United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge
Pro se Plaintiff Jeremy Pinson is currently an inmate at ADX Florence, a federal prison located in Colorado. While in prison, Mr. Pinson has filed multiple Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests with different components of the U.S. Department of Justice (“DOJ”). On several occasions, the DOJ has asked Mr. Pinson to clarify his records requests, told him that it could not find records that are responsive to his requests, or informed him that the records he sought were exempt from disclosure by law. Mr. Pinson took issue with some of these determinations, so he filed a complaint claiming that the DOJ improperly withheld numerous records from him in violation of FOIA. In response, the DOJ filed several pre-answer motions, each asking the Court to dismiss or grant summary judgment in its favor on different portions of Mr. Pinson’s complaint.
Now before the Court is the DOJ’s motion for summary judgment as to Mr. Pinson’s numerous FOIA requests submitted to the Federal Bureau of Prisons (“BOP”) and several claims brought against BOP employees pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Defs.’ Mot. Summ. J., ECF No. 147. As to his FOIA requests, Mr. Pinson alleges that the BOP responded improperly to 51 of his requests, either by failing to locate relevant records or by wrongfully withholding responsive documents. See Corr. 2d Am. Compl. at 2–5, ECF No. 32. He further claims that the BOP failed to respond altogether to 19 additional, unnumbered requests. Id. at 5–6. Mr. Pinson also asserts that his constitutional rights were violated on four separate occasions under Bivens when: (1) John Dignam, Chief of BOP’s Office of Internal Affairs (“OIA”), allegedly refused to investigate complaints regarding Mr. Pinson’s safety unless Mr. Pinson agreed to cease news media contact and litigation; (2) BOP Director Charles Samuels allegedly instructed FCI Talladega staff to interrogate Mr. Pinson and, when Mr. Pinson did not cooperate, had Mr. Pinson transferred to ADX Florence based on allegedly false information; (3) Director Samuels allegedly ordered Mr. Pinson to be separated from another ADX Florence inmate and directed staff to harass Mr. Pinson; and (4) Director Samuels and Chief Dignam allegedly had Mr. Pinson placed on mail restrictions. See Corr. 2d Am. Compl. at 14–16.
For the reasons set forth below, the Court will grant in part and deny in part the DOJ’s motion for partial summary judgment.
II. FACTUAL BACKGROUND
A. FOIA Claims
1. Requests that Were Not Processed Due to Unpaid Fees
In several instances, the BOP refused to process Mr. Pinson’s FOIA requests altogether in light of unpaid, outstanding fees Mr. Pinson had incurred for prior FOIA requests, or in light of Mr. Pinson’s failure to pay the anticipated fees for a particular request.
a. Request No. 2010-12533
In August 2010, Mr. Pinson submitted a request to the BOP for the production of documents relating to: (1) the use of force against Mr. Pinson during November 2007 while he was held in a special housing unit at USP Florence; (2) inmate handbooks from ADX Florence; and (3) any related Administrative Remedy Requests. See Corr. 2d Am. Compl. at 2; Christenson Decl. ¶ 13 & Ex. 2, ECF No. 147-6. The BOP responded by letter dated February 28, 2011 that it would not process Mr. Pinson’s request in light of an outstanding $24.80 fee for a different FOIA request, Request No. 2011-1886, that Mr. Pinson had not yet paid. See Christenson Decl. ¶ 15 & Ex. 3. Mr. Pinson now claims that, while he received a letter from the BOP on December 9, 2010 acknowledging Request No. 2010-12533, he never received a “final response from the BOP” with respect to this request. 2d Pinson Decl. ¶¶ 4–5, ECF No. 180 Ex. 1. His Second Amended complaint states, however, that after the BOP assigned the request a number it “refused to produce the information.” Corr. 2d Am. Compl. at 2. In any event, the Department of Justice’s Office of Information Policy (“OIP”) claims to have never received an appeal from Mr. Pinson with respect to this request. See Christenson Decl. ¶ 16. BOP did receive a $24.80 payment from Mr. Pinson on March 25, 2011 for the underlying, outstanding fee for Request No. 2011-1886. See Greene Decl. ¶ 10, ECF No. 147-5. As far as the record indicates, however, the BOP did not reopen and process Request No. 2010-12533 in light of this payment.
