United States District Court, District of Columbia
D. BATES United States District Judge.
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. For the reasons discussed below,
defendants' motion will be granted, and plaintiff's
cross-motion will be denied.
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.
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. 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.
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.”).
to plaintiff, “all inmates' funds deposited in
BOP's Commissary Fund generate interest on a daily
basis.” Am. Compl. ¶ 15. 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.
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.
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.
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).
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.”
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.