Carter v. United States of America et al

Filing 23

ORDER adopting Report and Recommendation re 14 Report and Recommendation granting 8 Motion to Dismiss for Lack of Jurisdiction; denying 9 Motion to Amend/Correct; finding as moot 11 Motion for TRO; finding as moot 13 Motion for Order to ; finding as moot 18 Motion for Declaratory Judgment; finding as moot 18 Motion to Expedite; finding as moot 19 Motion for Hearing; finding as moot 20 Motion for Order to; finding as moot 20 Motion ; finding as moot 22 Motion. Signed by Judge Michael R. Barrett on 3/20/17. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ORLANDO CARTER,
Plaintiff,

v.
UNITED STATES OF AMERICA,
et al.,
Defendants.

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Case No. 1:16CV530
District Judge Michael R. Barrett
Magistrate Judge Karen L. Litkovitz

OPINION & ORDER
Plaintiff Orlando Carter asserts a single cause of action under the Freedom of
Information Act, claiming that he is entitled to an Order compelling production of documents he
requested – but has not received – from the United States Attorney’s Office (“USAO”) in
Cincinnati, Ohio. (Doc. 3, ¶15). This matter is before the Court on: (1) Plaintiff’s objections
to the Magistrate Judge’s report recommending dismissal of Plaintiff’s Verified Complaint
pursuant to Fed. R. Civ. P. 56 (Doc. 17); and (2) Plaintiff’s Motion to Amend/Supplement
Original Complaint (“Motion to Amend”) (Doc. 9). 1
I.

FACTUAL BACKGROUND
In June 2010, Plaintiff Orlando Carter was sentenced to a total of 180 months'

1

All pre-trial matters, including the Motion to Amend, are properly pending before the Magistrate
Judge. However, in order to resolve related issues together, this Court will consider Plaintiff’s
Motion to Amend in conjunction with his objections to the R&R recommending dismissal of his
Verified Complaint.
1

imprisonment after a jury found him guilty on 11 fraud-related counts. United States v.
Carter, No. 1:08-cr-51 (S.D. Ohio Jun. 9, 2010). Plaintiff alleges that, in securing the
convictions against him, the government used two exhibits at trial that indicated there was a
creditor-borrower relationship between PNC Bank and Plaintiff's company in the amount of
$4 million. (Doc. 3, ¶¶9-10). To support his belief that the exhibits used at trial were not
“valid” or “truthful” (Doc. 3, ¶13), Plaintiff claims that he submitted valid FOIA requests to the
USAO in Cincinnati on February 8, 2016, seeking “certified and authenticated” records relating
to the alleged “$4,000,000 obligation the government claims [Plaintiff’s company] had with
PNC in 2004.” (Doc. 3, ¶14).
Plaintiff asserts that he never received a response to his February 8, 2016 FOIA requests,
and that he is entitled to judicial review and an order compelling the government to respond
because he constructively exhausted his administrative remedies. To support his allegation that
his FOIA requests were indeed sent to and received by Defendants, Plaintiff offers: (1) his
Verified Complaint attaching a copy of his February 8, 2016 FOIA requests addressed to the
United States Attorney’s Office, 221 East 4th Street, Suite 400, Cincinnati Ohio 45202, (2) a
June 10, 2016 declaration (Doc. 10) attesting that the FOIA requests were sent to the foregoing
address via certified mail with tracking number 7007 3020 0002 0305 6504; (3) a copy of
Plaintiff’s certified mail receipt (Doc. 10-1, PAGEID# 117) with the foregoing tracking number;
and (4) a printout of tracking information (Doc. 10-1, PAGEID# 118) showing delivery of the
package associated with the foregoing number on February 12, 2016 at 1:43 p.m. in Cincinnati,
Ohio 45202. Defendants have submitted their own declaration, in which the Cincinnati USAO’s
Deputy Civil Chief states that the USAO’s tracking system “does not reflect that the letter at
issue . . . was received by the [USAO] for the Southern District of Ohio or the Executive Office
2

for the United States Attorneys.” (Doc. 8-1, PAGEID# 103).
II.

