Sandoval v. U.S. Dep't of Justice, Civil Action No. 16–1013 (ABJ)

• Decision Date: 02 November 2017
• Docket Number: Civil Action No. 16–1013 (ABJ)
• Citation: 296 F.Supp.3d 1
• Parties: Marcelo SANDOVAL, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

296 F.Supp.3d 1

Marcelo SANDOVAL, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 16–1013 (ABJ)

United States District Court, District of Columbia.

Signed November 2, 2017

Marcelo Sandoval, Bruceton Mills, WV, pro se.

Scott Leeson Sroka, Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District JudgePlaintiff Marcelo Sandoval, proceeding pro se , brought this action under the Freedom of Information Act ("FOIA") and the Privacy Act against defendants United States Department of Justice ("DOJ"), the Executive Office for United States Attorneys ("EOUSA"), the United States Attorney's Office for the Central District of Illinois ("USAO CDIL"), the Federal Bureau of Investigation ("FBI"), and the Federal Bureau of Prisons ("BOP"), seeking both the production of documents about himself and the correction of inaccurate records. Compl. [Dkt. # 1] ¶¶ 4–9. Defendants filed a motion to dismiss and for summary judgment; they moved to dismiss plaintiff's FOIA claim against BOP and his claim under the Privacy Act against all defendants, and they moved for summary judgment on plaintiff's FOIA claims against the remaining defendants. Defs.' Mot. to Dismiss & for Summ. J. [Dkt. # 17] ("Defs.' Mot."); Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 17–2] ("Defs.' Mem."). Plaintiff filed an opposition on October 20, 2017, but in it, he only challenged the adequacy of defendants' searches and the use of certain FOIA Exemptions. Reply Mot. for Pl. to Defs.' Mot. [Dkt. # 20] ("Pl.'s Opp.").

Because plaintiff has not opposed defendants' motion to dismiss the FOIA claim against BOP and the Privacy Act claims against all defendants, the Court will grant that portion of the motion as conceded. The Court will grant defendants' motion for summary judgment on the FOIA claim against the FBI, but it will deny the motion as to DOJ, EOUSA, and USAO CDIL at this time.

BACKGROUND

I. Plaintiff's FOIA/Privacy Act Requests to the FBI

A. Plaintiff's First Request

Plaintiff, who is currently in the custody of BOP in West Virginia, submitted a FOIA/Privacy Act ("FOIPA") request to the FBI on September 7, 2015, seeking documents related to his alleged activities between 1997 and 2015. Defs.' Statement of Material Facts as to Which There is no Genuine Issue [Dkt. # 17–1] ("Defs.' SOF") ¶ 2; Decl. of David M. Hardy [Dkt. # 17–3] ("Hardy Decl.") ¶ 5; Ex. A to Hardy Decl. [Dkt. # 17–3] ("First FBI FOIPA Request"). Specifically, he requested "[d]ocuments supporting that I am a member of the Mexican Mafia & was supplying information to the government. And or produce documents that refute the above." Defs.' SOF ¶ 2; First FBI FOIPA Request.

The FBI responded to plaintiff's FOIPA request by letter dated September 28, 2015, notifying him that a search of the FBI's Central Record System failed to locate any records responsive to his request, and that he had the right to appeal. Defs.' SOF ¶ 3; Ex. B to Hardy Decl. [Dkt. # 17–3]. On October 5, 2015, plaintiff filed an administrative appeal with the Office of Information Policy, which affirmed the FBI's action on plaintiff's FOIPA request on October 30, 2015. See Defs.' SOF ¶ 4; Ex. C to Hardy Decl. [Dkt. # 17–3]; Ex. E to Hardy Decl. [Dkt. # 17–3].

B. Plaintiff's Second Request

On October 20, 2015, plaintiff submitted another FOIPA request to the FBI, again seeking information about himself from 1997 to 2015. Defs.' SOF ¶ 5; see Hardy Decl. ¶ 10; Ex. F to Hardy Decl. [Dkt. # 17–3] ("Second FBI FOIPA Request"). Plaintiff specifically requested:

[Documents proving my actual innocence of the Kidnapping described in USA v. Sandoval, 99–cr–40019–JBM (C.D. Ill/Rock Island) & Inaccurate records depicting Sandoval as a member of the Mexican Mafia & as a governmental informant, both are untrue, also documents concerning government witnesses against Sandoval convicted of violence & committing perjury at Sandoval's jury trial.

Defs.' SOF ¶ 5; Second FBI FOIPA Request. The FBI acknowledged receipt of plaintiff's request on December 3, 2015, and it informed plaintiff that it was in the process of searching its Central Records System for information responsive to his request. Defs.' SOF ¶ 6; see Hardy Decl. ¶ 11; Ex. G to Hardy Decl. [Dkt. # 17–3]. On December 14, 2015, the FBI responded to plaintiff's request by letter, stating that the FBI's search failed to locate any responsive records, and that he had the right to appeal. Defs.' SOF ¶ 7; see Hardy Decl. ¶ 12; Ex. H to Hardy Decl. [Dkt. # 17–3].

On September 28, 2016, after plaintiff filed this action in federal court, the FBI sent a letter to plaintiff, informing him that eleven pages of records had been reviewed, and it simultaneously released five pages in full or in part. Defs.' SOF ¶ 7; see Hardy Decl. ¶ 14; Ex. I to Hardy Decl. [Dkt. # 17–3]. Although all of the records would have been withheld in full pursuant to Privacy Act Exemption j(2), the documents "were processed pursuant to the FOIA to allow [p]laintiff the greatest degree of access to the records," so only some information was withheld pursuant to FOIA Exemptions 6, 7(C), 7(D), and 7(F). Hardy Decl. ¶ 14; Ex. I to Hardy Decl. [Dkt. # 17–3].

