UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

KENN ETH CHAPLIN, ) ) P laintif

f, )

) v. ) Civ. Ac tion No. 10-0518 (ESH) ) WILLIAM G. STEWART, JR. et al. , ) ) Defendan ts. ) ____________________________________)

MEMORAN DUM OP INION In this action broug ht pro se under the Fr eedom of Information Ac t (“F OIA”) , 5 U.S.C. § 552, plaintiff, a f

eder al prisoner , challeng es the re sponse of the Executive Of fice for United States Attorney s (“EO USA”) to his re quest for r ecor ds pertainingto his sentencingproce eding s. 1 Def endant moves f

or summary

judgme nt. Upon consideration of the parties’ submissi ons and the entire rec ord, the motion will be denied. BACK GR OUND On Novembe r 12, 2006, plaintiff re quested “ information used by Mag istrate Judge James R. Melinson to determine[] that Dickie Phillips and Dwig ht Abraha ms testified that Chaplin left the L ockie Da ley

org anization after Septe mber 1987.” (De f.’s Mot., Dec laration of Vinay J

. J olly (“Jolly Dec l.”) [Dkt. # 23-4], Ex . A.) In addition, plaintiff reque sted “e vidence that the

In addition to the EOUSA, plaintiff has named as de fenda nts two Depar

tment of 1 J ustice employ ees. B eca

use the F OIA provides no pr ivate ca use of a ction ag ainst individuals, see M artinez v. Bureau of Prisons , 444 F.3d 620, 624 ( D.C. Cir. 2006); Sherwood Van Lines, Inc. v . U.S. Dep’ t of Navy , 732 F. Supp. 240, 241 (D.D .C. 1990), the complaint ag ainst the individual defenda

nts is dis missed. Here afte r, the de fenda nt will be refe rre d to in the singular

.Probation Offic er use d to determin[e] t hat the L ockie Da ley org anization dist ributed one ( 1) Kilogr ams [si c] of coca ine per wee k from the f

all of 1986 to May

of 1988 as [] allege d in para g raphs [sic] (24) of Chaplin P.S .I . Report.” ( Id .) In Marc h 2007, plaintiff’s re quest was forwa rded to the United States Attorney ’s Off ice f or the Ea stern District of Pennsylvania (“U SAO”). ( Dec laration of Susan J . Fa lken (“ Fa lken Dec l.”) [Dkt. # 23-5] ¶ 4.) Followingan inquiry to the assistant United States attorney assig ned to the appe al of plaintiff’ s criminal ca se and a se arc h of her

files, 203 pag es of mate rial we re c opied and se nt to EOUSA on Marc h 19, 2007 “as a

reply to FOIA re quest 07-487.” ( Id . ¶ 8; see id. ¶¶ 4- 7.) On May 24, 2007, EOUSA alleg edly rele ased 202 unr edac ted pag es of infor mation to plaintiff pertainingto the proce eding s of his motion for relief

under 28 U .S.C. § 2255. (J olly Dec l., Ex . C.; Falken D ecl. ¶ 8.) 2 Plaintiff appea led the re lease to the Offic e of I nformation and Priva cy

(“O I P”), cla iming that “he reque sted trial proc eeding s, and not civil proce eding s.” (Compl. ¶ 11; seeJ olly Dec l., Ex . D.) On J anuar y 18, 2008, OI P remande d the re quest to EOUSA “f or a f urther se arc h for r esponsive

rec ords in the Easter

n District of Pennsylvania.” ( J olly Dec l., Ex . F. ) On Fe bruar

y 25, 2008, plaintiff wrote separ ate letter s to the U.S. Probation Office in Philadelphia, Pennsylvania, and the USAO there , seeking the status of the re manded r equest, “[s] pecif ically , as it relate [s] to para g raph 24 of my PSI repor

t which the Court had e ither used or relied upon to e stablish facts re g ardingmy alleg ed involvement in the L ockie De ley [si c] Org anization (L DO) a

nd by which my

sentenc e wa s determined a s a re sult.” ( Id ., Ex s. G, H.) The Probation Of

fice responde d on April 2, 2008, that “the pur pose of y our letter is

Plaintiff claims that he re ceive d only 54 pag es. Statement of Ma terial F acts in Ge nuine 2 Dispute Relatingto Pl.’s S econd Mot. in Opp’n to De fs’ Sec ond Mot. for Summ. J ., or Altera tive for Dismiss at 3, ¶ 5. 2unclea

r” ( id ., Ex . K); the USAO infor med plaintiff that it had for war ded his letter to EOU SA, which “c oordinates the pr ocessingof all F OIA re quests for a ll [ USAOs],” and that he should “dire ct all of [his] FOIA matters” to the EOUSA. (F alken De cl., Ex. C .) On Apr il 14, 2008, in light of the USAO’s letter , plaintiff soug ht from EOUSA the status of the rema nded re quest. (Jol ly Dec l., Ex . L ); on September 18, 2008, E OUSA informed him that it was a waitinga response from “the local U.S. Attorney ’s Off ice.” ( Id ., Ex . M.) On Nove mber 18, 2008, EOUSA, treating plaintiff’ s reque st as seekinghis PS Irepor t, informed him that beca use of Bur eau of Prisons poli cy , it could not relea se the re port to him but t hat he c ould view it at his instit ution. (

