Welsh v. U.S. Dept of Justice ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HOWARD WELSH, )
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Plaintiff, )
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v. ) Civil Action No. 19-2121 (RC)
)
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U.S. DEPARTMENT OF JUSTICE et al., )
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Defendants. )
MEMORANDUM OPINION
Pending in this action brought under the Freedom of Information Act (FOIA) is
Defendants’ Renewed Motion for Summary Judgment on the remaining search issue. See Mem.
Op. and Order (“Mem. Op. 1”), ECF No. 27 at 8-10 (discussing evidentiary shortcomings). In
response, plaintiff concedes that the government has fully satisfied its FOIA obligations and is
entitled to summary judgment but nevertheless seeks leave to amend the complaint to add a new
claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971). Pl.’s Response to Def’s Renewed Mot. for Summ. J. in the Form of a Motion for Leave
to Amend FOIA Complaint (“Resp.”), ECF No. 31. For the following reasons, the Court will
grant defendants’ motion and deny plaintiff’s motion. 1
1. Motion for Summary Judgment
Notwithstanding plaintiff’s concession, the Court has independently reviewed
defendants’ renewed summary judgment motion through the lens of Federal Rule of Civil
Procedure 56 and finds summary judgment on the search issue to be warranted. See Grimes v.
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Also pending is plaintiff’s Motion for Case Management Conference, ECF No. 34, which will be denied
as moot.
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D.C., 794 F.3d 83, 95 (D.C. Cir. 2015) (“ ‘a district court must always determine for itself
whether the record and any undisputed material facts justify granting summary judgment.’ ”)
(quoting Griffith, J. concurring); Mem. Op. 1 at 4-6 (discussing legal standard); cf. Supp. Decl.
of Kara Cain ¶¶ 3-16, ECF No. 28-1 (adequately describing the search terms and the
methodology utilized and attesting that the “record systems searched were the only likely places
to locate responsive records”).
2. Motion to Amend
Plaintiff has not “attach[ed], as an exhibit, a copy of the proposed pleading as amended,”
LCvR 15.1, which is reason enough to deny this motion. Regardless, “[a] district court may
deny a motion to amend a complaint as futile if the proposed claim would not survive a motion
to dismiss.” Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012). The gravamen of the
proposed Bivens claim, to the extent intelligible, is that the prosecuting attorneys in plaintiff’s
criminal case acted without authority and “[s]uch ultra vires acts resulted in [plaintiff] being
sentenced to 20 years incarceration . . . and [his] continued confinement under a deportation
detainer once released from incarceration.” Resp. at 3. Plaintiff’s success on such claims would
“necessarily imply the invalidity” of his conviction and sentence. Harris v. Fulwood, 611 Fed.
App'x 1, 2 (D.C. Cir. 2015) (per curiam). Consequently, before bringing a Bivens action,
plaintiff must first invalidate his conviction through a prior proceeding recognized in Heck v.
Humphrey, 512 U.S. 477, 486-47 (1994), which nothing in this record suggests has occurred.
Because plaintiff’s Bivens claim is “not cognizable unless and until he meets the
requirements of Heck,” Harris, 611 Fed. App’x at 2, amending the complaint would be futile.
Further, where the amended complaint “would radically alter the scope and nature of the case
and bears no more than a tangential relationship to the original action, leave to amend should be
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denied.” De Sousa v. Dep't of State, 840 F. Supp. 2d 92, 113 (D.D.C. 2012) (quoting Miss. Ass'n
of Coops. v. Farmers Home Admin., 139 F.R.D. 542, 544 (D.D.C. 1991) and citing Nat'l
Treasury Emps. Union v. Helfer, 53 F.3d 1289, 1295 (D.C. Cir. 1995)). The dissimilarity
between a FOIA claim premised on the improper withholding of agency records and a Bivens
claim premised on constitutional violations by a federal actor could not be more stark. See Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (explaining that Bivens “recognized for the first
time an implied private action for damages against federal officers alleged to have violated a
citizen’s constitutional rights.”).
CONCLUSION
For the foregoing reasons, defendants’ renewed motion for summary judgment is granted,
and plaintiff’s motion to amend the complaint is denied. 2
________/s/____________
RUDOLPH CONTRERAS
United States District Judge
Date: December 13, 2021
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A final order accompanies this Memorandum Opinion.
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