Debrew v. Atwood, Civil Action No. 10–0650 (JDB)
| Decision Date | 27 March 2017 |
| Docket Number | Civil Action No. 10–0650 (JDB) |
| Citation | 244 F.Supp.3d 123 |
| Parties | Darrell James DEBREW, Plaintiff, v. Michael ATWOOD, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Darrell James Debrew, Raleigh, NC, pro se.
Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
The United States Court of Appeals for the District of Columbia Circuit remanded this matter for further proceedings on three claims. See DeBrew v. Atwood , 792 F.3d 118 (D.C. Cir. 2015). Now before this Court are defendants' Motion to Dismiss Plaintiff's Amended Complaint and for Summary Judgment, ECF No. 83, and plaintiff's cross-motion for summary judgment, ECF No. 87.1 For the reasons discussed below, defendants' motion will be granted, and plaintiff's cross-motion will be denied.
Plaintiff is a former federal inmate who had "written and published several novels during his time in prison." DeBrew , 792 F.3d at 130. He was released from the custody of the Federal Bureau of Prisons ("BOP") on May 6, 2016, and now is serving a 60–month term of supervised release. Mem. of P. & A. in Support of Defs.' Mot. to Dismiss Pl.'s Am. Compl. and for Summ. J. ( ), Ex. B ("Nastro Decl.") ¶ 4.
In September 2007, plaintiff submitted a request to BOP under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Am. Compl. ¶ 11; Defs.' Mem., Ex. A ("Fourth Moorer Decl.") ¶ 5. He sought "[a]ll documentation for making Conducting a Business (408) a prohibited act." Defs.' Mem., Ex. C (Freedom of Information/Privacy Act Request dated September 5, 2007) at 1; Am. Compl. ¶ 11.2 BOP responded by providing plaintiff a copy of "the program statement on Inmate Discipline," Fourth Moorer Decl. ¶ 9, and related materials that had been published in the Federal Register, id. ¶¶ 12, 15; see Am. Compl. ¶ 12.
Plaintiff alleges that BOP "failed to adequately supply information as required by the FOIA," Am. Compl. ¶ 14, because it has released "[n]o documents as to how Code 408 came into existence[,]" id. ¶ 13; see DeBrew , 792 F.3d at 121 ().
According to plaintiff, "all inmates' funds deposited in BOP's Commissary Fund generate interest on a daily basis." Am. Compl. ¶ 15.3 He claims that BOP "deprives inmates of interest generated [from these] funds" in violation of the inmates' right to due process under the Fifth Amendment of the United States Constitution. Id. ¶ 16.
While incarcerated at FCI Loretto in June 2006, plaintiff allegedly "was found guilty of violating BOP's Code 408 (Conducting a Business) and ordered to remove his web-site from the World Wide Web and not to use the mails in regards to his books and manuscripts." Id. ¶ 17. In April 2009, while incarcerated at FCI Butner, plaintiff again "was found guilty of Code 408," this time because he had "receiv[ed] a Royalty Check ... for a book entitled Keisha." Id. ¶ 18.
Defendants represent that "[p]laintiff was found to have committed BOP code 408 (Conducting a Business) during a Unit Discipline Committee hearing" on April 21, 2009. Nastro Decl. ¶ 5. BOP has "no other record of discipline with respect to [p]laintiff committing the ... prohibited act of Conducting a Business." Id. Whatever the number of Code 408 violations plaintiff may have committed, plaintiff asserts that the sanctions imposed violated his First Amendment "right to Freedom of Expression." Id. ¶ 19. Further, he claims that his "property rights have been limited in violation of the Fifth Amendment." Id. ¶ 20.
Plaintiff brings his FOIA claim against BOP. See id. ¶¶ 8, 26. He demands a declaratory judgment stating "that [BOP has] improperly withheld agency records," an order directing BOP "to provide requested information," payment of "reasonable [a]ttorney fees and [l]itigation costs," and an award of "punitive damages for willfully improperly withholding agency records." Id. at p. 8 ().
