Moore v. United States Probation et al

Filing 17

ORDER AND ADVISORY TO PLAINTIFF - March 7, 2017 hearing is CANCELLED; 8 Order Setting Spears Hearing is WITHDRAWN; Plaintiff is ORDERED to immediately notify the Clerk of the Court in writing any changes in his address. Signed by District Judge Louis Guirola, Jr on 2/7/17. Associated Cases: 1:16-cv-00148-LG, 3:16-cv-00279-LG, 3:16-cv-00280-LG (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
RICHARD MOORE

PLAINTIFF

v.

CAUSE NO. 1:16CV148-LG

UNITED STATES PROBATION,
UNITED STATES DEPARTMENT OF JUSTICE,
VALRIE PETERS, United States Probation Officer,
SHERIFF LEO MASK, and DEPUTY PATTERSON

DEFENDANTS

CONSOLIDATED WITH
RICHARD MOORE

PLAINTIFF

v.

CAUSE NO. 3:16CV279-LG

PONTOTOC COUNTY SHERIFF’S DEPARTMENT and
LEO MASK

DEFENDANTS

CONSOLIDATED WITH
RICHARD MOORE

PLAINTIFF

v.

CAUSE NO. 3:16CV280-LG

UNITED STATES PROBATION,
DEPARTMENT OF JUSTICE, and LORETTA LYNCH

DEFENDANTS

ORDER AND ADVISORY TO PLAINTIFF
This matter is before the Court sua sponte. Having reviewed the filings of
Plaintiff Richard Moore and as noted below in the above-captioned cases, the Court
is of the opinion that Plaintiff’s Complaints in Cause Nos. 3:16cv279 an 3:16cv280
fail to state a claim upon which relief may be granted. Accordingly, the Court will
order Plaintiff to show cause within fourteen (14) days of the date of this Order why
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those actions should not be dismissed. Additionally, the Court is of the opinion that
many of the claims stated in this lead action, No. 1:16cv148, do not state a claim
upon which relief may be granted, and, thus, will order Plaintiff to show cause
within fourteen (14) days why those claims should not also be dismissed. Finally,
the Court will cancel the Spears hearing currently set for March 7, 2017, as
discussed herein, and will reschedule that hearing at a later date should the Court
deem it necessary to do so.
CAUSE NO. 3:16CV279 AGAINST THE PONTOTOC COUNTY SHERIFF’S DEPARTMENT
AND LEO MASK
In Cause No. 3:16cv279, Plaintiff seeks injunctive relief against the Pontotoc
County Sheriff’s Department and Sheriff Leo Mask for the production of records
pursuant to a Freedom of Information Act (FOIA) request. However, the Sheriff’s
Department “is not subject to the provisions of FOIA.” See Barouch v. U.S. Dep’t of
Justice, 962 F. Supp. 2d 30, 46 (D.D.C. 2013); see also, e.g., Zaldivar v. U.S. Dep’t of
Veterans Affairs, No. CV-14-1493-PHX-DGC (MEA), 2014 WL 7359107, at *5 (D.
Ariz. Dec. 24, 2014) (“To the extent that Plaintiff asserts a FOIA claim against
Pima County, he fails to state a claim. FOIA applies to federal agencies and does
not apply to Pima County or other state agencies or departments.”). Sheriff Mask is
not a subject to the provisions of FOIA, either. See, e.g., Batton v. Evers, 598 F.3d
169, 173 n.1 (5th Cir. 2010) (“A FOIA plaintiff may not assert a claim against an
individual . . . .”); Benavides v. U.S. Marshals Serv., 990 F.2d 625, *3 (5th Cir. 1993)
(“[T]he dismissal of [a plaintiff]’s claims against [the individual defendants] was
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proper because suit cannot be brought under the FOIA against an individual.”);
Drake v. Obama, 664 F.3d 774, 785-86 (9th Cir. 2011) (“We agree with the District
Court that FOIA does not apply to any of the Defendants because they are all
individuals . . . .”) (collecting cases).
To the extent Plaintiff alleges violations of the Administrative Procedure Act
(APA), FOIA is a part of the APA. See U.S. Dep’t of Justice v. Reporters Comm. For
Freedom of Press, 489 U.S. 749, 754 (1989). Because Plaintiff does not have a valid
FOIA claim against these defendants, he does not have an APA claim against them,
either.
Accordingly, the Court orders Plaintiff to show cause in writing within
fourteen days (14) days of this Order why his claims in Cause No. 3:16cv279 should
not be dismissed or to otherwise notify the Court if he wants to voluntarily dismiss
Cause No. 3:16cv279. PLAINTIFF IS CAUTIONED THAT FAILURE TO DO
SO OR TO OTHERWISE TIMELY RESPOND TO THIS ORDER COULD
RESULT IN DISMISSAL OF CAUSE NO. 3:16CV279 WITHOUT FURTHER
NOTICE.
CAUSE NO. 3:16CV280 AGAINST THE UNITED STATES PROBATION OFFICE,
THE DEPARTMENT OF JUSTICE, AND LORETTA LYNCH
In Cause No. 3:16cv280, Plaintiff seeks injunctive relief against the United
States Probation Office, the Department of Justice (DOJ), and Loretta Lynch under
FOIA and the APA for a FOIA request he made to the Probation Office. Once
again, Plaintiff cannot sustain a FOIA claim against the defendants. “The United