PROCEDURAL BACKGROUND
a. Motion to Dismiss/Motion to Amend
On June 9, 2016, Defendants filed a motion to dismiss Plaintiff’s Verified Complaint

for lack of subject matter jurisdiction, arguing that the Court lacked jurisdiction over the
matter because Plaintiff failed to exhaust administrative remedies before filing the instant
action. Specifically, Defendants argued that it was Plaintiff’s burden to plead and ultimately
prove that he exhausted all administrative remedies, which requires proof that the government
indeed received the FOIA requests at issue. (Doc. 8, PAGEID# 99). Defendants argued that
the allegations in Plaintiff’s Verified Complaint, and its attached documents, were insufficient
to make such a showing. (Id.) To establish non-receipt of the FOIA requests, Defendants
attached to their motion the above-referenced affidavit of Cincinnati’s Deputy Civil Chief. (Doc.
8-1). Defendants further argued that, regardless of whether the Cincinnati USAO received the
requests, Plaintiff’s FOIA claim still fails because the Cincinnati USAO is not the component
designated under FOIA to receive such requests. (Doc. 8, PAGEID# 99).
The same day that Defendants moved to dismiss, Plaintiff sought leave to amend his
Verified Complaint. Plaintiff argued that his proposed amendments “will assist the Court with
additional information . . . as to whether the Defendant[s] acted arbitrarily or capriciously regarding
the failure to respond to Carter’s FOIA request.” (Doc. No. 9, PAGEID# 105). Plaintiff proposed
various amendments (Doc. No. 9-1) pertaining to the “wrongful conduct” and “false accusations”
of the government. He states that unless the government “provide[s] the certified records pursuant
to [his] FOIA request,” the Court will continue to be “misled and deceived . . . by the government
employees involved in [his] investigation and prosecution” and Plaintiff will “continue to be
unjustly incarcerated.” (Doc. No. 9-1, PAGEID# 111-12).
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b. Report and Recommendation
On August 16, 2016, the Magistrate Judge issued a Report & Recommendation
addressing the government’s motion to dismiss. The Magistrate Judge rejected Defendants’
Rule 12(b)(1) argument, reasoning that “Congress has not given a clear statement that a
plaintiff’s failure to exhaust administrative remedies strips a federal court of jurisdiction to
consider his complaint.” Carter v. United States, No. 1:16-cv-530, 2016 U.S. Dist. LEXIS
108317, at *6 (S.D. Ohio Aug. 16, 2016) (Doc. No. 14, PAGEID #232). However, the
Magistrate Judge recommended dismissal on the basis that failure to exhaust administrative
remedies “may still be grounds for dismissal of plaintiff’s complaint under Rule 12(b)(6) for
failure to state a claim on which relief can be granted.” Id. at *7 (Doc. No. 14, PAGEID#
233). Because the parties supported their arguments regarding exhaustion with documents
beyond the pleadings, the Magistrate Judge converted the motion to dismiss into a motion
for summary judgment. Ultimately, the Magistrate Judge recommended dismissal because,
as part of his purported burden to prove that he exhausted his administrative remedies,
“plaintiff failed to meet his burden of establishing that the [USAO] received his FOIA
request.” (Doc. No. 14, PAGEID# 235). The R&R does not address Plaintiff’s Motion to
Amend.
c. Objections to the R&R
On September 8, 2016, Plaintiff timely filed the following objections to the
Magistrate Judge’s R&R:
1. Based upon the USPS’s August 19, 2016 proof of receipt confirming that the
United States Attorneys [sic] Office for the Southern District of Ohio (USAO)
signed for and received the February 8, 2016 FOIA Request, the Report
erroneously bases its Recommendation on the wholly unreliable testimony of
[Cincinnati’s Deputy Civil Chief];
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2. Based upon the USPS’s August 19, 2016 proof of receipt confirming the USAO
received the February 8, 2016 FOIA Request and the Defendant’s failure to
respond within the required statutory time limit, Carter has constructively
exhausted his administrative remedy, granting this Court jurisdiction over this
case;
3. The Report fails to give Carter the required notice of the Court’s intent to convert
the Defendant’s motion to dismiss to a motion for summary judgment and the
consequences of the same, prejudicially depriving Carter of his opportunity to
conduct discovery, and present new evidence to support his record;
4. The report erroneously relies upon the prestige of the government, causing
prejudicial effect upon Carter. Thus, the Report must be denied;
5. Because competing affidavits show a genuine factual dispute about whether or
not Defendant received the February 8, 2016 FOIA Request, the Report
erroneously makes a Recommendation for summary judgment prior to the
resolution of the dispute. Thus, summary judgment is premature and not
appropriate;
6. The Report, as required by Rule 56, fails to view the evidence in the light most
favorable to the opposing party. Thus, Carter, who opposes, objects to the
recommendation for summary judgment; and
7. The Report fails to consider the normal course and ordinary business practice in
receiving mail by the USAO.
In light of the R&R’s emphasis on Plaintiff’s failure to meet his burden of proof regarding
exhaustion, Plaintiff attached to his objections new evidence to support that his FOIA requests
were sent to and received by the USAO in Cincinnati, in the form of Plaintiff’s September 2,
2016 affidavit attaching a “proof of receipt” provided to him by the USPS. The proof of receipt
purports to show the signature of the individual signing for the package associated with the
above-referenced tracking number, as well as a handwritten address for the signer. Below the
signature and handwritten address, the following statement appears: “The above signature
containing the address and signature of the recipient is provided to the customer as a proof of
receipt that was provided after the actual certified letter was received by the recipient. This is
provided as a service to the sender on August 19, 2016.” The foregoing statement purports to
bear the signature of Joy Andreasen, General Clerk of the USPS, with a stamp stating
“Winchester VA August 19, 2016.”
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III.