The constitutional claims are brought against the current and former BOP Directors and Trust Fund Managers in their official and individual capacities. See id. ¶¶ 4–7, 27–28. Plaintiff demands a "[d]eclaratory [j]udgment that defendants violated inmates' Fifth Amendment rights by keeping interest earned off their funds," and payment of interest on the interest withheld, id. at p. 8, as well as a preliminary injunction, id. at p. 9. He also demands that defendants "organize a system that pays inmates ... interest earned on their money, just like a bank." Id. Plaintiff demands an injunction to "keep [ ] the BOP from using Code 408" and a "[d]eclaratory [j]udgment that Code 408 violates inmates' Fifth and First Amendment rights." Id. Lastly, plaintiff demands an award of $10,000,000,000 in [p]unitive, [c]ompensatory, and [a]ctual damages." Id.4
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009). Courts grant summary judgment to an agency as the moving party if it shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "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." Brestle v. Lappin , 950 F.Supp.2d 174, 179 (D.D.C. 2013) (citing Perry v. Block , 684 F.2d 121, 126 (D.C. Cir. 1982) ). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice , 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ).
An agency "fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State , 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted). "The Court applies a ‘reasonableness' test to determine the ‘adequacy’ of search methodology, consistent with the congressional intent tilting the scale in favor of disclosure." Campbell v. U.S. Dep't of Justice , 164 F.3d 20, 27 (D.C. Cir. 1998) (internal citations omitted). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg v. U.S. Dep't of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984) (citing Weisb e rg v. U.S. Dep't of Justice , 705 F.2d 1344, 1351 (D.C. Cir. 1983) ). The agency may submit affidavits or declarations to explain the method and scope of its search, see Perry , 684 F.2d at 127, and such affidavits or declarations are "accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents," Safecard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).
BOP staff interpreted plaintiff's FOIA request as one "seeking BOP policy materials regarding the Prohibited Act of Conducting a Business, Code 408." Fourth Moorer Decl. ¶ 6.5 The request made its way to two divisions within BOP. See id.
The Correctional Programs Division "is solely responsible for the orderly running of each BOP institution," and for "making and enforcing rules, regulations, and disciplinary codes[.]" Id. ¶ 7. Insofar as plaintiff's FOIA request "sought policy documents concerning Code 408," it was thought that, "if any records exist, the Correctional Programs Division would have [them]." Id.
BOP's declarant explains that Correctional Services Division records "are maintained electronically and in hard copy." Id. ¶ 8. Electronic "records are maintained in the BOP's internal computer database on internal shared directory." Id. "Other electronic sources include the BOP's Sallyport, Policy Directory, 500 Series link," that is, a repository accessed via the internet containing BOP program and policy statements. Id. Hard copy files are kept in file cabinets in the Division's offices. Id.
Correctional Services Division staff used four terms, "Inmate Discipline," "Prohibited Act," "Conducting a Business," and "Prohibited Act 408," for searching electronic and hard copy files. Id. ¶ 9. The only responsive record located through a search conducted on June 13, 2012 "was the program statement on Inmate Discipline," a copy of which was released to plaintiff in full. Id. A second search on July 8, 2015 using these same search terms located only the same program statement. Id.
The Rules Administrator Office is a part of the Legislative and Correctional Issues Branch ("LCI") within the BOP's Office of General Counsel. Id. ¶ 10. Plaintiff's FOIA request was sent to LCI because "any materials regarding the policy adoption of the Prohibited Act of Conducting a Business, Code 408, [are] maintained" there. Id.
The Rules Administrator, who herself conducted the search for records responsive to plaintiff's FOIA request, "develops regulations and modifies regulations based on the [BOP's] needs." Id. ¶ 11. "She also maintains the Federal Register publications regarding the BOP regulations found in 28 CFR Chapter V[.]" Id. Making rules "follow[s] a standard process whereby the agency...
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