Davidson v. Bureau of Prisons

• Decision Date: 19 March 2013
• Docket Number: Civil Action No. 11–CV–309–KSF.
• Citation: 931 F.Supp.2d 770
• Parties: Clifton B. DAVIDSON, Plaintiff, v. BUREAU OF PRISONS, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

931 F.Supp.2d 770

Clifton B. DAVIDSON, Plaintiff,

v.BUREAU OF PRISONS, Defendant.

Civil Action No. 11–CV–309–KSF.

United States District Court,

E.D. Kentucky,

Central Division,

at Lexington.

March 19, 2013.

Clifton B. Davidson, Lexington, KY, pro se.

Andrew Louis Sparks, U.S. Attorney's Office, Lexington, KY, for Defendant.

MEMORANDUM OPINION AND ORDER

KARL S. FORESTER, Senior District Judge.

Plaintiff Clifton B. Davidson has filed a motion seeking relief from the Order dismissing his complaint filed under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). Davidson's motion also seeks an order awarding him court costs of $793.00, arguing that he has “substantially prevailed” in this FOIA action. [R. 26] The Court will deny Davidson's motion because he has not established grounds warranting relief from the Order dismissing his FOIA complaint. However, pursuant to 5 U.S.C. § 552(a)(4)(5) and 28 U.S.C. § 1920(1), the Court will grant Davidson partial relief as to his request for his court costs, and will order the BOP to reimburse Davidson for the $350.00 filing fee, which he has paid in full.

BACKGROUND

In his FOIA complaint, Davidson alleged that in early 2010, the American CorrectionalAssociation (“ACA”) audited FMC–Lexington; that on March 3, 2010, he sent a letter requesting the results of the audit to the Department of Justice's (“DOJ”) Office of Policy Information; that on March 18, 2010, the DOJ received Davidson's request and forwarded it to the BOP; and that in a June 8, 2010, letter, the BOP advised Davidson that it had identified documents responsive to his request, estimated the number of pages involved, and requested that he prepay the necessary copying fees pursuant to 28 C.F.R. § 16.11. Davidson alleged that he authorized the BOP to deduct the $33.70 copying charge from his inmate account but that he never received the documents, and that on November 4, 2011, the $33.70 copying fee, previously deducted from his inmate account, was refunded to his inmate account without explanation

Davidson claimed that the BOP had violated FOIA by withholding the documents for which he had paid. He demanded unspecified damages, and an order (1) finding the BOP in violation of FOIA, (2) refunding his copying costs, and (3) directing the BOP to provide him with the documents he had requested in his letter. In April 2012, the Court directed the BOP to respond to Davidson's FOIA claims. [R. 10]

The BOP filed a motion to dismiss the complaint, or in the alternative, for summary judgment. [R. 13] Clinton D. Stroble, Assistant General Counsel in the BOP's FOIA/ Privacy Act Section, acknowledged that due to an oversight by a former employee, the BOP failed to properly respond to Davidson's document requests between June 2010 and June 2012. [R. 13–1, ¶¶ 4–5] Stroble further explained that after being directed to respond to Davidson's complaint, the BOP recognized its error, re-opened Davidson's FOIA request, and assigned another FOIA specialist to process his request for documents. [ Id.] The BOP argued that because it had begun processing Davidson's FOIA request, an active case or controversy no longer existed, and the Court lacked subject matter jurisdiction over the case; that Davidson was not entitled to “expedited” production of the documents he requested; and that Davidson was ineligible for attorneys fees under 5 U.S.C. § 552(a)(4)(E) because he was proceeding without counsel. [R. 13, pp. 2–4; 5–6]

Davidson responded that the Court had subject matter jurisdiction over this proceeding because the BOP had improperly withheld agency records which he requested in 2010, and had admitted that its failure to comply with his request stemmed from a former employee's error and/or agency oversight. Davidson requested the production of the requested documents and for his court costs, but acknowledged that he was not entitled to attorney's fees. [R. 15, pp. 12–14] On August 1, 2012, the BOP replied that it had compiled 372 pages of documents responsive to Davidson's request and would send the documents to him once he had prepaid the $37.20 copying fee as required by 28 C.F.R. § 16.11(c). [R. 20, p. 1]

On November 6, 2012, the Court entered a Memorandum Opinion and Order (“the Opinion and Order”) and Judgment granting the BOP's motion for summary judgment. The Court determined that, while the BOP had failed to respond to Davidson's FOIA request for over two years, under the applicable case law no case or controversy remained because the BOP had begun processing Davidson's FOIA request. [R. 24, 25]

