Reaves v. Jewell

Filing 25

MEMORANDUM OPINION (c/m to Plaintiff 4/3/15 sat). Signed by Judge Deborah K. Chasanow on 4/3/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
OSBORNE MARK REAVES
:
v.

:

Civil Action No. DKC-14-2245

:
SALLY JEWELL, Secretary
Department of the Interior

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this Freedom
of

Information

dismiss

or

for

Act

(“FOIA”)

summary

case

judgment

is

an

filed

Department of the Interior (“Defendant”).

unopposed

by

the

United

to

States

(ECF No. 23).

court now rules, no hearing being deemed necessary.
105.6.

motion

The

Local Rule

For the following reasons, Defendant’s motion will be

granted.
I.

Background
The factual and procedural background of this case was set

forth

in

a

prior

memorandum

opinion.

(See

ECF

No.

15).

Plaintiff, proceeding pro se, filed a complaint on June 14, 2014
against the United States Department of the Interior under the
federal Freedom of Information Act, 5 U.S.C. § 552 et seq.
No. 1).

(ECF

The basis for Plaintiff’s complaint was that Defendant

has not responded to his FOIA request at all.

Subsequently,

Defendant produced documents that it believed fully responded to

Plaintiff’s

request

and

moved

to

dismiss

or

for

summary

judgment, contending that the complaint had become moot.

In his

opposition to the motion, Plaintiff objected to redactions in
the produced documents and argued that he had not received the
full record he requested.

The court issued a memorandum opinion

and order on November 26, 2014 dismissing the complaint as moot
but permitting Plaintiff to file an amended complaint within
twenty-one (21) days identifying the basis for his FOIA claim
against Defendant.1

(ECF No. 15, at 11).

On December 17, 2014, Plaintiff filed a document entitled,
“petition for court fees and request to review the prop[r]iety
of redactions” with a “Statement of Facts” as an exhibit.
No. 19).

(ECF

Plaintiff contends in this filing that he should be

awarded the “court filing fee” because of Defendant’s untimely
release of documentation.

He also states that he disagrees with

the redactions on responsive documents submitted by Defendant
and

“requests

redactions.”

the
(Id.).

court

to

review

the

propriety

of

the

The court issued an order on December 24,

2014 construing Plaintiff’s “petition” as an amended complaint.
(ECF No. 22).

After receiving an extension of time to file a

response, Defendant moved to dismiss or for summary judgment on

1

Plaintiff requested a stay so that he could pursue his
objections administratively, but the court concluded that it was
unnecessary to keep the case open, especially considering that
his complaint had been rendered moot.
2

January 14, 2015.

(ECF No. 23).

Plaintiff was provided with a

Roseboro notice (ECF No. 24), which advised him of the pendency
of the motion and his entitlement to respond within seventeen
(17) days from the date of the letter.

Roseboro v. Garrison,

528 F.2d 309, 310 (4th Cir. 1975) (holding pro se plaintiffs
should be advised of their right to file responsive material to
a motion for summary judgment).

To date, Plaintiff has not

filed an opposition to the motion, and the time for him to do so
has long expired.
II.

See Local Rule 105.2(a).

Analysis
1.

Objection to Redactions

Defendant’s
dismiss.

motion

will

be

construed

as

a

motion

to

Because Plaintiff failed to file an opposition to the

motion, the undersigned has the discretion to dismiss the case
without

reaching

the

merits.

Judge

Hollander

dismissed

the

complaint in White v. Wal Mart Stores, Inc., Civil Action No.
ELH-13-00031, 2014 WL 1369609, at *2 (D.Md. Apr. 4, 2014), where
a

pro

se

dismiss.

plaintiff

failed

to

oppose

defendant’s

motion

to

Judge Hollander stated that “[w]hen a plaintiff fails

to oppose a motion to dismiss, a district court is ‘entitled, as
authorized, to rule on the . . . motion and dismiss [the] suit
on

the

uncontroverted

bases

asserted’

in

the

motion.

Id.

(quoting Pueschel v. United States, 369 F.3d 345, 354 (4th Cir.
2004)); Ferdinand-Davenport v. Children’s Guild, 742 F.Supp.2d
3

772,

777

(D.Md.

