Brown v. Federal Bureau of Investigation ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
TIMOTHY DEMETRI BROWN, pro se, )
)
Plaintiff, )
)
v. ) 10-cv-1292 (RCL)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
Defendants. )
)
MEMORANDUM OPINION
I. INTRODUCTION
Timothy Demetri Brown was convicted in 2002 on several charges related to his
“participation in a major drug distribution conspiracy stretching from 1993 to 1999.” United
States v. Brown, 86 Fed. Appx. 749, 752 (5th Cir. 2004); see also United States v. Brown, No.
01-cr-10012 (W.D. La. Apr. 8, 2003). Currently serving a life sentence, Brown brings this
complaint against the Federal Bureau of Investigation (“FBI”) and several other governmental
agencies, raising claims under the Administrative Procedure Act, 5 U.S.C. § 553 (“APA”) and
the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). Defendants have moved to dismiss,
and there are several other motions—including plaintiff’s motion for a preliminary injunction
and plaintiff’s motion for partial summary judgment—before the Court. For the reasons stated
below, all of plaintiff’s motions will be denied, except his motion for leave to amend which will
be granted in part and denied in part. His FOIA claim against the FBI, Am. Compl./Pet. Review
4, ECF No. 18, and FOIA claim against the Tax Division of the Department of Justice (“DOJ”),
Second Am. Compl./Pet. Review 7, ECF No. 21-1 (“Second Am. Compl.”), remain, but all other
claims and defendants will be dismissed from the case. An order will be entered requiring
defendants FBI and DOJ to produce Vaughn indexes for documents and files that are the subject
of plaintiff’s remaining FOIA claims.
II. BACKGROUND
Timothy Brown, along with his brother Christopher Michael Brown and coconspirator
Kenneth Wayne Pearson, were convicted on charges of conspiracy and distribution of crack
cocaine in 2002. See generally Brown, 86 Fed. Appx. 749. Plaintiff was also convicted on money
laundering charges, and the trial court ordered him to forfeit certain property belonging to him as
part of the judgment. Id. at 752. Plaintiff’s direct appeal and a collateral attack were both denied,
id., and while Kenneth Pearson’s conviction was vacated by the Supreme Court, Pearson v.
United States, 543 U.S. 1116 (2005) (remanding for rehearing in light of the Court’s decision in
United States v. Booker, 540 U.S. 220 (2005)), plaintiff’s petition for writ of certiorari was
denied, Brown v. United States, 546 U.S. 1118 (2006).
Incarcerated at Talledaga Federal Correctional Institution (“FCI-Talledaga”), after some
time in the general population, plaintiff was transferred to the prison’s Special Management Unit
(“SMU”), a separate section used to manage inmates that “present unique security and
management concerns.” Attach. 1 to Pl.’s Reply Defs.’ Mem. Points and Authorities Opp’n Pl.’s
Mot. Leave Am. and Supplement Compl./Pet. Review 2, ECF No. 27-1 (“Attach. Pl.’s Reply”).
“A multi-phase program whose mission is to teach self-discipline, pro-social values, and the
ability to successfully coexist with [other inmates],” Attach. 1 Mot. Prelim. Inj. and Order Show
Cause, ECF No. 29-1 (“Attach. Prelim. Inj.”), visitors to the unit have restricted privileges and
limited interaction with other prisoners. Id. Although he was generally dissatisfied with the
SMU’s amenities, plaintiff was particularly irritated by his mandated participation in “self-study,
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individual, and group activities provided by Psychology Services,” id., characterizing his stay at
the SMU as a “forced psychological treatment prolonged isolation regiment [sic],” Mot. Prelim.
Inj. and Order Show Cause 1, ECF No. 29 (“Mot. Prelim. Inj.”). The program was apparently
minimally successful, because at some point between February 23 and April 8, 2011, plaintiff
was transferred out of FCI-Talledaga to the Administrative Max facility in Florence, Colorado
(“ADX-GP”).
While in Talledaga, plaintiff filed suit against the FBI, asserting three claims under FOIA
and one asking the government to resolve what he termed “federal questions.” United States v.
Brown, 675 F. Supp. 2d 122 (D.D.C. 2009). Two of the FOIA claims concerned records related
to a book Mr. Brown was allegedly writing, and the other referred to plaintiff’s request for FBI
records on himself. Id. at 124. The federal questions, which are similar to two of the APA claims
he brings here, asked the court (1) whether the government properly exercised jurisdiction over
the property that plaintiff forfeited and (2) what the legal status of the statutes under which
plaintiff was convicted is. Id. The court dismissed the FOIA claims for lack of administrative
exhaustion, and the federal question claim was dismissed because it sought relief not available
under FOIA. Id. at 123–24. Mr. Brown moved the court to reconsider and sought leave to amend,
but the motions were denied because he provided no basis for reconsideration and unduly
delayed seeking leave to amend. United States v. Brown, 744 F. Supp. 2d 120 (D.D.C. 2010).
Prior to denial of his motion for reconsideration and to amend, plaintiff initiated this suit,
asserting two APA claims against the FBI, one APA claim against the Department of Justice and
one FOIA claim against the FBI. Compl./Pet. Review, ECF 1 (“Compl.”). His first APA claim
argued that the FBI’s determination that 21 U.S.C. §§ 841 and 846—the statutes under which
plaintiff was convicted—were criminal laws was in error and sought an order correcting that
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erroneous determination. The second suggested that the government had improperly asserted
jurisdiction over the property that he forfeited in the original case, United States v. Brown, No.
