United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
pro se, plaintiff brings this action under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552. This
matter is before the Court on defendants' motion for
summary judgment (Doc. 25), to which plaintiff has not filed
a response in opposition. This matter is also before the
Court on several of plaintiff s pretrial motions, including:
motions to compel (Docs. 28, 31), defendants' response in
opposition to the motions to compel (Doc. 32), and plaintiffs
reply memorandum in support of the motions to compel (Doc.
34); motions for contempt/declaratory judgment (Docs. 33,
35); motion for an informal discovery conference (Doc. 27);
motion for a hearing/conference call and motion to appoint
counsel (Doc. 36); motion for a status update (Doc. 38); and
"motion to establish fact or genuineness of answer or
objection pursuant to Rule 36/request for extension due to
defendants' failure to comply with discovery
requests" (Doc. 42).
Motion for Summary Judgment (Doc. 25)
motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine
issue as to any material fact, and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A grant of summary judgment is proper if
"the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Satterfield v. Tennessee, 295 F.3d 611,
615 (6th Cir. 2002). The Court must evaluate the evidence,
and all inferences drawn therefrom, in the
light most favorable to the non-moving party.
Satterfield, 295 F.3d at 615; Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587
(1986); Little Caesar Enters., Inc. v. OPPC, LLC,
219 F.3d 547, 551 (6th Cir. 2000).
trial judge's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine factual issue for trial.
Anderson, 477 U.S. at 249. The trial court need not
search the entire record for material issues of fact,
Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479-80 (6th Cir. 1989), but must determine "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52. "Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue
for trial/" Matsushita, 475 U.S. at 587.
"In response to a properly supported summary judgment
motion, the non-moving party 'is required to present some
significant probative evidence which makes it necessary to
resolve the parties' differing versions of the dispute at
trial." Maston v. Montgomery Cty. Jail Med. Staff
Pers., 832 F.Supp.2d 846, 849 (S.D. Ohio 2011) (quoting
Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432,
1435 (6th Cir. 1987)).
plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972) (stating that the Court holds pleadings
of pro se litigants to less stringent standards than formal
pleadings drafted by lawyers)); Boswell v. Mayer,
169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy
the benefit of a liberal construction of their pleadings and
filings). However, a party's status as a pro se litigant
does not alter his duty to support his factual assertions
with admissible evidence. Maston, 832 F.Supp.2d at
851-52 (citing Viergutz v. Lucent Techs., Inc., 375
Fed.Appx. 482, 485 (6th Cir. 2010)). When opposing a motion
for summary judgment, a pro se party cannot rely on
allegations or denials in unsworn filings. Id.
(citing Viergutz, 375 Fed.Appx. at 485).
2010, the Court sentenced plaintiff to a total of 180
months' imprisonment after a jury found him guilty on 11
fraud-related counts. See United States v. Carter,
Case No. 1:08-cr- 51 (S.D. Ohio Jun. 9, 2010), Doc. 103 at
filed a civil lawsuit against the United States in May 2016,
alleging that the United States failed to respond to his FOIA
request for "certified and authenticated records"
related to the alleged "$4, 000, 000 obligation the
government claims [plaintiff] had with PNC in 2004" in
relation to his criminal conviction. Carter v. United
States, Case No. 1:16-cv-530 (S.D. Ohio May 13, 2016),
Doc. 3. In August 2016, the Court dismissed plaintiffs
complaint without prejudice for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) because he failed to
exhaust his administrative remedies under FOIA. Carter v.
United States, No. l:16-cv-530, 2016 WL 4382725, at *1
(S.D. Ohio Aug. 16, 2016).
refiled a FOIA request on July 18, 2016, which sought the
A. A copy, front and back, of the Dynus Check in the amount
of $9, 500 given to Ms. [Mary C] Rogers; ("Request
B. A copy of the Dynus Check Authorization Form showing
approval of the Dynus Check to Ms. Rogers; ("Request
C. The name of the bank which the Dynus Check, referenced in
Item A above, was deposited and the date such deposit was
made; ("Request 3")
D. The account name and number (minus the last 2 digits) in
which the Dynus Check, referenced in Item A above, was
deposited; and ("Request 4")
E. The name of the government official(s) in the Offices of
the FBI and U.S. Attorney including any and all documents
containing the name of the government official(s) who
obtained the specific Dynus Check as requested in Item A
above; and the date the Dynus Check was received, possessed,
and entered into the evidence file maintained by the FBI and
U.S. Attorneys Office. ("Request 5")
FOIA Requests, Exhibit A, Doc. 3-1 at 1-2; Doc. 25-2 at 1-2).
Executive Office for United States Attorneys
("EOUSA"), the official record-keeper for United
States Attorneys' Offices, responded to plaintiff on
August 31, 2016 and wrote:
All of the records you seek are being made available to you.
We have processed your request under the Freedom of
Information Act and are making all records required to be
released, or considered appropriate for release as a matter
of discretion, available to you. This letter is a full
release of 94 pages responsive to your request. No copies of
requested check located.
B, Doc. 3-1 at 3-4). Plaintiff appealed the response of the
EOUSA with the Office of Information Policy of the United
States Department of Justice. (Exhibit D, Doc. 3-1 at 9-10).
Office of Information Policy affirmed the EOUSA's action
on his request and stated:
By letter dated August 31, 2016, EOUSA released to you
ninety-four pages of responsive records in full. I have
determined that EOUSA's response was correct and that it
conducted an adequate, reasonable search for responsive
records subject to FOIA.
Furthermore, I am denying your request that we itemize and
justify each item of the information withheld. You are not
entitled to such a listing at the administrative stage of
processing FOIA requests and appeals. See, e.g., Baneoura
v. U.S. Dep't of the Army. 607 F.Supp.2d 134, 143 n.
8 (D.D.C. 2009).
such, after exhausting his administrative remedies, plaintiff
reinitiated his FOIA action in this Court and filed a
verified complaint on May 1, 2017. (Doc. 3).
The Parties' Arguments
states in his verified complaint that he filed the
above-mentioned FOIA request on July 18, 2016 to "obtain
[ ] Dynus records including the Dynus Authorization Form and
the Dynus Check which would support the government's
claim." (Doc. 3 at 6). Plaintiff contends that the
"government responded non-responsively."
(Id.), Plaintiff ...