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States Probation Office is an arm of the federal courts. As such, it is not subject to
FOIA . . . and [P]laintiff’s claims against it cannot be maintained.” Banks v. Dep’t of
Justice, 538 F. Supp. 2d 228, 231-32 (D.D.C. 2008); see also, e.g., DeMartino v.
F.B.I., 511 F. Supp. 2d 146, 148 (D.D.C. 2007) (“As a court unit, the Probation Office
is not subject to the requirements of the FOIA . . . .”) (dismissing complaint); United
States v. Chandler, 220 F. Supp. 2d 165, 167-68 (E.D.N.Y. 2002) (“the Probation
Department is exempt from the disclosure requirements of the FOIA”); Pena v. U.S.
Dep’t of Probation, No. 06 CV 2481 NG LB, 2006 WL 2806383, at *1 (E.D.N.Y. Sept.
28, 2006) (“The Probation Department, an administrative unit of the judiciary, is
not subject to the disclosure obligations of FOIA.”). Furthermore, Ms. Lynch is not
subject to the provisions of FOIA for the same reasons discussed above related to
FOIA claims against individuals. See, e.g., Batton, 598 F.3d at 173 n.1; Benavides,
990 F.2d at *3.
Plaintiff’s only basis for suing the DOJ is his assertion that “United States
Probation is a component of the” DOJ. (See Compl. 1-2, ECF No. 1 in Cause No.
3:16cv280). There is no indication that Plaintiff sent a separate FOIA request to
the DOJ, which likely would not have access to the documents at issue anyway.
Because Plaintiff cannot sustain a claim against the Probation Office, his claim
against the DOJ necessarily fails. Even so, there is no allegation that Plaintiff
exhausted his administrative remedies even if he had sent a request to the DOJ.
See Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979 (FOIA requires

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“that a party must present proof of exhaustion of administrative remedies prior to
seeking judicial review”); Banks, 538 F. Supp. 2d 232-33 (discussing administrative
exhaustion under FOIA); see also Wells v. U.S. Dep’t of Educ., No. 09-456-JJB-CN,
2009 WL 2475434, at *2 (M.D. La. Aug. 12, 2009) (“Finally, it has been held that,
where a plaintiff fails to allege that he has exhausted his administrative remedies
prior to filing suit under the FOIA, the plaintiff has failed to state a claim.”).1
Plaintiff also cannot sustain any APA claim for the same reasons discussed
above with respect to Cause No. 3:16cv279. Accordingly, the Court orders Plaintiff
to show cause in writing within fourteen days (14) days of this Order why his claims
in Cause No. 3:16cv280 should not be dismissed or to otherwise notify the Court if
he wants to voluntarily dismiss Cause No. 3:16cv280. PLAINTIFF IS
CAUTIONED THAT FAILURE TO DO SO OR TO OTHERWISE TIMELY
RESPOND TO THIS ORDER COULD RESULT IN DISMISSAL OF CAUSE
NO. 3:16CV280 WITHOUT FURTHER NOTICE.
CAUSE NO. 1:16CV148 AGAINST UNITED STATES PROBATION, UNITED STATES
DEPARTMENT OF JUSTICE, UNITED STATE PROBATION OFFICER VALRIE PETERS,
SHERIFF LEO MASK, AND DEPUTY PATTERSON
Plaintiff also filed a “Complaint for Violation of Civil Rights Under 42 U.S.C.
§ 1983” against United States Probation, United States Department of Justice, and
United States Probation Officer Valrie Peters. He later amended his Complaint to
include Sheriff Leo Mask and Deputy Patterson of the Pontotoc County Sheriff’s