ANALYSIS
A. Plaintiff’s Objections to the R&R
1. Standard of Review
When objections to a magistrate judge’s report and recommendation are received on a

dispositive matter, the assigned district judge “must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review, the
district judge “may accept, reject, or modify the recommended decision; receive further evidence;
or return the matter to the magistrate judge with instructions.” Id.; 28 U.S.C. § 636(b)(1).
2. The Court Accepts the Magistrate Judge’s Recommendation, but
Orders Dismissal on Rule 12(b)(6) Grounds Rather than Rule 56
Grounds
The Magistrate Judge’s R&R, and Plaintiff’s objections, relate to the legal requirement that
FOIA plaintiffs exhaust their administrative remedies before seeking judicial review. Again, the
Magistrate Judge recommends dismissal pursuant to Rule 56 on the basis that Plaintiff failed to
adequately plead and prove exhaustion. The Court largely agrees with the Magistrate Judge’s
analysis of exhaustion under FOIA, except to the extent that the Magistrate Judge places the burden
of pleading and proving exhaustion on FOIA plaintiffs. 2 The Court clarifies the burden below, but
ultimately adopts the Magistrate Judge’s recommendation on Rule 12(b)(6) grounds rather than
Rule 56 grounds.

2

Carter, 2016 U.S. Dist. LEXIS 108317, at *9-10 (citing Ye v. Holder, 624 F. Supp. 2d 121, 124
(D.D.C. 2009); Tunchez v. United States DOJ, 715 F. Supp. 2d 49, 53 (D.D.C. 2010)). As further
discussed below, the Court does not find the foregoing cases persuasive on the issue of burden. Ye
does not expressly state that a plaintiff bears the burden of proving exhaustion in a FOIA case, and
Tunchez fails to cite authority from any United States Court of Appeals pertaining to the burden in
a FOIA case. Furthermore, it appears that at least one later case from the District of Columbia has
reached the opposite conclusion regarding the burden to plead and prove exhaustion in FOIA cases.
Pinson v. United States DOJ, 79 F. Supp. 3d 250, 253 (D.D.C. 2015) (“Failure to exhaust is treated
as an affirmative defense that a defendant waives when he does not raise it.”).
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a. The Burden of Pleading and Proving Exhaustion (or NonExhaustion)
In 2007, the Supreme Court of the United States held that failure to exhaust administrative
remedies should – absent contrary language in the statute that creates the cause of action – be
regarded as an affirmative defense for which the defendant bears the pleading and proof burdens.
Jones v. Bock, 549 U.S. 199, 212, 127 S. Ct. 910, 919 (2007) (analyzing the burden of pleading
and proving exhaustion under the Prison Litigation Reform Act of 1995). Indeed, “Jones v. Bock
overruled a long line of Sixth Circuit cases that placed the burden of pleading and supporting
exhaustion on plaintiffs.” Choiniere v. Citchen, No. 08-14853, 2010 U.S. Dist. LEXIS 26490, at
*8-9 (E.D. Mich. Feb. 22, 2010). Specifically, the Supreme Court held that, if a federal statute
“deal[s] extensively with exhaustion, but is silent on the issue whether exhaustion must be pleaded
or is an affirmative defense,” this constitutes “strong evidence” that Congress intended “the usual
practice [to] be followed” – and the usual practice under the Federal Rules regards “exhaustion as
an affirmative defense” for which defendants bear the pleading and proof burdens. Jones, 549 U.S.
at 212. However, the non-exhaustion defense may be invoked at the Rule 12(b)(6) phase –
without converting the motion to dismiss into a motion for summary judgment – when the defense
