United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Marcelo Sandoval, proceeding pro se, brought this
action under the Freedom of Information Act
("FOIA") and the Privacy Act against defendants
United States Department of Justice ("DOJ"), the
Executive Office for United States Attorneys
("EOUSA"), the United States Attorney's Office
for the Central District of Illinois ("USAO CDIL"),
the Federal Bureau of Investigation ("FBI"), and
the Federal Bureau of Prisons ("BOP"), seeking both
the production of documents about himself and the correction
of inaccurate records. Compl. [Dkt. # 1] ¶¶ 4-9.
Defendants filed a motion to dismiss and for summary
judgment; they moved to dismiss plaintiffs FOIA claim against
BOP and his claim under the Privacy Act against all
defendants, and they moved for summary judgment on plaintiff
s FOIA claims against the remaining defendants. Defs.'
Mot. to Dismiss & for Summ. J. [Dkt. # 17]
("Defs.' Mot."); Mem. of P. & A. in Supp.
of Defs.' Mot. [Dkt. # 17-2] ("Defs.'
Mem."). Plaintiff filed an opposition on October 20,
2017, but in it, he only challenged the adequacy of
defendants' searches and the use of certain FOIA
Exemptions. Reply Mot. for PI. to Defs.' Mot. [Dkt. # 20]
plaintiff has not opposed defendants' motion to dismiss
the FOIA claim against BOP and the Privacy Act claims against
all defendants, the Court will grant that portion of the
motion as conceded. The Court will grant defendants'
motion for summary judgment on the FOIA claim against the
FBI, but it will deny the motion as to DOJ, EOUSA, and USAO
CDIL at this time.
Plaintiffs FOIA/Privacy Act Requests to the FBI
Plaintiffs First Request
who is currently in the custody of BOP in West Virginia,
submitted a FOIA/Privacy Act ("FOIPA") request to
the FBI on September 7, 2015, seeking documents related to
his alleged activities between 1997 and 2015. Defs.'
Statement of Material Facts as to Which There is no Genuine
Issue [Dkt. # 17-1] ("Defs.' SOF") ¶ 2;
Decl. of David M. Hardy [Dkt. # 17-3] ("Hardy
Decl.") ¶ 5; Ex. A to Hardy Decl. [Dkt. # 17-3]
("First FBI FOIPA Request"). Specifically, he
requested "[d]ocuments supporting that I am a member of
the Mexican Mafia & was supplying information to the
government. And or produce documents that refute the
above." Defs.' SOF ¶ 2; First FBI FOIPA
responded to plaintiffs FOIPA request by letter dated
September 28, 2015, notifying him that a search of the
FBI's Central Record System failed to locate any records
responsive to his request, and that he had the right to
appeal. Defs.' SOF ¶ 3; Ex. B to Hardy Decl. [Dkt. #
17-3]. On October 5, 2015, plaintiff filed an administrative
appeal with the Office of Information Policy, which affirmed
the FBI's action on plaintiffs FOIPA request on October
30, 2015. See Defs.' SOF ¶ 4; Ex. C to
Hardy Decl. [Dkt. # 17-3]; Ex. E to Hardy Decl. [Dkt. #
Plaintiffs Second Request
October 20, 2015, plaintiff submitted another FOIPA request
to the FBI, again seeking information about himself from 1997
to 2015. Defs.' SOF ¶ 5; see Hardy Decl.
¶ 10; Ex. F to Hardy Decl. [Dkt. # 17-3] ("Second
FBI FOIPA Request"). Plaintiff specifically requested:
[D]ocuments proving my actual innocence of the Kidnapping
described in USA v. Sandoval, 99-cr-40019-JBM (CD.
Ill/Rock Island) & Inaccurate records depicting Sandoval
as a member of the Mexican Mafia & as a governmental
informant, both are untrue, also documents concerning
government witnesses against Sandoval convicted of violence
& committing perjury at Sandoval's jury trial.
