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Debrew v. Atwood

United States District Court, District of Columbia

March 27, 2017

MICHAEL ATWOOD, et al., Defendants.


          JOHN D. BATES United States District Judge.

         The United States Court of Appeals for the District of Columbia Circuit remanded this matter for further proceedings on three claims. See DeBrew v. Atwood, 792 F.3d 118 (D.C. Cir. 2015). Now before this Court are defendants' Motion to Dismiss Plaintiff's Amended Complaint and for Summary Judgment, ECF No. 83, and plaintiff's cross-motion for summary judgment, ECF No. 87.[1] For the reasons discussed below, defendants' motion will be granted, and plaintiff's cross-motion will be denied.

         I. BACKGROUND

         Plaintiff is a former federal inmate who had “written and published several novels during his time in prison.” DeBrew, 792 F.3d at 130. He was released from the custody of the Federal Bureau of Prisons (“BOP”) on May 6, 2016, and now is serving a 60-month term of supervised release. Mem. of P. & A. in Support of Defs.' Mot. to Dismiss Pl.'s Am. Compl. and for Summ. J. (“Defs.' Mem.”), Ex. B (“Nastro Decl.”) ¶ 4.

         In September 2007, plaintiff submitted a request to BOP under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Am. Compl. ¶ 11; Defs.' Mem., Ex. A (“Fourth Moorer Decl.”) ¶ 5. He sought “[a]ll documentation for making Conducting a Business (408) a prohibited act.” Defs.' Mem., Ex. C (Freedom of Information/Privacy Act Request dated September 5, 2007) at 1; Am. Compl. ¶ 11.[2] BOP responded by providing plaintiff a copy of “the program statement on Inmate Discipline, ” Fourth Moorer Decl. ¶ 9, and related materials that had been published in the Federal Register, id. ¶¶ 12, 15; see Am. Compl. ¶ 12.

         Plaintiff alleges that BOP “failed to adequately supply information as required by the FOIA, ” Am. Compl. ¶ 14, because it has released “[n]o documents as to how Code 408 came into existence[, ]” id. ¶ 13; see DeBrew, 792 F.3d at 121 (“DeBrew argues the BoP's response was inadequate because he did not receive records generated by the agency in the course of deciding to adopt the rule prohibiting an inmate from conducting a business.”).

         According to plaintiff, “all inmates' funds deposited in BOP's Commissary Fund generate interest on a daily basis.” Am. Compl. ¶ 15.[3] He claims that BOP “deprives inmates of interest generated [from these] funds” in violation of the inmates' right to due process under the Fifth Amendment of the United States Constitution. Id. ¶ 16.

         While incarcerated at FCI Loretto in June 2006, plaintiff allegedly “was found guilty of violating BOP's Code 408 (Conducting a Business) and ordered to remove his web-site from the World Wide Web and not to use the mails in regards to his books and manuscripts.” Id. ¶ 17. In April 2009, while incarcerated at FCI Butner, plaintiff again “was found guilty of Code 408, ” this time because he had “receiv[ed] a Royalty Check . . . for a book entitled Keisha.” Id. ¶ 18.

         Defendants represent that “[p]laintiff was found to have committed BOP code 408 (Conducting a Business) during a Unit Discipline Committee hearing” on April 21, 2009. Nastro Decl. ¶ 5. BOP has “no other record of discipline with respect to [p]laintiff committing the . . . prohibited act of Conducting a Business.” Id. Whatever the number of Code 408 violations plaintiff may have committed, plaintiff asserts that the sanctions imposed violated his First Amendment “right to Freedom of Expression.” Id. ¶ 19. Further, he claims that his “property rights have been limited in violation of the Fifth Amendment.” Id. ¶ 20.

         Plaintiff brings his FOIA claim against BOP. See id. ¶¶ 8, 26. He demands a declaratory judgment stating “that [BOP has] improperly withheld agency records, ” an order directing BOP “to provide requested information, ” payment of “reasonable [a]ttorney fees and [l]itigation costs, ” and an award of “punitive damages for willfully improperly withholding agency records.” Id. at p. 8 (page number designated by ECF).

         The constitutional claims are brought against the current and former BOP Directors and Trust Fund Managers in their official and individual capacities. See id. ¶¶ 4-7, 27-28. Plaintiff demands a “[d]eclaratory [j]udgment that defendants violated inmates' Fifth Amendment rights by keeping interest earned off their funds, ” and payment of interest on the interest withheld, id. at p. 8, as well as a preliminary injunction, id. at p. 9. He also demands that defendants “organize a system that pays inmates . . . interest earned on their money, just like a bank.” Id.

         Plaintiff demands an injunction to “keep[] the BOP from using Code 408” and a “[d]eclaratory [j]udgment that Code 408 violates inmates' Fifth and First Amendment rights.” Id. Lastly, plaintiff demands an award of $10, 000, 000, 000 in [p]unitive, [c]ompensatory, and [a]ctual damages.” Id.[4]


         A. ...

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