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Allen v. Federal Bureau of Prisons

United States District Court, District of Columbia

February 8, 2019




         Isaac Kelvin Allen brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, against the Federal Bureau of Prisons (“BOP”), a component of the United States Department of Justice (“DOJ”). This matter is before the Court on Defendant's Third Renewed Motion for Summary Judgment, ECF No. 49, and its four supporting declarations.[1]

         For the reasons discussed below, the Court will grant the motion in part and deny the motion in part without prejudice.

         1. BACKGROUND

         A. Plaintiff and his FOIA Request

         Plaintiff was convicted in the United States District Court for the Middle District of Florida for making false statements, see 18 U.S.C. § 1014, and aggravated identity theft, see 18 U.S.C. § 1028A(a)(1), and is serving a 198-month term of incarceration. See First Mack Decl. ¶ 2. He was designated to a Federal Correction Complex (“FCC”) in Coleman, Florida from March 2008 through February 2012. Supp. Mack Decl. ¶ 2. In February 2012, he was transferred from FCC Coleman to the United States Penitentiary in Beaumont, Texas (“USP Beaumont”), id. ¶ 2, and in February 2018 to the Federal Correctional Institution in Jesup, Georgia, 3d Supp. Mack Decl. ¶ 8.

         The Trust Fund Limited Inmate Computer System (“TRULINCS”) is a system through which inmates in BOP custody “manage their contact list[s] (email[, ] postal mail, telephone and video sessions), communicate with the public via email, view financial account transactions, print postal mailing labels, perform electronic law library research, [and] manage their finances.” 2d Supp. Mack Decl. ¶ 10; see generally Program Statement 4500.11, Trust Fund/Deposit Fund Manual, Ch. 14 (Apr. 9, 2015). “Plaintiff's access to the []BOP's TRULINCS messaging system is under a 21 year suspension[.]” Compl. ¶ 6. Plaintiff claims that he “has never been presented an official copy of the reason” for the TRULINCS suspension, id., and by means of a FOIA request to BOP's Central Office in December 2015, First Mack Decl. ¶ 9, plaintiff sought a written explanation, Compl. ¶ 10; see First Mack Decl., Attach. 2 at 1.

         B. BOP's Search for and Release of Responsive Records

         BOP Central Office staff determined that records responsive to the request, assigned tracking number 2016-01713, most likely would be found in plaintiff's central file, First Mack Decl. ¶¶ 10-11, which would have been maintained at plaintiff's then-current designated institution, id. ¶ 10, USP Beaumont, id. ¶ 2. Accordingly, Central Office staff forwarded the request to the South Central Regional Office (“SCRO”), id. ¶¶ 6, 9, in Grand Prairie, Texas, id. ¶ 1, for processing. SCRO staff, in turn, contacted the Legal Liaison at the FCC Beaumont by email with instructions to search plaintiff's central file. Id. ¶ 10.

         The search yielded copies of two reports totaling 11 pages. See id. ¶ 12; Supp. Mack Decl. ¶ 5. The first was a “Special Investigative Services SIS Report (‘SIS Report') . . . describing the investigation of [p]laintiff's identity theft and tax fraud scheme” that FCC Coleman staff conducted and which concluded in July 2011. Supp. Mack Decl. ¶ 5.a. The last page indicated that the SIS Report had four attachments: Threat Assessment Checklist, Detention Order, Staff Memorandum, and SENTRY Data. 2d Supp. Mack Decl. ¶ 6; id., Ex. 1 at 8. None of the SIS Report's attachments was found in plaintiff's central file. Id. ¶ 6. The second report was “titled TRULINCS Restricted or Limited Access Request (‘TRULINCS Report'), from USP Beaumont, which was generated in February - March 2012[.]” Supp. Mack Decl. ¶ 5.b. On January 12, 2016, BOP released two pages in full, released seven pages in part, and withheld two pages in full, First Mack Decl. ¶ 12, relying on FOIA Exemptions 7(C), 7(E) and 7(F), Supp. Mack Decl. ¶ 6.