Plaintiff administratively appealed this agency action on October 11, 2016, Hardy Decl. ¶ 15; Ex. J to Hardy Decl. [Dkt. # 17–3], but the agency's action was upheld. Hardy Decl. ¶ 17; Ex. L to Hardy Decl. [Dkt. # 17–3].

II. Plaintiff's Request to BOP

On October 15, 2015, plaintiff sent a FOIA request to BOP. Defs.' SOF ¶ 9.¹ BOP responded to plaintiff on November 13, 2015, informing him that it had found his Presentence Investigation Report (totaling 23 pages). Id. However, pursuant to BOP Program Statement 1351.05, inmates are prohibited from obtaining photocopies of their Presentence Reports while incarcerated, so BOP informed plaintiff that his report would be made available through his unit team. Id. BOP notified plaintiff of his appeal rights, but plaintiff did not appeal its determination. Id. ¶ 10.

III. Plaintiff's FOIPA Requests to EOUSA and USAO CDIL

On August 31, 2015, plaintiff sent a FOIPA request to EOUSA asking for access to "any and all records ... that relate[ ] to and/or make[ ] reference to Sandoval," "in and around 1997–2015," including "[i]naccurate records, depict[ing] Sandoval as a ‘Mexican Mafia Member’ and other false records such as Sandoval working with the government." Decl. of David Luczynski [Dkt. # 17–5] ("Luczynski Decl.") ¶ 4; Ex. A to Luczynski Decl. [Dkt. # 17–5] ("Ex. A").

Plaintiff submitted another FOIPA request to USAO CDIL dated September 11, 2015. Luczynski Decl. ¶ 5; Ex. B to Luczynski Decl. [Dkt. # 17–5] ("Ex. B"). He sought records from "case: # 99–40019–(Central District of Illinois)" between 1997 and 2015, "[s]howing that Sandoval is a member of the Mexican Mafia & that Sandoval was working for the FBI/DEA. And of [d]ocuments refuting supra." Luczynski Decl. ¶ 5; Ex. B. USAO CDIL advised plaintiff to direct all future correspondence to EOUSA since EOUSA handles all FOIA requests involving U.S. Attorneys' Offices, and it sent a letter to EOUSA on September 23, 2015, enclosing a copy of plaintiff's FOIPA request for processing. Decl. of Julie Leeper [Dkt. # 17–6] ("Leeper Decl.") ¶ 3. EOUSA informed plaintiff on October 9, 2015, that it had received the request he sent to USAO CDIL, and EOUSA assigned it FOIA No. 2015–04040. Luczynski Decl. ¶ 7; Ex. D. to Luczynski Decl. [Dkt. # 17–5].

On October 20, 2015, plaintiff sent a third request to EOUSA, seeking the following:

I request specific documents proving my actual innocence of the kidnapping described in USA v. Sandoval, # 99–cr–40019–JBM (C.D. Ill./Rock Island) & inaccurate records dep[icting] Sandoval as a member of the Mexican Mafia & government informant, which are both untrue, [and] also concerning government witnesses against Sandoval convicted of violence & committing perjury at Sandoval's jury trial.

Ex. C to Luczynski Decl. [Dkt. # 17–5] ("Ex. C"); Luczynski Decl. ¶ 6. This request was also limited to the 1997 through 2015 time frame. See Ex. C.

On approximately June 13, 2016, USAO CDIL received plaintiff's request after it was processed by EOUSA,² and it informed EOUSA that it was unable to locate any responsive documents. Leeper Decl. ¶¶ 4, 13.

EOUSA responded to request No. 2015–04040 on September 16, 2016, informing plaintiff that his request had been processed and no responsive records had been found. Luczynski Decl. ¶ 10; Ex. G to Luczynski Decl. [Dkt. # 17–5]. On October 3, 2016, plaintiff appealed EOUSA's determination, Luczynski Decl. ¶ 11; Ex. H to Luczynski Decl. [Dkt. # 17–5], and on December 15, 2016, the Office of Information Policy affirmed EOUSA's action on his request. Luczynski Decl. ¶ 12; Ex. J to Luczynski Decl. [Dkt. # 17–5].

Plaintiff filed this action pro se on May 26, 2016, Compl., and defendants answered the complaint on February 22, 2017. Answer [Dkt. # 11]. On June 22, 2017, defendants filed this motion to dismiss and for summary judgment. Defs.' Mot. The Court notified plaintiff that the Court "may grant [defendants'] motion and dismiss the case if [he] fail[ed] to respond," and ordered him to respond by July 26, 2017. Order [Dkt. # 18], citing Fox v. Strickland , 837 F.2d 507, 509 (D.C. Cir. 1988) (holding that a district court "must take pains to advise a pro se party of the consequences of failing to respond to a dispositive motion" and that the notice "should include an explanation that the failure to respond ... may result in the district court granting the motion and dismissing the case"). The Court issued a subsequent warning to plaintiff that if he did not respond to defendants' motion to dismiss and for summary judgment by October 24, 2017, "the Court will grant the motion to dismiss as conceded and accept any facts set forth in defendants' motion for summary judgment as true, and it may decide the matter in defe...