Pinson v. United States Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON, :
:
Plaintiff, : Civil Action No.: 18-486 (RC)
:
v. : Re Document Nos.: 47, 49, 54, 56, 58
: 62, 64, 66, 67, 68
: 73, 77
U.S. DEPARTMENT OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART & DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS IN PART & FOR
PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTIONS FOR PRELIMINARY
INJUNCTIONS, HEARING, SANCTIONS, AND APPOINTMENT OF COUNSEL
I. INTRODUCTION
Pro se Plaintiff Jeremy Pinson is currently an inmate at U.S. Penitentiary (“USP”)
Tucson, a federal prison located in Arizona. While in federal custody, Pinson filed dozens of
Freedom of Information Act (“FOIA”) requests with different components of the U.S.
Department of Justice (“DOJ”) as well as with the Central Intelligence Agency (“CIA”). Here,
Pinson primarily alleges that she 1 received inadequate responses to these requests. See Am.
Compl. at 2, ECF No. 16 (alleging that the FOIA requests were “acknowledged but never
answered”). Pinson also brings claims under the Privacy Act and the Administrative Procedure
Act (“APA”) against the government, as well as Bivens claims under the First and Eight
Amendments against several government employees—none of whom have apparently been
served or are currently represented by the DOJ.
1
Pinson identifies using feminine pronouns, and the government and this Court follow
suit. See Pinson v. U.S. Dep’t of Justice, 246 F. Supp. 3d 211, 214 n.1 (D.D.C. 2017).
In response, the DOJ has filed two pre-answer motions—one on behalf of the Federal
Bureau of Investigation (“FBI”), the DOJ’s Office of Information Policy (“OIP”), DOJ’s Office
of the Inspector General (“OIG”), the Executive Office of U.S. Attorneys (“EOUSA”), the U.S.
Marshals Service (“USMS”), and the CIA; the other on behalf of the Federal Bureau of Prisons
(“BOP”)— asking the Court to dismiss some of Pinson’s FOIA claims (as well as her APA
claim) and grant summary judgment in its favor on others. Specifically, the DOJ has moved to
dismiss Pinson’s FOIA claims against the FBI and OIP, as well as some of her FOIA claims
against the BOP, for failure to exhaust administrative remedies. The DOJ has also moved to
dismiss Pinson’s FOIA claims against the CIA, as well as her APA claim, for failure to state a
claim. The DOJ has moved for summary judgment in its favor on Pinson’s FOIA claims against
the OIG, EOUSA, and the USMS, as well as her remaining FOIA claims against BOP.
For the reasons stated below, the Court will grant in part and deny in part the DOJ’s
partial motions to dismiss and for summary judgment. Namely, the Court grants summary
judgment for Defendants as to Pinson’s claims relating to three of her FBI requests; twenty-one
of her BOP requests; all six of her EOUSA requests; both of her OIP requests, and her single
USMS request. The Court denies summary judgment for Pinson’s claims relating to twelve of
her FBI requests; twenty-seven of her BOP requests; and all four of her OIG requests. The Court
also dismisses Pinson’s APA claims and her claims relating to her CIA FOIA requests. The
Court also resolves a number of unrelated motions that are currently pending and ripe for
decision.
II. FACTUAL BACKGROUND
Pinson’s amended complaint lists the specific FOIA requests at issue. See Am. Compl.
App. A (“List of FOIA Requests”), ECF No. 16. Because the agencies’ handling of each FOIA
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request is crucial to the disposition of Pinson’s claims, the Court will discuss each request in
some detail.
A. FBI Requests
Fifteen requests were directed to the FBI. See List of FOIA Requests.
1. Request No. 1353986
On July 13, 2016, the FBI received a letter from Pinson dated June 16, requesting all
records about Bernie Sanders. Hardy Decl. ¶ 5 & n.3, ECF No. 49-4. That same day, the FBI
replied to Pinson’s request assigning it a request number and asserting FOIA Exemptions 6 and
7(C), as records implicating privacy concerns of a third party. Id. ¶ 6. The FBI informed Pinson
that absent a showing of consent, proof of death, or an overriding public interest the FBI could
neither confirm nor deny the existence of responsive records. Id. The FBI advised Pinson that,
if she did not provide such information within thirty days, her request would be administratively
closed and that she could appeal the FBI’s decision to OIP within ninety days. Id. Pinson
appealed to OIP in a letter dated August 15, challenging the FBI’s determination on grounds of
overriding public interest, id. ¶ 7, which OIP received on December 12, id. ¶ 8 n.4. On
December 13, OIP acknowledged receipt of Pinson’s appeal. Id. ¶ 8. On January 13, 2017, OIP
affirmed the FBI’s decision and informed Pinson of her right to file suit in federal court. Id. ¶ 9.
2. Request No. 1354738
On July 26, 2016, the FBI received a letter from Pinson dated July 10, requesting all
records regarding the Pulse Nightclub shooting. Id. ¶ 11 & n.5. That same day, the FBI replied
to Pinson’s request, assigning it a request number, asserting FOIA Exemption 7(A) as records
pertaining to a pending or prospective law enforcement proceeding, and directing Pinson to
publicly available information on the FBI website. Id. ¶ 12. Pinson appealed to OIP in a letter
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dated August 2 challenging the FBI’s determination and asserting that public internet records
were “of no use” to her and that “FOIA requires production in the format [Pinson] request[s],”
namely paper, id. Ex. H, which OIP received August 23, id. ¶ 14 n.6. On August 26, OIP
acknowledged receipt of Pinson’s appeal. Id. ¶ 14. On September 9, OIP remanded Pinson’s
request to the FBI for the FBI to provide paper copies of any online public information related to
Pinson’s request but otherwise affirmed the FBI’s determination. Id. ¶ 15.
On March 30, 2017, the FBI mailed Pinson thirteen pages of information responsive to
her request. Id. ¶ 16. On April 20, the FBI mailed Pinson a second set of thirteen pages and
advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 17. The FBI has no record
of an appeal from Pinson as of August 16, 2018. Id. ¶ 18.
3. Request No. 1358548
On September 26, 2016, the FBI received a letter from Pinson dated August 19,
requesting documents the FBI provided to the House Oversight Committee on August 16, 2016
that summarized the FBI’s closed investigation into Hillary Clinton’s use of private email servers
while serving as Secretary of State, as well as other files pertaining to Ms. Clinton. Id. ¶¶ 54, 55
n.19. On September 27, the FBI replied to Pinson’s request assigning it a request number and
directing Pinson to the FBI’s FOIA Library to access responsive records. Id. ¶ 55. On October
17, the FBI informed Pinson of an additional release of records responsive to her request
available on the FBI’s FOIA Library. Id. ¶ 56. Pinson appealed to OIP in a letter dated
November 15, challenging the FBI’s determination and seeking a CD copy of the records due to
Pinson’s lack of access to the internet, id. ¶ 57, which OIP received December 1, id. ¶ 58 n. 20.
On December 6, OIP acknowledged receipt of Pinson’s appeal. Id. ¶ 58. On January 5, 2017,
OIP received a second appeal from Pinson, requesting paper copies of the record release, in a
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letter dated December 19, id. ¶¶ 59, 60 n.21, of which OIP acknowledged receipt on January 11,
id. ¶ 60. On January 25 and February 16, OIP remanded both appeals to the FBI for further
processing. Id. ¶ 61, 63.
On February 6, the FBI advised Pinson that it had located 809 pages of responsive
records and notified Pinson that the FBI required a commitment to pay twenty-five dollars in
fees and an alternative address to release the records. Id. ¶ 63. On February 23, the FBI received
an undated letter from Pinson indicating Pinson’s commitment to pay the twenty-five-dollar fee,
which did not list an alternative address. Id. ¶ 64. That same day, the FBI sent a letter to Pinson
confirming Pinson’s commitment to pay the fee and requesting Pinson to provide an alternative
address. Id. ¶ 65. By a letter dated March 2, Pinson provided the FBI an alternate address. Id. ¶
66. On March 14, the FBI advised Pinson that 650 pages of records were being released to her
by CD and that, as a first interim records release, payment of fees was not required until the
second interim release. Id. ¶ 67. On March 27, the FBI advised Pinson that 197 pages of
records were being released to her by CD and that twenty-five dollars in duplication fees was due
within thirty days. Id. ¶ 68.
On May 2, the FBI advised Pinson that, based on her OIP appeal, it was releasing 808
pages of responsive records at a cost of $40.40, resulting in a total of $65.40 in fees owed to the
FBI due within thirty days. Id. ¶ 69. On June 13, the FBI advised Pinson that due to the
nonpayment of fees it was closing the current request and two other pending FOIA requests. 2 Id.
¶ 70. The FBI also advised Pinson that she could appeal the decision to OIP within ninety days.
Id. As of August 16, 2018, the FBI has no record of Pinson appealing the above fee
2
Namely, FBI FOIA Requests 1260359 (not at issue here) and 1372119 (at issue here
and discussed below).