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The FOIA claims against the other defendants, even if proper, could be
dismissed on this ground as well.
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Office.
I.

DEFENDANTS UNITED STATES PROBATION, THE DOJ, AND PETERS

Defendants United States Probation, the DOJ, and Peters are not state
actors, and, thus, are not subject to suit under § 1983. See, e.g., Winding v. Dean,
No. 4:12cv87-DPJ-FKB, 2012 WL 2573250, at *1 (S.D. Miss. July 2, 2012)
(“Plaintiff cannot maintain this Section 1983 action against the Department of
Justice, because it is not a state actor.”); United States v. Lee, 409 F. App’x 274, 276
(11th Cir. 2010) (affirming dismissal of purported § 1983 claim against United
States Probation Office because it is not a state actor); Van Dyke v. Thornburg, No.
1:06 CVV 200 MU 02, 2006 WL 1806584, at *1 (W.D.N.C. June 28, 2006) (stating
that § 1983 action could not proceed against federal probation officer because the
officer was “not amenable to suit under this provision”). Nonetheless, the Court will
construe Plaintiff’s Complaint against those Defendants as a Bivens action. See
Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir. 1999) (“A Bivens action is analogous
to an action under § 1983–the only difference being that § 1983 applies to
constitutional violations by state, rather than federal, officials.”), abrogated on other
grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003); see also, e.g., West v.
U.S. Marshal, 275 F.3d 1080, *1 (5th Cir. 2001) (“Although [the plaintiff] filed his
instant complaint pursuant to 42 U.S.C. § 1983, the district court properly
construed such complaint as alleged claims under Bivens . . . .”).
However, Plaintiff cannot state a Bivens claim against United States

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Probation. See, e.g., West, 275 F.3d at *1 (“A federal agency is not subject to suit
under Bivens.”); Perez v. United States, No. C-12-376, 2013 WL 315217, at *4 n.4
(S.D. Tex. Jan. 25, 2013) (“[T]he Court finds that there is an additional ground for
dismissal of the United States Marshal Service and the United States Probation
Office because these agencies are not persons for purposes of a lawsuit pursuant to
Bivens.”); Lee, 409 F. App’x at 276 (“Bivens does not provide a remedy against
federal agencies, . . . and therefore [a plaintiff] cannot rely on Bivens to obtain relief
against . . . the United States Probation Office . . . .”).
Likewise,
even if [P]laintiff had properly filed a Bivens action rather than a §
1983 action, he would not be entitled to relief against the United
States Department of Justice. As with a § 1983 action which offers
relief only in connection with claims against a State actor as opposed
to a State agency, a Bivens action only affords relief in connection with
claims against a federal actor as opposed to a federal agency such as
the United States Department of Justice.
Marina v. Gusman, No. 10-0784, 2010 WL 4553506, at *2 (E.D. La. Oct. 28, 2010),
rep. and rec. adopted, 2010 WL 5057449, at *1 (E.D. La. Dec. 6, 2010); see also, e.g.,
Winding, 2012 WL 2573250, at *1 (“[A] Bivens action does not extend to a federal
agency. . . . Therefore, the Department of Justice will be dismissed.”). The only
cognizable claim that the Court discerns is a claim pursuant to Bivens against
Peters, and the Court offers no opinion as to the ultimate viability of such a claim at
this juncture.
Accordingly, the Court orders Plaintiff to show cause in writing within

