* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BARBARA SCHWARZ,

Plaintiff-Appellant,

v. FEDERAL BUREAU OF INVESTIGATION,

Defendant-Appellee. No. 98-4036 (D.C. No. 97-CV-86-C) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY , McKAY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Barbara Schwarz, appearing pro se, appeal s the district court’s summary judgment dismissal of her complaint allegin g that the defendant, the Federal Bureau of Investigation, failed to comply w ith her Freedom of Information Act (FOIA) request. We grant Ms. Schwarz leave to proceed in forma pauperis. We have jurisdiction pursuant t o 28 U.S.C. § 1291, and we affirm.
Background Ms. Schwarz filed a FOIA request with the FBI seeki ng any records it maintained concerning herself. The FBI initially r esponded that there would be delays in processing her request due to the larg e number of FOIA requests. After she made repeated requests for the informatio n, Ms. Schwarz brought action under FOIA, 5 U.S.C. § 552, to compel the FBI to pr oduce documents responsive to her request. The FBI then informed Ms. Schwarz that its search indicated she had never been the subject of an FBI investigation, but that it had located several references to her, primarily copies of her correspo ndence with the FBI. The agency released copies of all the responsive materi als to Ms. Schwarz. There were three references to Ms. Schwarz in documents that the FBI was unable to locate, but it informed Ms. Schwarz it would con tinue its search for these materials.-3-

The FBI moved for summary judgment on the ground th at it had not improperly withheld agency records and that its sea rch was reasonably calculated to locate all documents requested by Ms. Schwarz. The district court denied the first summary judgment motion filed by the FBI, hol ding that its supporting affidavit did not provide a sufficiently detailed d escription of its search process. The government then filed a second summary judgmentmotion, with a significantly more detailed supporting affidavit. The district court directed supplementation of this motion with information des cribing the means by which a FOIA search request from FBI headquarters is transm itted to the field offices. After the supplemented affidavit was filed, the dis trict court granted summary judgment in favor of the FBI. On appeal, Ms. Schwa rz claims that the FBI did not meet its obligations under FOIA, asserting thatthe FBI is furthering a conspiracy against her.
Analysis The FOIA provides jurisdiction in the district courts to “enjoin” an agency, subject to the Act, from “withholding agency record s and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Summary judgment is proper in a FO IA action when the agency demonstrates that its search was reasonably calculated to uncover all relevant documents. See Weisberg v. United States Dep’t of Justice , 705 F.2d 1344, 1351-4-

(D.C. Cir. 1983). The agency must make “a good fai th effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep’t of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). “To show reasonableness at the summary judgment phase, an agency must set forth sufficientinformation in its affidavits for a court to determine if the search was adequate.” Nation Magazine, Washington Bureau v. United States Customs Serv. , 71 F.3d 885, 890 (D.C. Cir. 1995). “Conclusory statements that the agency has reviewed relevant files are insufficient to support summary judgment.” Id. “The affidavits must be reasonably detailed, setting forth the search terms and the type of search performed, and averring that all files likely to co ntain responsive materials (if such records exist) were searched.” Id. (quotations omitted). When the agency has provided such affidavits, the n onmoving party must either produce evidence contradicting the adequacy of the agency’s search or evidence of the agency’s bad faith. See Miller v. United States Dep’t of State , 779 F.2d 1378, 1384 (8th Cir. 1985). The nonmoving party may not rest on mere allegations or denials of pleadings; she must, by a ffidavit or other appropriate means, set forth specific facts establishing the ex istence of a genuine issue for trial. See Wren v. Heckler , 744 F.2d 86, 90 (10th Cir. 1984).-5-

We review the district court’s summary judgment on a FOIA claim de novo, so long as the decision rests on an adequate factual basis. See Audubon Soc’y v. United States Forest Serv. , 104 F.3d 1201, 1203 (10th Cir. 1997). Here, the FBI submitted multiple declarations from agency personn el detailing in substantial length the structure of the FBI’s file and indexing systems, its search methods and procedures, and the scope and nature of the search it conducted on Ms. Schwarz’ behalf. The FBI provided adequate affidavits and o ther material showing that the agency had conducted a reasonable search and had fo und, and turned over to Ms. Schwarz, all of the records it could locate respons ive to her request. We have reviewed the record, and we agree with the districtcourt’s conclusion that “it is apparent . . . that the agency conducted a search f or the documents requested by plaintiff in a manner reasonably calculated to lead to their discovery.” R. Doc. 56, at 1. Ms. Schwarz responded with only bare allegations cl aiming the FBI’s search was not adequate. Ms. Schwarz argues the di strict court erred by not requiring the FBI to locate more files, and she complains in particular about the FBI’s inability to locate three documents containin g references to her. However, the fact that the FBI’s search failed to turn up th ree documents is not sufficient to contradict the reasonableness of the FBI’s search w ithout evidence of bad faith.
See Meeropol v. Meese , 790 F.2d 942, 952-53 (D.C. Cir. 1986) (“[A] searc h-6-