appears on the “face” of the complaint. Jones, 549 U.S. at 215.
The plain language of FOIA suggests that the “usual practice” should be followed because
it “deals with” exhaustion, 5 U.S.C. 552(a)(6)(C), but is silent on the issue of burden. While the
Sixth Circuit has not yet interpreted the exhaustion language in FOIA against the backdrop of
Jones, other federal courts considering Jones’s effect in FOIA cases have concluded that nonexhaustion is an affirmative defense. See, e.g., Moon v. Fed. Bureau of Prisons, 642 Fed. Appx.
651, 652 (8th Cir. 2016) (“[T]he argument of non-exhaustion is an affirmative defense rather than a
pleading requirement[.]”); Marshall v. BATFE, No. 10-21424-CIV-UNGARO/GOODMAN, 2011
U.S. Dist. LEXIS 29345, at *3 (S.D. Fla. Jan. 31, 2011) (“exhaustion is an affirmative defense of
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the government, not a pleading requirement of the plaintiff”) (emphasis in original). While there
are relatively recent FOIA cases that place the exhaustion burden on plaintiffs, those cases do not
cite or interpret Jones, and this Court thus finds them unpersuasive. See, e.g., Ehret v. United
States DOD, No. 1:14-CV-725, 2014 U.S. Dist. LEXIS 184166, at *11 (W.D. Mich. Dec. 9, 2014)
(“The burden to demonstrate proper exhaustion rests with Plaintiff, who must present proof of
exhaustion of administrative remedies in order to obtain judicial review"); Lenkiewicz v. Castro,
118 F. Supp. 3d 255, 260 (D.D.C. 2015) (“The plaintiff bears the burden to plead and prove
administrative exhaustion.”); Tunchez, 715 F. Supp. 2d at 53. 3
Accordingly, for purposes of evaluating Plaintiff’s Objections to the R&R, this Court views
non-exhaustion as an affirmative defense for which the government bears the pleading and proof
burdens. The Court could evaluate whether Defendants sustained their burden on Rule 56 grounds,
which would require analysis of the competing evidence the parties have submitted (including an
analysis of whether the Court should consider the new evidence Plaintiff attaches to his objections).
However, under Jones, such an analysis is unnecessary if an affirmative defense appears on the
face of a plaintiff’s complaint. Jones, 549 U.S. at 215. Under Jones, the question for this Court
becomes whether Defendants’ non-exhaustion defense is facially apparent in light of the law on
3

The Court notes that there is one unpublished Sixth Circuit opinion that affirmed dismissal of a
FOIA claim under Rule 12(b)(6) because plaintiffs “did not allege that they made a proper FOIA
request, that the records requested fall within FOIA, and that they exhausted administrative
remedies prior to filing suit in federal court.” Sykes v. United States, 507 Fed. Appx. 455, 463 (6th
Cir. 2012) (citing Davis v. City of Dearborn, No. 2:09-cv-14892, 2010 U.S. Dist. LEXIS 91670
(E.D. Mich. Sept. 2, 2010)). Arguably, Sykes could be interpreted as the Sixth Circuit’s
endorsement of a plaintiff-borne exhaustion burden. However, it appears that a thorough analysis
of the exhaustion burden (and Jones) was not necessary in Sykes because the plaintiffs failed to
plead any of the elements of a FOIA claim. Accordingly, this Court notes the unpublished Sykes
opinion for its persuasive value, Thompson v. N. Am. Stainless, LP, 567 F.3d 804, 809 n.2 (6th
Cir. 2009) (en banc), but is not convinced that the Sixth Circuit – without analyzing Jones –
intended to hold as a matter of black letter law that the burden to plead and prove exhaustion in
FOIA cases rests with the plaintiff.

