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Pinson v. U.S. Department of Justice

United States District Court, District of Columbia

August 30, 2019

JEREMY PINSON, Plaintiffs
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         Denying Plaintiff’s Motion for Reconsideration; Granting Defendants’ Motions for Summary Judgment; Denying Plaintiff’s Motion for preliminary injunction

         I. INTRODUCTION

         Pro se Plaintiff Jeremy Pinson brought this case to challenge the government’s response to multiple requests she filed under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, with different departments of the U.S. Department of Justice (“DOJ”), including the Executive Office of the United States Attorneys (“EOUSA”) and Federal Bureau of Prisons (“BOP”). On May 23, 2018, the Court granted in part the DOJ’s fourth motion for summary judgment with respect to FOIA requests directed at the BOP, which Pinson did not oppose. See Pinson v. U.S. Dep’t of Justice (“Pinson I”), 313 F. Supp. 3d 88');">313 F. Supp. 3d 88 (D.D.C. 2018). Pinson now moves to vacate that judgment under Fed. R. Civ. P. 60, arguing that she did not get the opportunity to oppose the motion because she never received it. Although both parties treat the motion as one under Rule 60, the Court treats it as a motion for reconsideration under Fed. R. Civ. P. 54, and because Pinson has not sufficiently established that she is entitled to relief, the Court denies the motion.

         In addition, before the Court are two renewed motions for summary judgments by DOJ with respect to the remaining requests directed at the EOUSA and BOP. This Court has granted in part and denied in part three past DOJ motions for summary judgment with respect to the EOUSA, and denied a motion for summary judgment with respect to two remaining FOIA requests directed at the EOUSA in May 2018. See Pinson v. U.S. Dep’t of Justice (“Pinson II”), 313 F. Supp. 3d 122');">313 F. Supp. 3d 122 (D.D.C. 2018). DOJ now files a renewed motion for summary judgment with respect to those two requests, arguing that it has adequately described the search terms used to perform the searches and responded to all requests. With respect to the BOP, the Court has granted in part and denied in part four past motions for summary judgment by DOJ. See generally Pinson I, 313 F. Supp. 3d at 88. In its renewed motion, DOJ argues that the BOP properly withheld records from disclosure under FOIA Exemption 7(F). For the reasons set forth below, the Court grants both DOJ motions for summary judgment.

         Finally, Pinson has moved for sanctions and for a preliminary injunction, arguing that the BOP is improperly interfering with her access to the courts. Because Pinson has not shown that she is substantially likely to prevail on the merits of a right of access claim, the Court denies the motion.

         II. BACKGROUND

         This Court has already discussed the factual background for this case in detail in its prior Memorandum Opinions. See Pinson II, 313 F. Supp. 3d at 125-26; Pinson I, 313 F. Supp. 3d at 99-104. The Court assumes familiarity with its prior opinions and confines its discussion to the facts most relevant to the present motions.

         A. Requests Nos. 2012-39 and 2013-1684

         Pinson filed this case in 2012, claiming that DOJ had unlawfully failed to comply with many of her FOIA requests. See Compl. ¶¶ 5–25, ECF No. 1. Several of those requests were directed at BOP, including Requests No. 2012-39 and 2013-1684. With respect to Request No. 2012-39, “Pinson sought, among other records, ‘[a]ll emails, memorandums by ADX Florence Executive Staff and/or Department Supervisors written or generated in connection with the 2011 Accreditation review by the ACA and/or making reference or mentioning such review.’” Pinson I, 313 F. Supp. 3d at 99 (citation omitted). And with respect to Request No. 2013-1684, Pinson sought files “located in the Central File, SIS File, and any other file maintained on Jeremy Pinson.” Id. at 100.

         On October 23, 2017, after several motions, responses, and orders arising from the complaint and after the government fulfilled several of the requests, DOJ filed its fourth motion for partial summary judgment on Requests No. 2012-39 and 2013-1684, which were the last remaining FOIA requests with respect to the BOP. See Defs.’ 4th Renewed BOP Mot. Summ. J (“BOP’s 4th MSJ”), ECF No. 403; Defs.’ Opp’n Mot. Vacate (“BOP’s Opp’n”) 1, ECF No. 439. The next day, this Court issued a Fox/Neal order advising Pinson to respond to the motion before November 22, 2017. See Fox/Neal Order 1, ECF No. 404. On October 26, 2017, Pinson signed a legal mail log at the FMC Rochester prison facility, acknowledging the receipt of mail from defense counsel. See BOP’s Opp’n Ex. A, ECF No. 439-1. On November 3, 2017, Pinson filed a motion for a 60-day stay of proceedings to permit settlement discussions. See Pl.’s Mot. Stay Proceedings (“Pl.’s Mot. Stay”), ECF No. 407. In the motion, Pinson also asserted that if the defendants did not agree to such a stay, she would seek an enlargement of time to respond to DOJ’s summary judgment motion, stating that she “would seek enlargement of time to respond to the most recent motion (Doc. 403) by 30 days.” Id. On December 6, 2017, this Court denied Pinson’s motion to stay proceedings and further ordered that Pinson respond to DOJ’s fourth summary judgment motion as to the BOP by January 5, 2018. Min. Order (Dec. 6, 2017).