is not unreasonable simply because it fails to prod uce all relevant material; no [large] search . . . will be free from error.”). T he fundamental question is “not ‘whether there might exist any other documents poss ibly responsive to the request, but rather whether the search for those documents was adequate .’” Steinberg v. United States Dep’t of Justice , 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep’t of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Ms. Schwarz supplemented and mo dified her search requests during the course of the litigation, and she compla ins that the FBI did not search all of its field offices, as she requested t hat it do late in the course of this litigation. However, “[a] reasonable effort t o satisfy [a search] request does not entail an obligation to search anew based upon a subsequent clarification[;] . . . [r]equiring an additional se arch each time the agency receives a letter that clarifies a prior request could exten d indefinitely the delay in processing new requests.” Kowalczyk v. Dep’t of Justice , 73 F.3d 386, 388 (D.C. Cir. 1996). Ms. Schwarz also raises several procedural argument s about the proceedings before the district court. She complai ns that the district court gave the FBI several opportunities to supplement its des criptions of its search methods and procedures and to file amended motions for summ ary judgment. The district court has the discretion under Fed. R. Civ. P. 56(e ) to permit affidavits in support-7-

of summary judgment motions to be supplemented. We find no abuse of the district court’s discretion here. Indeed, the dist rict court’s rulings demonstrate that it carefully addressed Ms. Schwarz’ allegation s and diligently required the FBI to satisfy its obligations under FOIA. The district court directed a magistrate judge to m anage the case pursuant to 28 U.S.C. § 636(b)(1)(B). Ms. Schwarz complains that the magistrate judge entered an order that her pleadings and documents w ould be received by the court, but would not be considered filed and docketed unti l reviewed by the magistrate judge. Federal courts have the inherent power to i mpose sanctions to regulate their docket, promote judicial efficiency and to deter frivolous filings. See, e.g. , Roadway Express, Inc. v. Piper , 447 U.S. 752, 764-67 (1980); Van Sickle v. Holloway , 791 F.2d 1431, 1437 (10th Cir. 1986). The magist rate judge entered this order only after Ms. Schwarz filed several non responsive documents with the court. Ms. Schwarz does not claim that any of her pleadings were not filed or docketed, and we find no error in the magistrate ju dge’s order. Ms. Schwarz also argues that the district court err ed in granting the FBI’s request for a protective order staying discovery wh ile the FBI’s motion for summary judgment was pending. This court will not overturn the district court’s exercise of its broad discretion to manage the scop e of discovery absent “a definite and firm conviction that the lower court made a clear error of-8-

judgment or exceeded the bounds of permissible choi ce in the circumstances.” Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996) (quotation omitted). The decision of the magistrate judge denying discovery was reasonable and well within its broad discretion to manage suchmatters. Finally, Ms. Schwarz argues that the district judge was biased and prejudiced against her, and erred by denying her re cusal motion. We review “the denial of a motion to recuse only for abuse of discretion.” Weatherhead v. Globe Int’l, Inc. , 832 F.2d 1226, 1227 (10th Cir. 1987). Ms. Schwar z’ grounds for recusal are that the district court judge made ruli ngs adverse to her in the course of the litigation. Ms. Schwarz makes only unsupported allegations that the district court judge was biased. Judicial rulings alone almost never constitute a valid basis for recusal based on bias or partiality. See Liteky v. United States , 510 U.S. 540, 555 (1994). We find no abuse of disc retion in the district court’s denial of the recusal motion. To summarize, Ms. Schwarz did not present evidence raising a genuine issue of material fact contradicting the FBI’s evid ence that it conducted a search reasonably calculated to uncover all relevant docum ents. Therefore, summary judgment for the FBI was proper. Accordingly, the judgment of the United States-9-

District Court for the District of Utah is AFFIRMED . The mandate shall issue forthwith. Entered for the Court
Monroe G. McKay Circuit Judge