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constructive exhaustion.
b. Constructive Exhaustion
“Constructive exhaustion occurs when [an] agency fails to comply with the applicable time
limit provisions of 5 U.S.C. § 552(a)(6)(C).” United States Dep't of Veterans Affairs, No. 1:13-cv494, 2013 U.S. Dist. LEXIS 126071, at *13 (N.D. Ohio Sept. 4, 2013). “These time limitations in
which an agency must respond to an otherwise proper FOIA request only commence[] once the
request is received by a component of the agency ‘that is designated in the agency's regulations
under [FOIA] to receive [FOIA] requests.’” Id. at *14 (emphases added) (citing 5 U.S.C. §
552(a)(6)(A)(ii)).
“Component” – as the term is used in the Freedom of Information Act – means “each

separate bureau, office, division, commission, service, center, or administration that is designated
by the Department as a primary organizational entity.” 28 CFR 16.1(b) (emphasis added). For
purposes of FOIA requests directed to United States Attorneys, the office “designated by the
Department as a primary organizational entity” – that is, the “component” as that term is defined in
28 CFR 16.1(b) – is the “Executive Office for the United States Attorneys” in Washington, D.C.
See DOJ Reference Guide, Attachment B, “Descriptions of DOJ Components and Related
Information,” available at: http://www.justice.gov/oip/04_3.html) (incorporated in 28 CFR
16.1(a)). While there is a FOIA regulation governing how “misdirected [FOIA] requests” should
be handled, the regulation only obligates a “component's FOIA office” to “route the request to the
FOIA office of the proper component(s).” 28 CFR § 16.4(c) (emphases added).
Because the government’s deadline to respond to FOIA requests is not triggered until the
designated component receives the FOIA request, Stewart, 2013 U.S. Dist. LEXIS 126071, at *13,
FOIA plaintiffs who fail to send their requests to the designated component in the first place do not
trigger the constructive exhaustion clock. Godaire v. Napolitano, 3:10-cv-01266, 2010 U.S. Dist.
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LEXIS 122237, at *18-19 (D. Conn. Nov. 17, 2010) (rejecting constructive exhaustion theory
where allegations revealed that plaintiff’s “FOIA request was [not] sent to or received by a DOHS
component that is designated to receive FOIA requests under the agency's own regulations”:
reasoning that the “20-day period in which an agency must to respond . . . only commences” once
the request is received by the proper component); Salanitro v. United States OPM, 3:10-cv-363-J32JBT, 2011 U.S. Dist. LEXIS 73734, at *11 (M.D. Fla. July 8, 2011) (rejecting constructive
exhaustion theory because plaintiff failed to send FOIA request “to the proper OPM office as
identified in the OPM's regulations”); Lowe v. DEA, No. 06—11332007, 2007 U.S. Dist. LEXIS
52535, at *16 (D.D.C. July 22, 2007) (dismissing FOIA claim because plaintiff’s “request . . . was
sent to the Chicago office of the DEA rather than” either of the offices designated in the applicable
regulation); Robert v. DOJ, No. 99-CV-3649, 2001 U.S. Dist. LEXIS 27282, at *24-25 (E.D.N.Y.
Mar. 22, 2001) (dismissing FOIA claim because of plaintiff’s failure to direct FOIA request to
component authorized to receive FOIA requests).
c. The Non-Exhaustion Defense Appears on the Face of Plaintiff’s
Verified Complaint
Even though this Court disagrees with the R&R to the extent that it places the burden of
pleading and proving exhaustion on FOIA plaintiffs, the Court ultimately agrees with the
Magistrate Judge’s conclusion that Plaintiff’s claim must be dismissed.
Here, Plaintiff’s Verified Complaint alleges that he sent his February 8, 2016 FOIA request
to the USAO in Cincinnati (Doc. 3, PAGEID# 54-55, ¶¶14, 16), which is not the component
designated in the FOIA Reference Guide incorporated in 28 CFR 16.1(a). Plaintiff concedes that
he did not send his FOIA request to the Executive Office in Washington D.C. (Doc. 12, PAGEID#
221), but argues that dismissal is not warranted because his letter directed to the Cincinnati USAO
“requested that [it] be forwarded to the appropriate office ‘for timely processing.’” (Id.). Plaintiff
suggests that Defendants are thus barred from arguing non-exhaustion, reasoning that “[u]pon
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receipt of a request, defendant is required, pursuant to 28 C.F.R. 16.4, to forward the request to the
appropriate office or component of the USDOJ for timely and proper processing.” (Id.) This is an
inaccurate statement of the regulation governing “re-routing of misdirected requests,” which states:
“Where a component's FOIA office determines that a request was misdirected within the
Department, the receiving component's FOIA office shall route the request to the FOIA office of
the proper component(s).” 28 CFR 16.4(c)(emphases added). The plain language of the regulation
only applies to Department of Justice components (e.g., the Executive Office for United States
Attorneys), and the Cincinnati USAO has not been designated as a component. 28 C.F.R. 16.1(a).
Similarly, inter-component “referrals” are premised on the notion that a designated component
receives the FOIA request in the first place: “When the component processing the request believes
that a different component, agency, or other Federal Government office is best able to determine
whether to disclose the record, the component typically should refer the responsibility for
responding to the request regarding that record, as long as the referral is to a component or agency
that is subject to the FOIA.” 28 CFR 16.4(d)(2)(i) (emphases added).
Because the face of Plaintiff’s Verified Complaint shows that his February 8, 2016 request
was sent to the Cincinnati USAO – not the Department of Justice component in Washington, D.C.
– the time limits within which the government must respond have not yet been triggered. Godaire,
2010 U.S. Dist. LEXIS 122237, at *18-19; Salanitro, 2011 U.S. Dist. LEXIS 73734, at *11; Lowe,
2007 U.S. Dist. LEXIS 52535, at *16; Robert, 2001 U.S. Dist. LEXIS 27282, at *24-25. To ensure
efficient processing, and responsible use of the judicial review mechanism, FOIA plaintiffs must
respect the requirement that requests be sent to a designated component. Accordingly, the face of
Plaintiff’s Verified Complaint shows a defect in Plaintiff’s efforts to constructively exhaust. 4
4