Davidson then filed his motion under Federal Rule of Civil Procedure 60(b) seeking relief from the Opinion and Order. Davidson argues that the BOP was neither procedurally nor substantively entitled to summary judgment; that the government'sdescription of what it intended to provide to him does not match his requests; that since August 2012, he had tried to pay the copying fee twice but that the BOP had not provided him with the documents for reasons out of his control; that as a prevailing party, he is entitled to his costs of almost $793.00; and that both the BOP and the Court failed to address his earlier request seeking his costs. [R. 26]

The BOP responds that relief from judgment is not warranted because the Court did not make a mistake of either fact or law. The BOP further explains that when Davidson mailed a check for $37.20 to cover the cost of his FOIA requests to Nancy Culbertson, a FOIA specialist, he made the check payable to Culbertson, not the BOP, and that because of Davidson's error, the check had to be returned to Davidson and the delivery of documents to him was necessarily delayed. [R. 28, p. 1; Stroble Decl., R, 28–1, ¶¶ 2–4] The BOP did not address Davidson's request for his costs. On December 27, 2012, Davidson replied that the judgment should be vacated and reiterated that he is entitled to his costs of $793.00. [R. 29]

DISCUSSION

1. Motion for Relief From Judgment

Davidson seeks relief from the judgment under Federal Rule of Civil Procedure 60(b), but because he filed his motion ten days after entry of the Opinion and Order was entered, he may have intended to seek relief under Rule 59(e). Under either rule, Davidson is not entitled to post-judgment relief.

Federal Rule of Civil Procedure 59(e) provides that a judgment can be set aside or amended for one of four reasons: (1) to correct a clear error of law; (2) to account for newly discovered evidence; (3) to accommodate an intervening change in the controlling law; or (4) to otherwise prevent manifest injustice. See also ACLU of Ky. v. McCreary County, Ky., 607 F.3d 439, 450 (6th Cir.2010); Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.2005). A district court has discretion to grant or deny a Rule 59(e) motion. GenCorp., Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 832 (6th Cir.1999). Re-argument is not an appropriate purpose for a motion to reconsider. Davenport v. Corrections Corp. of America, No. 05–CV–86–HRW, 2005 WL 2456241 (E.D.Ky. Oct. 4, 2005). Rule 60(b)(6) provides relief from judgment only in the unusual and extreme situation when “principles of equity” mandate relief. See Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001).

Davidson cannot satisfy either the first criterion of Rule 59(e) or the requirements for obtaining relief under Rule 60(b) because the Court did not erroneously apply the law applicable to his FOIA complaint. Federal law is clear that a person requesting documents under FOIA is not entitled to judicial relief once the agency had produced the requested documents, even when its production of documents had been long delayed. See e.g., Cornucopia v. United States Dept. of Agriculture, 560 F.3d 673 (7th Cir.2009); Benavides v. Bureau of Prisons, 993 F.2d 257, 258 (D.C.Cir.1993); and Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982). Another case reached the same result: Chilivis v. S.E.C., 673 F.2d 1205, 1210 (11th Cir.1982), held that because the federal agency had processed the requested records and instructed plaintiff to make arrangements to view the records, the plaintiff's FOIA motion to release the requested documents had become moot.

In his Rule 60(b) motion, Davidson argues that such precedent is distinguishable because, unlike in those cases, he has not yet received the documents he requested. However, the BOP had compiled the responsive documents by August 1, 2012, and was awaiting only Davidson's proper payment of the copying charge. [R. 20] This minor housekeeping matter does not present a legally viable basis upon which to distinguish a uniform body of federal law. The Court has fully considered the record, and relief under either Rule 59(e) or Rule 60(b) is not warranted.

2. Request for Court Costs

Davidson also seeks to recover court costs he incurred in this proceeding, which he states total $793.00. Recovery of litigation costs under the FOIA fee-shifting provision is subject to a two-step inquiry. GMRI, Inc. v. E.E.O.C., 149 F.3d 449, 451 (6th Cir.1998). A district court must determine both the plaintiff's eligibility for and entitlement to an award of fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). Tax Analysts v. United States Department of Justice, 965 F.2d 1092, 1093 (D.C.Cir.1992).

A complainant may be eligible to recover attorney fees and litigation costs reasonably incurred in any case where the complainant has “substantially prevailed” pursuant to FOIA § 552(a)(4)(E).¹ To “substantially prevail,” a party must have obtained a “judicially sanctioned change in the legal relationship of the parties,” Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). “[A]n award of attorney's fees is appropriate where a plaintiff has obtained an ‘enforceable judgment[ ] on the merits' or a ‘court-ordered consent decree.’ ” McCoy ex rel. Estate of Roberts v. Federal Bureau...