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determinations. Id. ¶ 72. Pinson has indicated that the fee, as a result of the present litigation,
has been sent, Pl.’s Resp. to Partial Mot. to Dismiss & for Summ. J. (“Pl.’s DOJ Opp’n”) 2, ECF
No. 57, which the FBI is unable to confirm, 2d Hardy Decl. ¶ 6–7, ECF No. 69-3.
4. Request No. 1360160
On October 17, 2016, the FBI received a letter from Pinson dated October 6, requesting
all records regarding her October 3, 2016 interview with the FBI and all records concerning
investigation of Pinson since September 20, 2016. Hardy Decl. ¶ 76 & n.23. On October 26, the
FBI replied to Pinson’s request, assigning it a request number and requesting “further personal
identifying information” in order to conduct the search. Id. ¶ 77. On November 9, Pinson
provided the requisite information, id. ¶ 78, which the FBI received on November 22, id. ¶ 78
n.24. On November 23, the FBI acknowledged receipt of Pinson’s perfected request. Id. ¶ 79.
On December 9, the FBI advised Pinson in a letter that the responsive records were part of a
pending investigation and exempt from disclosure under FOIA Exemption 7(A). Id. ¶ 80.
Pinson appealed to OIP in a letter dated December 27, challenging the FBI’s determination, id. ¶
81, which OIP received on January 9, 2017, id. ¶ 82 n.26. On January 12, OIP acknowledged
receipt of Pinson’s appeal. Id. ¶ 82. On February 10, OIP affirmed the FBI’s decision in a letter
sent to Pinson and informed Pinson of her right to file suit in federal court. Id. ¶ 83. As of
February 17, 2018, the pending investigation of Pinson ended; however, the FBI has
discontinued processing Pinson’s FOIA request due to outstanding fees. Id. ¶ 84.
5. Request No. 1360562
On November 1, 2016, the FBI received a letter from Pinson dated October 16,
requesting all records relating to the “unauthorized data theft” from the Democratic National
Committee. Id. ¶ 95 & n. 30. On November 15, the FBI replied to Pinson’s request assigning it
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a request number. Id. ¶ 96. On April 3, 2017, the FBI advised Pinson in a letter that responsive
records were part of a pending investigation and exempt from disclosure under FOIA Exemption
7(A). Id. ¶ 97. Pinson appealed to OIP in an undated letter postmarked April 13, challenging the
FBI’s determination, id. ¶ 98, which OIP received on May 9, id. ¶ 99 n.31. On May 12, OIP
acknowledged receipt of Pinson’s appeal. Id. ¶ 99. On June 5, OIP affirmed the FBI’s decision
and informed Pinson of her right to file suit in federal court. Id. ¶ 100. Subsequently, the FBI
has made certain records public; however, the FBI has discontinued processing Pinson’s FOIA
request due to outstanding fees. Id. ¶ 101.
6. Request No. 1360576
On November 1, 2016, the FBI received a letter from Pinson dated October 16,
requesting all records relating to the “unauthorized data theft from John Podesta” in late 2016.
Id. ¶ 19 & n.9. On November 15, the FBI replied to Pinson’s request assigning it a request
number. Id. ¶ 20. On April 3, 2017, the FBI sent a letter to Pinson neither confirming nor
denying the existence of responsive records to her request, pursuant to FOIA Exemptions 1, 3,
7(A), and 7(E), and advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 21.
The FBI has no record of an appeal from Pinson as of August 16, 2018. Id. ¶ 22.
7. Request No. 1364610
On December 12, 2016, the FBI received an undated letter from Pinson postmarked
December 6, requesting any records pertaining to several Trump Administration transition staff.
Id. ¶ 23 & n.10. On January 11, 2017, the FBI replied to Pinson’s request assigning it a request
number and asserting FOIA Exemptions 6 and 7(C), as records implicating privacy concerns of
third parties. Id. ¶ 24. The FBI informed Pinson that absent a showing of consent, proof of
death, or an overriding public interest the FBI could neither confirm nor deny the existence of
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responsive records. Id. The FBI advised Pinson that if she did not provide such information
within thirty days, her request would be administratively closed and that she could appeal the
FBI’s decision to OIP within ninety days. Id. Pinson appealed to OIP in a letter dated January
23, challenging the FBI’s determination on grounds of overriding public interest, id. ¶ 25, which
OIP received February 9, id. ¶ 26 n.11. On February 17, OIP acknowledged receipt of Pinson’s
appeal. Id. ¶ 25. On March 21, OIP affirmed the FBI’s decision and informed Pinson of her
right to file suit in federal court. Id. ¶ 27.
8. Request No. 1365468
On December 16, 2016, the FBI received an undated letter from Pinson, requesting
information regarding the “Clinton Email Server Investigation.” Id. ¶ 73 & n.22. On January
30, 2017, the FBI replied to Pinson’s request assigning it a request number and advising Pinson
that the request was being administratively closed as a duplicate request (specifically, Request
No. 1358548, discussed above). Id. ¶ 74. The FBI also advised Pinson that she could appeal the
decision to OIP within ninety days, id., but she did not do so, id. ¶ 75.
9. Request No. 1364504
On January 5, 2017, the FBI received a letter from Pinson dated December 26, 2016,
requesting records pertaining to a criminal matter involving Pinson received from USP Terre
Haute in October 2016 and the related investigation file. Id. ¶¶ 85, 86 n.27. On January 13, the
FBI replied to Pinson’s request assigning it a request number and advising Pinson that responsive
records were part of a pending investigation and exempt from disclosure under FOIA Exemption
7(A). Id. ¶ 86. Pinson appealed to OIP in a letter dated January 23, challenging the FBI’s
determination, id. ¶ 87, which OIP received on February 9, id. ¶ 88 n.28. On February 17, OIP
acknowledged receipt of Pinson’s appeal. Id. ¶ 88. On March 22, OIP affirmed the FBI’s
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decision and informed Pinson of her right to file suit in federal court. Id. ¶ 89. As of February
17, 2018, the pending investigation of Pinson ended; however, the FBI has discontinued
processing Pinson’s FOIA request due to outstanding fees. Id. ¶ 90.
10. Request No. 1365683
On January 26, 2017, the FBI received a letter from Pinson dated January 11, requesting
a thirty-five-page dossier supplied by Senator John McCain to the FBI on December 9, 2015. Id.
¶ 102 & n.102. On February 1, the FBI replied to Pinson’s request, assigning it a request
number. Id. ¶ 103. On March 29, the FBI sent a letter to Pinson neither confirming or denying
the existence of responsive records to her request, pursuant to FOIA Exemptions 1, 3, 7(A), and
7(E), and advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 104. Pinson
appealed to OIP in a letter dated April 6, challenging the FBI’s determination, id. ¶ 105, which
OIP received April 24, id. ¶ 106 n.33. On April 25, OIP acknowledged receipt of Pinson’s
appeal. Id. ¶ 106. On August 2, OIP affirmed the FBI’s decision and informed Pinson of her
right to file suit in federal court. Id. ¶ 107.
11. Request No. 1365503
On January 24, 2017, the FBI received an undated letter from Pinson, requesting any
records pertaining to all Trump Administration Cabinet nominees. Id. ¶ 29 & n.12. That same
day, the FBI replied to Pinson’s request assigning it a request number and asserting FOIA
Exemptions 6 and 7(C), as records implicating privacy concerns of third parties. Id. ¶ 30. The
FBI informed Pinson that absent a showing of consent, proof of death, or an overriding public
interest the FBI could neither confirm nor deny the existence of responsive records. Id. The FBI
advised Pinson that, if she did not provide such information within thirty days, her request would
be administratively closed and that she could appeal the FBI’s decision to OIP within ninety
9
days. Id. Pinson appealed to OIP in a letter dated February 7, challenging the FBI’s
determination on grounds of overriding public interest, id. ¶ 31, which OIP received February 23,
id. ¶ 32 n.13. On February 28, OIP acknowledged receipt of Pinson’s appeal. Id. ¶ 32. On
August 3, OIP affirmed the FBI’s decision and informed Pinson of her right to file suit in federal
court. Id. ¶ 33.
12. Request No. 1366537
On January 26, 2017, the FBI received an undated letter from Pinson postmarked
December 6, requesting any records pertaining to several talk show hosts. Id. ¶ 35 & n.14. On
February 9, the FBI replied to Pinson’s request assigning it a request number and asserting FOIA
Exemptions 6 and 7(C), as records implicating privacy concerns of third parties. Id. ¶ 36. The
FBI informed Pinson that absent a showing of consent, proof of death, or an overriding public
interest the FBI could neither confirm nor deny the existence of responsive records. Id. The FBI
advised Pinson that, if she did not provide such information within thirty days, her request would
be administratively closed and that she could appeal the FBI’s decision to OIP within ninety
days. Id. Pinson appealed to OIP in a letter dated February 15, challenging the FBI’s
determination, id. ¶ 37, which OIP received February 9, id. ¶ 38 n.15. On March 4, OIP
acknowledged receipt of Pinson’s appeal. Id. ¶ 38. On March 21, OIP affirmed the FBI’s
decision and informed Pinson of her right to file suit in federal court. Id. ¶ 39.
