Shehadeh v. Federal Bureau of Investigation

Filing 100

OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiff Jamal Shehadeh's Motion for Appointment of Counsel and Memorandum of Law in Support Thereof 90 , Motion for Production of Vaughn Index 91 , Third Motion for Issuance of Subpoena in Acco rdance with Local Rule 45.2 ILCD 93 , Fourth Motion for Issuance of Subpoena in Accordance with Local Rule 45.2 ILCD 94 , Fifth Motion for Issuance of Subpoena in Accordance with Local Rule 45.2 ILCD 95 , and Sixth Motion for Issuance of Subpoena in Accordance with Local Rule 45.2 ILCD 96 are DENIED. See written order. (LB, ilcd) (Copy of order sent this date via U.S. Mail to pro se Plaintiff at Logan Correctional Center.)

E-FILED

Monday, 18 July, 2011 04:33:18 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JAMAL SHEHADEH,
Plaintiff,
v.
FBI, et al.,
Defendants.

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No. 10-CV-3306

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Jamal Shehadeh’s
Motion for Appointment of Counsel and Memorandum of Law in Support
Thereof (d/e 90) (Motion for Counsel), Motion for Production of Vaughn
Index (d/e 91) (Vaughn Motion), Third Motion for Issuance of Subpoena in
Accordance with Local Rule 45.2 ILCD (d/e 93) (Third Motion), Fourth
Motion for Issuance of Subpoena in Accordance with Local Rule 45.2 ILCD
(d/e 94) (Fourth Motion), Fifth Motion for Issuance of Subpoena in
Accordance with Local Rule 45.2 ILCD (d/e 95) (Fifth Motion), and Sixth
Motion for Issuance of Subpoena in Accordance with Local Rule 45.2 ILCD
(d/e 96) (Sixth Motion) (the Third, Fourth, Fifth, and Sixth Motions are
collectively referred to as Subpoena Motions). For the reasons set forth
below, the Motions are respectfully DENIED.
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Shehadeh brings this action under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, alleging that he made FOIA requests for
information to the Defendant agencies of the United States Department of
Justice and the agencies are improperly withholding information. See
Complaint for Order to Compel Release of Documents and Information
Subject to Disclosure under the Freedom and Information and Privacy Acts
(d/e 1) (Complaint); Amended Complaint for Review Pursuant to the
Freedom of Information and Privacy Acts (d/e 52). 1 The Motion for
Counsel seeks appointment of counsel. The Vaughn Motion seeks
information about withheld documents. The Subpoena Motions ask for
subpoenas duces tecum directed to third parties. The Court will address
the Motion for Counsel first, followed by the Vaughn Motion, and then the
Subpoena Motions.
I.

Motion for Counsel
There is no right to counsel in civil proceedings. Pruitt v. Mote,

503 F.3d 647, 656 (7th Cir. 2007). The Court, however, may in its
discretion, request an attorney to represent an indigent litigant on a

1

The Defendants have included footnotes in their responses indicating that the
Department of Justice (Department) should be substituted as the proper party
defendant. E.g., Defendants’ Response to Plaintiffs Requests for Discovery
Subpoenas (R. 92, 93, 94, 95, 96) (d/e 98), at 1 n.1. If Defendants believe that the
Department should be substituted in as the appropriate defendants, they should file a
motion requesting that relief. See Fed. R. Civ. P. 7(b)(1) (“A request for a court order
must be made by motion.”).
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pro bono basis. Pruitt, 503 F.3d at 654; 28 U.S.C. § 1915(e)(1). In deciding
whether to allow a request for pro bono counsel, the Court must consider:
(1) whether the indigent plaintiff has made a reasonable attempt to obtain
counsel or has been effectively precluded from doing so; and, (2) whether
the plaintiff appears competent to litigate the matter for himself. Pruitt, 503
F.3d at 654. The question of whether a pro se litigant is competent to
litigate a given matter is peculiar to each case. The factors to be
considered include the plaintiff’s literacy, communications skills,
educational level, and litigation experience. The Court also considers the
complexity of the case. Id.
Shehadeh is capable of litigating this case on his own. He is an
experienced pro se litigator. See Shehadeh v. Cox, et al., S. Dist. Ill.
Case No. 10-cv-00985; Shehadeh v. U.S.A., S. Dist. Ill. Case No.
05-cv-00398; Shehadeh v. U.S.A., C. Dist. Ill. Case No. 11-mc-00016.
Shehadeh’s filings in this case are well written, show a firm grasp of the
issues, and an ability to communicate effectively in writing. Given these
factors, the Court in its discretion, determines that it will not seek and
appoint pro bono counsel for Plaintiff Shehadeh.
II.

Vaughn Motion
Shehadeh asks this Court to order the production of a Vaughn index.