Defs.' SOF ¶ 5; Second FBI FOIPA Request. The FBI
acknowledged receipt of plaintiff s request on December 3,
2015, and it informed plaintiff that it was in the process of
searching its Central Records System for information
responsive to his request. Defs.' SOF ¶ 6;
see Hardy Decl. ¶ 11; Ex. G to Hardy Decl.
[Dkt. # 17-3]. On December 14, 2015, the FBI responded to
plaintiffs request by letter, stating that the FBI's
search failed to locate any responsive records, and that he
had the right to appeal. Defs.' SOF ¶ 7;
see Hardy Decl. ¶ 12; Ex. H to Hardy Decl.
[Dkt. # 17-3].
September 28, 2016, after plaintiff filed this action in
federal court, the FBI sent a letter to plaintiff, informing
him that eleven pages of records had been reviewed, and it
simultaneously released five pages in full or in part.
Defs.' SOF ¶ 7; see Hardy Decl. ¶ 14;
Ex. I to Hardy Decl. [Dkt. # 17-3]. Although all of the
records would have been withheld in full pursuant to Privacy
Act Exemption j (2), the documents "were processed
pursuant to the FOIA to allow [p]laintiff the greatest degree
of access to the records, " so only some information was
withheld pursuant to FOIA Exemptions 6, 7(C), 7(D), and 7(F).
Hardy Decl. ¶ 14; Ex. I to Hardy Decl. [Dkt. # 17-3].
administratively appealed this agency action on October 11,
2016, Hardy Decl. ¶ 15; Ex. J to Hardy Decl. [Dkt. #
17-3], but the agency's action was upheld. Hardy Decl.
¶ 17; Ex. L to Hardy Decl. [Dkt. # 17-3].
Plaintiff s Request to BOP
October 15, 2015, plaintiff sent a FOIA request to BOP.
Defs.' SOF ¶ 9. BOP responded to plaintiff on November
13, 2015, informing him that it had found his Presentence
Investigation Report (totaling 23 pages). Id.
However, pursuant to BOP Program Statement 1351.05, inmates
are prohibited from obtaining photocopies of their
Presentence Reports while incarcerated, so BOP informed
plaintiff that his report would be made available through his
unit team. Id. BOP notified plaintiff of his appeal
rights, but plaintiff did not appeal its determination.
Id. ¶ 10.
Plaintiffs FOIPA Requests to EOUSA and USAO CDIL
August 31, 2015, plaintiff sent a FOIPA request to EOUSA
asking for access to "any and all records . . . that
relate to and/or make reference to Sandoval, "
"in and around 1997-2015, " including
"[i]naccurate records, depict[ing] Sandoval as a
'Mexican Mafia Member' and other false records such
as Sandoval working with the government." Decl. of David
Luczynski [Dkt. # 17-5] ("Luczynski Decl.") ¶
4; Ex. A to Luczynski Decl. [Dkt. # 17-5] ("Ex.
submitted another FOIPA request to USAO CDIL dated September
11, 2015. Luczynski Decl. ¶ 5; Ex. B to Luczynski Decl.
[Dkt. # 17-5] ("Ex. B"). He sought records from
"case: #99-40019-(Central District of Illinois)"
between 1997 and 2015, "[s]howing that Sandoval is a
member of the Mexican Mafia & that Sandoval was working
for the FBI/DEA. And of [d]ocuments refuting supra."
Luczynski Decl. ¶ 5; Ex. B. USAO CDIL advised plaintiff
to direct all future correspondence to EOUSA since EOUSA
handles all FOIA requests involving U.S. Attorneys'
Offices, and it sent a letter to EOUSA on September 23, 2015,
enclosing a copy of plaintiff s FOIPA request for processing.
Decl. of Julie Leeper [Dkt. # 17-6] ("Leeper
Decl.") ¶ 3. EOUSA informed plaintiff on October 9,
2015, that it had received the request he sent to USAO CDIL,
and EOUSA assigned it FOIA No. 2015-04040. Luczynski Decl.