2010)

(“By

her

failure

to

respond

to

[defendant’s] argument” in a motion to dismiss, “the plaintiff
abandons [her] claim.”).
Although the district court also has discretion to decline
to “grant a motion to dismiss based on the failure to file a
timely opposition when the motion is plainly lacking in merit,”
for the reasons explained below, this is not the case here.
White, 2014 WL 1369609, at *2 (quoting United States v. Sasscer,
Civ. No. Y-97-3026, 2000 WL 1479154, at *2 n.6 (D.Md. Aug. 25,
2000)).

Moreover, a district court has “the inherent authority

. . . to dismiss a lawsuit sua sponte for failure to prosecute.”
United States v. Moussaoui, 483 F.3d 220, 236 (4th Cir. 2007);
Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); White, 2014
WL 1369609, at *2 (“[i]n light of plaintiff’s failure to oppose
the [m]otion, I can only assume that plaintiff concedes that her
Complaint is deficient for the reasons stated by defendant.”).
As

Defendant

argues,

the

amended

complaint

expressing

one
his

redactions is wholly insufficient.

sentence

in

Plaintiff’s

objection

to

Defendant’s

Plaintiff does not explain

which specific redactions he believes are improper or include
any

supporting

facts.

Accordingly,

Plaintiff’s

amended

complaint does not identify with any specificity the basis for
his FOIA claim against the Department of the Interior, and it
will be dismissed.
4

2.

Request for Litigation Costs

The crux of the amended complaint is that Plaintiff should
be awarded fees pursuant to 5 U.S.C. § 552(a)(4)(E).

In his

opening “petition,” Plaintiff asserts that he should be awarded
the “court filing fee.”2

Pursuant to 5 U.S.C. § 552(a)(4)(E),

“[t]he court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in
any

case

under

substantially
prevail[s]” in

this

section

prevailed.”

in

which

the

A

complainant

complainant

has

“substantially

a case when he proves that “(1) his filing of

the FOIA action was necessary to obtain the information sought
and (2) the action had a ‘substantial causative effect’ on the
ultimate receipt of that information.”

Havemann v. Colvin, 537

F.App’x 142, 149 (4th Cir. 2013) (quoting Long v. U.S. I.R.S.,
932 F.2d 1309, 1319 (9th Cir. 1991)).

In 2007, amendments to

FOIA expanded on the meaning of “substantially prevailed,” and
added a clause (ii), which provides that “a complainant has
substantially prevailed if the complainant has obtained relief
through either – (I) a judicial order, or an enforceable written
agreement or consent decree; or (II) a voluntary or unilateral
change in position by the agency, if the complainant’s claim is
not insubstantial.”

5 U.S.C. § 552(a)(4)(E)(ii).

2

The Fourth

The record reflects that Plaintiff paid a $400 filing fee
when he filed the original complaint.
5

Circuit previously explained in Reinbold v. Evers, 187 F.3d 348,
363 (4th Cir. 1999), that “[t]o prove that he has substantially
prevailed, [Plaintiff] must establish that his [FOIA] claim was
reasonably

necessary

and

records to be released.”

substantially

caused

the

(emphasis in original).

requested
“[I]n the

absence of a final judgment in his favor, [whether the plaintiff
substantially

prevailed]

is

a

question

of

causation

–

the

lawsuit must have resulted in the release of records that would
not otherwise have been released.”
If a determination is made that Plaintiff has substantially
prevailed, the court must then evaluate four factors to decide
whether he is entitled to an award: (1) the benefit to the
public, if any, derived from the case; (2) the benefit to the
plaintiff; (3) the nature of the plaintiff’s interest in the
records sought; and (4) whether the government’s withholding of
the records had a reasonable basis in the law.
F.3d at 362 n.16.

Reinbold, 187

“The decision whether to award fees is left

to the discretion of the district court.”

Morales v. Pension

Ben. Guar. Corp., Civ. Case No. L-10-1167, 2012 WL 253407, at *8
(D.Md. Jan. 26, 2012).
Plaintiff asserts in the amended complaint that he could be
said

to

provided
complaint.

have

“substantially

responsive
(ECF

prevailed”

documents

No.

19-1,

to
at
6

him

3).

because

after

he

Defendant

Defendant
filed

argues

the
that

Plaintiff

is

not

entitled

to

any

fees

because

he

did

not

substantially prevail, considering that the original complaint
was dismissed as moot.

Pursuant to 5 U.S.C. § 552(a)(6)(A)(i),

Defendant

“within

was

required

20

days”

after

receiving

the

request to: (1) determine “whether to comply with [the] request”
and (2) “immediately notify [Plaintiff] of [its] determination
and the reasons therefor.”