b. Request Nos. 2011-7156, 2011-7619, 2012-39, 2012-40, 2012-975, 2013-1684, and 2013-2721
The BOP similarly refused to process a bevy of requests Mr. Pinson submitted in 2011 in light of an outstanding fee. Between April 2011 and December 2012, Mr. Pinson submitted a series of requests to the BOP for the production of records relating to Mr. Pinson’s inmate records, his ADX Florence placement, an array of incident reports, policies, and budgets for several prison facilities, and certain emails sent by a warden during 2011. See Christenson Decl. ¶¶ 24, 63, 115, 119, 123, 132, 136 & Exs. 6, 14, 22, 24, 26, 30, 33. In each instance, the BOP determined that Mr. Pinson had failed to pay a $72.90 fee with respect to a prior request, Request No. 2012-5839, that remained outstanding. The BOP issued several letters in December 2012 and January 2013 informing Mr. Pinson that it would not process the requests because of the outstanding fee due for Request No. 2012-5839. See id. Exs. 7, 15, 23, 25, 27, 31, 34. Mr. Pinson did eventually remit payment for that fee on October 10, 2013. The DOJ had administratively closed the new requests in the interim, however, and it states that it did not process the new requests because Mr. Pinson “failed to ask the BOP to reopen the requests” after the fee was paid. See Id . ¶¶ 28, 65, 117, 121, 125, 134.
c. Request Nos. 2012-12518 and 2012-8542
In August 2012, Mr. Pinson submitted a request to the BOP for the “production of all Report[s] of Incident (Form[s] 583) on Calculated Uses of Force at FCI Talladega’s Special Management Unit from March 2009 until March 2010, ” which Mr. Pinson lists as Request No. 2012-12518. Greene Decl. Ex. 21. By letter dated October 16, 2012, the BOP advised Mr. Pinson that it estimated that Request No. 2012-12518 would incur a cost of $290.00 and, therefore, that Mr. Pinson must agree to pay the anticipated fees or modify his request before the BOP would process it. See id. ¶ 14 & Ex. 22.
In a similar vein, on or about May 21, 2012, Mr. Pinson submitted a request, numbered 2012-8542, seeking the “production of all information . . . generated by [the BOP] in connection with inmate deaths at USP Florence occurring on April 20, 2008; August 10, 2008[;] and May 25, 2009.” Todd Decl. Attach. 1, ECF No. 147-9. On November 27, 2012, the BOP issued a letter advising Mr. Pinson that, with respect to the latter two incidents, his request was duplicative of FOIA Request No. 2011-08171, in which he was “provided with a response on or about March 28, 2012.” See Id . ¶ 3 & Attach. 2. The letter also informed Mr. Pinson that it would suspend processing records related to the April 20, 2008 incident unless the estimated anticipated fee of $290.00 was paid within 30 days, or until he modified his request. See Id . ¶ 3 & Attach. 2.
In both instances, the BOP states that its records reflect no response to the BOP’s request that Mr. Pinson agree to pay the $290.00 in fees or modify his request. See Greene Decl. ¶ 14; Todd Decl. ¶ 3.
2. Purportedly Unexhausted Requests
a. Request Nos. 2011-2666, 2011-4954, 2011-9164, 2011-9398, 2012-3706, 2013-2100, and 2013-4747
With respect to several requests that BOP did process and respond to, the DOJ claims that Mr. Pinson failed to file an appeal and, therefore, failed to exhaust his administrative remedies.
In December 2010, Mr. Pinson submitted a request to the BOP for the production of his Office of Internal Affairs records, to which BOP assigned number 2011-2666. See Corr. 2d Am. Compl. at 3; Moorer Decl. ¶ 4 & Attach. 1, ECF No. 147-8. By letter dated November 4, 2011, the BOP responded to Mr. Pinson’s request and released 39 pages in full and 70 pages with redactions pursuant to FOIA Exemptions 6, 7(C), and 7(F). See Moorer Decl. ¶ 5 & Attachs. 2– 3.
In February 2011, Mr. Pinson submitted a request to the BOP for the production of “[a]ny Discipline Hearing Officer Report, issued in the years 2010 or 2011, to an inmate assigned to any phase of the ADX Step-Down Program, wherein a Prohibited Act Code 100, 100A, 101, 101A was found to have been committed.” Christenson Decl. Ex. 4. This request was assigned number 2011-4954 and, by letter dated October 20, 2011, the BOP advised Mr. Pinson that it had located no responsive records. See id. ¶ 22 & Ex. 5.