¶ 7; Ex. D. to Luczynski Decl. [Dkt. # 17-5].
October 20, 2015, plaintiff sent a third request to EOUSA,
seeking the following:
I request specific documents proving my actual innocence of
the kidnapping described in USA v. Sandoval, #99-cr-40019-JBM
(CD. Ill./Rock Island) & inaccurate records dep[icting]
Sandoval as a member of the Mexican Mafia & government
informant, which are both untrue, [and] also concerning
government witnesses against Sandoval convicted of violence
& committing perjury at Sandoval's jury trial.
Ex. C to Luczynski Decl. [Dkt. # 17-5] ("Ex. C");
Luczynski Decl. ¶ 6. This request was also limited to
the 1997 through 2015 time frame. See Ex. C.
approximately June 13, 2016, USAO CDIL received plaintiffs
request after it was processed by EOUSA,  and it informed
EOUSA that it was unable to locate any responsive documents.
Leeper Decl. ¶¶ 4, 13.
responded to request No. 2015-04040 on September 16, 2016,
informing plaintiff that his request had been processed and
no responsive records had been found. Luczynski Decl. ¶
10; Ex. G to Luczynski Decl. [Dkt. # 17-5]. On October 3,
2016, plaintiff appealed EOUSA's determination, Luczynski
Decl. ¶ 11; Ex. H to Luczynski Decl. [Dkt. # 17-5], and
on December 15, 2016, the Office of Information Policy
affirmed EOUSA's action on his request. Luczynski Decl.
¶ 12; Ex. J to Luczynski Decl. [Dkt. # 17-5].
filed this action pro se on May 26, 2016, Compl.,
and defendants answered the complaint on February 22, 2017.
Answer [Dkt. # 11]. On June 22, 2017, defendants filed this
motion to dismiss and for summary judgment. Defs.' Mot.
The Court notified plaintiff that the Court "may grant
[defendants'] motion and dismiss the case if [he]
fail[ed] to respond, " and ordered him to respond by
July 26, 2017. Order [Dkt. # 18], citing Fox v.
Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (holding
that a district court "must take pains to advise
apro se party of the consequences of failing to
respond to a dispositive motion" and that the notice
"should include an explanation that the failure to
respond . . . may result in the district court granting the
motion and dismissing the case"). The Court issued a
subsequent warning to plaintiff that if he did not respond to
defendants' motion to dismiss and for summary judgment by
October 24, 2017, "the Court will grant the motion to
dismiss as conceded and accept any facts set forth in
defendants' motion for summary judgment as true, and it
may decide the matter in defendants' favor without the
benefit of plaintiff s position." Order [Dkt. #19].
Plaintiff opposed the motion on October, 20, 2017. See
Motion to Dismiss Standard
evaluating a motion to dismiss under either Rule 12(b)(1) or
12(b)(6), the Court must "treat the complaint's
factual allegations as true . . . and must grant plaintiff
'the benefit of all inferences that can be derived from
the facts alleged.'" Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal citations omitted), quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also
Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011). Nevertheless, the Court need not accept
inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the
Court accept plaintiffs legal conclusions. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Subject Matter Jurisdiction
Rule 12(b)(1), the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d
59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that "a cause lies
outside this limited jurisdiction." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C. Cir. 2004) ("As a court of limited jurisdiction,
we begin, and end, with an examination of our
jurisdiction."). "[B]ecause subject-matter
jurisdiction is 'an Art[icle] III as well as a statutory
requirement ... no action of the parties can confer
subject-matter jurisdiction upon a federal court.'"
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003), quoting Ins. Corp. oflr., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
Failure to State a Claim
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face."
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009)
(internal quotation marks omitted); accord Bell Ail.
Corp. v. Twombly,550 U.S. 544, 570 (2007). In
Iqbal, the Supreme Court reiterated the two principles
underlying its decision in Twombly: "First, the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions." 556 U.S. ...