01-cr-10012 (W.D. La. Apr. 8, 2003), and his third concerned the DOJ’s refusal to respond to a
petition he sent asking them to promulgate clear and concise rules for United States Attorney’s
Offices (“USAO”) to determine when it is proper to prosecute someone under the Controlled
Substances Act. Compl. The only FOIA claim plaintiff brought at that time was related to
recordings of an FBI buy-bust that plaintiff alleges he was subject to, recordings which plaintiff
claims would show that he was not part of the drug trade. Id. Defendants moved to dismiss,
arguing that the plaintiff did not have standing to bring the APA claims; that some of his claims
were barred by claim preclusion; that defendant failed to state a claim under the APA; and that
plaintiff could not impliedly invalidate his criminal conviction through civil suit. Defs.’ Mot.
Dismiss, Nov. 8, 2010, ECF No. 11 (“Mot. Dismiss”). Thereafter, plaintiff filed a motion for
partial summary judgment on the FOIA claim, Mot. Partial Summ. J., ECF No. 15 (“Part. Summ.
J.”), a motion to strike the motion to dismiss, and a motion for more definite statement for that
motion, Mot. Strike and Mot. More Definite Statement, ECF No. 16 (“Mot. Strike”).
On November 30, 2010 plaintiff amended his complaint, adding a FOIA claim against the
Bureau of Prisons for failing to provide administrative records for Program Statement 5217.01,
which describes the rules and aims of the SMUs. Am. Compl. 5. Mr. Brown also included an
APA claim against BOP for failing to respond to his petition to repeal Program Statement
5217.01. Id. Two weeks later plaintiff filed a motion to amend his complaint in which he sought
to add seven additional FOIA claims against a variety of agencies. Second Am. Compl. 5-7.
Defendant Bureau of Prisons (“BOP”) moved to dismiss plaintiff’s first amended complaint on
December 20, Def. Federal Bureau of Prisons’ Mot. Dismiss, ECF No. 22 (“BOP Mot.
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Dismiss”), and opposed his motion to amend on January 3, 2011. Plaintiff then filed a motion for
preliminary injunction on Feb. 10, 2011, asking the Court to enjoin BOP from including plaintiff
in the SMU, which Brown claimed constituted torture and forced psychological treatment, Mot.
Prelim. Inj.
IV. DISCUSSION
Before the Court are defendants’ Motion(s) to Dismiss, ECF Nos. 11, 22, Plaintiff’s
Motion for Partial Summary Judgment, ECF No. 15, Plaintiff’s Motion to Strike/Motion for a
More Definite Statement, ECF No. 16, Plaintiff’s Motion for Leave to Amend, ECF No. 21, and
Plaintiff’s Motion for Preliminary Injunction/Order to Show Cause, ECF No. 29. For the reasons
set out below, the Court will deny all of plaintiff’s motions excepting his motion for leave to
amend, which will be granted as to Claim XII against the Tax Division of the DOJ. The Court
will grant defendants their motions to dismiss, although not insofar as they request that defendant
FBI be dismissed from the case.
A. Plaintiff’s Standing to Assert APA Claims
Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994), and a Rule 12(b)(1) motion for dismissal presents a threshold
challenge to a court’s jurisdiction. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). In
evaluating such a motion, the Court must “accept as true all of the factual allegations contained
in the complaint,” Wilson v. District of Columbia, 269 F.R.D. 8, 11 (D.D.C. 2010) (citing
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993)),
and should review the complaint liberally while accepting all inferences favorable to the
plaintiff. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). At the same time, the Court
may consider relevant materials outside the pleadings, Settles v. U.S. Parole Comm’n, 429 F.3d
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1098, 1107 (D.C. Cir. 2005), and must remain cognizant that “the plaintiff’s factual allegations
in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim.” Wilson, 269 F.R.D. at 11 (quotations omitted). In
defending against a Rule 12(b)(1) motion, the plaintiff bears the burden of demonstrating that
jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).
An integral part of establishing a court’s jurisdiction is meeting the “irreducible
constitutional minimum of [Article III] standing . . . [which] contains three elements. First, the
plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the injury and the conduct complained of—
the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the
result of the independent action of some third party not before the court. Third, it must be likely,
as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Ass’n of Am. Physicians, 358 Fed. Appx. 179, 180 (D.C. Cir. 2009) (quoting Lujan, 504 U.S. at
560–61). “At the pleading stage, ‘general factual allegations of injury resulting from the
defendant’s conduct may suffice,’ and the court ‘presumes that general allegations embrace the
specific facts that are necessary to support the claim.’” Sierra Club v. EPA, 292 F.3d 895, 898
(D.C. Cir. 2002) (quoting Lujan, 504 U.S. at 561). However, “nondescript and conclusory
allegations of injury are not the type of general factual allegations from which the Court may
presume the specific facts necessary to ensure that the plaintiff has standing, and are insufficient
to meet the plaintiff’s burden of alleging an injury in fact that is concrete and particularized.”
Wright v. McPhie, No. 04-cv-1204, 2005 WL 3273556, at *3 (D.D.C. Sept. 27, 2005) (internal
citations removed).