13. Request No. 1372813
On May 3, 2017, the FBI received a letter from Pinson dated March 15, requesting all
records pertaining to the FBI’s investigation of WikiLeaks. Id. ¶ 116 & n. 36. On May 5, the
FBI replied to Pinson’s request assigning it a request number and advising Pinson that responsive
records were part of a pending investigation and exempt from disclosure under FOIA Exemption
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7(A). Id. ¶ 117. Pinson appealed to OIP in a letter dated May 12, challenging the FBI’s
determination, id. ¶ 118, which OIP received July 25, id. ¶ 119. On November 28, OIP affirmed
the FBI’s decision and informed Pinson of her right to file suit in federal court. Id. ¶ 120.
14. Request No. 1372119
On April 21, 2017, the FBI received a letter from Pinson dated April 13, requesting all
records regarding incidents at Federal Correctional Institution (“FCI”) Talladega from June 25 to
August 3, 2010. Id. ¶ 91 & n. 29. On April 24, the FBI replied to Pinson’s request assigning it a
request number. Id. ¶ 92. On June 13, the FBI notified Pinson that the agency was closing
Pinson’s request due to outstanding fees. Id. ¶ 93.
15. Request No. 1371871
On April 19, 2017, the FBI received a letter from Pinson dated April 17, requesting all
records regarding the investigation of Carter Page. Id. ¶ 109 & n.34. That same day, the FBI
responded to Pinson’s request assigning it a request number. Id. ¶ 110. On May 16, the FBI sent
a letter to Pinson neither confirming or denying the existence of responsive records, under FOIA
Exemptions 1, 3, 7(A), and 7(E), and advised Pinson of her right to appeal to OIP within ninety
days. Id. ¶ 111. Pinson appealed to OIP in a letter dated May 24, challenging the FBI’s
determination, id. ¶ 112, which OIP received August 9, id. ¶ 113 n.35. On August 15, OIP
acknowledged receipt of Pinson’s appeal. Id. ¶ 113. On December 17, OIP affirmed the FBI’s
decision and informed Pinson of her right to file suit in federal court. Id. ¶ 107.
B. BOP Requests
1. Request No. 2014-05115
On March 7, 2014, BOP received a letter from Pinson dated February 24, requesting all
records relating to money paid by BOP for lawsuits against it or its employees between January
2008 and January 2014 and a copy of the complaints for such incidents. Christenson Decl. ¶ 42,
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ECF No. 54-3. On March 12, BOP responded to Pinson’s request, assigning it a request number
and notifying Pinson that, due to the nature of her request, “the amount of time necessary to
respond to your request will increase.” Id. ¶ 43 & Ex. R. On September 1, 2016, BOP released
responsive records, with redactions under FOIA Exemptions 6, 7(C), 7(E), and 7(F), and advised
Pinson of her right to appeal to OIP within ninety days. Id. ¶ 44 & Ex. S. As of May 28, 2019,
BOP has no record of an administrative appeal for Request 2014-05115. Id. ¶ 45.
2. Request No. 2015-03237
On February 24, 2015, BOP received a letter from Pinson dated February 13, requesting
all records relating to “a use of force on February 11, 2015; use of restraints from February 11,
2015 through February 12, 2015; the [Special Investigation Systems (“SIS”)], FBI, [Office of
Internal Affairs] or OIG investigation into the February 11, 2015 incident and all video records
of the February 2015 incident at USMCFP Springfield, all involving her.” Id. ¶ 46 & Ex. T. On
March 3, BOP responded to Pinson’s request, assigning it a request number, and notifying
Pinson that, due to the nature of her request, “the amount of time necessary to respond to your
request will increase.” Id. ¶ 47 & Ex. U. On July 26, 2016, BOP released responsive records,
with redactions under FOIA Exemptions 6, 7(C), 7(E), and 7(F), and advised Pinson of her right
to appeal to OIP within ninety days. Id. ¶ 51 & Ex. V. As of May 28, 2019, BOP has no record
of an administrative appeal for Request 2015-03237. Id. ¶ 52.
3. Request No. 2016-05251
On June 7, 2016, BOP received a letter from Pinson dated May 30, requesting all records
relating to “oral statements made by an Officer and an SIS staff member at USP Allenwood
wherein they alleged to have stated they intended to give inmate Pinson additional time in the
Special Housing Unit [(“SHU”)] . . . for filing a FOIA request seeking access to a threat
assessment” as well as “all records related to her hospitalization on May 25, 2016.” Id. ¶ 53 &
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Ex. W. On June 10, BOP responded to Pinson’s request, assigning it a request number and
notifying Pinson that processing her request “may take up to nine months.” Id. ¶ 54 & Ex. X.
On August 31, BOP released responsive records, with redactions under FOIA Exemptions 6,
7(C), and 7(F), and advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 56 &
Ex. Y. As of May 28, 2019, BOP has no record of an administrative appeal for Request 2016-
05251. Id. ¶ 57.
4. Request No. 2015-06335 & Related Requests
On July 13, 2015, BOP received an undated letter from Pinson requesting all information
relating to all Prison Rape Elimination Act (PREA) investigations, SIS investigations, and
Psychology Database System investigations concerning Pinson since April 2, 2015. Id. ¶ 16 &
Ex. D. On July 15, BOP responded to Pinson’s request, assigning it a request number and
notifying Pinson that processing her request “may take up to nine months.” Id. ¶ 17 & Ex. E.
On March 16, BOP sent Pinson a notification that processing her request would result in fees in
the amount of $83.70, which would require advance payment, modification to meet a lower fee,
or notification to opt for two free hours of records search as provided by statute. Id. ¶ 18. On
March 28, BOP received a letter from Pinson dated March 22, expressing her commitment to pay
the fees. Id. On July 6, BOP notified Pinson of the result of the review of responsive records,
advised Pinson that the final fees totaled $70.50, and advised Pinson that the responsive records
would be released after payment of the fees. Id. ¶ 19. On September 21, BOP notified Pinson
that, due to her failure to pay the above fees, her request, along with fourteen other FOIA
requests, 3 would be administratively closed. Id. ¶ 21. BOP further advised Pinson that, should
3
Namely, BOP FOIA Requests 2015-01418, 2016-07240, 2016-06818, 2016-07057,
2016-05893, 2016-04932, 2016-6821, 2016-05822, 2016-06820, 2016-05508, 2016- 03880,
2016-05378, 2016-06819, and 2016-05245 (all at issue here).
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she pay the fees for Request 2015-06335, that “she must advise [BOP] in writing how she
wanted to proceed” with her other requests. Id.
On October 21, Pinson responded to BOP, informing BOP that she was unaware of the
unpaid fees for her request because she had been transferred to another federal prison and had
not been forwarded mail. Id. ¶ 22 & Ex. I. On November 9, Julia Capel, founder of Help From
Outside (a non-profit that provides paralegal services to prisoners), submitted a money order in
the amount of $70.50, on behalf of Pinson, to pay the fees for Request 2015-06335, which BOP
received on November 17. Id. ¶ 23. BOP released records thereafter. Id. Pinson has stated that
she communicated with BOP employees to reopen the fourteen closed FOIA requests. Br. in
Supp. of Opp’n to BOP Mot. for Dismissal or Summ. J. (“Pl.’s BOP Opp’n”) 3, ECF No. 60;
Pl.’s Statement of Facts ¶ 4, ECF No. 60-1. As of May 28, 2019, BOP has no record of an
administrative appeal for Request 2015-06335 or the fourteen related administratively-closed
requests. Id. ¶ 25.
5. Request No. 2016-05391
On May 13, 2016, OIP remanded an appeal of a November 14, 2013 FOIA Request (not
at issue here) to BOP for further processing, which was subsequently assigned a new request
number 2016-05391. Id. ¶ 58 & Ex. AA. On September 13, BOP released responsive records,
with redactions under FOIA Exemptions 5, 6, 7(C), and 7(F), and advised Pinson of her right to
appeal to OIP within ninety days. Id. ¶ 60 & Ex. BB. As of May 28, 2019, BOP has no record
of an administrative appeal for Request 2016-05391. Id. ¶ 61.
6. Request No. 2016-07466
On August 9, 2016, BOP received a letter from Pinson dated July 25, requesting all
records “which 1) reflected the SIS at USP Allenwood investigating the activities of inmate
Pinson and another inmate at USP Allenwood and 2) reflected the SIS participated in the
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physical housing separation of inmate Pinson and another inmate at USP Allenwood.” Id. ¶ 62
& Ex. CC. On April 26, 2017, BOP responded to Pinson’s request, finding no responsive
records to her request, and advising Pinson of her right to appeal to OIP within ninety days. Id. ¶
64 & Ex. EE. As of May 28, 2019, BOP has no record of an administrative appeal for Request
2016-07466. Id. ¶ 65.
7. Request No. 2017-00070
On September 22, 2016, BOP received an undated letter from Pinson requesting “copies
of all investigations of criminal matters referred to the FBI from 2015 to 2016 from USP Terre
Haute and all FD-302 interviews with USP Terre Haute inmates from 2015 to 2016.” Id. ¶ 66.
On November 18, BOP responded to Pinson’s request, assigning it a request number and
notifying Pinson that processing her request “may take up to nine months.” Id. ¶ 67 & Ex. GG.