         Pinson did not respond to the motion by January 5, 2018. On May 23, 2018, four months after the extended deadline, this Court granted in part and denied in part the DOJ’s motion for partial summary judgment. Pinson I, 313 F. Supp. 3d at 122. The Court granted summary judgment on most of the documents for which the BOP invoked exemptions in requests 2012-39 and 2013-1684. See Id. However, the Court rejected the BOP’s argument that FOIA Exemption 6 precluded the production of Document Nos. 7, 8, 17, and 18 under Request No. 2012-39 because “BOP ha[d] failed to demonstrate why the third-party, non-BOP employee who assisted with a pre-ACA audit ha[d] a privacy interest in not disclosing his or her name that outweigh[ed] the public interest in disclosure.” Id. at 112. It also held that DOJ did not sufficiently show that Exemptions 7(E) and 7(F) were applicable to Document No. 69 under Request No. 2013-1684. See Id. at 122.

         On July 2, 2018, Pinson filed a motion to vacate the May 23 judgment. See Pl.’s Mot. Vacate, ECF No. 437. Pinson claims she did not respond to DOJ’s motion due to “withholding [of the motion for summary judgment] . . . by BOP officials,” “never receiv[ing] a Fox notice from the Court clerk,” and more generally not receiving communications from the court clerk or counsel on this matter. Id. at 2. Pinson asserts that if she had received DOJ’s motion for partial summary judgment and the Fox/Neal Order, she would have responded to it in time. See id.

         On June 29, 2018, DOJ filed a motion for leave to file in camera a renewed motion for summary judgment with respect to the BOP. See Defs.’ Mot. Leave File in camera, ECF No. 434. The Court granted DOJ’s motion. Min. Order (July 2, 2018). DOJ then renewed its motion for summary judgment with respect to the BOP in camera on July 2, 2018, which it filed a public, redacted version of on March 1, 2019. See Defs.’ 5th Renewed BOP Mot. Summ. J. (“BOP Mot. Summ. J.”), ECF No. 456-1. In the motion, DOJ solely argues that the BOP properly withheld Document 69 under Request No. 2013-1684 pursuant to FOIA Exemption 7(F), asserting that it has demonstrated a reasonable expectation of endangerment to Pinson or other inmates should the document be released. See Defs.’ 5th Renewed BOP Mem. Supp. Summ. J. (“BOP Mem. Supp. Summ. J.) 4–5, ECF No. 456-1. DOJ supports its claim with a supplemental declaration by BOP employee Kara Christenson. See 8th Christenson Decl., BOP Mot. Summ. J. Ex. B. DOJ does not renew its motion for summary judgment with respect to Request No. 2012-39, and represents in its motion that the BOP will release the relevant documents without redactions, in line with this Court’s holding. See BOP Mem. Supp. Summ. J. 2.

         After the Court directed her to respond and denied her motion to appoint counsel, see Order Denying Mot. Appointment Counsel, ECF No. 461, Pinson filed her opposition on June 3, 2019, see Pl.’s Opp’n BOP Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 462. In her opposition, Pinson asked that the Court “resolve the Motion by conducting an in camera review of the FOIA release, evidence and Motion.” Id. at 1.[1]

         B. Request Nos. 13-1085 and 12-1757

         On May 23, 2018, the Court denied DOJ’s motion for summary judgment with respect to the remaining two requests concerning the EOUSA, Requests Nos. 13-1085 and 12-1757. See Pinson II, 313 F. Supp. 3d at 128. Under Request No. 13-1085, Pinson sought records in the District of Idaho case United States v. Garcia, No. 11–cr–68 (D. Idaho). See Id. at 127. In its opinion, the Court denied DOJ’s motion for summary judgment with regards to Request No. 13-1085 because EOUSA had not “clarif[ied] that the correct search terms were used to perform a search reasonably calculated to uncover all relevant documents” sought in the request. Id. at 128. EOUSA had provided a general description of the search, including details of the records system that was searched, the amount of time used to conduct the search, and the scope of the search, which was limited to public records, but had failed to clearly indicate which docket number was used to conduct the search. See Id. at 127-28. And, in his declaration in support of the motion, David Luczynski, Attorney Advisor at EOUSA, had referenced “12–cr–236” rather than “11–cr–68” as the case to which the materials produced were related. Id. The Court thus determined that the wrong case number may have been used in responding to Request No. 13-1085. See Id. at 127-28.