         “Upon further consultation with BOP staff, ” BOP's declarant learned that the SIS Report's attachments “might . . . be located in a separate SIS file at [FCC Coleman] where [p]laintiff [had been] confined and where the investigation took place.” 3d Supp. Mack Decl. ¶ 10. She then “directed SIS staff at FCC Coleman to search for the missing attachments . . . or any other responsive records in that file[.]” Id. This search yielded 131 more pages “comprising the four missing attachments to the SIS report[.]” Id. On April 13, 2018, BOP hand delivered to plaintiff a three-page “threat assessment checklist” in full and the remaining attachments in part, relying on FOIA Exemptions 7(C) and 7(F). See id. ¶¶ 11, 13-16.

         C. Defendant's Dispositive Motions

         Defendant has filed four dispositive motions. Initially defendant moved to dismiss or for summary judgment arguing that plaintiff had not exhausted his administrative remedies prior to filing this action. See Def.'s Mot. to Dismiss or Alternatively for Summ. J. (ECF No. 11). Defendant withdrew this motion, see Def.'s Notice of Withdrawal of Mot. to Dismiss (ECF No. 19), and filed a renewed summary judgment motion, see Def.'s Renewed Mot. for Summ. J. (ECF No. 27), on December 8, 2016. Plaintiff opposed the motion, see Request to Deny Def.'s Renewed Mot. for Summ. J. (ECF No. 29) on January 17, 2017, and on July 11, 2017, the Court granted the motion in part and denied it in part, see Mem. Op. and Order (ECF No. 36), concluding that BOP's search of plaintiff's central file for records responsive to his FOIA request was adequate and that its explanation for withholding certain information under Exemptions 7(C), 7(E) and 7(F) was insufficient.

         Defendant's third motion, see Def.'s Second Renewed Mot. for Summ. J. (ECF No. 39), addressed the exemptions, and plaintiff filed his opposition on December 4, 2017, see Request to Deny Def.'s Second Renewed Mot. for Summ. J. (ECF No. 42, “Pl.'s Opp'n to 2d Renewed Mot.”). Regarding the SIS Report, BOP's declarant stated:

Page 8 of the SIS Report identifies four attachments: (1) threat assessment checklist; (2) detention order; (3) staff memorandum; and (4) SENTRY Data. This information was withheld inadvertently in the prior release. At the request of counsel, I checked with the [SCRO], where [p]laintiff's central file was located, and confirmed that the referenced attachments are not contained in [p]laintiff's central file . . . . BOP produced all of the records responsive to Plaintiff's request that BOP had located in its search.

2d Supp. Mack Decl. ¶ 6 (emphasis added).[2] The Court construed this statement to mean that BOP deemed the attachments responsive to plaintiff's FOIA request, and for reasons unknown withheld them. Accordingly, the Court denied the motion without prejudice, and directed BOP to explain why its obligations under the FOIA end because records it admittedly should have released were not in plaintiff's central file.

         Defendant's fourth motion and supporting declaration clarify that the only information BOP inadvertently withheld was four lines of text identifying the attachments:

Attachments: Threat Assessment Checklist Detention Order Staff Memorandum SENTRY Data

2d Supp. Mack Decl., Ex. 1 at 8; see Def.'s Mot. at 2-3. The attachments themselves subsequently were located in SIS records at FCC Coleman and released in part. 3d Supp. Mack Decl. ¶¶ 10-11.


         A. Adequacy of BOP's Searches

         Now that BOP “broadened its search for the missing attachments to the SIS Report, ” Def.'s Mot. at 3, defendant moves “for summary judgment on the adequacy of its expanded search, ” id. at 4. Plaintiff “takes serious issue with defendant's supplemental search, and the 131 pages of responsive records released.” Opp'n to Def.'s Third Renewed Mot. for Summ. J. (ECF No. 51, “Pl.'s Opp'n”) ¶ 9. He deems defendant's recent effort “an unsolicited extensive multi-institutional supplemental search outside of [his] central file, ” id. ¶ 8, which served only to “create[] substantial doubt as to the sufficiency of the initial search, ” id. If the Court were to grant defendant's fourth dispositive motion, he argues, its ruling “would be the second summary judgment imposed on this same issue, ” id. ¶ 6 (emphasis in original), the adequacy pf BOP's search. In order that the Court avoid issuing an “improper” order, id., plaintiff “asks the Court to vacate” ...

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