On January 20, 2017, BOP released responsive records, with redactions under FOIA Exemptions
5, 6, 7(C), 7(E), and 7(F), and advised Pinson of her right to appeal to OIP within ninety days.
Id. ¶ 69 & Ex. HH. As of May 28, 2019, BOP has no record of an administrative appeal for
Request 2017-0070. Id. ¶ 70.
8. Request No. 2017-01288
On November 29, 2016, BOP received a letter from Pinson dated November 21,
requesting “a copy of her transfer summary completed by a psychologist at USMCFP
Springfield.” Id. ¶ 71. On December 2, BOP responded to Pinson’s request, assigning it a
request number and notifying Pinson that processing her request “may take up to nine months.”
Id. ¶ 89 & Ex. JJ. On January 26, 2017, BOP notified Pinson that eight pages of responsive
records were not available for release and that she could appeal to OIP within ninety days. Id. ¶
74 & Ex. KK. As of May 28, 2019, BOP has no record of an administrative appeal for Request
2017-01299. Id. ¶ 75. After reviewing Request 2017-01288 in the course of this litigation, the
15
request was reopened, and the FBI released the responsive document to Pinson on May 22, 2019.
Id. ¶ 76.
9. Request No. 2017-01578
In a letter dated December 2, 2016, Pinson requested from the BOP “all photographs
taken of herself in the Receiving & Discharge/Intake area of USP Terre Haute, FCI Greenville
and USMCFP Springfield.” Id. ¶ 83. In a letter dated November 15, 2016, BOP responded to
Pinson’s request, assigning it a request number and notifying Pinson that processing her request
“may take up to nine months.” Id. ¶ 85 & Ex. QQ. On August 24, 2017, BOP released
responsive records, with redactions under FOIA Exemptions 6, 7(C), 7(E), and 7(F), and advised
Pinson of her right to appeal to OIP within ninety days. Id. ¶ 86 & Ex. RR. As of May 28, 2019,
BOP has no record of an administrative appeal for Request 2017-01578. Id. ¶ 87.
10. Request No. 2017-01605 & Related Requests
On December 13, 2016, BOP received a letter from Pinson dated November 28,
requesting emails from various BOP staff regarding Pinson since October 1. Id. ¶ 26 & Ex. K.
In a letter dated November 15, 2016, BOP replied to Pinson’s request, assigning it a request
number and notifying Pinson that processing her request “may take up to nine months.” Id. ¶ 27
& Ex. L. On January 25, 2017, BOP sent Pinson a notification that processing her request would
result in fees in the amount of $2,006.25, which would require advance payment, modification to
meet a lower fee, or notification to opt for two free hours of records search. Id. ¶ 34. On
February 8, BOP received a letter from Pinson dated February 2, wherein she agreed to pay up to
$100 in search expenses. Id. ¶ 35 & Ex. N. On November 15, BOP notified Pinson of the result
of the review of responsive records and advised Pinson that the responsive records would be
released after payment of the $100 fee within thirty days. Id. ¶ 38. On January 17, 2018, BOP
notified Pinson that, due to her failure to pay the above fees, her request, along with seven other
16
FOIA requests, 4 would be administratively closed. Id. ¶ 39. BOP further advised Pinson that,
should she pay the fees for Request 2017-01605, that “she must notify the BOP in writing if she
wished for the BOP to reopen the requests administratively closed for failure to pay fees.” Id.
As of May 28, 2019, BOP has no record of an administrative appeal for Request 2017-01605 or
the related administratively-closed requests. Id. ¶ 40. Pinson has stated that she communicated
with BOP employees to reopen the fourteen closed FOIA requests. Pl.’s BOP Opp’n 3; Pl.’s
Statement of Facts ¶ 4.
After the start of this litigation, on May 21 and June 17, 2019, Pinson twice attempted to
pay the $100 fee by money order from Help From Outside. Suppl. Christenson Decl. ¶ 4, ECF
No. 69-4. BOP returned the money order on both occasions for failure to follow the appropriate
procedures, namely, addressing it to the right BOP office, in paying the fee. Id. ¶ 5–8.
11. Request No. 2017-01575
On December 13, 2016, BOP received a letter from Pinson dated December 2, requesting
all records relating to “Administrative Tort Claim Numbers TRT-NCR-2017-00284, TRT-NCR-
2016-06217, 24 TRT-NCR-2016-06216, and TRT-NCR-20167-00583.” Id. ¶ 77 & Ex. MM. In
a letter dated November 15, 2016, BOP responded to Pinson’s request, assigning it a request
number and notifying Pinson that processing her request “may take up to nine months.” Id. ¶ 78
& Ex. NN. On January 30, 2017, BOP released responsive records, with redactions under FOIA
Exemption 7(A), and advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 81 &
Ex. OO. As of May 28, 2019, BOP has no record of an administrative appeal for Request 2017-
01575. Id. ¶ 82.
4
Namely, BOP FOIA Requests 2017-00076, 2017-01050, 2017-01759, 2017-01768,
2017- 02443, 2017-03830, and 2017-3976 (all at issue here).
17
12. Request No. 2017-01680
On December 19, 2016, BOP received a letter from Pinson dated December 14,
requesting “copies of all agency correspondence and emails authored by former Director
Samuels during his tenure as Director and a directory of names and titles of current Central
Office staff.” Id. ¶ 134. On December 20, BOP responded to Pinson’s request, assigning it a
request number and notifying Pinson that processing her request “may take up to nine months.”
Id. ¶ 135 & Ex. AAAA. On January 24, 2017, BOP sent Pinson a notification that processing
her request would result in fees in the amount of $4,453.250, which would require advance
payment, modification to meet a lower fee, or notification to opt for two free hours of records
search. Id. ¶ 137. BOP also advised Pinson that, if she did not respond to the fee notification
within thirty days, her request would be administratively closed. Id. On March 31, BOP
administratively closed the request because BOP has no record of a response from Pinson. Id.
As of May 28, 2019, BOP has no record of an administrative appeal for Request 2017-01680.
Id. ¶ 138.
13. Request No. 2017-01817
On December 22, 2016, BOP received a letter from Pinson dated December 13,
requesting “copies of all Institution Supplements for USMCFP Springfield related to movement
between housing units and the use of psychiatric seclusion.” Id. ¶ 88. On December 23, BOP
responded to Pinson’s request, assigning it a request number and notifying Pinson that
processing her request “may take up to nine months.” Id. ¶ 89 & Ex. TT. On February 23, 2017,
BOP advised Pinson that all releasable program statements and institution supplements were
available in the institution law library and therefore publicly available. Id. ¶ 90. BOP also
advised Pinson of her right to appeal to OIP within ninety days. Id. As of May 28, 2019, BOP
has no record of an administrative appeal for Request 2017-0187. Id. ¶ 91.
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14. Request No. 2017-02203
On January 13, 2017, BOP received a letter from Pinson dated December 30, 2016,
requesting all records relating to the death of an inmate at USMCFP Springfield. Id. ¶ 92. On
January 27, BOP responded to Pinson’s request, assigning it a request number and notifying
Pinson, pursuant to FOIA Exemptions 6 and 7(C), “that her request for records of another inmate
were categorically denied because of the inherent safety and security risks when an inmate
possesses another inmate’s records.” Id. ¶ 93. BOP also advised Pinson of her right to appeal to
OIP within ninety days. Id. As of May 28, 2019, BOP has no record of an administrative appeal
for Request 2017-02203. Id. ¶ 94.
15. Request No. 2017-02309
On January 18, 2017, BOP received a letter from Pinson dated January 9, requesting
“copies of all PREA information maintained by USP Terre Haute, including but not limited to
staff emails, concerning herself.” Id. ¶ 95. On January 20, BOP responded to Pinson’s request,
assigning it a request number and notifying Pinson that processing her request “may take up to
nine months.” Id. ¶ 96 & Ex. YY. On September 25, BOP released responsive records, with
redactions under FOIA Exemptions 5, 6, 7(C), 7(E), and 7(F), and requested from Pinson further
clarifying information in order to reasonably search employee emails. Id. ¶ 97 & Ex. ZZ. BOP
also notified Pinson of her right to appeal to OIP within ninety days. Id. As of May 28, 2019,
BOP has no record of an administrative appeal for Request 2017-02309. Id. ¶ 98.
16. Request No. 2017-02623
On February 7, 2017, BOP received a letter from Pinson dated January 21, requesting all
records relating to an October 19, 2016 letter from OIG. Id. ¶ 99. That same day, BOP
responded to Pinson’s request, assigning it a request number and notifying Pinson that
processing her request “may take up to nine months.” Id. ¶ 100 & Ex. BBB. On February 14,
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BOP advised Pinson that the BOP was unable to determine which records she was seeking and
that further information was needed within thirty days. Id. ¶ 102. On March 28, the request was
administratively closed. Id. ¶ 103. As of May 28, 2019, BOP has no record of an administrative
appeal for Request 2017-02623. Id. ¶ 104.