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Under 5 U.S.C. § 553, “agencies are obligated to fully and promptly consider rulemaking
petitions and provide a petitioner with a prompt reply.” Mendoza v. United States Dep’t of
Justice, No. 89-cv-1979, 1990 U.S. Dist. LEXIS 10074, at *3 (D.D.C. 1990). See also WWHT,
Inc. v. Fed. Commc’ns Comm’n, 656 F.2d 807, 813 (D.C. Cir. 1981) (“an agency must receive
and respond to petitions for rulemaking.”) However, “[t]he fact that Congress may have given all
interested parties the right to petition . . . does not in turn automatic[ally] confer Article III
standing when that right is deprived . . . the grant of a procedural right alone cannot serve as the
basis for Article III standing unless the procedures in question are designed to protect some
threatened concrete interest of [the petitioner] that is the ultimate basis of his standing.” Gettman
v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002) (internal citation removed); see also Fund
Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002) (“A party has standing to challenge
an agency's failure to abide by a procedural requirement only if the government act performed
without the procedure in question will cause a distinct risk to a particularized interest of the
plaintiff.”). Concurring in Fund, Judge Edwards suggested that the court would not deny
standing “in cases where a statute or regulation affords a party such a particularized procedural
right.” Id. at 28. Because the Administrative Procedure Act is less than crystal-clear on plaintiff’s
statutory right to a response, even this broader interpretation will not automatically confer Article
III standing over plaintiff’s claim. See 5 U.S.C. § 555(e) (“Prompt notice shall be given of the
denial in whole or in part of a written application, petition, or other request made in connection
with any agency proceeding.”) (emphasis added). Because Mr. Brown’s request is not made in
connection with any agency proceeding, the statute itself does not afford him the right to a
response.
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Defendants argue that Mr. Brown does not have standing to bring his APA claims
because he does not have a threatened concrete interest in any of the petitions. Each APA claim
will be examined individually.
1. Plaintiff’s Challenge to 21 U.S.C. § 841 and 846
Plaintiff’s first APA claim is essentially a restatement of one of the “federal questions”
that was dismissed in his prior action. He contends that the FBI and USAO have erroneously
determined that 21 U.S.C §§ 841 and 846 (the sections of the U.S. Code under which he was
convicted and sentenced, Brown, 86 Fed. Appx. 749) are criminal laws. Am. Compl. 3. Arguing
that these sections “have never been properly enacted by congress as criminal laws,” id., and that
they “have never been adopted for general federal police power jurisdiction,” id., plaintiff asks
the Court to “issue an order that the agency(s)’ actions, decisions, claim and/or interpretation of
Title 21 U.S. Code sections 841 and 846 is [sic] in error. . . . That [the sections] are NOT
criminal laws,” id. at 6. The claim will be dismissed for lack of subject-matter jurisdiction and
because it is barred under Heck v. Humphrey, 512 U.S. 477 (1987), and its progeny.
To the extent that plaintiff argues that his continued incarceration under 21 U.S.C. §§ 841and 846 constitutes an injury-in-fact and gives him standing, his claim is foreclosed by Heck and
its progeny. In Heck, the Court held that a plaintiff could not recover damages under 42 U.S.C. §
1983 for an allegedly unconstitutional conviction unless “the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” 512 U.S. at 486–87. Plaintiff argues that Heck applies only to damages
under 42 U.S.C. § 1983, but “courts have extended Heck’s rationale beyond the context of §
1983 to a variety of situations where a plaintiff has been convicted of a federal crime and later
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files a civil action which, if successful, would necessarily imply the invalidity of plaintiff’s
conviction.” Terry v. SBA, 699 F. Supp. 2d 49, 55 (D.D.C. 2010). The court in Terry refused, as
the Court does today, “to step impermissibly into the shoes of the court which originally imposed
the sentence.” Id. at 56 (internal citations omitted).
Plaintiff’s conviction was upheld on direct appeal, Brown 86 Fed. Appx. at 756, and
although the Supreme Court vacated and remanded the Fifth Circuit’s decision with regards to
one of Mr. Brown’s codefendants, Pearson v. United States, 543 U.S. 1116 (2005), his own
conviction has never been successfully challenged. Heck was decided to dispose of precisely the
type of claims brought by plaintiff here: “[requiring invalidation] avoids parallel litigation . . .
and it precludes the possibility of the claimant succeeding in [a civil action] after having been
convicted in the underlying criminal prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising out of the same or identical
transaction.” Heck v. Humphrey, 512 U.S. at 484. Not only did plaintiff have—and take—the
opportunity to directly challenge his conviction, he also unsuccessfully attempted to litigate this
issue in his first civil suit. See Brown, 675 F. Supp. 2d 122.
Beyond an impermissible interest in challenging his conviction, plaintiff does not and
cannot explain how a determination by this Court that 21 U.S.C. §§ 841 and 846 are not criminal
laws will “more directly and tangibly [benefit him] than it [would] the public at large.” Lujan,
504 U.S. at 573. He has not demonstrated any “threatened concrete interest,” Gettman, 290 F.3d
at 433, upon which his standing could rest. Mr. Brown’s joyride on the federal court merry-go-
round must—like all good things—come to an end. Heck v. Humphrey bars his attempt to
collaterally attack his criminal conviction, and because he does not have a cognizable interest in
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this claim that rises above the level of a generally available grievance about government, he fails
to meet the minimum requirement of standing.
2. Claim Challenging Court’s Jurisdiction over Plaintiff’s Property
In plaintiff’s second APA claim he argues that the FBI, USAO, and United States
Attorney General (“AG”) improperly “obtained legislative jurisdiction over property at 3708
Third Street, Alexandria, Louisiana.” Am. Compl. 3. The property in question was forfeited by
the plaintiff as part of the judgment against him in his criminal proceeding. Brown, 86 Fed.
Appx. at 752. He and two innocent-owner claimants unsuccessfully challenged the forfeiture on
appeal. Id. at 764–766. Although plaintiff’s attempts to dispute the government’s jurisdiction
over the property failed in both his original criminal case and on appeal, his persistence knows
no limits—and little logic—and he questions the government’s jurisdiction again here, citing a
string of irrelevant regulations and statutes in an attempt to bolster what is clearly a spurious
claim.
