Brestle v. Lappin

• Decision Date: 20 June 2013
• Docket Number: Civil Action No. 11–1771 (RWR).
• Citation: 950 F.Supp.2d 174
• Court: U.S. District Court — District of Columbia
• Parties: Gary Charles BRESTLE, Plaintiff, v. Harley LAPPIN, Defendant.

950 F.Supp.2d 174

Gary Charles BRESTLE, Plaintiff,

v.Harley LAPPIN, Defendant.

Civil Action No. 11–1771 (RWR).

United States District Court, District of Columbia.

June 20, 2013.

Gary Charles Brestle, Jessup, GA, pro se.

Theresa Ekeoma Dike, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiff, a federal prisoner proceeding pro se, claims that the Bureau of Prisons (“BOP”) failed to provide documents in response to his Freedom of Information Act (“FOIA”) request dated May 9, 2011.¹ Defendant, having released documents to plaintiff, moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or for summary judgment under Rule 56. Def.'s Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. [Dkt. # 18]. Plaintiff cross moves for summary judgment and requests attorney's fees. Summ. J. Pursuant to F.R.Cv.P., Rule 56(a) Award Attorney Fees [Dkt. # 33]. In addition, plaintiff has filed a document captioned “Plaintiff's Response to ECF No. 18 and Motion for Compulsory Joinder of Defendants Pursuant to F.R.Cv.P., Rule 19, 20, 21, & 25 and Motion for Joinder in Issue for FOIA and FTCA Tort Action Pending Before This Court” [Dkt. # 24], and a motion for “Contempt of Court” [Dkt. # 37]. The contempt motion will be denied as baseless because it seeks sanctions against “the defendant” for unspecified behavior. Mot. at 2. The motion for joinder will be denied as moot since plaintiff's FTCA claim forming the basis of a separate action has been transferred to the Southern District of Georgia, Brestle v. United States of America, No. 12–84 (D.D.C. May 14, 2012), and the proper defendant for this FOIA action has been substituted.² The joinder motion will be cited in this opinion as plaintiff's opposition (“Pl.'s Opp'n”).

Upon consideration of the parties' submissions and the entire record, defendant's motion for summary judgment will be granted in part and deferred in part, and plaintiff's cross-motion for summary judgment and attorney's fees will be denied.

BACKGROUND

By letter dated May 9, 2011, plaintiff requested “any and all documents forwarded to case Manager Randy Courson, ‘SIS' Officer Lt. Adams, or ‘SIS' Lt. Davis, between the dates May 1, 2009, thru October 30, 2009, emanating from the office of ‘A’ Unit Secretary Ms. Ramona Poole....” Compl. Attach. Plaintiff emphasized that he wanted “all the relevant transmissions by Secretary Poole” and stated that all of the individuals mentioned in the request “were or are at the Federal Correctional Facility, FCI/FSL, Jesup, Georgia, 2680 Highway 301 South,” id., which is where plaintiff is incarcerated.

By letter of August 16, 2011, to BOP, plaintiff inquired about the status of his request, Def.'s Ex. 1 [Dkt. # 18–1]. Having received no response, plaintiff filed this civil action on October 5, 2011. By letter of October 14, 2011, BOP released three pages containing redacted material and informed plaintiff that information was withheld under FOIA exemptions 6 and 7(C), see5 U.S.C. § 552(b). Def.'s Ex. 3 [Dkt. # 18–3]. In response to this lawsuit, defendant conducted another search and released an additional 31 pages, some with redactions made pursuant to FOIA exemptions 6, 7(C) and 7(F). Decl. of Christine Greene [Dkt. # 18–6] ¶¶ 17, 19 & Vaughn Index; Def.'s Ex. 5 [Dkt. # 18–5].

REVIEW STANDARD

Summary judgment may be appropriately granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Courts draw all reasonable inferences from the evidentiary record in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

“A district court must conduct a de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action.” Milton v. U.S. Dep't of Justice, 783 F.Supp.2d 55, 57 (D.D.C.2011) (citing 5 U.S.C. § 552(a)(4)(B)). In a FOIA case, summary judgment in favor of an agency is warranted where the agency demonstrates that no material facts are in dispute, that it conducted a search of records in its custody or control that was reasonably forecast to divulge all relevant information, Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984), and that the information found through the search either has been released to the requestor or is exempt from disclosure. See Skinner v. U.S. Dept. of Justice, 806 F.Supp.2d 105, 111 (D.D.C.2011) (citing Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001)).