17. Request No. 2017-03884
On April 6, 2017, BOP received a letter from Pinson dated March 25, requesting “all
information related to an incident involving herself on March 24, 2017, at the USMCFP
Springfield.” Id. ¶ 105. On April 7, BOP responded to Pinson’s request, assigning it a request
number and notifying Pinson that processing her request “may take up to nine months.” Id. ¶
106 & Ex. FFF. On September 21, BOP notified Pinson that no responsive records were found
and advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 109. As of May 28,
2019, BOP has no record of an administrative appeal for Request 2017-03884. Id. ¶ 110.
18. Request No. 2017-04065
On April 13, 2017, BOP received a letter from Pinson dated April 6, requesting “all
information including, but not limited to, post orders related to the issuance and retrieval of
razors in the SHU at USP Allenwood.” Id. ¶ 111. On April 14, BOP responded to Pinson’s
request, assigning it a request number and notifying Pinson that processing her request “may take
up to nine months.” Id. ¶ 112 & Ex. KKK. On August 1, BOP released responsive records, with
redactions under FOIA Exemption 7(E), and advised Pinson of her right to appeal to OIP within
ninety days. Id. ¶ 113 & Ex. LLL. As of May 28, 2019, BOP has no record of an administrative
appeal for Request 2017-04065. Id. ¶ 114.
19. Request No. 2017-04282
On April 24, 2017, BOP received a letter from Pinson dated April 10, requesting the
production of “1) the official name of the cell [she] was kept in at the time of her request; 2) the
20
frequency of usage and average stay . . . ; 3) the reason for her placement and the name of the
person who placed her in the SHU; and 4) any photographs of the interior and exterior of her
cell.” Id. ¶ 115. On April 25, BOP responded to Pinson’s request, assigning it a request number
and notifying Pinson that processing her request “may take up to nine months.” Id. ¶ 116 & Ex.
NNN. On November 3, BOP released three pages of responsive records, informed Pinson that
BOP was unable to determine which records she sought without specific dates for the records,
and advised Pinson of her right to appeal to OIP within ninety days. Id. ¶ 118 & Ex. PPP. As of
May 28, 2019, BOP has no record of an administrative appeal for Request 2017-04282. Id. ¶
119.
20. Request No. 2017-04296
On April 24, 2017, BOP received a letter from Pinson dated April 10, requesting all
“[Discipline Hearing Officer (“DHO”)] and psychology records relating to incident reports
wherein [she] was found not competent or not responsible for [her] actions while in BOP
custody” Id. ¶ 120. On April 25, BOP responded to Pinson’s request, assigning it a request
number and notifying Pinson that processing her request “may take up to nine months.” Id. ¶
121 & Ex. RRR. On September 21, BOP released responsive records, with redactions under
FOIA Exemptions 6, 7(C), and 7(F), and advised Pinson of her right to appeal to OIP within
ninety days. Id. ¶ 122 & Ex. SSS. As of May 28, 2019, BOP has no record of an administrative
appeal for Request 2017-04296. Id. ¶ 123.
21. Request No. 2017-04297
On April 24, 2017, BOP received a letter from Pinson dated April 13, requesting all
records relating to inmate suicides at USMCFP Springfield since 2000. Id. ¶ 124 & Ex. TTT.
On April 25, BOP responded to Pinson’s request, assigning it a request number and notifying
Pinson that processing her request “may take up to nine months.” Id. ¶ 125. On September 18,
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BOP notified Pinson that all responsive records were categorically denied from release on
privacy grounds, pursuant to FOIA Exemption 7(C), and advised Pinson of her right to appeal to
OIP within ninety days. Id. ¶ 126 & Ex. VVV. As of May 28, 2019, BOP has no record of an
administrative appeal for Request 2017-04297. Id. ¶ 127.
22. Request No. 2017-04380
On April 25, 2017, BOP received a letter from Pinson dated April 12, requesting “copies
of all information including, but not limited to, the DHO packet for incident report numbers
2902781 and 2932284.” Id. ¶ 128. On April 28, BOP responded to Pinson’s request, assigning
it a request number and notifying Pinson that processing her request “may take up to nine
months.” Id. ¶ 129 & Ex. XXX. On August 30, BOP released responsive records, with
redactions under FOIA Exemptions 6, 7(C), and 7(F), and advised Pinson of her right to appeal
to OIP within ninety days. Id. ¶ 130 & Ex. YYY. As of May 28, 2019, BOP has no record of an
administrative appeal for Request 2017-04380. Id. ¶ 131.
23. Request Nos. 2016-02371, 2011-07156, 2012-00039, 2013-01684
Four of Pinson’s listed FOIA requests to BOP are the subject of pending litigation,
namely Requests 2016-02371, 2011-07156, 2012-00039, and 2013-01684, id. ¶ 13; the facts
underlying these requests have previously been addressed by this Court. See Pinson v. U.S.
Dep’t of Justice, 236 F. Supp. 3d 338 (D.D.C. 2017); Pinson v. U.S. Dep’t of Justice, No. 12-
1872 (RC), 2016 WL 29245 (D.D.C. Jan. 4, 2016).
24. Request No. 2017-04435
Pinson in her Amended Complaint lists a FOIA request to BOP with the reference
number 2017-04435. Am. Compl. App. A. According to BOP records, “this request was not
filed by inmate Pinson, not filed by another individual on behalf of inmate Pinson, nor was it
22
filed by inmate Pinson on behalf of another individual” and, accordingly, is misidentified.
Christenson Decl. ¶ 16.
C. OIP Requests
1. Request Nos. AG/16-1248 (F), DAG/16-1249 (F), and ASG/16-1250 (F)
On December 22, 2015, OIP received a letter from Pinson dated December 1, requesting
all “official communication between [the Office of the Attorney General, Office of the Deputy
Attorney General, and Offices of the Associate Attorney General] and the Office of the Director
of the Federal Bureau of Prisons from Feb. 2011 until the present.” Brinkmann Decl. ¶ 3 & Ex.
A, ECF No. 49-5. On January 13, 2016, OIP replied to Pinson’s request, assigning it three
separate tracking numbers and asserting an additional ten-day response time due to unusual
circumstances. Id. ¶ 4. On September 28, OIP sent an interim response to Pinson. Id. ¶ 5. On
April 29, 2019, OIP informed Pinson that, due to outstanding fees to the BOP and FBI, her
request was administratively closed. Id. ¶ 9.
2. Request Nos. DOJ-2017-1359 (AG), DOJ-2017-1764 (DAG), DOJ-2017-1765 (ASG)
On December 21, 2016, OIP received a letter from Pinson dated December 12, 2016,
requesting all memoranda or emails “which mention [ADX Florence] and any circumstances
with the BOP Director since installation of Loretta Lynch.” Id. ¶ 6 & Ex. D. On January 26,
2017, OIP replied to Pinson’s request, assigning it three separate tracking numbers and asserting
an additional ten-day response time due to unusual circumstances. Id. ¶ 7. On April 29, 2019,
OIP informed Pinson that, due to outstanding fees to the BOP and FBI, her request was
administratively closed. Id. ¶ 9.
23
D. OIG Requests
1. Request No. 16-OIG-304
On August 17, 2016, the OIG received a FOIA request from Pinson dated May 19, 2016.
Waller Decl. ¶ 6, ECF No. 49-3. Pinson requested all information pertaining to a May 11, 2016
letter from the OIG. Id. Ex. 6. On September 30, 2016, the OIG responded to Pinson’s request,
assigning it a control number and indicating that the OIG “will answer [Pinson’s] request as
quickly as possible.” Id. Ex. 1. On September 30, 2017, OIG sent Pinson a letter containing
responsive documents, redacted pursuant to FOIA Exemptions 5, 6, and 7(C). Id. ¶ 7. On
August 15, 2019, the DOJ provided to Pinson a copy of the OIG’s final response to this request.
Field Decl. ¶ 4, ECF No. 69-2.
2. Request No. 17-OIG-096
On January 1, 2017, the OIG received an undated FOIA request from Pinson and other
inmates. Id. ¶ 8. Pinson and the other inmates requested all information relating to them created
or received by the agency since July 2016. Id. Ex. 3. On January 26, 2017, the OIG responded
to Pinson’s request, assigning it a control number and indicating that the OIG “will answer
[Pinson’s] request as quickly as possible.” Id. Ex. 3. On September 28, 2018, the OIG sent
Pinson a letter containing responsive documents, redacted pursuant to FOIA Exemptions 6 and
7(C). Id. ¶ 8. The OIG denied Pinson’s portion of the request seeking information about other
inmates without their consent, pursuant to FOIA Exemption 7(C). Id. On August 15, 2019, the
DOJ provided to Pinson a copy of the OIG’s final response to this request. Field Decl. ¶ 4.
3. Request No. 17-OIG-174
On March 21, 2017, the OIG received a FOIA request from Pinson dated January 20,
2017. Id. ¶ 9. Pinson requested all information pertaining to a December 29, 2016 letter from
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the OIG. Id. Ex. 6. On March 29, 2017, the OIG responded to Pinson’s request, assigning it a
control number and indicating that the OIG “will answer [Pinson’s] request as quickly as
possible.” Id. Ex. 7. On September 28, 2018, the OIG sent Pinson a letter containing responsive
documents, redacted pursuant to FOIA Exemptions 6 and 7(C). Id. Ex. 8. On August 15, 2019,
the DOJ provided to Pinson a copy of the OIG’s final response to this request. Field Decl. ¶ 4.