Plaintiff first cites 28 C.F.R. § 0.56 for the proposition that the Attorney General has the
authority to determine the jurisdictional status of property. Am. Compl. 3. The regulation,
however, has absolutely no bearing on the government’s ability to seize property but instead
regulates the Attorney General’s “authority to determine whether the federal government has
criminal jurisdiction over acts committed upon federal land.” United States v. Gabrion, 517 F.3d
839, 865 (6th Cir. 2008). Plaintiff’s reliance on 40 U.S.C. § 3112 is equally erroneous. Although
it is not clear what plaintiff thinks 40 U.S.C. § 3112 says, the statute in fact covers the processes
by which the United States government may choose to “obtain exclusive jurisdiction in the
United States over land or an interest in land it acquires.” 40 U.S.C. § 3112. Namely, it permits
the United States to decline jurisdiction over land it purchases or acquires an interest in, and
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describes the appropriate process by which authorized governmental actors can decide to attain
jurisdiction—for the purposes of criminal prosecution or federal regulation—over property. Id.Fortunately, plaintiff’s venture into the zone of irrelevance is limited to those two easily-
dispelled citations, and the judgment is clearly proper under 21 U.S.C. § 853(a), which permits
courts to order forfeiture of “any property constituting, or derived from, any proceeds the person
obtained . . . as the result of [violations of the Controlled Substances Act].” 21 U.S.C. § 853(a).
Even were the forfeiture order improper, plaintiff was given the opportunity to challenge the
forfeiture on appeal and was unsuccessful. Heck v. Humphrey bars a civil inquiry into the matter,
as explained above.
3. Plaintiff’s Petition to Repeal Program Statement 5217.01
Plaintiff raises a claim concerning the Bureau of Prisons’ failure to respond to his
“Petition to Repeal,” in which he asked the BOP to initiate proceedings to consider the repeal of
Program Statement 5217.01 (in essence asking them to repeal the Special Management Unit
system). Plaintiff seeks an order from the court that the BOP process his petition. Am. Compl. 6.
Though this Court need not—and does not—pass judgment on whether Mr. Brown would
have had Article III standing were he still part of the Special Management Units, it is clear that
his transfer to ADX-GP negates any “particularized,” Fund, 278 F.3d at 27, or “threatened
concrete interest,” Gettman, 290 F.3d at 433, he may have had in the petition while an inmate at
FCI-Talledaga. No longer subject to the program, plaintiff’s interest—at best—amounts to a
“generally available grievance about government,” and does not provide adequate injury to
support standing. Lujan, 504 U.S. at 573-74. The court in Gettman “wish[ed] to make clear” their
resistance to transforming “the federal courts into ‘no more than a vehicle for the vindication of
the value interests of concerned bystanders,’” id. at 435 (citing Allen v. Wright, 468 U.S. 737,
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756 (1984)), and plaintiff’s transfer to the Ad-Max facility in Florence makes him into just such
a concerned bystander. Mere denial of a procedural right is not itself sufficient injury-in-fact, as
made evident by Gettman and Fund. In short, plaintiff does not have standing to bring this claim.
4. Plaintiff’s Petition to the Justice Department
Mr. Brown also challenges the Justice Department’s lack of response to a petition he
filed asking them to “promulgate clear and concise rules for United States Attorney(s) to
determine when it is lawful to prosecute a state citizen for a federal control [sic] substance
regulatory violation.” Am. Compl. 5. Plaintiff’s first amended complaint contained only the
conclusory allegation that he had been “adversely effected [sic],” id. at 1, by the agency’s
unresponsiveness, and as such his initial complaint would be dismissed for lack of standing. See
Wright, 2005 WL 3273556, at *3 (holding that nondescript and conclusory allegations of injury
are not the type of allegations from which the court will infer facts to ensure standing at the
pleadings stage).
In his second amended complaint, plaintiff alleges that he “is under imminent threat of
being federally prosecuted for the sell [sic] of ‘PROCAINE.’” Second Am. Compl. 1. Procaine is
a known “diluting or ‘cutting’ agent,” United States v. Johnson, 592 F.3d 164, 167 (D.C. Cir.
2010), “commonly cut with cocaine for the purpose of stretching out the amount of crack
produced,” United States v. Franklin, 148 F.3d 451, 454 (5th Cir. 1998). Presumably plaintiff
wants the DOJ to promulgate rules clarifying whether or not Procaine is covered by the
Controlled Substances Act. The mere denial of a procedural right being insufficient to establish
standing, Gettman, 290 F.3d at 433, Mr. Brown must demonstrate that denial of this procedural
right affects a threatened concrete interest that is the ultimate basis of his standing. Id. Though
his—alleged—past prosecution and conviction for Procaine distribution, see Pl.’s Reply Defs.’
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Mem. of Points and Authorities in Opp’n to Pl.’s Mot. for Leave Am. and Supplement
Compl./Pet. Review 4, ECF No. 27 (“Pl.’s Reply”), might give rise to a concrete interest,
plaintiff is barred under Heck and Terry from challenging his original criminal conviction in a
civil suit under the APA. See Terry, 699 F. Supp. 2d at 55. Even assuming that plaintiff was
previously prosecuted for Procaine distribution—an assumption completely unjustified in light of
the total absence of evidence in the record—and that his conviction was a threatened concrete
interest, his suit would be dismissed under Terry for failure to state a claim upon which relief
could be granted.
Alternatively, plaintiff attempts to demonstrate a threatened concrete interest by claiming
in his motion for leave to amend that he is currently under investigation for Procaine distribution.