As the Magistrate Judge notes (Doc.14, PAGEID# 237, n. 1), nothing forecloses Plaintiff from
correcting his requests’ deficiencies and resubmitting them. Thereafter, Plaintiff may seek judicial
review if the government fails to respond within the required time limits.
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d. Plaintiff’s Objections to the R&R are Overruled
Plaintiff’s objections to the R&R challenge the Magistrate Judge’s application of Rule 56 to
FOIA’s exhaustion requirements, and fall into two categories: (1) an objection relating to the notice
Plaintiff received before the Magistrate Judge converted Defendants’ motion to dismiss into a
motion for summary judgment (Obj. No. 3); and (2) objections relating to the Magistrate Judge’s
assessment of the parties’ evidence. (Obj. Nos. 1-2, 4-7). However, this Court has found an
analysis of the competing evidence (and Plaintiff’s new “proof of receipt”) unnecessary because
the Verified Complaint itself establishes Defendants’ affirmative defense; thus, Plaintiff’s
objections have become moot:
First, pre-conversion notice has become a non-issue. Because this Court dismisses on Rule
12(b)(6) grounds, it is unnecessary to determine whether Plaintiff received sufficient notice of the
Magistrate Judge’s intent to convert the motion to dismiss into a motion for summary judgment.
Plaintiff’s notice objection (Obj. No. 3) is overruled as moot.
Second, because the government’s affirmative defense is apparent on the face of the
Verified Complaint, it is unnecessary to determine whether the Magistrate Judge properly
evaluated outside evidence. Furthermore, Plaintiff’s new evidence that he urges this Court to
consider, i.e., the “proof of receipt” from the USPS, only serves to confirm Plaintiff’s failure to
submit his FOIA requests to the government component designated in the relevant regulations.
Accordingly, the remainder of Plaintiff’s objections – which challenge the R&R’s assessment of
the evidence under Rule 56 (Nos. 1-2, 4-7) – are also overruled as moot. Nelson v. Jackson, 2:12cv-1167, 2014 U.S. Dist. LEXIS 18422, at *4-5 (S.D. Ohio Feb. 13, 2014). Accord: Stone v. City
of Grand Junction, 765 F. Supp. 2d 1060, 1070 (W.D. Tenn. 2011) (“However, as the Court need
not consider Sarah Stone's affidavit in rendering its decision, the objection is denied as moot.”).