Id ., Ex . N.) The letter infor med plaintiff that it was “ the final a ction on this abovenumbere d reque st (#07-487)” and advise d him of his right to appe al to OI P within 60 day s. ( Id .) After attempting se vera l times to clarify that he wa s seeking

“ac tual” docume nts underly ing the deter minations of the mag istrate judg e and the probation off ice, not his PSIrepor

t ( id ., Ex s. O, S, W), plaintiff appea

red to lodg e an a

ppeal with OIP on Dece mber 21, 2009. ( Id ., Ex . X.) On Ma

y 7, 2010, OI P informed plaintiff that it had close d his “attempt[ed] ” appe al “dated Dec ember 14, 2009,” as untimely

submitt ed. Id ., Ex . BB

. In response to plaintiff’s attempts by letters of A

pril 8, 2009, and June 8, 2009, to obtain the status of his reque st, EOUSA interpre ted ea ch letter as a ne w FO I A re quest and soug ht clar ification of the r equest. ( See id ., Ex s. O, P, Q, R.) On J une 4, 2009, the USAO in Philadelphia rec eived f

rom EOUSA plaintiff’ s FOIA re quest number 09- 1567, and on August 3, 2009, it rece ived yet another such re quest numbere d 09-2636, ea ch for the same doc uments soug ht in the first reque st number 07-487. (F alken De cl. ¶¶ 13, 15.) Followinganother sear ch of the USAO’s f

ile in October

2009, it was “discove red that [ the] file had 40 boxes of files and

3there wer e 42 def endants involved.” (

Id . ¶ 20.) The USAO locate d plaintiff’s pre sentenc e investigation report, “which led [] to a desc ription of [t hree ] documents [ ] Mr. Chaplin was looking f or in reg ards to the doc uments the Probation Offic er use d.” ( Id . & E x . I .) Those documents we re de scribed a s witness testimony , money launder ing doc uments presumably orig inating w ith the DrugEnforc ement Administration (“D EA”) , and prof fer statements also presumably

orig inating w ith the DEA. (Ex. I .) I n response to this di scover y , Fa lken aske d EOUSA whe ther she should send pla intiff “a f ee le tter indicatingthe 40 boxes of materials we have, te ll him t o contac t DEA or both[.] ” ( Id .) Assistant Direc tor Wil liam G. Stewart I Ireplied on October

21, 2009, “let’s [] go bac k to the reque ster and e x plain the situation and g ive him the option of g oing to DE A and c ourt.” ( Id ., Ex . J .) B y

then, plaintiff had e x hausted his two hours of fr ee se arc h time. (

Id . ¶¶ 13, 22.) By letter of N ovember

27, 2009, Stewart infor

med plaintiff that pursua

nt to ag ency regulations, EOUSA was a g g reg atinghis requests see king r ecor ds from the same criminal file and cha rg ing se arc h and duplication fe es for reque st numbers 09-1567 and 09- 2636. (Jol ly Dec l., Ex . V.) He further

stated that “[a]lthough sea rch f ees a re w arr anted in your ca se, the [Eastern District of Pennsylvania] has [] informed us that they are unable to conduc t a sea rch be cause they do not know which spec ific docume nts the probation offic er a nd J udg e used to de termine c erta in issues in y our ca se.” (

Id .) Stewar

t sugg ested that plaintiff ma y want to “r equest this information from the Clerk of

the Court,” invited him to file a newreque st if he could “ide ntify the exact documents” he was re questing , and advise d him of his right to appe al to OI P. ( Id .) Plaintiff filed this action on May

30, 2010.