Mot. Leave Am. and Supplement Compl./Pet. Review 3, ECF No. 21 (“Mot. Leave”). Somewhat
curiously—and this may be a testament to plaintiff’s limited knowledge of the “investigation”—
in his actual complaint he says only that he is under imminent threat of prosecution. Second Am.
Compl. 1 (emphasis added). Because the alleged injury from future prosecution is conjectural
and hypothetical, it cannot be a source of standing. With regard to standing, “[a]t the pleading
stage, ‘general factual allegations of injury resulting from the defendant’s conduct may suffice,’
and the court ‘presumes that general allegations embrace the specific facts that are necessary to
support the claim.’” Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) (citing Lujan, 504 U.S.
at 561) (emphasis added). However, “conclusory allegations of injury are not the type of general
factual allegations from which the Court may presume the specific facts necessary to ensure that
the plaintiff has standing, and are insufficient to meet the plaintiff’s burden of alleging an injury
in fact that is concrete and particularized.” Wright, 2005 WL 3273556, at *3 (internal citation
removed).
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Although plaintiff says he is under imminent threat of prosecution, the only evidence he
proffers to substantiate that claim is an unlabeled, undated inventory of evidence, which has
entries on separate lines for “30 Photographs of Package Containing Procaine” and “Photos of
UPS – Procaine Notes From Procaine Shipment.” Mot. Leave 8. Large portions of the document
are redacted, and nothing in it indicates either that it is related to Mr. Brown or that it is part of
an ongoing investigation. Id. Though on a motion to dismiss the court will view the pleadings in
the light most favorable to the nonmoving party, plaintiff alleges no more than a conjectural or
hypothetical injury, and the word “imminent” is not a magic phrase—as perhaps plaintiff
hopes—that will transform his baseless accusations from conjecture to injury-in-fact. Courts may
not “accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out
in the complaint,” Iqbal, 129 S. Ct. at 1949, and plaintiff’s assertion that he is being prosecuted
is not supported by any facts set out in the complaint. Leaving aside the absurdity of plaintiff’s
assertion that federal agents would waste resources investigating a man serving a life term for
distribution of Procaine, plaintiff’s paranoid belief that he is being prosecuted is not a
“threatened concrete interest,” and plaintiff’s argument is done in by “the purely speculative
nature of the harm and its remediability.” Gettman, 290 F.3d at 434. There is no indication in
plaintiff’s criminal case that he was prosecuted for Procaine possession or distribution, and the
mere inclusion of Procaine in a document whose source, subject-matter, and tie to Mr. Brown are
absolutely unclear is the type of “nondescript and conclusory allegation,” id., from which the
Court should not presume the specific facts necessary to ensure that standing exists. 1 Although
1
Though the DOJ could have easily disposed of plaintiff’s claim by submitting an affidavit demonstrating that Mr.
Brown was not currently under investigation, they instead elected to take a more circuitous route, claiming that there
is no statute under which plaintiff could be prosecuted for Procaine distribution. Mem. Points and Authorities Opp.
Pl.’s Mot. Leave Am. and Supplement Compl./Pet. Review 5, ECF No. 25. While that is all well and good, it is only
tangential to plaintiff’s claim that he is being prosecuted, and has the odd effect of affirming plaintiff’s position.
After all, if there is no law under which he could be prosecuted yet he still is being prosecuted, perhaps there do
need to be more clear rules and regulations. Fortunately for defendants, plaintiff cannot carry the burden required of
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plaintiff attempted to remedy the standing issue in his second amended complaint, the amended
complaint would not withstand a motion to dismiss, so his motion to amend will be denied as
futile and his claim dismissed. See James Madison, Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.
Cir. 1996) (holding that amendments can be denied where they would not withstand a motion to
dismiss).
B. Administrative Exhaustion
1. Plaintiff’s Motion for Leave to Amend the Complaint to Add New
FOIA Claims
Plaintiff has moved for leave to amend his complaint, adding seven new FOIA claims
against a number of defendant agencies. Plaintiff’s motion will be denied as to six of these
claims, and granted as to Claim XII against the Tax Division.
A party may amend its pleading once as a matter of course. Fed. R. Civ. P. 15(a)(1). After
amending as a matter of course, a party may amend “only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Because plaintiff has already amended his complaint as a matter of course, Am.
Compl., and the defendants do not give consent, it is up to the court to give plaintiff leave to
amend. Id. “Courts may deny a motion to amend a complaint as futile . . . if the proposed claim
would not survive a motion to dismiss.” James Madison, Ltd., 82 F.3d at 1099. See also Foman
v. Davis, 371 U.S. 178, 182 (1962) (listing reasons to deny motion for leave to amend). Plaintiff
does not allege administrative exhaustion for six of his seven new claims, and therefore fails to
state a claim upon which relief can be granted. Because these claims would not survive a motion
to dismiss, the amendment is denied as futile as to claims VII-XI and XIII, which are dismissed
him, or the DOJ would be in the unenviable position of having to defend a prosecution they themselves admitted
was not permitted by law.
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without prejudice. James Madison, Ltd., 82 F.3d at 1099. His motion for leave to amend is
granted as to his FOIA claim against the Tax Division of the DOJ, Second Am. Compl. 7.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To satisfy this test, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[W]hen ruling on a defendant’s
motion to dismiss, a judge must accept as true all of the factual allegations contained in the
complaint,” Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a
plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A court, however, may not “accept
inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the
complaint.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In other words, “only a complaint
that states a plausible claim for relief survives a motion to dismiss.” Id.; see also Atherton, 567
F.3d at 681 (holding that complaint must plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged”).
A FOIA plaintiff fails to state a claim upon which relief can be granted under Fed. R.
