Clervrain v. United States of America et al

Filing 54

MEMORANDUM AND ORDER OF DISMISSAL ENTERED: Defendants' motion to dismiss, or, in the alternative, for summary judgment 28 , is granted. This matter is dismissed. All of Plaintiff's pending motions 19 , 25 , 32 , 33 , 34 , 37 , 38 , 39 , 41 , 42 , 43 , 44 , 45 , 50 and 53 are denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 09/19/18. Mailed to pro se party Manetirony Clervrain by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MANETIRONY CLERVRAIN,
Plaintiff,
v.

CASE NO. 17-3194-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM AND ORDER OF DISMISSAL
This matter is an action under the Freedom of Information Act (FOIA). Plaintiff is a federal
prisoner who proceeds pro se and in forma pauperis. Defendants have filed a motion to dismiss,
or, in the alternative, for summary judgment (ECF Doc. 29). Plaintiff has filed several pleadings
that include responses to Defendants’ motion, including ECF Doc. 33, which is titled “motion to
consolidate cases for discovery and trial under Rule 42” and which states it is also a response to
Defendants’ motion. In addition, Plaintiff has numerous pending motions.
Background
Mr. Clervrain asserts that he is an activist who is directing his efforts at ending the
“apartheid” of non-citizen prisoners and/or overcrowding in the federal prison system. Apparently
in furtherance of his goal, he submitted three (3) FOIA requests to the Bureau of Prisons (BOP) in
August of 2015. The three requests had the same date, and each sought the following information
from a different set of penal institutions (a total of 57 institutions): (1) contact information for each
institution; (2) the admission and orientation handbook for each institution; (3) the current financial
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statement for commissary purchases and funds distribution; (4) the current financial statement for
the inmate telephone system and funds distribution; (5) copies of items sold in the commissary and
the wholesale prices for each item; (6) documents identifying inmates incarcerated at each
institution by race and each institution’s classification level; and (7) information regarding each
warden including their experience, salary, and bonuses.
By letter dated October 15, 2015, BOP informed Mr. Clervrain that his requests had been
aggregated, and he must make advance payment of the anticipated fee amount ($308.50) prior to
the processing of his request. Mr. Clervrain requested a fee waiver as to two of his FOIA requests
in October 2015, and again requested a fee waiver in his appeal of the aggregation decision, which
he submitted to the Office of Information Policy (OIP) at the Department of Justice (DOJ) in
November of 2015. OIP denied his appeal by letter dated May 13, 2016, and remanded his request
for a fee waiver to the BOP regional offices. The letter informed Mr. Clervrain that he could file
suit if he wanted to appeal the aggregation further. BOP responded to Plaintiff’s request for a fee
waiver on April 4, 2017, denying his request. This action followed.
Defendants seek dismissal of this action on the grounds that: (1) Plaintiff failed to exhaust
his administrative remedies as to his fee waiver request; (2) even if he had properly exhausted, his
fee waiver request was properly denied by BOP; and (3) BOP properly aggregated Plaintiff’s FOIA
requests.
Discussion
Standard for Summary Judgment
Defendants seek dismissal of this action, or, in the alternative, summary judgment.
Generally, a motion to dismiss for failure to state a claim for relief pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure is decided upon the sufficiency of the complaint. However,

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because Defendants have submitted additional materials, and the Court has examined them, the
pending motion will be construed as a motion for summary judgment pursuant to Fed. R. Civ. P.
56. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . . matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”).
On summary judgment, the moving party bears the initial burden to point out the portions
of the record which show that the movant is entitled to judgment as a matter of law. Thomas v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013
(1992). Where this burden is met, the opposing party must come forth with specific facts from
which a rational fact-finder could find in that party’s favor. Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 671 (10th Cir. 1998). Summary judgment is appropriate “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
Aggregation
28 C.F.R. § 16.10(d) provides that fees may be charged for any search or release of records
when the release exceeds 100 pages, when the search for records exceeds 2 hours, and where the
total fees exceed $25.00. The fee for copies is 5 cents per page for every page over 100.
When an agency “reasonably believes that a requester . . . is attempting to divide a single
request into a series of requests for the purpose of avoiding fees,” the agency can aggregate those
requests and charge as if they were a single request. 28 C.F.R. § 16.10(h). The regulation states
an agency “may presume that multiple requests of this type made within a 30-day period have been
made in order to avoid fees.” Id. However, “[m]ultiple requests involving unrelated matters shall
not be aggregated.” Id.