The term Vaughn index refers to a detailed log of the documents withheld
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and the basis for the withholding. The term comes from a D.C. Circuit
opinion, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The D.C.
Circuit in Vaughn reversed a grant of summary judgment in favor of the
Defendant Civil Service Commission and remanded the case with
instructions that the Defendant Commission produce an index of
documents withheld, along with a description of the basis for the decision
to withhold, that is sufficiently detailed to allow the Court to determine
whether the decision to withhold the documents was proper. Id. at 827-28.
Shehadeh asks this Court to order the Defendant Agencies to produce
such a detailed index in this case. The Defendants argue that the request
is premature.
The Court agrees that the Vaughn request is premature. One issue
in this FOIA case is whether the Defendant agencies made a proper
determination to withhold documents as exempt from disclosure under the
statute. FOIA exempts certain documents from disclosure. 5 U.S.C.
§ 552(b). The Defendants have the burden to demonstrate that documents
were properly withheld under an applicable exemption. Solar Sources, Inc.
v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998). The Defendants may
meet this burden in a number of ways. The Defendants may present the
documents to the Court for in camera review; if the documents are
voluminous, the Defendants may present a sample of the documents for in
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camera review; the Defendants may file a Vaughn index, or other
summary, of the documents depending on the circumstances. See e.g.,
Becker v. I.R.S., 34 F.3d 398, 401 (7th Cir. 1994) (Vaughn index filed and
court conducted in camera review); Solar Sources, Inc., 142 F.3d at 1036
(Vaughn index was not required in case involving law enforcement
exemption and court reviewed sampling of voluminous documents in
camera); Antonelli v. Sullivan, 732 F.2d 560, 562 (7th Cir. 1984) (Vaughn
index was unnecessary when the two documents at issue were reviewed
in camera). A Vaughn index is often not appropriate if the documents are
exempt as part of an ongoing law enforcement investigation because even
the summary could disclose information that would threaten the success of
the investigation and also put confidential informants and undercover law
enforcement personnel at risk. 5 U.S.C. § 552(b)(7)(A); Solar Sources,
Inc., 142 F.3d at 1040; Wright v. Occupational Safety and Health Admin.,
822 F.2d 642, 645-46 (7th Cir. 1987). The law enforcement exemption may
be at issue here because a number of the Defendants are law enforcement
agencies. At this juncture, the Court cannot determine whether production
or disclosure of a Vaughn index would be appropriate in this case. The
request is respectfully denied as premature.

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III.

Subpoena Motions
The Subpoena Motions are also denied. The Third and Fifth Motions

seek to uncover the substance of some of the documents sought in
Shehadeh’s FOIA requests by subpoenaing those documents, and related
documents, from third parties. The Defendants object because the ultimate
issue in the case is whether the substance of those documents are exempt
from disclosure. The Court agrees. Shehadeh must prevail in the case
before he can see that information. He cannot use subpoenas or other
discovery to disclose the substance of the withheld documents before the
final decision in the case. See Tax Analysts v. I.R.S., 410 F.3d 715, 722
(D.C. Cir. 2005) (discovery into substance of documents would “turn FOIA
on its head, awarding Appellant in discovery the very remedy for which it
seeks to prevail in the suit.”). The Court, therefore, will deny the Third and
Fifth Motions.
The Fourth and Sixth Motions are overly broad and would impose
undue burdens on third parties. This Court must quash or modify a
subpoena that subjects a third party to an undue burden. Fed. R. Civ. P.
45(c)(3)(iv). The Fourth Motions asks for subpoenas to produce all records
compiled by the Department of Justice Office of Special Counsel (OSC)
under FOIA §§ 552(a)(4)(F) and 552(a)(4)(F)(i) for the last five years.
Sections 552(a)(4)(F) and (a)(4)(F)(i) of FOIA require courts to refer to the
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OSC when records have been improperly withheld and require the OSC to
prepare annual reports regarding improperly withheld records in FOIA
matters. The proposed subpoena seeks all records of all improper
withholding of records by all federal agencies and offices for the last five
years. Shehadeh’s concerns, however, are limited to agencies of the
Department of Justice and their relationship with him. Shehadeh has no
need for information about every improperly withheld document from every
federal agency for the last five years, and the OSC should not be put to the
burden and expense of producing such. The Fourth Motion is denied.
The Sixth Motion asks for subpoenas directed at four different federal
agencies for all records of all acts of vandalism against any and all
electrical utility facilities anywhere in the state of Illinois in the last ten
years. The request is again overly broad. Shehadeh’s Complaint alleges
improper withholding of documents related to investigations of power
outages in Christian County, Illinois, in 2006. Complaint, at 2.2 Information
about incidents of vandalism throughout the State of Illinois for a decade is
not relevant to deciding whether the documents Shehadeh requested
regarding events in Christian County in 2006 were improperly withheld from

2

Shehadeh incorporated by reference the allegation in the Complaint into the
Amended Complaint. Amended Complaint, at 1.
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disclosure. The request is an improper and over broad request that would
impose an undue burden on third parties. The Sixth Motion is denied.
WHEREFORE Plaintiff Jamal Shehadeh’s Motion for Appointment of
Counsel and Memorandum of Law in Support Thereof (d/e 90), Motion for
Production of Vaughn Index (d/e 91), Third Motion for Issuance of
Subpoena in Accordance with Local Rule 45.2 ILCD (d/e 93), Fourth
Motion for Issuance of Subpoena in Accordance with Local Rule 45.2 ILCD
(d/e 94), Fifth Motion for Issuance of Subpoena in Accordance with Local
Rule 45.2 ILCD (d/e 95), and Sixth Motion for Issuance of Subpoena in
Accordance with Local Rule 45.2 ILCD (d/e 96) are DENIED.

ENTER:

July 18, 2011

s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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