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Harvey v. Lynch

United States District Court, D. Columbia.

August 21, 2015

EDWARD HARVEY, Plaintiffs,
v.
LORETTA E. LYNCH, et al., Defendants

Page 4

          EDWARD HARVEY, Plaintiff, Pro se, Loretto, PA.

         For ERIC H. HOLDER, JR., FEDERAL BUREAU OF PRISONS, OFFICE OF INTERNAL AFFAIRS, DEPARTMENT OF JUSTICE, Defendants: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 5

         MEMORANDUM OPINION

         RANDOLPH D. MOSS, United States District Judge.

         Plaintiff, proceeding pro se, brings this action under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § § 552, et. seq., and the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 500, et. seq., to compel Defendants Attorney General Loretta Lynch, the Federal Bureau of Prisons, and the Department of Justice's Office of Internal Affairs[1] to process and release records in response to his FOIA to the Bureau of Prisons (" BOP" ), and to do so without delay. As is typical in FOIA cases, the parties have cross-moved for summary judgment. What has followed is less typical. At the time Plaintiff filed this action, Defendants had not yet produced any records responsive to Plaintiff's FOIA request. Shortly after Plaintiff initiated suit, however, Defendants processed the request and produced responsive records. Significantly, although persisting with the suit, Plaintiff does not contend that Defendants' production was incomplete or that Defendants otherwise failed to comply with their FOIA obligation to turn over information. Instead, he argues that Defendants violated FOIA and the governing regulations by failing to respond to his request in a timely manner, and he asks that the Court hold BOP's prior inaction " unlawful" under the APA. Dkt. 14 at 12. Although not raised in his opening brief, Plaintiff also argues in reply (Dkt. 19) and in an " addendum" (Dkt. 20) filed shortly after his reply that he is entitled to his litigation costs as a prevailing party under FOIA, 5 U.S.C. § 552(a)(4)(E)(i).

         Against this backdrop, the Court concludes that Plaintiff's FOIA and APA claims are moot and that, to the extent Plaintiff contends that he is entitled to costs, he must file a separate motion seeking that relief and providing Defendants with an opportunity to respond. Accordingly, Defendants' Motion for Summary judgment (Dkt. 12) is GRANTED, Plaintiff's Cross-Motion for Summary Judgment (Dkt. 14) is DENIED, and the complaint (Dkt. 1) is DISMISSED as moot. Plaintiff may file a motion seeking costs under FOIA within 30 days of this Order.

         I. BACKGROUND

         Plaintiff, Edward Harvey, is an inmate at the Federal Correctional Institution Loretto, located in Loretto, Pennsylvania. Dkt. 14 at 8. While incarcerated, Plaintiff filed a complaint with the warden alleging that a staff member committed misconduct by preventing Plaintiff from holding his granddaughter during a visit on November 2, 2013. Dkt. 12-3 at 25. Dkt. 1 at 11,

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Dkt. 12-3 at 22-23. Plaintiff's mother also filed a complaint alleging that several officers inadequately supervised the " Visitor's Only" bathroom during that same visit. Dkt. 12-3 at 26.

         Concerned that the warden did not properly follow through on his complaint, Plaintiff filed a FOIA request with BOP requesting " a certified true copy of the Staff Misconduct Investigation Report to which [Plaintiff was a party]." Dkt. 1 ¶ 10, Dkt. 12-3 at 5. That request was filed on April 14, 2014. Id. Ten days later, BOP acknowledged receiving the request and informed Plaintiff that it has adopted a " first-in/first-out practice of processing all requests." Dkt. 12-3 at 9. BOP noted that " [w]hile most requests can be processed within 20 working days, exceptions may exist." Id.

         On May 21, 2014-36 days after filing his FOIA request--Plaintiff appealed BOP's failure to timely respond to the Department of Justice's Office of Information Policy (" OIP" ). Dkt. 1 ¶ 12; see 5 U.S.C. 552(a)(6)(A)(i). OIP informed Plaintiff that Department of Justice regulations allow for administrative appeals to OIP only after an adverse determination on a FOIA request and that, because BOP had not yet made any determination on Plaintiff's FOIA request, OIP could not consider the appeal. Dkt. 1 ¶ 8, Dkt. 1 at 17; see 5 U.S.C. 552(a)(6)(C)(i).

         Plaintiff commenced this action on July 21, 2014. Dkt. 1. The complaint alleges: (1) that Defendants' " failure to make a determination to grant or deny" his request for records violated FOIA and Department of Justice regulations, id. ¶ 18; (2) that " Defendants' failure to timely make a determination to grant or deny plaintiff's request constitutes agency action unlawfully withheld and unreasonably delayed," id. ¶ 21, is " arbitrary, capricious, an abuse of discretion," and otherwise violates the APA, id. ΒΆ 22; (3) that Defendants' " failure to timely grant or deny plaintiffs' FOIA appeal" violated ...


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