In July 2011, Mr. Pinson submitted a request to the BOP for the production of: (1) “All information regarding debts or encumbrances to [his] inmate trust account includ[ing] the date, source and amount of each since 1-1-2008”; (2) “All contact data, incoming and outgoing messages in [his] TRULINCS account from 2-14-08 to 5/30/08”; and (3) photographs taken of him “following altercations on Aug. 31, 2007 and Sept. 9, 2007 at USP Beaumont, Oct. 15, 2007 and Dec. 12, 2007 at USP Florence, March 30, 2008 and April 9, 2008 at USP Victorville, Sept. 10, 2009 and June 25, 2010 at FCI Talladega.” Christenson Decl. Ex. 18. In response to this request, which was assigned number 2011-9164, the BOP released 114 pages of responsive records with respect to the inmate trust account by letter dated July 26, 2012. See Christenson Decl. ¶ 97 & Ex. 19. The BOP, however, informed Mr. Pinson that no records could be found concerning the TRULINCS account because it had not existed at the facility he was housed in during the identified time period. See Christenson Decl. Ex. 19. Moreover, the BOP advised Mr. Pinson that it had only been able to locate photographic records for five of the eight altercations he had listed. See id.
On or about July 7, 2011, Mr. Pinson submitted Request No. 2011-9398 to the BOP for the “production of all information maintained by [the BOP] on the Florencia X3 gang.” Velilla-Arce Decl. Attach. 4, ECF No. 147-10. By letter dated August 25, 2011, the BOP informed Mr. Pinson that it had not located any responsive records because “the BOP does not maintain records on the Florencia X3 gang.” Velilla-Arce Decl. ¶ 8 & Attach. 5.
In January 2012, Mr. Pinson submitted a request to the BOP for the production of certain “institution supplements from ADX Florence.” See Christenson Decl. ¶¶ 127–28 & Ex. 28. Those supplements are documents that explain how national BOP policy will be implemented “at a local level.” See Id . ¶ 128. The request was designated number 2012-3706 and, by letter dated March 15, 2012, the BOP released 25 pages of responsive records in full and informed Mr. Pinson that the remaining institution supplements he sought either did not exist or could not be located. See Id . ¶¶ 127, 130 & Ex. 29.
On or about November 14, 2012, Mr. Pinson submitted a request to the BOP for “copies of all public comments submitted in connection with the promulgation” of certain proposed BOP regulations. See Velilla-Arce Decl. ¶ 9 & Attach. 6. On December 4, 2012, the BOP issued a letter informing Mr. Pinson that his request-which had been assigned number 2013-2100- would not be processed since the records he sought were not held by the BOP. See Velilla-Arce Decl. ¶ 9 & Attach. 7.
Finally, Mr. Pinson submitted Request No. 2013-4747 to the BOP in December 2012, seeking the records of E.V., another inmate at ADX Florence. See Christenson Decl. ¶ 158 & Ex. 41. Although Mr. Pinson included a signed release form from the inmate, the BOP advised Mr. Pinson by letter dated February 27, 2013 that it would not provide responsive records to him because “[i]nmates who are currently designated to the custody of the Bureau of Prisons are not authorized to receive another currently designated inmate’s records through the FOIA” and that, furthermore, the records were exempt from disclosure under Exemptions 7(E) and 7(F). Id. Ex. 42.
The DOJ states that it has no record of an appeal filed by Mr. Pinson for any of these seven requests. See Moorer Decl. ¶ 5; Christenson Decl. ¶¶ 23, 98, 131, 160; Velilla-Arce Decl. ¶¶ 8–9. With respect to Request No. 2013-4747, Mr. Pinson now claims that he “never received any correspondence from the Bureau of Prisons” at all. See 2d Pinson Decl. ¶ 15. For the remaining requests, Mr. Pinson responds that, although he received an initial letter from BOP acknowledging these requests, he never received the BOP’s final response and therefore was unable to file an appeal. See Id . ¶¶ 5, 6, 9, 11, 16.