Civ. P. 12(b)(6) when he or she fails to allege administrative exhaustion. See United States v.
Bestor, No. 04-cv-2049, 2005 U.S. Dist. LEXIS 18908, at *11 (“No FOIA claim is stated in the
absence of an allegation that the requester exhausted his administrative remedies.”). Courts have
consistently confirmed that “FOIA requires exhaustion of [the] appeal process before an
individual may seek relief in the courts.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61–62
(D.C. Cir. 1990). The burden of demonstrating administrative exhaustion is on the plaintiff. See
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Arnold v. U.S. Secret Serv., No. 05-cv-0450, 2006 U.S. Dist. LEXIS 71832, at *4 (D.D.C. Sept.
29, 2006) (“It is plaintiff’s burden to show his prior exhaustion of his administrative remedies.”);
Schoenman v. FBI, No. 04-cv-2202, 2006 U.S. Dist. LEXIS 14905, at *49–50 (D.D.C. March 31,
2006) (affirming that the burden of demonstrating exhaustion is on the plaintiff). There are good
reasons to place the burden of demonstrating exhaustion on the plaintiff: “[i]f a party could avoid
the exhaustion requirement merely by asserting that they had pursued all available administrative
relief, administrative agencies would be placed in the position of having to prove the negative:
that proper avenues of appeal had not been pursued.” Williams v. McCausland, No. 90-cv-7563,
1994 U.S. Dist. LEXIS 353, at *4 (S.D.N.Y. Jan. 18, 1994), cited with approval in Bestor, 2005
U.S. Dist. LEXIS 18908, at *12; Arnold, 2006 U.S. Dist. LEXIS 71832, at *4.
Plaintiff here has done little other than allege that he submitted FOIA requests and has
not received the documents he requested. By way of example, his claim against the DEA reads,
in its entirety: “Drug Enforcement Administration has unlawfully refused and/or withheld
records in the agency’s files concerning plaintiff. . . . Plaintiff filed a FOIA request with the
agency on January 31, 2009. . . . Plaintiff’s request was assigned number 09-0533-P. . . . The
agency unlawfully withheld records and/or claimed inapplicable exemptions.” Second Am.
Compl. 5. All his other claims—with one exception, discussed below—are similarly deficient.
Id. at 5–7. Mr. Brown has not placed information into the record showing that the agency denied
his request or that he appealed their denial, and he has therefore failed to allege administrative
exhaustion. Bestor, 2005 U.S. Dist. LEXIS 18908, at *11.
The only claim that goes a step further is claim XII, one of his FOIA claims against the
Department of Justice. Plaintiff claims, not in his complaint but in his reply to defendants’
opposition, that he “filed appeal of the denial of the requested records on November 29, 2010.”
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Pl.’s Reply at 4. In Bestor, the plaintiff received an unsatisfactory response to his initial request
and appealed, but in his suit failed to allege that the agency had received his appeal or responded
to it. Bestor, 2005 U.S. Dist. LEXIS 18908, at *9. His failure to carry that burden was enough to
doom the complaint. Id. Although Mr. Brown’s allegations are analogous, in Bestor the Court
emphasized that plaintiff “essentially concede[d] the facts set forth by the defendant in its motion
[to dismiss],” id. at 13, and that he did not “dispute the facts asserted by the defendant,” id.
Plaintiff does just the opposite here, insisting that he did file an appeal and has still not received
satisfactory relief. According to his reply, plaintiff filed an appeal on November 29, 2010,
meaning the thirty day period within which the agency would be required to respond has long
passed. See 5 U.S.C. § 552(a)(6)(A)(2). His administrative remedies are almost certainly
exhausted, whether actually or constructively. Though we urge plaintiff to submit evidence
clearly demonstrating exhaustion of his administrative remedies should defendant file for
summary judgment, his claim against the Tax Division of the DOJ would survive a motion to
dismiss and for that reason leave to amend is granted. 2 His other FOIA claims, however, will not
survive a dispositive motion, and his motion for leave to amend will be denied as futile as to
those claims.
2. Plaintiff’s FOIA Claim Against the BOP
Defendant Bureau of Prisons has not moved to dismiss plaintiff’s FOIA claim for
administrative records of Program Statement 5217.01, Am. Compl. at 5, but because plaintiff
fails to allege administrative exhaustion his claim will be dismissed with leave to amend.
2
Defendants’ reliance on Wolf v. CIA, 569 F. Supp. 2d 1 (D.D.C. 2008), is misguided, and their argument that
allowing the amendment will prejudice their client is absurd. In Wolf the court balked at adding claims whose related
searches would require $147,000 and 3675 hours to complete. Id. The burden placed on defendant by one additional
FOIA claim—90 hours by the defendants’ estimate— in the present case is relatively miniscule. As plaintiff’s FOIA
claim against the DOJ is not dismissed, it will be necessary for defendant to produce a Vaughn index for the
documents that are the subject of plaintiff’s request.
18
Mr. Brown’s claim against the BOP shares the deficiencies of those in his second
amended complaint: his complaint merely states that “[t]he agency has refused to provide the
records” he requested. Am. Compl. 5. Thus, he has clearly failed to state a claim upon which
relief may be granted. See Bestor, 2005 U.S. Dist. LEXIS 18908, at *11 (denying relief where
plaintiff pleads more, including that the plaintiff received a response and filed an appeal).