4. Request No. 17-OIG-179
On March 24, 2017, the OIG received a FOIA request from Pinson dated January 9,
2017. Id. ¶ 10. Pinson requested agency records containing mentions of Pinson from October
24, 2016 to January 9, 2017 and information regarding any of Pinson’s prior requests mailed to
USP Allenwood or USP Terre Haute that may have been returned or not re-sent to her new
address. Id. Ex. 5. On March 30, 2017, the OIG responded to Pinson’s request, assigning it a
control number and indicating that the OIG “will answer [Pinson’s] request as quickly as
possible.” Id. On September 27, 2018, the OIG sent Pinson a letter containing responsive
documents, some redacted pursuant to FOIA Exemptions 6 and 7(C). Id. ¶ 10. The OIG also
informed Pinson that there were “no responsive documents” to her request for information
regarding her prior requests. Id. Ex. 6. On August 15, 2019, the DOJ provided to Pinson a copy
of the OIG’s final response to this request. Field Decl. ¶ 4.
Despite DOJ’s representation that copies of all four final OIG responses were sent,
Pinson declares “under penalty of perjury” that “[a]t no time, did I receive a final response or
production on [the] OIG requests.” Pinson Decl., ECF No. 57-2.
25
E. EOUSA Requests
1. Request No. 2016-04056
On September 15, 2016, EOUSA received an undated letter from Pinson requesting
public records relating to “Speechnow.org v. Federal Election Committee, No. 08-5223 and 09-
5342.” Wilkinson Decl. ¶ 5 & Ex. A, ECF No. 49-7. On October 7, 2016, EOUSA replied to
Pinson’s request, assigning it a control number and asserting an additional ten-day response time
due to unusual circumstances. Id. ¶ 6. On October 31, EOUSA sent Pinson a letter notifying
Pinson that there were no records responsive to her request. Id. ¶ 9. On November 22,
EOUSA’s final response letter was returned as undeliverable, and the final response was re-sent
on the same day. Id. ¶ 10. On December 16, EOUSA was notified of Pinson’s administrative
appeal with OIP. Id. ¶ 11. On January 12, 2017, OIP affirmed EOUSA’s determination. Id. ¶
12. On November 21, 2018, EOUSA re-sent Pinson a copy of its final response, in response to
the filing of Pinson’s Amended Complaint. Id. ¶ 13.
2. Request No. 2017-00412
On October 21, 2016, EOUSA received a letter from Pinson dated October 7, requesting
public records relating to “Drake v. United States, No. 14-cv-386 (S.D. Ind.).” Id. ¶ 17 & Ex. J.
On December 8, EOUSA replied to Pinson’s request, assigning it a control number and asserting
an additional ten-day response time due to unusual circumstances. Id. ¶ 18. On May 30, 2017,
EOUSA’s released records to Pinson. Id. ¶ 21. On November 21, 2018, EOUSA re-sent Pinson
a copy of its final response, in response to the filing of Pinson’s Amended Complaint. Id. ¶ 22.
3. Request No. 2017-00417
On November 1, 2016, EOUSA received an undated letter from Pinson requesting public
records relating to “Speechnow.org v. FEC, No. 08-5223, 09-5342 (D.C. Circuit).” Id. ¶ 23 &
26
Ex. M. On December 13, 2016, EOUSA replied to Pinson’s request, assigning it a control
number and asserting an additional ten-day response time due to unusual circumstances. Id. ¶
24. On June 20, 2017, EOUSA determined that FOIA Request 2017-00417 was a duplicate of
Request No. 2016-04022, which had previously been filed by Pinson and a co-requester. Id.
¶ 27. (The Court observes that Request No. 2017-00417 is also identical in substance to Request
No. 2016-04056, though one was handwritten while the latter was typed. Compare id. Ex. A
(No. 2016-04056), with id. Ex. M (No. 2017-00417). The declaration provided by EOUSA
concerning these Requests do not address this second similarity.) Also on June 20, 2017, in a
letter misdated August 23, 2016, EOUSA informed Pinson that Request No. 2017-00417 was a
duplicate of FOIA Request “2016-04022.” Id. ¶ 27. EOUSA later released 543 pages of
responsive documents, without any withholdings, in response to Request No. 2016-4022. Id. On
November 21, 2018, EOUSA re-sent Pinson a copy of its final response, in response to the filing
of Pinson’s Amended Complaint. Id. ¶ 28.
4. Request No. 2017-00357
On November 16, 2016, EOUSA received a letter from Pinson dated November 3,
making a broad request for “production of any information in any format it exists in the Southern
District of Indiana U.S. Attorney’s Office received or generated since 9-25-16.” Id. ¶ 14 & Ex.
H. On November 30, EOUSA sent Pinson a letter requesting verification of her identity. Id. ¶
15. EOUSA has no record of Pinson responding with the required documentation. Id.
5. Request No. 2017-00934
On December 28, 2016, EOUSA received a FOIA request from Pinson dated both
December 3 and December 11, requesting all public records relating to “Turner v. Alberto
Gonzalez, EEOC No’s. [sic] 320-2005-0046X.” Id. ¶ 29 & Ex. R. On February 8, 2017, EOUSA
27
sent Pinson a letter asking her to identify the specific U.S. Attorney’s Office where she believes
the records may be located. Id. ¶ 30. On April 25, EOUSA’s final response letter was returned
as undeliverable. Id. ¶ 31. On July 21, EOUSA was notified of Pinson’s administrative appeal
to OIP for this request, which indicated that Pinson believed the records were located in the
District of Colorado. Id. ¶ 32. On August 14, OIP remanded Pinson’s request to EOUSA for
further processing, which EOUSA re-opened under reference number 2017-002702. Id. ¶ 33–34.
On August 21, EOUSA sent Pinson a letter acknowledging her new request. Id. ¶ 35. On
August 29, EOUSA advised Pinson that no responsive records were located in the District of
Colorado. Id. ¶ 38 & Ex. X.
6. Request No. 2017-00359
Pinson in her Amended Complaint lists a FOIA request to EOUSA with the reference
number 2017-00359. Am. Compl. App. A. According to their records, the EOUSA “has never
received a request from [Pinson] that was assigned the reference number FOIA-2017-00359 or
any formatting permutation thereof.” Wilkinson Decl. ¶ 16.
F. USMS Request
On December 23, 2016, the USMS received a letter from Pinson, along with other
inmates, requesting information about themselves since November 1, 2014. Kil Decl. ¶ 2, ECF
No. 49-6. On January 6, 2017, the USMS requested a verification of Pinson’s identity, noting
that the USMS “will acknowledge your request upon receipt in this office and correspond with
you again, accordingly.” Id. Ex. B. On February 7, the USMS received Pinson’s verification of
identity. Id. ¶ 4. On June 27, the USMS notified Pinson that the agency had commenced a
search for responsive records. Id. ¶ 5. On August 23, 2018, after the start of this litigation, the
28
USMS released responsive documents to Pinson with redactions pursuant to Privacy Act
Exemption (j)(2) and FOIA Exemptions 7(C) and 7(F). Id. ¶ 7.
G. CIA Requests
Pinson, in her Amended Complaint, describes two FOIA requests submitted to the CIA
and explains that they “were neither answered, nor [was] a file number of the request provided
other than acknowledging the requests.” Am. Compl. App. A. The DOJ has provided no records
of such requests.
III. ANALYSIS OF THE MERITS
As mentioned above, the DOJ requests the dismissal of some of Pinson’s claims and
requests entry of summary judgment on others. Mem. Supp. Defs.’ Partial Mot. to Dismiss &
Summ. J. (“DOJ Mot.”), ECF No. 49-1; Mem. Supp. Defs.’ Partial Mot. to Dismiss & Summ. J.
Regarding Pl.’s BOP Claims (“BOP Mot.”), ECF No. 54-1; Defs.’ Reply, ECF No. 69.
Although FOIA cases “typically and appropriately are decided on motions for summary
judgment,” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009),
questions of exhaustion of administrative remedies in FOIA cases are generally analyzed as a
motion to dismiss under Rule 12(b)(6), see, e.g., Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir.
2003); Jean-Pierre v. Fed. Bureau of Prisons, 880 F. Supp. 2d 95, 100 n.4 (D.D.C. 2012). If,
however, the defendant’s motion references “matters outside the pleadings,” a court must treat
the motion as one for summary judgment. Fed. R. Civ. P. 12(d); see also Calhoun v. U.S. Dep’t
of Justice, 693 F. Supp. 2d 89, 90–91 (D.D.C. 2010). This Court has done so on several previous
occasions in prior FOIA actions brought by Pinson against components of the DOJ. See, e.g.,
Pinson v. U.S. Dep’t of Justice, 61 F. Supp. 3d 164, 173 (D.D.C. 2015); Pinson v. U.S. Dep’t of
Justice, 79 F. Supp. 3d 250, 253–54 (D.D.C. 2015); Pinson v. U.S. Dep’t of Justice, 69 F. Supp.
