Allison v. United States Marshall Service

Filing 19

MEMORANDUM DECISION AND ORDER granting 11 United States Marshals Services Motion for Summary Judgment; denying 14 Ex Parte Motion to Compel; denying 15 Ex Parte Motion to Compel. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES BRUCE ALLISON,

Case No. 1:14-cv-00332-BLW

Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

UNITED STATES MARSHALS
SERVICE,
Defendant.

Before the Court are the United States Marshals Service’s Motion for Summary
Judgment (Dkt. 11) and Plaintiff James Bruce Allison’s Ex Parte Motions to Compel
(Dkts. 14 & 15). Having fully reviewed the record, the Court finds that the parties have
adequately presented the facts and legal arguments in the briefs and record and that the
decisional process would not be significantly aided by oral argument. Therefore, the
Court will decide this matter on the written motions, briefs and record without oral
argument. D. Idaho L. Civ. R. 7.1(d). For the reasons set forth below, the Court will grant
the Government’s Motion for Summary Judgment and deny Allison’s ex parte motions to
compel.

MEMORANDUM DECISION AND ORDER- 1

ANALYSIS
1.

Motion for Summary Judgment
Allison brings his claims under 5 U.S.C. § 552, the Freedom of Information Act

(FOIA). The FOIA generally provides for the mandatory disclosure of information held
by federal agencies to the public, unless the requested material is excluded from
mandatory disclosure by an exemption provided in the FOIA. NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 220-221 (1978); 5 U.S.C. § 552. Allison alleges that the
United States Marshals Service (USMS) has failed to comply with FOIA.
By a letter dated July 13, 2012, Allison made a FOIA request to the USMS.
Bordley Decl. ¶ 2, Dkt. 11-2. In this letter, Allison requested all records from October
2007 to 2012 relating to an ICE/DHS investigation of himself, and all records from the
USMS from the same date until the present. Id. The letter was then forwarded to the
USMS by an action slip dated July 26, 2012. By a letter addressed to Allison and dated
July 31, 2012, the USMS acknowledged receipt of the FOIA request, and then began a
search of all the responsive USMS records concerning Allison covering the period
October 2007 to the present. Id. ¶ 3.
In a second letter dated January 15, 3013, Allison requested copies of all records
pertaining to an incident referencing Allison that occurred on November 9, 2007. Allison
sought this document from the Post Falls City Police Department, but he was erroneously
told that the custodian of the document was the USMS. Id. ¶ 4.

MEMORANDUM DECISION AND ORDER- 2

The USMS conducted a thorough search of its records to find documents
responsive to Allison’s requests. The search located 244 pages of documents that were
potentially responsive to Allison’s FOIA requests. Only 214 of those pages, however,
were created and maintained by the USMS; the remaining pages originated with other
federal agencies, including the Bureau of Prisons (“BOP”), the Executive Office for
United States Attorneys (“EOUSA”), and the United States District Court for the District
of Idaho. Id. On or about October 24, 2013, the USMS released to Plaintiff all but two
pages of USMS records. Id. The production of these records moots any claims regarding
the 214 pages of USMS-created records. See, e.g., Papa v. United States, 281 F.3d 1004,
1013 (9th Cir. 2002) (stating production of all nonexempt material, “however belatedly,”
moots FOIA claims).
As for the remaining documents that the USMS did not produce, Allison never
administratively challenged or appealed the scope of the USMS’s search, the adequacy of
the search, the propriety of any redactions, the withholding of any USMS-created
documents, or the applicability of any FOIA exemptions. Id. ¶¶ 13, 17. But he did file
two separate FOIA appeals. Id., Exs. H and L. Allison made clear that these appeals were
narrowly limited to three actions:
(1) “[the withholding] of [the police officer’s] dispatch log for [the
November 9, 2007] event,” see Ex. H;
(2) the withholding of “the xxxxx police report from the Post Falls xxx
Police Department] that [the police officer] filled out about the reason he
was called out on Nov 9 2007 [sic] to 1927 Chehalis street [sic], Post Fall
Idaho,” see Ex. L; and

MEMORANDUM DECISION AND ORDER- 3

(3) the withholding of an Order that Judge Lodge entered and sealed in the
case United States of America v. Allison, Case No. 2:07-CR-00284-N-EJL
(D. Idaho).
To the extent that Allison did not did not administratively challenge or appeal any
other aspect of the USMS’s response to his FOIA requests, this Court lacks subject
matter jurisdiction over his FOIA claims other than those relating to the police report,
dispatch log, and sealed Court Order. See, e.g., Hymen v. Merit Sys. Prot. Bd., 799 F.2d
1421, 1423 (9th Cir. 1986), overruled on other grounds by Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89 (1990)) (confirming that district court lacked subject matter
jurisdiction where plaintiff had failed to exhaust administrative remedies)
Nor does Allison have a valid FOIA claim with respect to the police report,
dispatch log, and sealed Court Order. In a FOIA lawsuit, the Court can grant a requester
relief only when an agency has improperly withheld agency records. See 5 U.S.C. §
552(a)(4)(B) (1994 & Supp. II 1996). The USMS does not have either the police report or
dispatch log in its possession. Bordley Decl., ¶ 8, 13, 17; see also id., Ex. K. The USMS
can neither produce nor withhold what it does not have. Given these facts, there is no
evidence that the USMS has acted improperly in not producing the police report and
dispatch log. And the USMS has also not improperly withheld a copy of Judge Lodge’s
sealed Court Order. Judge Lodge not only sealed the subject Order from public view for
purposes of the underlying criminal case, but also made clear that any disclosure of his
sealed Order is prohibited under the FOIA. Id., Ex. N.

MEMORANDUM DECISION AND ORDER- 4

2. Ex Parte Motions to Compel
Allison has also filed two ex parte motions to compel the Post Falls Police
Department to disclose to whom at the United States Marshal Service they turned over a
police report and also to produce a search warrant. Allison also ask the Court to compel
the Federal Defender’s office to disclose all discovery their office has on criminal case,
2:07-cr-00284-EJL. Neither of these entities is a party to this action, and therefore the
Court does not have the authority to compel them to produce any documents. Moreover,
these documents do not appear to have any bearing on Allison’s FOIA claim against the
United States Marshal Service.
ORDER
IT IS ORDERED that:
1. the United States Marshals Service’s Motion for Summary Judgment (Dkt. 11)
is GRANTED;
2. Plaintiff James Bruce Allison’s Ex Parte Motions to Compel (Dkts. 14 & 15)
are DENIED.
DATED: November 10, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER- 5