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Plaintiff alleges that BOP’s aggregation of his three requests for information under FOIA
was unreasonable and pretextual. The Court disagrees. 28 C.F.R. § 16.10(h) provides that BOP
is entitled to presume that multiple requests of the same type made within a 30-day period were
made in order to avoid fees. Plaintiff filed three separate requests on the same date. The three
requests sought the same information. The only difference between the requests was to which
institutions the information pertained. Plaintiff stated in his appeal to OIP of the aggregation that
the reason he filed separate requests was that he “needed each file by their own region” so it would
be “more clear for [him] when filing court paperwork.” ECF Doc. 29-1 at 65. Whether or not
Plaintiff’s primary purpose was to avoid fees, the effect would have been a fee reduction, and
aggregation was reasonable.

Defendants are entitled to summary judgment on Plaintiff’s

aggregation claim.
Fee Waiver
To obtain a waiver of the fees associated with a FOIA request, “a requester must
demonstrate that ‘disclosure of the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.’” Stewart v. U.S. Dep't of Interior,
554 F.3d 1236, 1241–42 (10th Cir. 2009) (quoting 5 U.S.C. § 552(a)(4)(A)(iii)); accord 28 C.F.R.
§ 16.10(k)(1). A requester of a FOIA fee waiver has the burden of demonstrating that the statutory
conditions are met. Forest Guardians v. U.S. Dep’t of the Interior, 416 F.3d 1173, 1177 (10th Cir.
2005).
DOJ regulations include the following factors the agency must consider in deciding
whether the standard for waiving fees is met:
(i) Disclosure of the requested information would shed light on the operations or
activities of the government. The subject of the request must concern identifiable
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operations or activities of the Federal Government with a connection that is direct
and clear, not remote or attenuated.
(ii) Disclosure of the requested information would be likely to contribute
significantly to public understanding of those operations or activities. This factor
is satisfied when the following criteria are met:
(A)
Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure of
information that already is in the public domain, in either the same or a
substantially identical form, would not be meaningfully informative if
nothing new would be added to the public's understanding.
(B)
The disclosure must contribute to the understanding of a reasonably
broad audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in the
subject area as well as the requester's ability and intention to effectively
convey information to the public must be considered. Components will
presume that a representative of the news media will satisfy this
consideration.
(iii) The disclosure must not be primarily in the commercial interest of the
requester.
28 C.F.R. § 16.10(k)(2).
Plaintiff’s fee waiver request was made in a letter dated September 18, 2015 (ECF Doc. 11 at 41). He first states that he accepts the fees, but his financial condition as an incarcerated
person does not allow him to pay. Mr. Clervrain goes on to request a fee waiver. He states that
“disclosure of the information sought is in the public interest, as it is likely to contribute
significantly to public understanding of the operation or activities of the Bureau . . . and disclosure
is not in my commercial interest.” Id. Mr. Clervrain distinguishes his request from those made
by prisoners who seek records related to their criminal cases that would serve primarily their own
interests. Id.
“[F]ee waiver requests must be made with reasonable specificity ... and based on more than
conclusory allegations.” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003)