293d 125, 129–30 (D.D.C. 2014); Pinson v. U.S. Dep’t of Justice, 69 F. Supp. 3d 108, 111–12
(D.D.C. 2014); Pinson v. U.S. Dep’t of Justice, 70 F. Supp. 3d 199, 202–03 (D.D.C. 2014);
Pinson v. U.S. Dep’t of Justice, 70 F. Supp. 3d 111, 115 (D.D.C. 2014).
Here, both the DOJ and Pinson rely on materials not part of the pleadings, including,
inter alia, several declarations by government employees of the various components of the DOJ
who handle FOIA requests. See, e.g., Waller Decl.; Hardy Decl.; Brinkmann Decl.; Kil Decl.;
Wilkinson Decl.; Christenson Decl.; 2d Hardy Decl.; Suppl. Christenson Decl. Pinson, in her
Oppositions, Pl.’s DOJ Opp’n; Pl.’s BOP Opp’n, also provides declarations upon which she
relies, Pinson Decl., ECF No. 57-2; 2d Pinson Decl., ECF No. 60-2. Under these circumstances,
the Court will evaluate most of the DOJ’s motion under the summary judgment standard (except
for DOJ’s motion to dismiss Pinson’s claims arising from her FOIA requests to the CIA and her
APA claims, as discussed below). See Pinson, 61 F. Supp. 3d at 173 n.6 (“It is possible that
construing the DOJ’s motion under Rule 12(b)(6) would make no difference in the end. That
being said, analyzing the motion under Rule 12(b)(6) would preclude the Court from considering
materials outside the pleading . . . which would not be appropriate in a situation like this when
both parties reference such materials.” (citations omitted)).
A. Claims Subject to Summary Judgment
1. Legal Standards
a. Summary Judgment
Summary judgment is appropriate where the “pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); see also
Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A “material” fact is one capable of
30
affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). An issue is “genuine” if there is enough evidence for a reasonable jury to
return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
“eschew making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant, see Anderson, 477 U.S. at 255.
Nevertheless, conclusory assertions offered without any evidentiary support do not
establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
Indeed, “[s]ummary judgment for a defendant is most likely when a plaintiff’s claim is supported
solely by the plaintiff’s own self-serving, conclusory statements.” Bonieskie v. Mukasey, 540 F.
Supp. 2d 190, 195 (D.D.C. 2008) (citations omitted). That is because “conclusory allegations”
and “unsubstantiated speculation,” whether in the form of a plaintiff’s own testimony or other
evidence submitted by a plaintiff to oppose a summary judgment motion, “do not create genuine
issues of material fact.” Id. at 200 n.12 (internal citation and quotation marks omitted); see also
Sage v. Broad. Publ’ns, Inc., 997 F. Supp. 49, 53 (D.D.C. 1998) (“Conclusory allegations made
in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue
31
of material fact.”). The nonmoving party, moreover, must do more than merely establish some
“metaphysical doubt;” rather, the nonmovant must come forward with “specific facts”
demonstrating a genuine issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986). “In addition, the non-moving party cannot rely upon inadmissible evidence to
survive summary judgment; rather, the nonmoving party must rely on evidence that would
arguably be admissible at trial.” Manuel v. Potter, 685 F. Supp. 2d 46, 58 (D.D.C. 2010) (citing
Greer v. Paulson, 505 F.3d 1306,1315 (D.C. Cir. 2007)).
Further, in this Circuit, “a motion for summary judgment cannot be ‘conceded’ for want
of opposition.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016). “The
burden is always on the movant to demonstrate why summary judgment is warranted,” and “[t]he
nonmoving party’s failure to oppose summary judgment does not shift that burden.” Id. (quoting
Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)). The
Court “‘must always determine for itself whether the record and any undisputed material facts
justify granting summary judgment.’” Id. (quoting Grimes, 794 F.3d at 97 (Griffith, J.,
concurring) (citing Fed. R. Civ. P. 56(e)(3))).
b. Exhaustion of Remedies
The DOJ’s primary grounds for disposing of most of Pinson’s claims is Pinson’s alleged
failure to exhaust her administrative remedies. Generally, a FOIA requester must exhaust his or
her administrative remedies before filing suit. See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.
2004). If a requester fails to do so, a court may grant summary judgment for the agency. See
Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003).
Generally, there are “two ways for a requester to exhaust administrative remedies: actual
exhaustion and constructive exhaustion.” Nat’l Sec. Counselors v. CIA, 931 F.Supp.2d 77, 95
32
(D.D.C. 2013). Actual exhaustion, which entails an administrative appeal to the head of the
agency, applies when an agency has actually responded to a request. See Hull v. United States
Attorney, 279 F. Supp. 3d 10, 12 (D.D.C. 2017) (citing 5 U.S.C. § 552(a)(6)(A)). Constructive
exhaustion, by contrast, comes into play when the agency has failed to respond to a FOIA
request within the statutorily-required time period. See id.; see also Citizens for Responsibility &
Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 184 (D.C. Cir. 2013) (“[I]f an
agency fails to make and communicate its ‘determination’ whether to comply with a FOIA
request within certain statutory timelines, the requester ‘shall be deemed to have exhausted his
administrative remedies.’” (quoting 5 U.S.C. § 552(a)(6)(C)(i))). However, the agency’s failure
to meet a deadline is not permanently fatal: “if the agency cures its failure to respond within the
statutory period by responding to the FOIA request before suit is filed,” then an administrative
appeal is again “mandatory.” See Oglesby v. Dep’t of Army, 920 F.2d 57, 63 (D.C. Cir. 1990);
see also Hull v. United States, 279 F. Supp. 3d 10, 12–13 (D.D.C. 2017). In any case, if there is
a genuine dispute of material fact on the exhaustion issue, a court may refuse to grant summary
judgment. See Jones v. U.S. Dep’t of Justice, 576 F. Supp. 2d 64, 67 (D.D.C. 2008).
A requester also fails to exhaust administrative remedies when he or she does not pay
required fees. See Oglesby, 920 F.2d at 66 (“Exhaustion [of administrative remedies] does not
occur until the required fees are paid or an appeal is taken from the refusal to waive fees.”);
Crooker v. United States Secret Service, 577 F. Supp. 1218, 1219 (D.D.C. 1983) (absent a
waiver of fee requirements, failure to comply with fee regulations constitutes a failure to exhaust
administrative remedies under FOIA). Under DOJ regulations, “[a] component ordinarily shall
collect all applicable fees before sending copies of requested records to a requester.” 28 C.F.R. §
16.10(a). If a component determines a request will cost more than twenty-five dollars, the
33
agency must notify the requester, and “the request shall not be considered received and further
work will not be completed until the requester commits in writing to pay the actual or estimated
total fee, or designates some amount of fees the requester is willing to pay.” 28 C.F.R. §
16.10(e)(2). At that point, the requester may elect to receive her “statutory entitlements of 100
pages of duplication at no charge and, if the requester is charged search fees, two hours of search
time at no charge.” 28 C.F.R. § 16.10(e)(2)–(3); see also 5 U.S.C. § 552(a)(4)(A)(iv)(II). A
requester is only required to pay full fees in advance if “the requester has previously failed to pay
fees, or the agency has determined that the fee will exceed $250.” 5 U.S.C. § 552(a)(4)(A)(v);
see also 28 C.F.R. § 16.10(i).
2. Contested Requests
In her Oppositions, Pinson contests the DOJ’s exhaustion arguments, but only in relation
to some of her FOIA requests. As discussed in more detail below, she primarily argues summary
judgment is inappropriate as to these requests for two reasons: (1) that she did not receive final
responses, record releases, or fee assessments and (2) that some of her requests were
constructively exhausted due to an agency’s failure to respond to her request within the statutory
period. Pl.’s DOJ Opp’n 2; Pinson Decl. ¶¶ 3–4; Pinson Decl. Attach. A; Pl.’s BOP Opp’n 3;
Second Pinson Decl. ¶ 2.
a. FBI Request Nos. 1358548 & 1372119
For FOIA Request 1358548, the DOJ argues that, because Pinson failed to pay the agreed
upon fees ($65.40), she has failed to exhaust administrative remedies. DOJ Mot. 5–6; Defs.’
Reply 7. Pinson first argues that the request was constructively exhausted (due the FBI’s alleged
failure to respond within the statutory period) before the FBI claimed non-payment, and thus her
failure to pay was of no moment. Pl.’s DOJ Opp’n 3. But even if the FBI’s response to Pinson’s
34
request was not received within the statutory period, the FBI cured this deficiency by responding
to this request well before the suit was filed. Hardy Decl. ¶¶ 55–56. As a result, “[a]n
administrative appeal is mandatory,” Oglesby, 920 F.2d at 63, and, unfortunately for Pinson,
there is no record of any such appeal, Hardy Decl. ¶ 72.
Pinson also argues that she did not receive the “fee assessment.” Pl.’s DOJ Opp’n 2.
