Kahn v. USA

Filing 40

MINUTE ORDER Denying as Moot 28 Plaintiffs Motion to Compel Defendant to Resend FOIA documents by Certified Return Receipt and to Compel Warden Charles Daniels from Opening FOIA Legal Parcel Outside of Mr. Kahns Presence; granting 31 Defendant s Partial Motion for Reconsideration re 30 the portion of Magistrate Judge Watanabes Order of July 17, 2012 Docket No. 30 , requiring Defendant to file the 68 pages of redacted documents for, in camera, review is VACATED, by Magistrate Judge Michael J. Watanabe on 9/4/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00169-WJM-MJW
ROY ALBERT KAHN,
Plaintiff(s),
v.
UNITED STATES OF AMERICA,
Defendant(s).
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the Pro Se Incarcerated Plaintiff’s Motion to Compel
Defendant to Resend FOIA documents by Certified Return Receipt and to Compel
Warden Charles Daniels from Opening FOIA Legal Parcel Outside of Mr. Kahn’s
Presence [sic] (Docket No. 28) is DENIED AS MOOT. I find that Defendant has
provided to the Pro Se Incarcerated Plaintiff a Vaughn Index as of August 16, 2012.
See Exhibits A, B, and C attached to Response (Docket No. 39). Thus, Defendant has
complied with Magistrate Judge Watanabe’s Order entered on July 17, 2012 at the
Status Conference, and therefore the subject motion (Docket No. 28) is moot. See
minutes of Status Conference held on July 17, 2012 (Docket No. 30).
It is FURTHER ORDERED that Defendant’s Partial Motion for Reconsideration
(Docket No. 31) is GRANTED for the reasons stated below.
It is FURTHER ORDERED that the portion of Magistrate Judge Watanabe’s
Order of July 17, 2012 (Docket No. 30), requiring Defendant to file the 68 pages of
redacted documents for, in camera, review is VACATED.
I find that the Pro Se Incarcerated Plaintiff recently received Defendant’s Vaughn
Index as of August 16, 2012. This index outlines with particularity the legal
exemption(s) claimed by Defendant per document concerning the Pro Se Incarcerated
FIOLA request. At this stage of the litigation there have been no dispositive motions
filed nor has there been any amendments to the pleadings. Moreover, Pro Se
Incarcerated Plaintiff has not yet exhausted administrative remedies on any such
exemption claims because he has not filed an administrative appeal pursuant to 28
C.F.R. §§ 16.9 or 16.45. The Pro Se Incarcerated Plaintiff has been advised by
Defendant [BOP] that he needs to file an administrative appeal. To date, the Pro Se
Incarcerated Plaintiff has not done so. See exhibit A attached to Response (Docket No.

31). Accordingly, this court lacks jurisdiction over any claim that FOIA exemptions were
improperly asserted. See Hull v. IRS, 656 F.3d 1174 at 1179-80 (10th Cir. 2001).
Date: September 4, 2012