Frost v. United States Department of Justice

Filing 21

ORDER REVIEWING SECOND AMENDED COMPLAINT AND ORDERING SERVICE OF THE SECOND AMENDED COMPLAINT ON THE DEPARTMENT OF JUSTICE. Signed by Judge Joseph C. Spero on June 28, 2017. (jcslc1S, COURT STAFF) (Filed on 6/28/2017) (Additional attachment(s) added on 6/28/2017: # 1 Certificate/Proof of Service) (klhS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VINTON P. FROST, Case No. 17-cv-01240-JCS Plaintiff, 8 v. 9 UNITED STATES DEPARTMENT OF JUSTICE, et al., 11 United States District Court Northern District of California 10 Defendants. ORDER REVIEWING SECOND AMENDED COMPLAINT AND ORDERING SERVICE OF THE SECOND AMENDED COMPLAINT ON THE DEPARTMENT OF JUSTICE 12 13 14 15 On May 15, 2017, the Court issued an order pursuant to 28 U.S.C. § 1915 reviewing 16 Plaintiff’s First Amended Complaint (“FAC”), filed on March 30, 2017. The FAC asserts claims 17 under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, based on the FBI’s response to a 18 FOIA request addressed to it in which Plaintiff requested records about himself (“the FBI 19 Request”). In the Order, the Court identified certain deficiencies and gave Plaintiff leave to 20 amend as to some claims. In the meantime, on May 8, 2017, Plaintiff filed a document in this case 21 styled as a “supplemental complaint.” See Docket No. 11. That document asserts FOIA claims 22 based on a different FOIA request seeking records from the Office of the Attorney General (“the 23 Office of the Attorney General FOIA Request”). Plaintiff received a response to that request in a 24 letter dated March 16, 2017 and a letter rejecting his administrative appeal dated April 28, 2017, 25 after he had filed his FAC. See Supplemental Complaint, Exs. A-C. In his supplemental 26 complaint, like his FAC, Plaintiff named Department of Justice as a defendant, among others. 27 Because both claims involve the same defendant, it is permissible for Plaintiff to join them in a 28 single action, even though they are based on different FOIA requests. See Fed. R. Civ. P. 18(a); 1 Hicks v. Matevousian, No. 116CV01440JLTPC, 2017 WL 1837258, at *3 (E.D. Cal. May 8, 2017) 2 (noting that Rule 18(a) “permits the joinder of multiple claims against the same party.”). 3 Nonetheless, should Plaintiff seek to assert any additional claims based on other FOIA requests 4 that are not addressed in the SAC, he is instructed to file any such claims as separate actions rather 5 than in this action in order to allow the instant action to move forward. 6 Although the Court did not directly address the claims in the supplemental complaint when 7 it conducted its initial review under 28 U.S.C. § 1915, the principles set forth in its May 15, 2017 8 Order are applicable to those claims. Plaintiff has now filed a Second Amended Complaint 9 (“SAC”) asserting claims against the Department of Justice based on both FOIA Requests. In doing so, he has remedied the deficiencies the Court identified in its May 15, 2017 Order as to the 11 United States District Court Northern District of California 10 claims based on the FBI Request and has also amended his claims based on the Office of the 12 Attorney General FOIA Request consistent with the Court’s guidance. The Court finds that the 13 claims set forth in Plaintiff’s SAC are sufficient to survive initial review under 28 U.S.C. § 1915 14 except in one respect. As the Court explained it its May 15, 2017 order, FOIA claims may be 15 asserted only against an “agency.” Based on that principle, the Court dismissed with prejudice 16 Plaintiff’s claims against the individual defendants named in the FAC. The Court inadvertently 17 failed to dismiss the Office of Information Policy (“OIP”) in its previous order, but the same 18 principle applies to it. See Gordon v. Courter, 118 F. Supp. 3d 276, 282 (D.D.C. 2015) 19 (dismissing OIP in FOIA action on the basis that it is not a proper defendant). Therefore, the 20 Court DISMISSES WITH PREJUDICE all claims asserted in the SAC against OIP. 21 Accordingly, pursuant to 28 U.S.C. § 1915(d), the Clerk is ORDERED to issue summons 22 as to Department of Justice. The U.S. Marshal for the Northern District of California is 23 ORDERED to serve a copy of each of the following documents on Defendant: (1) summons; (2) 24 the First Amended Complaint, Supplemental Complaint and the Second Amended Complaint 25 (Docket Nos. 7, 11 and 13); (3) the Court’s May 15, 2017 1915 Review (Docket No. 12); (4) the 26 Initial Case Management Scheduling Order (Docket No. 4); and (5) a copy of this Order. The 27 Court further orders that within thirty days (30) of service, the Department of Justice shall 28 initiate efforts to meet and confer with Plaintiff in order to develop a joint proposed 2 1 schedule for the case, which shall be submitted to the Court for approval within 60 days of 2 service. 3 IT IS SO ORDERED. 4 5 Dated: June 28, 2017 6 7 8 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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