3. Fully Exhausted Requests
With respect to several other requests to which the BOP responded, Mr. Pinson either fully appealed the BOP’s response or, for reasons not stated in the record, the DOJ does not claim the request remains unexhausted (despite no evidence of an appeal by Mr. Pinson).
a. Request Nos. 2013-3342 and 2013-3343
In December 2012, Mr. Pinson submitted a series of requests to the BOP for the production of records relating to third-party inmates who were housed at ADX Florence, including Request Nos. 2013-3342 and 2013-3343 which sought records of inmates with the initials A.M.B. and M.G.S., respectively. See Christenson Decl. ¶¶ 140, 152 & Exs. 35, 38. The BOP responded with letters advising Mr. Pinson that no responsive records would be provided because BOP policy forbids inmates “to receive another currently designated inmate’s records through the FOIA.” Christenson Decl. ¶¶ 141, 153 & Exs. 36, 39. The letters also informed Mr. Pinson that the inmates’ records fell under Exemptions 7(E) and 7(F). See Id . On dates that are not apparent in this record, Mr. Pinson appealed the BOP’s responses to the OIP, which affirmed the BOP’s withholding of records on April 22, 2014. See Id . ¶¶ 142, 154 & Exs. 37, 40.
b. Request No. 2011-843
In October 2010, Mr. Pinson submitted a request to the BOP seeking the production of “(1) Rated Capacity Computation Form (EMS-36), for FCI Talladega (most recent)” and “(2) Site Safety and Control Plan (ICS Form 208), Incident Roster and Activity Log (ICS Form 214), [and] Incident Action Plan Safety Analysis (ICS Form 215a), for FCI Talladega.” Greene Decl. ¶ 7 & Ex. 1. Mr. Pinson limited his request to two hours of search time and 100 pages of information. See Id . Ex. 1. The request was assigned number 2011-843, and by letter dated December 2, 2010, the BOP informed Mr. Pinson that no responsive documents had been located. See Id . ¶ 7 & Ex. 2. OIP closed Mr. Pinson’s appeal of that determination due to this pending litigation, see Id . ¶ 7 & Ex. 4, but, in light of this litigation, the BOP later conducted another search “in additional areas” for responsive documents and located four pages that were released to Mr. Pinson in full, see Blanco Decl. ¶ 10 & Attach. 1, ECF No. 147-4.
c. Request No. 2011-2366
In December 2010, Mr. Pinson submitted a request to the BOP seeking all settlement documents from inmates who have been awarded monetary settlements from 2006 to present in litigation against officers or employees of prisons in three specific cities. See Greene Decl. ¶ 13 & Ex. 18. Mr. Pinson limited his request to two hours of search time and 100 pages of information. See Id . The request was assigned number 2011-2366, and a search was conducted. See Id . ¶ 13. After an outstanding fee for a prior FOIA request was resolved, the BOP issued a letter to Mr. Pinson on December 10, 2013, informing him that no responsive documents were located. See Id . ¶ 13 & Ex. 20.
d. Request No. 2011-01351
In 2011, Mr. Pinson submitted a request to the BOP for the production of “[a]ll After-Action Review Reports, pertaining to any inmate on inmate assault and/or homicide” occurring at FCI Talladega during 2009-2010. Greene Decl. Ex. 5. The BOP initially responded that it would withhold these records in full under Exemptions 6 and 7(C) because the requested records concerned other inmates. See Id . ¶ 8 & Ex. 6. After Mr. Pinson appealed this determination to the OIP, the BOP conducted a search for plaintiff’s requested After Action Review Reports and located 97 total pages of responsive records. See Id . ¶ 8 & Ex. 7. The BOP ultimately released 58 pages in full and 39 pages in part, withholding the names and register numbers of other inmates pursuant to Exemptions 6 and 7(C). See Id . ¶ 8; id. Ex. 8; id. Ex. 9, at 1–2.