Although the BOP has not moved to dismiss, the Court may grant a 12(b)(6) motion to dismiss
sua sponte. Baker v. Director, U.S. Parole Comm’n, 916 F.2d 725. 727 (D.C. Cir. 1990). The
Court will, however, grant leave to amend because “sua sponte dismissal of a complaint for
failure to state a claim without leave to amend is error unless ‘the claimant cannot possibly win
relief. . . . This will be the case either when the facts alleged affirmatively preclude relief, or
because, even though plaintiff makes clear that he has facts to add to his complaint, he would not
have a claim upon which relief could be granted even with those facts.’” Plummer v. Mayor, 371
Fed. Appx. 106, 107 (D.C. Cir. 2010) (citing Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371,
377 (D.C. Cir. 2000)) (internal citations removed). The facts here do not affirmatively preclude
relief—the issue is that plaintiff has not alleged enough, not that any undisputed facts prevent
him from succeeding on the merits—and Mr. Brown would have an actionable claim if he would
explicitly allege administrative exhaustion by pointing to specific documents.
B. Plaintiff’s Motion to Strike/Motion for a More Definite Statement
Plaintiff filed a motion to strike defendants’ motion to dismiss on November 22, 2010,
arguing that defendants’ motion “raises issues wholly unrelated to the matters before this Court”
and was “presented only to attempt to vilify the plaintiff.” Mot. Strike. Whatever the caliber of
complainant’s conspiratorial contentions, his motions have no basis in the Rules of Civil
Procedure, which are clear on the subject: “[t]he court may strike from a pleading an insufficient
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defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f)
(emphasis added). “[A] cursory review of the Federal Rules of Civil Procedure informs that non-
pleadings . . . are not subject to motions to strike.” Great Socialist People’s Libyan Arab
Jamahiriya v. Ahmad Miski, 683 F. Supp. 2d 1, 15 (D.D.C. 2010). See also Fed. R. Civ. P. 7(a)
(the only pleadings allowed are “(1) a complaint; (2) an answer to a complaint; (3) an answer to a
counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party
complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an
answer.”); 2 James Wm. Moore et al., Moore’s Federal Practice – Civil ¶ 12.37 (3d ed. 2011)
(“Only material included in a ‘pleading’ may be the subject of a motion to strike, and courts have
been unwilling to construe the term broadly. Motions, briefs or memoranda . . . may not be
attacked by the motion to strike.”).
Plaintiff’s motion for a more definite statement is also clearly invalid: “A party may
move for a more definite statement of a pleading to which a responsive pleading is allowed.”
Fed. R. Civ. P. 12(e) (emphasis added). Because a motion to dismiss is neither a pleading nor a
pleading to which a responsive pleading is allowed, it cannot be struck from the record nor is it
subject to a motion for a more definite statement.
C. Plaintiff’s Motion for Preliminary Injunction
Preliminary injunctions are “an extraordinary remedy, [and] courts should grant relief
sparingly,” United Gov’t Sec. Officers of Am. Int’l Union v. Serv. Emp’rs’ Int’l Union, 646 F.
Supp. 2d 91, 93 (D.D.C. 2009), and only when “the movant, by a clear showing, carries the
burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In order to issue a
preliminary injunction, the moving party must demonstrate “1) a substantial likelihood of
success on the merits, 2) that it would suffer irreparable injury if the injunction is not granted, 3)
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that an injunction would not substantially injure other interested parties, and 4) that the public
interest would be furthered by the injunction.” Mova. Pharm. Corp. v. Shalala, 140 F.3d 1060,
1066 (D.C. Cir. 1998). Importantly, the purpose of a preliminary injunction “is merely to
preserve the relative positions of the parties until a trial on the merits can be held,” Univ. of Tex.
V. Camenisch, 451 U.S. 390, 395 (1981)), and any relief to be granted “must be narrowly
tailored to the harm shown,” Neb. Dep’t of Health & Human Servs. v. U.S. Dep’t of Health &
Human Servs., 435 F.3d 326, 330 (D.D.C. 2006) (overturning injunctive relief ordered by district
court where relief granted was not part of plaintiff’s complaint); see also IBT/HERE Emp.
Representatives’ Council v. Gate Gourmet Div. Americas, 377 F. Supp. 2d 54, 59 (D.D.C. 2005)
(“any injunction that the court issues must be carefully circumscribed and tailored to remedy the
harm show.”).
Plaintiff’s motion here seeks relief that is not only equivalent to, but exceeds the relief he
would get should he succeed on the merits. Mr. Brown asks the Court to issue a preliminary
injunction against the BOP “to cease and desist its forced psychological treatment prolonged
isolation regiment [sic] and its retaliation against plaintiff for refusing the unlawful treatment.”
Mot. Prelim. Inj. 1. But “[a] preliminary injunction is just that—preliminary. It does not
substitute for a trial, and its usual office is to hold the parties in place until a trial can take place.”
Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) See also Dressler v. Wilson, 144 F. Supp.
373, 376 (D.D.C. 1957) (preliminary injunctions should be “very rarely allowed in cases where
the temporary relief would, in effect, be the same as that which would be accorded by a final
judgment if the plaintiff prevailed at the trial.”) The only claim to which this motion could
potentially be related is plaintiff’s APA claim against the BOP, in which he seeks an order
forcing them to respond to his petition to repeal Program Statement 5210.17. Am. Compl. at 5.
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However, even if plaintiff succeeded on the merits, the relief to which he would be entitled
would merely be a response to his petition to repeal. Defendant BOP could—and presumably
would—deny his petition. Because a preliminary injunction would far exceed the relief plaintiff
would get if he succeeded on the merits, it will not be granted.
Even were the scope of plaintiff’s injunction limited to relief this Court would be within
its power to grant, his motion is moot. Plaintiff has been transferred from FCI-Talledaga to an
Administrative Max prison in Florence, CO, Change Address 1, ECF No. 37, where he is no
longer subjected to the alleged “psychological torture” he was suffering in the SMUs at FCI-
Talledaga. This Court would be remiss to issue an order freeing plaintiff from a program from
which he has he already been released.
D. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff moves for summary judgment on his FOIA claim against the FBI. Part. Summ. J.
In his motion, plaintiff argues that FBI “has been acting in bad faith and in violation of [FOIA]
since November 2001,” claiming that “[t]he records [he has been requesting] are not exempt
from disclosure.” Id. at 5.
Summary judgment should be granted when the “materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations,
. . . admissions, interrogatory answers, or other materials” show “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a)–(c). This standard requires more than the mere existence of some factual dispute between
the parties; “the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact is ‘material’ if a dispute over it might
affect the outcome of a suit under the governing law.” Holcomb v. Powell, 433 F.3d 889, 895
22
(D.C. Cir. 2006). “An issue is ‘genuine’ if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Doe v. IRS, 706 F. Supp. 2d 1, 5 (D.D.C. 2009)
(citing Anderson, 477 U.S. at 248).
The record, though sparse, demonstrates that plaintiff has not carried the burden
necessary for summary judgment to issue. Genuine issues of material fact exist and summary
judgment for a FOIA plaintiff is improper where “the record lacks sufficient detail as to the
nature of the documents held by [the agency] and the exemptions that may or may not justify
disclosure.” Santos v. DEA, 357 F. Supp. 2d 33, 38 (D.D.C. 2004). Plaintiff’s claim here is little
more than a bald assertion that the FBI acted improperly and in bad faith by claiming
inapplicable exemptions. Part. Summ. J. at 5. Although “summary judgment is appropriate for a
FOIA plaintiff when the requested material, ‘even on the agency’s version of the facts, falls
outside the proffered exemption,’” Trulock v. DOJ, 257 F. Supp. 2d 48, 50 (D.D.C. 2003) this
court is required to draw all inferences in favor of the non-moving party, Matsuhita, 475 U.S. at
587. Plaintiff has failed to point to any documents or any part of the record to show what the
exemptions the FBI claimed were, let alone that those claims were erroneous. While he may be
able to establish that the agency acted improperly and in bad faith at trial, plaintiff cannot
demonstrate that there is no genuine issue as to these material facts, and his motion is denied.
E. Plaintiff’s Remaining FOIA Claim
Defendants have asked the Court to dismiss the FBI from plaintiff’s remaining FOIA
claim, arguing that “the only proper party against which Plaintiff may seek relief under FOIA in
this action is Defendant DOJ.” Mot. Dismiss 17. A small number of courts in this circuit have
held that the cabinet-level agency should be substituted for the component agency as the
defendant in a FOIA action. See, e.g., Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 31
23
(D.D.C. 2002). This Court does not think that necessary, however, given the plain meaning of
the statute 3 and the number of cases in this circuit which have held that the FBI may be a
defendant for the purposes of FOIA. See Peralta v. U.S. Attorney’s Office, 136 F.3d at 173 (D.C.
Cir. 1998) (“we have observed previously that FBI is ‘clearly . . . covered’ by the FOIA”) (citing
McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983)); Cloonan v. Holder, No. 08-cv-700, 2011
U.S. Dist. LEXIS 22993, at *21 (D.D.C. Mar. 8, 2011) (“naming components as defendants . . .
is appropriate since the statute’s plain language is clear”); Peralta v. U.S. Attorney’s Office, 69 F.
Supp. 2d 21, 26 (D.D.C. 1999) (“given that many of the documents at issue in this case
originated with FBI . . . the Court finds that FBI is a proper defendant in this case.”); see also
Lair v. Dep’t of Treasury, No. 03-cv-827, 2005 U.S. Dist. LEXIS 4645, at *8 (D.D.C. Mar. 21,
2005) (“naming components [as defendants] is proper”). Substitution could also “impede the
purposes of the FOIA by preventing persons from receiving information in the most direct and
efficient manner.” Peralta, 69 F. Supp. 2d at 26. No court has found that FOIA does not apply to
the FBI, see, e.g., Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, and the fact that the FBI “has
litigated numerous FOIA cases in its own name before the Supreme Court, this court, and other
circuit courts, with the DOJ as one of its components appearing as counsel,” Peralta, 136 F.3d at
173-74, also suggests that substitution would be an unnecessary distraction. Because it is not
required by statutory language nor binding precedent, the motion is denied.
To ensure that defendant’s “allegations of exempt status are adequately justified,”
Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), it will be necessary for defendant FBI to
produce a Vaughn index for the documents requested in plaintiff’s first FOIA claim.
3
The Freedom of Information Act covers “each authority of the Government of the United States, whether or not it
is within or subject to review by another agency.” 5 U.S.C. § 551(1). See also id. at § 552(f)(1) (agency “includes
any executive department, military department, Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government . . . or any independent regulatory agency”).
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V. CONCLUSION
Upon full consideration of the parties’ filings, applicable law, and the record herein,
defendants’ motions to dismiss are granted, except insofar as they request the dismissal of
defendant Federal Bureau of Investigation. Plaintiff’s motion to strike and for a more definite
statement is denied, and his motions for a preliminary injunction and partial summary judgment
are denied. His motion for leave to amend is denied as futile as to all claims, except that it is
granted insofar as it seeks to add a FOIA claim against the Tax Division of defendant DOJ. His
FOIA claim against the FBI will also be permitted to go forward, and the court asks defendants
FBI and DOJ to produce Vaughn indexes for the documents that are the subject of plaintiff’s
FOIA requests.
A separate Order consistent with these findings shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on June 24, 2011.
25