         In Request No. 12-1757, Pinson sought “production of all documents, email, or records” for, inter alia, two Middle District of Pennsylvania cases, Wiggins v. Bledsoe, 10-cv-949 (M.D. Pa.) and Gomez v. Holt, 11-cv-1906 (M.D. Pa.). Id. at 125 (citation omitted). The Court denied DOJ’s motion for summary judgment because EOUSA’s declaration did not provide “clarification of whether ‘the search and released documents were limited to only public records’ nor d[id] it contain an explanation of ‘the discrepancy between the 197 pages located and the 200 pages apparently released.’” Id. at 128 (citation omitted). The Court stated it would continue to deny summary judgment until EOUSA “provide[d] a declaration that adequately explain[ed] whether the FOIA contact’s search was limited to public documents, as well as the discrepancy between the pages located and those released.” Id.

         On July 3, 2018, DOJ filed a renewed motion for summary judgment with respect to the EOUSA. See Defs.’ Renewed EOUSA Mot. Summ. J (“EOUSA Mot. Summ. J.”), ECF No. 435. Pinson did not oppose the motion. In its renewed motion, DOJ asserts that Pinson was provided with the correct documents with respect to Request No. 13-1085, and that there was no error in the search terms used to generate the documents. See Defs.’s Renewed EOUSA Mem. Supp. Summ. J. (“EOUSA Mem. Supp.”) 5–6, ECF No. 435-1. In a supplemental declaration, Danielle Haws, a FOIA contact for the United State Attorney’s Office for the District of Idaho, states that correct docket numbers were used to complete the search for Request No. 13-1085. See Haws Supp. Decl. (“Haws Decl.”), EOUSA Mot. Summ. J. Ex. 4, ECF No. 435-4. DOJ attributes the discrepancy between the docket number searched for and the docket number referenced in its initial declaration to a typographical error by the declarant at EOUSA. EOUSA Mem. Supp. 6, ECF No. 435-1. Luczynski notes in a supplemental declaration that “[w]hen referring back to the plaintiff’s original request for records from the District of Idaho, [he] inadvertently used the case number directly below the correct number, 11-cr-68.” Luczynski Decl. ¶ 2, EOUSA Mot. Summ. J. Ex. 3, ECF No. 435-3. He further states that “[t]he actual search and release of responsive records to the plaintiff was in actuality related to case number 11-cr-68.” Id. ¶ 3.

         In the renewed motion for summary judgment, DOJ also clarifies its search terms with respect to Request No. 12-1757. See EOUSA Mem. Supp. 4. DOJ asserts that with respect to Request No. 12-1757, the search “encompassed both public and nonpublic records.” EOUSA Mem. Supp. 4. In a supplemental declaration, Jodi Matuszewski, a FOIA coordinator for the United States Attorney’s Office for the Middle District of Pennsylvania, states that the search resulted in 22 pages of non-public information and 67 pages of public documents with respect to Gomez. Matuszewski Decl. ¶ 7, EOUSA Mot. Summ. J. Ex. 5, No. 435-5. With respect to Wiggins, Matuszewski states that the search resulted in 14 pages of non-public documents and 97 pages of public documents. Id. ¶ 18. Matuszewski further declares that her previous tabulation of 94 pages of public records was incorrect, and that the correct number of pages is 97. Id. ¶ 19. DOJ asserts that the incorrect tabulation led to the 3-page discrepancy between the 200 pages released to Pinson and the 197 pages mentioned in Matuszewski’s previous declaration. See EOUSA Mem. Supp. 4.

         C. Pinson’s Motion for Sanctions and a Preliminary Injunction

         On June 14, 2019, Pinson filed a motion for sanctions and preliminary injunction. See Pl.’s Mot. Prelim. Inj., ECF No. 464. In a declaration attached to the motion, Pinson represented that the BOP had interfered with her access to this Court when it placed her in the SHU in April 2019, by seizing her legal file relating to Pinson v. U.S. Dep’t of Justice, No. 18-486 (D.D.C.), denying her legal postage, and banning her from making legal calls. See Pinson Decl. ¶¶ 1–2, 4, 6, ECF No. 464-1. Pinson asked that the Court “enjoin such interference” with her right of ...


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