Love v. Federal Bureau of Investigation

Filing 8

OPINION AND ORDER: The Court DISMISSES this case pursuant to 28 U.S.C. § 1915A because it is malicious. Signed by Judge Philip P Simon on 4/23/2018. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BRYANT LOVE,
Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant.

)
)
)
)
)
)
)
)
)

CAUSE NO. 2:18-CV-11 PPS

OPINION AND ORDER
Bryant Love, a prisoner without a lawyer, filed a complaint against the Federal
Bureau of Investigation. “A document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, I
must review the merits of a prisoner complaint and dismiss it if the action is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. “In order to state a claim
under § 1983 a plaintiff must allege: (1) that defendants deprived him of a federal
constitutional right; and (2) that the defendants acted under color of state law.” Savory
v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
Love states that he submitted a request to the FBI under the Freedom of
Information Act for its investigative file on him, which he needs to prepare a defense
for his pending criminal case. See United States v. Love, 2:17-cr-2-PPS-JEM. He alleges

that the FBI failed to expedite his case even though his request qualifies for expedited
processing as it involves “the loss of substantial due process rights.” Love seeks an
order directing the FBI to expedite his request for processing and to produce the
investigative file.
The Freedom of Information Act generally requires federal agencies to search for
and release agency records upon a citizen’s request. 5 U.S.C. § 552(a)(3)(A); U.S. Dep’t of
Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 754–55 (1989). Absent
unusual circumstances, the Act requires federal agencies to respond to such requests
within twenty days. 5 U.S.C. § 522(a)(6). Additionally, the federal regulations provide
for expedited processing if the request involves “the loss of substantial due process
rights.” 28 C.F.R. § 16.5(e)(1)(iii).
Love’s criminal case is the appropriate forum to issue his request for the
investigative file. As a criminal defendant, Love is generally entitled to receive evidence
that is material to his defense from the government. See Fed. R. Crim. P. 16; Brady v
Maryland, 373 U.S. 83, 87 (1963). However, he provides no indication that he has even
made such a request in his criminal case. Additionally, the duty to disclose evidence in
a criminal case is broader than the duty to disclose law enforcement records under the
Freedom of Information Act, which provides an exception for disclosures that would
reveal confidential informants or law enforcement techniques and procedures. See 5
U.S.C. § 522(b)(7). Also, Love will likely benefit from pursuing his request in the
criminal case with the assistance of appointed counsel. Because there is no apparent

2

valid reason to subject the government to civil proceedings for the sole purpose of
obtaining discovery for his criminal case, I dismiss this case as malicious. See Lindell v.
McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (defining “malicious” for purposes of 28
U.S.C. § 1915A as “intended to harass”).
For these reasons, the court DISMISSES this case pursuant to 28 U.S.C. § 1915A
because it is malicious.
SO ORDERED on April 23, 2018.
/s/ Philip P. Simon
Judge
United States District Court

3