4DISCUSSIO N

Summary judgme nt should be g rante d to the movant if it has shown, when the fac ts are viewed in the lig ht most favorable to the nonmovant, that there are no g enuine issues of material fac t and that the movant is entitled to judgme nt as a matter of law. F ed. R. Civ. P. 56(a); see g ener ally Celotex Corp. v. Catrett , 477 U.S. 317 (1986). In a F OIA ac tion, the Court may awa rd summary judgme nt to the ag ency

solely on the basis of infor

mation provided in aff

idavits or decla rations that desc ribe “ the documents a nd the justifications for nondisclosure with rea sonably specific detail, demonstrate that the information withheld log ically falls within the claimed exemption, and are not c ontroverte d by either c ontrary

evidenc e in the re cord nor by evidenc e of ag ency bad fa ith.” Military Audit Project v. Casey , 656 F.2d 724, 738 ( D.C. Cir. 1981); acc ord Campbell v. De

p’t of Justice , 164 F.3d 20, 30 ( D.C. Cir. 1998) (quoting King v. Dep’t of Justice , 830 F.2d 210, 217 ( D.C. Cir. 1987)); Vaughn v. Rose n , 484 F.2d 820, 826 ( D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The Court is authorized under the F OIA “to devise reme dies and enjoin ag encie s . . . if the ag ency has [improperly

withheld ag ency

rec ords].” McG eheev. CIA , 697 F.2d 1095, 1105 ( D.C. Cir. 1983) (quoting Kissi nger v. Re porters Comm. for Freedom of the Press , 445 U.S. 136, 150 (1980)). As an initial matter, the Court does not fa thom how defe ndant could have rea sonably interpre ted plaintiff’s r equest see king the source of the infor mation contained in “pa

ragraph 24 of my PSI repor

t” as a reque st for the re port he a ppare ntly alre ady had or, a t the least, re viewed. Nor wa s it reasona

ble or log ical for

anyone ac tually

rea ding pla intiff’s cor

responde nce to tre at his repe ated letter s seekingupdates of the “re manded” reque st as new F OIA re quests. Plaintiff proper ly ref err ed in ea ch letter

to the ag ency ’s assig ned number s (re quest number 07- 487 and

5appea l number 07-2101) . I g noringsuch re fer ence s defe ats the purpose of assig ning numbe rs in

the first plac e. In any event, the r ecor d prese nts ge nuine issues with reg ard to de fenda nt’s FOIA compliance in two way s. First, EOUSA doe s not refute that plaintiff re ceive d just 54 of the 202 pag es it claimed we re pr oduced, but it notes its “willing[ness]” to provide the re maining pa g es “without char g e, should [plainti ff] desire the m.” Def s.’ Reply to Pl.’s Opp’n to Defs’ Mot. for Summ. J . at 6 n.4. EOUSA is obligated under the FO I A to produce all responsive r ecor ds, which it admittedly

has not. 3 Second, in Octobe r 2009, F alken identifie d three cate g ories of r ecor ds responsive to plaintiff’s re quest that may have be en maintained by the USAO in Philadelphia. ( SeeFa lken Dec l., Ex . I .) The f

act that some r ecor ds may have originated with DEA or w ith the court does not relieve EOUSA of its statutory obligation to search its files for any responsive r ecor ds and to either r elea se them to plaintiff or r efe r them to the DEA f or fur ther proc essing

. See M

cGhe e , 697 F.2d at 1109-10 (re quiring ag encie s to produce r ecor ds in their custody and contr ol at the time of the FO I A re quest); Sussman v. U.S. M arshals Service , 494 F.3d 1106, 1118 ( D.C. Cir. 2007) (“Mc Gehe e' s admonition that the ag ency rec eivingthe initial request ‘c annot simply ref use to ac t on the g round that the doc uments orig inated else wher e’ . . . inde ed imposes a duty on that ag ency , but the ag ency

may acquit itself throug h a re fer ral, provide d the re fer

ral doe s not lead to improper withholdingunder the McGe hee te st.”) (quoting McGhee , 697 F.2d at 1110). Thus, Stewart’s a dvice to F alken, upon he r discover y of re sponsive rec ords at the USAO, to “ g ive

Acc ordingto the Fa lken dec laration, 203 pag es we re f orwa rded to EOU SA from the 3 Easter n District of Pennsylvania. In supplementing the re cord, EO USA is directed to e x plain this one-pa g e diffe renc e. 6[pl aintiff] the option of goingto DEA and c ourt” wa s in clear violation of the FO I A. Fur thermore , Stewart’s state ment in the letter to plaintiff da ted Novembe r 27, 2009, that “the [Eastern District of Pennsylvania] has [] informed us that they are unable to conduc t a sea rch beca use they do not know which spec ific docume nts the probation offic er a nd J udg e used to deter mine cer tain issues in y our ca se” ( J olly Dec l., Ex . V) is direc tly

contra dicted by

the Fa lken decla ration. Given the f

oreg oing f

acts, the Court c oncludes that de fenda nt is not entit led to summary judgme nt and, thus, denies the pe nding motion for sa id relief. Asepar ate Or der a ccompa nies this Memorandum Opinion.

____________s/______________ EL L EN SEGAL

HUVEL L E DATE: January

10, 2011 United States District J udg e

7