1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HOWARD WELSH, ) ) Plaintiff, ) )

v. ) Civil Action No. 19

- 2121 (RC) ) ) U.S. DEPARTMENT OF JUSTICE et al
., ) ) Defendants. )

MEMORANDUM OPINION
Pending i n this action brought under the Freedom of Information Act (FOIA) is
Defendants’ Renewed Motion for Summary Judgment on the remaining search issue. See Mem.
Op. and Order (“Mem. Op. 1”) , ECF No. 27 at 8

- 10 ( discussing evidentiary shortcomings ). In

response , p laintiff concedes that the government has fully satisfied its FOIA obligations and is
entitled to summary judgment but neverth eless seeks leave to amend the complaint to add a new

claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
, 403 U.S. 388
(1971). Pl .’s Response to Def ’s Renewed Mot . for Summ . J. in the Form o f a Motion f or Leave

t o Amend FOIA Complaint (“ Resp. ”), ECF No. 31

. For the following reasons, the Court will

grant defendants ’ motion and deny plaintiff’s motion

. 1

1. Motion for Summary Judgment
Notwithstanding plaintiff’s concession, t he Court has independently reviewed

defendants’ renewed summary judgment motion through the lens of Federal Rule of Civil
Procedure 56 and finds summary judgment on the search issue to be warranted. See Grimes v.

1 Also pending is p laintiff’s Motion for Case Management Conference, ECF No. 34, which will be denied as moot.2 D.C. , 794 F.3d 83, 95 (D.C. Cir. 2015) (“ ‘a district court must always determine for itself

wheth er the record and any undisputed material facts justify granting summary judgment.’ ”)
(quoting Griffith, J. concurring); Mem. Op. 1 at 4

- 6 (discussing legal standard) ; cf. Supp. Decl.

of Kara Cain ¶¶ 3

- 16 , ECF No. 28

- 1 ( adequately describing the search terms and the
methodology utilized and attesting that the “ record systems searched were the only likely places

to locate responsive records” ).

2. Motion to Amend

Plaintiff has not “ attach [ed] , as an exhibit, a copy of the proposed pleading as amended ,”
LCvR 15.1, which is reason enough to deny t his motion

. Regardless, “ [a] district court may
deny a motion to amend a complaint as futile if the proposed claim would not survive a motion

to dismiss. ” Hettinga v. United States , 677 F.3d 471, 480 ( D.C. Cir. 2012)

. The gravamen of the

proposed Bivens claim , to the extent intelligible, is that the prosecuting attorneys in plaintiff’s
criminal case acted without authority and “[s]uch ultra vires acts resulted in [plaintiff] being
sentenced to 20 years incarceration . . . and [his] continued confinement under a deportation

detainer once released from incarceration.” Resp. at 3. Plaintiff’s success on such claims would
“necessarily imply the invalidity” of his con viction and sentence

. Harris v. Fulwood , 611 F ed

. App'x 1, 2 (D.C. Cir. 2015) (per curiam)

. Consequently, b efore bringing a Bivens action,

plaintiff must first invalidate his conviction through a prior procee ding recognized in Heck v.
Humphrey , 512 U.S. 477, 486

- 47 (1994)
, which nothing in this record suggests has occurred.

Because plaintiff’s Bivens claim is “ not cognizable unless and until he meets the

requirements of Heck
, ” Harris , 611 F ed . App ’ x at 2 , amending the complaint would be futile

. Further, where the amended complaint “would radically alter the scope and nature o f the case
and bears no more than a tangential relationship to the original action, leave to amend should be3 denied.” De Sousa v. Dep't of State , 840 F. Supp. 2d 92, 113 (D.D.C. 2012) (quoting Miss. Ass'n
of Coops. v. Farmers Home Admin. , 139 F.R.D. 542, 544 (D.D.C . 1991) and citing Nat'l
Treasury Emps. Union v. Helfer , 53 F.3d 1289, 1295 (D.C. Cir. 1995))

. The dissimil arity

between a FOIA claim premised on the improper withholding of agency records and a Bivens

claim premised on constitutional violations by a federal actor could not be more stark. See Corr.
Servs. Corp. v. Malesko , 534 U.S. 61, 66 (2001) (explaining that Bivens “r ecognized for the first
time an implied private action for damages against federal officers alleged to have violated a

citizen ’ s constitutional rights. ”).

CONCLUSION
For the foregoing reasons, defendants’ renewed motion for summary judgment i s granted,

and plaintiff’s motion to amend the complaint is denied. 2

________/s/____________ RUDOLPH CONTRERAS United St ates District Judge Date: December 13 , 2021

2 A final order accompanies this Memorandum Opinion.