DeWitt v. Commissioner of the Internal Revenue Service

Filing 18

REPORT AND RECOMMENDATIONS: 17 Plaintiff's Petition for Summary Judgment be DENIED. Objections to R&R due by 6/26/2017. Signed by Magistrate Judge Sharon L. Ovington on 6-12-17. (mcm)(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 AT DAYTON
KEITH DEWITT, SR.,
Plaintiff,
vs.
COMMISSIONER OF THE
INTERNAL REVENUE SERVICE,
Defendant.

: Case No. 3:16-cv-00021
:
: District Judge Thomas M. Rose
: Magistrate Judge Sharon L. Ovington
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:
:
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REPORT AND RECOMMENDATIONS1
Plaintiff Keith W. DeWitt, Sr., an inmate at Bennettsville Federal Correctional
Institution in Bennettsville, South Carolina, brings this case seeking certain tax
documents from the Internal Revenue Service. He asserts in his pro se Complaint that he
is entitled to receive the tax documents he seeks from the IRS under the Freedom of
Information Act and the Privacy Act. The case is presently before the Court upon
Plaintiff’s pro se Petition for Summary Judgment (Doc. #17), to which the Government
has not responded.
Summary judgment is available to a moving party who is able to “show that there
is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party—here, Plaintiff— “bear[s]

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

the burden of showing the absence of a genuine issue of material fact as to at least one
essential element of [Defendant’s] claim.” Laster v. City of Kalamazoo, 746 F.3d 714,
726 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “The
ultimate question is ‘whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.’” Id. (citations omitted)
“The FOIA generally provides that every federal agency shall promptly make
available upon request records reasonably described. Under the Act, an agency may not
withhold or limit the availability of any record, unless one of the FOIA’s specific
exceptions applies.” Rugiero v. U.S. Dept. of Justice, 257 F.3d 534, 543 (6th Cir. 2001)
(citing 5 U.S.C. § 552(a)(3)(A)).
Plaintiff’s Petition/Motion for Summary Judgment does not attempt to
demonstrate that the record requests he sent to the IRS reasonably describe the
documents he seeks. Instead, his Petition states that “this is an action seeking the release
of specific IRS document, and related forms thereto, IRS fo[r]ms 1099-C.” (Doc. #17,
PageID #125). His Petition, however, does not reasonably describe the specific 1099-C
forms he requested, or any other document he requested, that the IRS did not provide to
him in violation of FOIA. Plaintiff’s Petition also appears to contain a list of questions
(without question marks), including, for instance, whether this Court has subject matter
jurisdiction and “was it admitted by the Internal Revenue Service, that they are in
possession of the requested documents, being responsive to the plaintiff’s request,
researched under the Integrated Data Retrieval System no: 372429 (IDRS 372429).” Id.
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at 126. He further asks cryptic questions such as, “Did the IRS deny the plaintiff, under
its internal rules and regulations, where an appeal could follow,” and “Does a ‘sub
silento’ response, preclude the plaintiff from filing in the federal courts, seeking a
remedy, for the release of agency records.” Id. at 126. Without some factual context—
which Plaintiff’s Petition does not provide—his questions fail to demonstrate that there
are no genuine issues of material fact or that he is entitled to judgment as a matter of law
against the Government.
Plaintiff’s Petition also fails to support its assertions that the IRS violated the law
with any discussion of the genuinely undisputed material facts. For example, he states
that the IRS “is in breach of a duty imposed by law, for failure to provide necessary
information by related law.” Id. at 127. Yet, his Petition sheds no light on what legal
duty he claims the IRS breached, or what necessary information the IRS did not provide
him, or what he means by the phrase “necessary information related by law.” Id.
Accordingly, Plaintiff’s Petition does not demonstrate that summary judgment is
warranted against the Government at the present time.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff’s pro se Petition for Summary Judgment (Doc. #17) be DENIED.

June 12, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another
party=s objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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