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(internal quotation marks and citations omitted). Indigence alone is not sufficient to justify a fee
waiver. See Ely v. United States Postal Service, 753 F.2d 163, 165 (D.C. Cir. 1985) (“Prior
decisions clearly tie fee waivers to public benefit.”). A requestor must do more than recite the
regulatory factors; he must specify the public interest, identify the governmental activity or
operation on which he intends to shed any light, and explain how disclosure of the requested
information would contribute to the public's understanding of such activity or operation. See Smith
v. Fed. Bureau of Prisons, 517 F. Supp. 2d 451, 454–55 (D.D.C. 2007). Further, a requestor must
state his ability and intention to effectively disseminate the information to the public. Id., quoting
Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (plaintiff’s failure to do so was “alone [ ] a
sufficient basis for denying the fee waiver request.”); 28 C.F.R. § 16.10(k)(2)(ii)(B).
Mr. Clervrain’s fee waiver request simply recited the factors provided by 28 C.F.R. §
16.10(k)(2). He specifies no public interest, he does not identify with any clarity the governmental
activity on which he wants to shed light, he does not explain how the requested information would
help the public better understand that vague activity, and he gives no indication he could effectively
disseminate the information to the public. The Court finds Defendants were justified in denying
Plaintiff’s fee waiver request.
However, Plaintiff failed to exhaust his administrative remedies on the denial of his fee
waiver request, meaning review by this Court is premature. See Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 61, 67 (D.C. Cir. 1990); Taylor v. Appleton, 30 F.3d 1365, 1367–68 (11th Cir. 1994)
(citations omitted), cited with approval in Roberts v. Paulson, 263 F. App’x 745, 747–48 (10th
Cir. 2008). A FOIA requester “may not seek judicial review of an agency’s denial of a fee-waiver
request until he administratively appeals the denial or pays the assessed fee.” Bartko v. United
States Dep’t of Justice, 102 F. Supp. 3d 342, 348 (D.D.C. 2015). The requestor must demonstrate

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that he complied with the agency’s filing procedures and internal appeals process. Hidalgo v. FBI,
344 F.3d 1254, 1259 (D.C. Cir. 2003). DOJ’s internal appeals process begins with an appeal to
OIP. 28 C.F.R. § 16.8. Mr. Clervrain never appealed BOP’s denial of a fee waiver to OIP.
Because Plaintiff did not exhaust this claim at the administrative level, it will be dismissed without
prejudice.
Other Pending Motions
Plaintiff has the following motions pending: motion for reconsideration (ECF Doc. 19);
motion for order (ECF Doc. 25); motion to suppress evidence (ECF Doc. 32); motion to
consolidate cases (ECF Doc. 33); motion for reconsideration (ECF Doc. 34); motion for extension
of time (ECF Doc. 37); motion for judicial panel for multidistrict litigation (ECF Doc. 38); motion
for remarkable contradictions (ECF Doc. 39); motion for opposition and stipulations (ECF Doc.
41); motion for discovery and opposition (ECF Doc. 42); motion for notice and circumstances
(ECF Doc. 43); motion for emergency and circumstances (ECF Doc. 44); motion for evidence and
lack of integrity (ECF Doc. 45); motion for orders (ECF Doc. 50); and motion for orders (ECF
Doc. 53). Because the Court finds this action is subject to dismissal, all pending motions are
denied as moot.1
Conclusion
For the reasons set forth above, Plaintiff’s claim challenging Defendants’ aggregation of
his FOIA requests is dismissed with prejudice, and his claim challenging the denial of a fee waiver
is dismissed without prejudice for failure to exhaust.

Some of Plaintiff’s filings attempt to raise claims involving access to the law library, misconduct of corrections
officials, a conspiracy against him, a conspiracy to abuse immigrants in the federal prison system, fraud, forced labor,
retaliation, deprivation of property, and/or a broad “criminal enterprise.” His allegations are vague and fail to state an
actionable claim. Furthermore, such claims are not properly joined to this FOIA lawsuit against the United States and
the Bureau of Prisons. To the extent Plaintiff is requesting leave to file an amended complaint, leave is denied.
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IT IS THEREFORE ORDERED Defendants’ motion to dismiss, or, in the alternative,
for summary judgment (ECF Doc. 28), is granted. This matter is dismissed.
IT IS FURTHER ORDERED all of Plaintiff’s pending motions (ECF Docs. 19, 25, 32,
33, 34, 37, 38, 39, 41, 42, 43, 44, 45, 50, and 53) are denied as moot.
IT IS SO ORDERED.
DATED: This 19th day of September, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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