Based on the allegations in the

original complaint, Plaintiff filed the FOIA request by email
dated May 19, 2014; he received an email from Captain Michael
Libby on June 3, 2014 stating that “[t]he FOIA request you filed
will be handled under the normal process and regulations.”
No.

1-3).

Plaintiff

indicated

that

he

did

not

(ECF

receive

any

correspondence regarding his FOIA request from Defendant until
after

he

filed

his

complaint

in

July

2014,

and

Defendant

released responsive documents approximately two months later, on
September 16, 2014.

Defendant contends that it was assembling

the documents when Plaintiff filed suit and the documents would
have

been

produced

in

any

event.

Thus,

there

is

no

clear

showing that the lawsuit had a substantial causative effect on
Defendant’s final delivery of responsive documents.
Even

if

Plaintiff

could

be

said

to

have

“substantially

prevailed” by prompting the release of responsive documents to
his FOIA request, the court will exercise its discretion and
decline to award any litigation costs.
7

It is not at all clear

that

there

was

any

public

benefit

from

this

FOIA

lawsuit.

Plaintiff indicates in his petition:
Plaintiff initiated the FOIA request to
defend himself against untimely discipline
issued by [] Defendant and negate the
charges in the Letter of Reprimand prior to
the conclusion of the U.S. Park Police
captain’s
examination.
[]
Defendant’s
failure to properly answer the FOIA request
caused [] Plaintiff stress and anxiety.
Since
[]
Defendant
had
an
established
pattern of untimeliness, Plaintiff did not
know if or when he would receive the
requested
documents
to
defend
himself.
Please note that the Letter of Reprimand
negatively affected Plaintiff’s score of the
promotional exam to Captain and the process
was concluded when the list for Captain was
published on August 25, 2014. [] Plaintiff
was also unable to use the information he
received through this FOIA request during
EEO Mediation that occurred on August 5,
2014.
(ECF No. 19-1, at 2).

Defendant contends that all of the FOIA

requests were made to serve Plaintiff’s personal interests “and
not to serve the overriding purpose for FOIA (to inform the
public

regarding

matters

of

public

concern).

.

.

.

[T]he

requests were simply aimed at advancing his private litigation
against Defendant and assisting him on a personal level in the
workplace.”
The

(ECF No. 23-1, at 10).

analysis

in

Morales,

2012

WL

253407,

at

instructive:
Morales is certainly correct that “FOIA
requests can be made for any reasons
whatsoever” and that “as a general rule, the
8

*8,

is

identity of the requesting party does not
have any bearing on proper disclosure of
information under the act.” [] The identity
and motive of the requester are entirely
relevant, however, in assessing a motion for
award of costs and fees. The Fourth Circuit
has stated that FOIA “was not designed to
supplement the rules of civil discovery.”
[Nix v. United States, 572 F.2d 998, 1003
(4th Cir. 1978)]; see also NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978)
(“FOIA was not intended to function as a
private
discovery
tool.”)
(emphasis
in
original); J.P. Stevens & Co. v. Perry, 710
F.2d
136,
143
(4th
Cir.
1983)
(where
plaintiff sought to use FOIA to obtain
documents that would be used in later Title
VII litigation, “Robbins Tire makes clear
that
such
premature
discovery
was
not
intended”). . . .
This court declines to
award costs and fees because Morales is
using FOIA as a substitute for civil
discovery and not to advance the purposes
for which FOIA was enacted.
Here,

Plaintiff’s

own

allegations

reveal

that

he

received

a

letter of reprimand issued by the Park Police stemming from an
incident that occurred on July 4, 2013, and that later he filed
an EEO Complaint regarding the July 4, 2013 incident.

His FOIA

request asked for documents “in connection with U.S. Park Police
Administrative Complaint.”
least

some

complaint

of

the

against

(ECF No. 1 ¶ 5).

information

Defendant.

It appears that at

sought

pertained

to

his

Although

Defendant

should

EEO
have

responded to the FOIA request within the time frames prescribed
by

statute

and

should

not

have

9

delayed

its

response

as

to

whether

it

would

comply

with

the

FOIA

request,

the

court

declines to award costs in this instance.
III. Conclusion
For
granted.

the

foregoing

reasons,

Defendant’s

motion

will

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

10

be