When, as here, an agency's search is questioned, the agency is entitled to summary judgment upon a showing, through declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, that it conducted a search likely to locate all responsive records. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). Without contrary evidence of bad faith, the agency's amply detailed affidavits are sufficient to demonstrate compliance with the FOIA. Id. at 127. A search does not have to be exhaustive, and whether a search is adequate is determined by methods, not results. Weisberg, 745 F.2d at 1485. An agency's failure to locate a specific responsive document will not, on its own, render an otherwise reasonable search inadequate. See Brown v. FBI, 675 F.Supp.2d 122, 125–26 (D.D.C.2009) (citing Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir.2004)) (other citation omitted).

DISCUSSION

Plaintiff challenges the adequacy of BOP's search for responsive records and its invocation of FOIA exemptions 6 and 7 as justification for withholding information. Pl.'s Opp'n at 8–10. In support of summary judgment, defendant proffers the declaration of Christine Greene, who is a FOIA Paralegal at FCC Coleman, responsible for processing FOIA requests assigned to BOP's Southeast Regional Office. Greene Decl. ¶¶ 1, 6. Greene's statements are based on her “review of the official files and records ... and [her] personal knowledge, including knowledge [she] acquired ... through the performance of [her] official duties.” Id. ¶ 5.

1. The Search for Records

Plaintiff argues that the search “was unreasonable and [ ] clearly not conducted in good faith because it fails to provide the investigative documents that demonstrate where the BOP properly performed its statutory duties....” Pl.'s Opp'n at 8. Greene states that she received plaintiff's request from the Central Office on September 8, 2011, and that same day, “scanned a copy of the request directly to the [now-retired] FOIA Coordinator at FCI Jesup” for him to conduct a search and report to her by September 19, 2011. Greene Decl. ¶¶ 9–10. The Coordinator forwarded the request to plaintiff's “current 2011 unit manager ... and the captain,” since “[c]ase managers personally work with inmates on a day to day basis and handle their programming needs.” Id. ¶¶ 9, 11. The unit manager, in turn, “forwarded the email” to his “team members consisting of the unit secretary, case manager, and counselor.” Id. ¶ 11. The Coordinator did not at that time contact the person who was plaintiff's unit manager in 2009. Id.

The team members “visually checked [plaintiff's] central file and the filing which was pending for responsive documents,” since “[t]he type of documents [plaintiff] was requesting normally are only placed in the[ ] inmate ['s] central file.” Id. In addition, “[t]he captain forwarded the [request] to his lieutenants and the SIS Department, [which] maintain[s] an investigative file on inmates when an investigation is opened.” Id. Those efforts produced no responsive records. Id. Staff in the Correctional Service Department, which was investigating plaintiff's FTCA claim, located three pages that were “similarly responsive to the FOIA Request.” Id. Those three pages constituted the initial release of records to plaintiff. Id. ¶ 12.

In preparing for the instant motion, Greene “sent another request for FCI Jesup to check for documents relevant to the original request,” and “specifically asked the new FOIA Coordinator to check with SIS and the case manager to see if they had any documents which were forwarded to them by the unit secretary which inmate Brestle had personally given to the unit secretary.” Id. ¶ 17. This inquiry resulted in the second release of 31 pages obtained from plaintiff's “former case manager, who indicated these were copies of documents he received from the unit secretary and had forwarded to the SIS Department back in 2009.” Id. Greene acknowledges that “no one had thought to check with [the 2009 case manager] during the initial search.” Id.

Defendant's combined searches establish a reasonably adequate search. Plaintiff's vague and unsubstantiated references to other “investigative documents” fail to provide any basis for doubting the reasonableness of defendant's search. Hence, defendant is entitled to summary judgment on the search question.

2. Defendant's Claimed Exemptions

Defendant withheld third-party information under the FOIA's personal privacy provisions, namely, exemptions 6 and 7(C). Greene Decl. ¶¶ 13–15; 20–21. Exemption 6 protects information about individuals in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). All information that “applies to a particular individual” would qualify for consideration under this exemption. U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); accord New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C.Cir.1990) (en banc); see Akin, Gump, Strauss, Hauer & Feld, LLP v. United States Dep't of Justice, 503 F.Supp.2d 373, 381 (D.D.C.2007) (“Congress' primary purpose in drafting Exemption 6 was to provide for confidentiality of personal...