of alleged violations of the Freedom of Information Act (FOIA), 5 U.S.C. § § 552 et seq. He has filed a slew of motions, see Dkt. Nos. 3-7, 9-11, 14-15, 19, 29, and 32, and seeks the following: summary judgment; judicial notice of various documents; permission to file on the record police officers' private information; compulsory production of certain documents; impeachment of various federal officials and judges; including this Court, due to claimed human rights violations, enjoinment in an unrelated foreclosure proceeding; and sanctions against defense counsel for perceived wrongdoing. For the reasons discussed below, the Court will dismiss this case and deny the motions as moot.


Over the past five years, Mr. Cunningham has filed multiple lawsuits in this Court and in other jurisdictions concerning an incident in 2005 during which Deputy Marshals of the U.S. Marshals Service allegedly entered and searched Mr. Cunningham's New York City residence pursuant to a search warrant. All of his suits have been dismissed.[1]

On July 22, 2013, Mr. Cunningham filed yet another suit. See Compl. [Dkt. 1]. The Complaint, which is difficult to decipher, appears to accuse a raft of agencies and individual federal officials of violating FOIA. Nonetheless, Mr. Cunningham underscores that he is suing only the Department of Justice (DOJ).[2] Id. at 1 [3]

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(characterizing the lawsuit as an attempt to correct " errors located inside [the] caption" of Cunningham I and stating that the Complaint names " only . . [DOJ] as a defendant" ).[4] He seeks under FOIA the " disclosure [and] release of agency records regarding a North Carolina State's [r]eliable [c]onfidential [i]nformant being improperly withheld," id. at 8, and challenges the responses he received to the four FOIA Requests that he sent to EOUSA, FBI, the Marshals Service, and OJP/OVC.[5]

A. Mr. Cunningham's FOIA Requests

The four FOIA Requests that Mr. Cunningham sent to EOUSA, FBI, the Marshals Service, and OJP/OVC varied to some degree. For instance, one of the Requests consisted of a single page while another included seemingly every document Mr. Cunningham has amassed concerning the 2005 search of his home. Cf. Def. Mot. for Summ. J. (MSJ) [Dkt. 21], Ex. D (Hardy Decl.)[6] [Dkt. 21-7], Ex. A to Hardy Decl. (FOIA Request 1210917) [Dkt. 21-7]; Def. MSJ, Ex. E (Luczynski Decl.)[7] [Dkt. 21-8], Ex. A to Luczynski Decl. (FOIA Request 2013-1104) [Dkt. 21-8]. The one constant across all of the Requests, however, was the presence of a cover letter. Except for the recipient address block, each cover letter was the same: two short paragraphs explaining that Mr. Cunningham sought information regarding a confidential informant from North Carolina.

1. FOIA Requests 1210917 and 2013-1104

On March 11, 2013, Mr. Cunningham submitted FOIA Requests to FBI and EOUSA. Preceding both Requests were nearly identical cover pages. The substantive portions of the cover letter read in total:

Seeking North Carolina's Reliable Confidential Informant Documents.

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DUSM Nicholas Ricigliano's North Carolina State Federal Police Report dated November 16, 2005; investigation report dated December 1, 2005 and declaration document dated September 8, 2010 made claims that he conducted a Warrant-less Search/Seizure based upon an unidentified North Carolina State's Reliable Confidential Informant.
Therefore, I need documentation and information concerning the DUSM Nicholas Ricigliano's North Carolina State's Reliable Confidential Informant from your FOIA Staff soon as possible.

See FOIA Request 1210917 at 1 (errors in original); FOIA Request 2013-1104 at 1 (errors in original).[8] FBI designated the Request it received as FOIA Request 1210917, Hardy Decl. ¶ 7, and EOUSA designated the Request it received as FOIA Request 2013-1104, Ex. B to Luczynski Decl. (Apr. 18, 2013 Letter from EOUSA) [Dkt. 21-8] at 1.

FBI determined that Mr. Cunningham was seeking information that concerned him as it related to the North Carolina confidential informant. It then searched the indices of its Central Records System (CRS) for responsive records. Hardy Decl. ¶ 7. CRS is FBI's electronic repository for information compiled for law enforcement purposes as well as administrative, applicant, criminal, personnel, and other files. Id. ¶ 12. It is accessed via General Indices and an Automated Case Support System, which consists of Investigative Case Management, Electronic Case File, and a Universal Index, by searching for the subject. Id. ¶ ¶ 12-16. FBI searched CRS using the following search terms: " Benjamin Cunningham," " Cunningham, Benjamin," " Cunningham, B," " North Carolina State Reliable Confidential Informant," and " North Carolina Confidential Informant Program." FBI used Mr. Cunningham's birthdate to aid its identification of responsive records. Yet, no responsive records were located.[9] Id. ¶ ¶ 18, 20.

On March 28, 2013, FBI informed Mr. Cunningham that it had not located any records responsive to his FOIA Request. Ex. C to Hardy Decl. (Mar. 28, 2013 Letter from FBI) [Dkt. 21-7] at 1. FBI offered to conduct another search if Mr. Cunningham provided it with additional information concerning the subject of his request. Id. Mr. Cunningham instead appealed FBI's determination to OIP, see Ex. D to Hardy Decl. (FOIA Appeal AP-2013-02815) [Dkt. 21-7], which affirmed FBI's action, see Pl. MSJ [Dkt. 19], Ex. (June 7, 2013 Letter from OIP) [Dkt. 19] at 1.[10]

EOUSA, on the other hand, did not conduct a search. On April 18, 2013, EOUSA informed Mr. Cunningham that his request for records was improper. EOUSA noted that Mr. Cunningham had " requested records concerning a third party," and ...

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