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fourteen days (14) days of this Order why his claims in Cause No. 1:16cv148 against
United States Probation and the DOJ should not be dismissed or to otherwise notify
the Court if he wants to voluntarily dismiss those claims. PLAINTIFF IS
CAUTIONED THAT FAILURE TO DO SO OR TO OTHERWISE TIMELY
RESPOND TO THIS ORDER COULD RESULT IN DISMISSAL OF THOSE
CLAIMS WITHOUT FURTHER NOTICE.
II.

DEFENDANTS SHERIFF MASK AND DEPUTY PATTERSON

Plaintiff’s primary allegation against Sheriff Mask pertains to Mask’s
purported failure to respond to a FOIA request. That claim is not cognizable, as
already discussed. It is unclear to the Court whether Plaintiff is attempting to state
other claims against this defendant and pursuant to what authority he is stating
such a claim or claims. Plaintiff therefore must show cause within fourteen (14)
days why any purported claim against Mask should not be dismissed or notify the
Court if he wants to voluntarily dismiss Mask from this action, and is cautioned
that failure to do so or to otherwise timely respond to this Order could
result in dismissal of any claim against Mask in Cause No. 1:16cv148
without further notice. The Court offers no opinion as to the ultimate viability of
any claims stated against Deputy Patterson at this juncture.
SPEARS HEARING AND SERVICE OF PROCESS
Once the fourteen days for Plaintiff to respond to this Order has expired, the
Court will determine whether this matter should be set for a Spears hearing or
instead for a pretrial conference, and will issue an appropriate hearing notice
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accordingly.2 Additionally, the Court will decide when and to whom service of
process should issue and will issue an appropriate order for such service. The
Spears hearing scheduled for March 7, 2017, in Oxford, Mississippi, is cancelled and
the [8] Order Setting Spears Hearing is withdrawn.
ADVISORY REGARDING ADDRESS CHANGES
Plaintiff is cautioned that it is his responsibility to immediately notify the
Clerk of Court in writing of any change in his address. He shall caption any such
change of address advisories as “Notice to the Court of Change of Address” and not
include any motions or other matters in such notice. This notice shall contain only
information pertaining to the address change and the effective date of such change
of address. Failure by Plaintiff to immediately notify the Clerk of Court of any
change in his mailing address will be interpreted by the Court as a failure to
prosecute and may result in dismissal of this action.
IT IS THEREFORE ORDERED AND ADJUDGED, for the reasons
discussed herein, that Plaintiff must show cause in writing within fourteen (14)
days of the date of this Order why his claims in Causes Nos. 3:16cv279 and
3:16cv280 should not be dismissed or to otherwise notify the Court in writing if he
wants to voluntarily dismiss those claims. Additionally, he must also show cause in

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Plaintiff was previously denied appointment of counsel. In the [10] Order
denying the appointment, Magistrate Judge Roy Percy stated that “[a]fter observing
plaintiff at a Spears hearing, if the court determines that counsel should be
appointed it will do so sua sponte.” That Order remains in effect at this time.
Should the Court decide to forego a Spears hearing, it will also decide whether to
appoint counsel to Plaintiff at that time.
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writing within fourteen (14) days why his claims in Cause No. 1:16cv148 against
United States Probation, the Department of Justice, and Sheriff Leo Mask should
not be dismissed or to otherwise notify the Court in writing if he wants to
voluntarily dismiss those claims.
IT IS FURTHER ORDERED AND ADJUDGED that the hearing set in
this matter for March 7, 2017 is CANCELLED, and the [8] Order Setting Spears
Hearing is WITHDRAWN. Plaintiff is ORDERED to immediately notify the Clerk
of Court in writing of any change in his address, as discussed herein.
The Clerk is ORDERED to mail a copy of this Order via certified mail,
return receipt requested, to Plaintiff at the address provided, and to file a copy of
the return receipt once it is received.
SO ORDERED AND ADJUDGED this the 7th day of February, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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