e. Request No. 2011-01886
In 2010, Mr. Pinson submitted a request to the BOP for the production of documents associated with his placement referral to ADX Florence. See Id . ¶ 9 & Ex. 10. The staff at FCI Talladega, where Mr. Pinson had been housed before he was transferred to ADX Florence, searched its facility for responsive documents. See id. After this request was twice remanded by OIP for reprocessing, the BOP identified 537 responsive pages, released 333 pages in full and 162 pages in part, but withheld 42 pages in full pursuant to Exemptions 6 and 7(C). See Id . ¶¶ 10–12 & Ex. 17. The redacted and withheld materials concerned staff names, injury assessments, photos, the institution roster, the staff roster, and information regarding other inmates. See Defs.’ Stmt. of Mat. Facts ¶ 15, ECF No. 147-3; Greene Decl. ¶¶ 15–21 & Ex. 9, at 3–10.
f. Request No. 2011-8167
In 2011, Mr. Pinson submitted a request to the BOP for the production of records pertaining to the arrest of a BOP Director. See Velilla-Arce Decl. ¶ 4 & Attach. 1. The BOP’s Office of Internal Affairs searched its computer database and located 30 responsive pages. See Id . The BOP initially administratively closed this request after receiving no response from Mr. Pinson to indicate that he remained interested in the records, see Id . ¶ 5 & Attach. 2, but has since opened a new request with number 2014-05138 after Mr. Pinson filed his complaint (because the complaint demonstrated that Mr. Pinson remained interested in the records), see Id . ¶ 6. The BOP ultimately released 3 pages in full and 10 pages in part, invoking Exemptions 6 and 7(C) to redact names and other personal information of staff members. See Id . ¶ 6 & Attach. 3.
g. Request No. 2011-07400
In April 2011, Mr. Pinson submitted a request to the BOP for the production of documents relating to psychology treatment programs, the “[n]ames of North Central Regional Office [“NCRO”] [s]taff and [j]ob [t]itles, ” and “[a]ll DHO Reports dated 2007-2008” relating to him. Christenson Decl. Ex. 8. The ADX Florence legal staff conducted a search in Mr. Pinson’s Central File and located 245 pages of responsive records. See id. ¶ 31. Of these 245 pages, the BOP released 190 pages in full and 14 pages in part, and withheld 41 pages in full. See id. ¶ 33 & Ex. 9. After Mr. Pinson appealed the BOP’s response and the request was remanded, the BOP and its offices conducted another search, located responsive records, and re-released 216 pages in full and 22 pages in part, but withheld 7 pages in full. See Id . ¶ 36–37. One of the responsive records released included a telephone directory that “list[ed] every staff member who works for the [NCRO], their title, and their phone number.” Id. Pursuant to Exemptions 5, 6, 7(C), 7(E), and 7(F), the BOP withheld identifying and medical information of third-party individuals and inmates, email discussions among BOP staff members regarding the future management and housing of Mr. Pinson, letters containing threats to third-party individuals, and statements made by third-party inmates during BOP disciplinary proceedings. See Id . Ex. 13, at 1–4.
h. Request No. 2011-08171
In May 2011, Mr. Pinson submitted a request to the BOP for the production of: (1) “[a]ll Incident Reports (Form 583) on inmate on inmate deaths (Homicide), from 2005 to present, occurring at USP Florence, Lewisburg, Victorville, Atwater, Hazleton, Coleman 1 & 2, and FCI Talladega”; (2) “[a]ll information relating to Incident Report No. 1642331, 1619674, 1610661, 1655656, 2033414”; (3) “SIS File (VIP Case No. VIP-08061), (FLP-07413), (BMP07-364), ” (4) “[a]ll information on [his] 1-30-08 Escort Trip”; (5) “[a]ll incident reports (Form 583) for inmate on inmate assaults in FCI Oakdale Special Mgmt. Unit between 2010-11”; (6) “USP Florence Suicide Watch information of [himself] from 10-25-2006 to 11-5-2007”; and (7) “[a]ll incident reports (Form 583) on inmate on inmate assaults, during 2010-2011, in the USP Florence Special Mgmt. Unit.” Christenson Decl. Ex. 16. USP Florence staff searched its records for inmate-on-inmate homicide incident reports, and ADX Florence staff searched Mr. Pinson’s Central File for the incident numbers he listed and for his suicide watch information.See Id . ¶¶ 68–70. All told, the BOP located a total of 93 pages of responsive records. See id. ¶ 72. Of these 93 pages, the BOP released 86 pages in full or in part, and withheld seven pages in full. See Id . ¶ 72. The BOP invoked exemptions 6, 7(C), 7(E), and 7(F) to withhold identifying and medical ...