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B. Plaintiff’s Motion to Amend
“While leave to amend generally should be freely given when justice so requires, the court
need not allow amendment when the amendment would be futile.” Perdue v. Morgan, No. 1:13-cv878, 2014 U.S. Dist. LEXIS 138758, at *9 (S.D. Ohio Sept. 30, 2014) (citing Miller v. City of
Columbus, 52 F. App'x 672, 674 (6th Cir. 2002)).
In his Motion to Amend, Plaintiff asserts that his proposed amendments “will assist the
Court with additional information . . . as to whether the Defendant[s] acted arbitrarily or
capriciously regarding the failure to respond to Carter’s FOIA request.” (Doc. 9, PAGEID# 105).
Plaintiff then proposes various amendments pertaining to the “wrongful conduct” and “false
accusations” of the government in connection with his criminal trial. (Doc. 9-1). He states that
unless the government “provide[s] the certified records pursuant to [his] FOIA request,” the Court
will continue to be “misled and deceived . . . by the government employees involved in [his]
investigation and prosecution,” and Plaintiff will “continue to be unjustly incarcerated.” (Doc. 9-1,
PAGEID# 111-12). Plaintiff does not propose any amendments that change the fact that he sent his
FOIA requests to a non-component office. (Doc. 12, PAGEID# 221). Accordingly, even if this
Court were to allow amendment, such amendment would be futile because Defendants’ affirmative
defense of non-exhaustion still appears on the face of the Verified Complaint. Jones, 549 U.S. at
215. Accord: Godaire, 2010 U.S. Dist. LEXIS 122237, at *19. Plaintiff’s Motion to Amend is
thus denied.
Because this Court is granting a dispositive motion, and amendment would be futile, this
Court need not consider the remaining motions pending on the docket. However, this Court will
note that many of the remaining motions – including a motion for emergency injunctive relief
(Doc. 11), a motion for declaratory judgment (Doc. 18), and a recent “Notice of
Deception/Misrepresentation by the United States Attorneys [sic] Office/Request for Judicial
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Notice” (Doc. 22) – seek relief in the form of court orders essentially declaring wrongdoing by the
government during the course of Plaintiff’s criminal trial. Plaintiff is hereby advised and cautioned
that a cause of action to obtain documents under the Freedom of Information Act is not the vehicle
through which a party may obtain a court order invalidating or otherwise challenging an earlier
criminal conviction.
IV.

CONCLUSION
Except as otherwise stated above, this Court ADOPTS the Report and Recommendation

(Doc. 14) of the Magistrate Judge. Accordingly, it is ORDERED that:
(1) Plaintiff’s Objections (Doc. 17) to the Report and Recommendation are
OVERRULED, and Plaintiff’s Verified Complaint is DISMISSED without
prejudice.
(2) Plaintiff’s Motion to Amend/Supplement Original Complaint (Doc. 9) is
DENIED; and
(3) Plaintiff’s remaining motions (Doc. Nos. 11, 13, 18, 19, 20, and 22) are DENIED AS
MOOT.

This matter shall be CLOSED and TERMINATED from the docket of this Court. IT IS SO
ORDERED.
/s/ Michael R. Barrett_______
Michael R. Barrett, Judge
United States District Court

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