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Carter v. United States

United States District Court, S.D. Ohio, Western Division

April 3, 2018

UNITED STATES OF AMERICA, et al., Defendants.

          Dlott, J.


          Karen L. Litkovitz United States Magistrate Judge.

         Proceeding 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).

         I. Motion for Summary Judgment (Doc. 25)

         A. Standard

         A 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).

         The 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)).

         Because 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).

         B. Facts

         In June 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 1-3.[1]

         Plaintiff 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).

         Plaintiff refiled a FOIA request on July 18, 2016, which sought the following information:

A. A copy, front and back, of the Dynus Check in the amount of $9, 500 given to Ms. [Mary C] Rogers; ("Request 1")
B. A copy of the Dynus Check Authorization Form showing approval of the Dynus Check to Ms. Rogers; ("Request 2")
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")

         (Plaintiffs FOIA Requests, Exhibit A, Doc. 3-1 at 1-2; Doc. 25-2 at 1-2).

         The 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.

         (Exhibit 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).

         The 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).


         As 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).

         C. The Parties' Arguments

         Plaintiff states in his verified complaint[2] 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 ...

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