And there is evidence in the records suggesting why that might be the case: the notices of non-
payment and of the closing of the request were sent to USMCFP Springfield (on May 2, 2017
and June 13, 2017, respectively), Hardy Decl. Exs. TT & UU, during which time Pinson herself
was transferred from USMCFP Springfield to FMC Rochester (on May 14, 2017), Christenson
Decl. ¶ 3. As Defendant points out, the presumption of receipt of properly addressed and posted
mail is recognized in this Circuit, see Legille v. Dann, 544 F.2d 1, 4–5 (D.C. Cir. 1976), and has
been applied in FOIA cases, see, e.g., Jean-Pierre, 880 F. Supp. 2d at 99 n.3; Citizens for
Responsibility & Ethics in Wash. v. Dep’t of the Interior, 503 F. Supp. 2d 88, 103 (D.D.C. 2007).
However, courts in this Circuit, including this Court in a separate FOIA action brought by
Pinson, have also denied summary judgment for an agency in cases where an inmate declares,
under penalty of perjury, not to have received responses to FOIA requests, thereby creating a
genuine issue of material fact. See, e.g., Pinson v. U.S. Dep’t of Justice, 177 F. Supp. 3d 56, 78
(D.D.C. 2016) (“A court may, for example, deny summary judgment to an agency that claims to
have notified a plaintiff of its response to a FOIA request if the plaintiff attests that he never
received the agency’s response and if the agency fails to offer evidence to the contrary.”)
(citation omitted); Bloomgarden v. U.S. Dep’t of Justice, 10 F. Supp. 3d 146, 152 (D.D.C. 2014)
(declining to grant summary judgment for defendant on exhaustion grounds when plaintiff filed a
declaration stating he had never received a response from defendant). In that vein, Pinson states
35
here that she “never received the release of fee assessment.” Pl.’s DOJ Opp’n 2 (citing Pinson
Decl. ¶ 5). And so, considering Pinson’s statements, plus the fact that she was transferred to
another prison around the time the key letters were mailed, there is a disputed issue of material
fact as to whether Pinson received the correspondence. Accordingly, there is a disputed issue of
fact as to whether Pinson exhausted her administrative remedies. The Government is therefore
not entitled to summary judgment on Pinson’s claims relating to Request 1358548 (or those
relating to Request 1372119, which was administratively closed along with Request 1358548 as
a result of Pinson’s non-payment of fees).
To win summary judgment based on failure to exhaust the Government would have to
prove that Pinson either reached the end of the road for her administrative remedies or had an
opportunity to pursue further administrative remedies and did not do so. For Pinson’s part, if she
wants to move these claims forward, she will have to pay the assessment, if she has not already
done so. See 28 C.F.R. § 16.10(i)(3) (“Where the requester has previously failed to pay a
properly charged FOIA fee . . . the [agency] component may require that the requester make an
advance payment before the component begins to process a new request or continues to process a
pending request or any pending appeal.”).
b. BOP Requests
i. Request No. 2015-06335 & Related Requests
For FOIA Request 2015-06335, the DOJ argues that, while Pinson did eventually pay the
agreed upon fees for Request 2015-06335 (leading to the release of responsive records),
Christenson Decl. ¶ 21, she did not follow the DOJ’s instructions at the time of payment with
regard to the fourteen other FOIA requests that were administratively closed along with Request
2015-06335 for non-payment of fees. Id. BOP had advised Pinson that she “must advise [BOP]
in writing” regarding how she wanted to proceed with these requests. Id.; id. Ex. H (letter from
36
BOP to Pinson). Pinson claims that, once she became aware of her failure to pay fees, 5 she paid
the fees and came to a verbal agreement with named BOP personnel to reopen the fourteen (out
of twenty-four total) related FOIA requests. Pl.’s BOP Opp’n 3; Pl.’s Statement of Facts ¶ 4.
Even granting that Pinson did indeed make such an arrangement, this would be inconsistent with
BOP’s instruction to communicate in writing how she wanted to proceed. Pinson has not argued
that she did not receive the letter requiring her to communicate in writing, see Pl.’s BOP Opp’n 3
(discussing these requests); Pl.’s Statement of Facts ¶ 4 (same), so BOP’s declaration and
attached correspondence are uncontroverted evidence in the Government’s favor on this issue.
Accordingly, the Court finds that Pinson exhausted her administrative remedies by failing to
proceed as instructed by BOP, and will grant summary judgment to the DOJ for Pinson’s claims
relating to Request 2015-06335 and the fourteen requests administratively closed therewith.
ii. Request No. 2017-01605 & Related Requests
For FOIA Request 2017-01605, the DOJ argues that, because Pinson has failed to pay the
agreed upon fees for Request 2017-01605, she has not exhausted her administrative remedies for
Request 2017-01605 or the related requests that were simultaneously closed for non-payment of
fees. Defs.’ Reply 9. In turn, Pinson argues that the request was constructively exhausted and
that she has attempted twice to pay the fees without success. Pl.’s BOP Opp’n 3. However, even
if BOP’s response to Pinson’s request was not received within the statutory period, the FBI cured
this deficiency by responding to this request (and in fact, engaged in continuous correspondence
with Pinson over the course of two months to secure her agreement to pay fees to which she
responded) before suit was filed. Christenson Decl. ¶¶ 26–35. As a result, “[a]n administrative
5
A letter written by Pinson suggests that, due to her transfer to another Federal prison
facility, she did not receive the notice that BOP was administratively closing Request 2015-
06335 and the fourteen other FOIA requests for non-payment of fees. Christenson Decl. Ex. I.
37
appeal is mandatory, if the agency cures its failure to respond within the statutory period by
responding to the FOIA request before suit is filed,” Oglesby, 920 F.2d at 63, of which there is
no record, Hardy Decl. ¶ 72.
Moreover, while Pinson has twice attempted to pay the fees, the DOJ argues that she has
failed to follow the instructed method for doing so. Supp. Christenson Decl. ¶¶ 4–7. Moreover,
even if Pinson were successful in paying her fees in the future, she must comply with BOP’s fee
regulations before filing suit. See Antonelli v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 555 F. Supp. 2d 16, 23 (D.D.C. 2008). Accordingly, the Court grants summary
judgment for the DOJ for Pinson’s claims relating to Request 2017-1605 and the seven other
related requests administratively closed therewith.
iii. Request Nos. 2014-05515, 2016-05391, 2016-07466, 2017-0070, 2017-01575, 2017-01680,
2017-02203, 2017-02309, 2017-02623, 2017-04282, 2017-04296, & 2017-04297
In her Second Opposition, Pinson identifies twelve specific FOIA requests to the BOP for
which she allegedly never received final responses, Pl.’s BOP Opp’n 3, and declares, under
penalty of perjury, that responses to these requests were never received, 2d Pinson Decl. ¶ 2.
The DOJ argues that, because Pinson never administratively appealed the BOP’s final
determination of these requests, she has not exhausted her administrative remedies. BOP Mot.
3–5. According to DOJ, final responses (or other notifications requiring responses that Pinson
did not respond to) for all twelve of these requests were sent between September 11, 2016 (No.
2014-5115) and November 3, 2017 (No. 2017-4282). Pinson does not appear to have any
documentation supporting her declaration that she never received these. For these requests there
is no equivalent to the October 2016 letter she sent regarding Request No. 2015-06335 indicating
she was having difficulty receiving mail. See supra n.5 (citing Christenson Decl. Ex. I).
Arguably, though, that letter provides at least some support for the idea that Pinson was having
38
difficulty receiving mail in late 2016. DOJ points to a supporting declaration stating that
responses were sent to Pinson advising her of her right to appeal, and providing copies of these
responses. See id. (citing Christenson Decl.). But DOJ points to nothing confirming that Pinson
received any of these.
Without any meaningful supporting evidence from either side, the dispute boils down to
DOJ’s word against Pinson’s. Because at summary judgment the Court must view facts in the
light most favorable to the non–movant, see Scott, 550 U.S. at 380, 127 S.Ct. 1769 (citing Fed.
R. Civ. P. 56(c)), and cannot make credibility determinations, see Fed. Ins. Co. v. Olawuni, 539
F. Supp. 2d 63, 66 (D.D.C. 2008) (“On a motion for summary judgment, the Court must ‘eschew
making credibility determinations or weighing the evidence.’” (quoting Czekalski, 475 F.3d at
363)), the Court must accept as true Pinson’s declaration that she did not receive any responses.
See Pinson, 177 F. Supp. 3d at 78; Bloomgarden, 10 F. Supp. 3d at 152; Jones, 576 F. Supp. 2d
at 66–67. Accordingly, the Court denies summary judgment for the DOJ for Pinson’s claims
relating to Requests 2014-05515, 2016-05391, 2016-07466, 2017-0070, 2017-01575, 2017-
01680, 2017-02203, 2017-02309, 2017-02623, 2017-04282, 2017-04296, and 2017-04297.
iv. Request No. 2017-01288
For FOIA Request 2017-01288, the DOJ has, as a result of the present litigation, sent the
completely unredacted responsive record to Pinson which BOP had originally withheld. BOP
Mot. 5–6; Christenson Decl. ¶ 76. In her response, Pinson does not specifically contest this
representation or suggest the record was not received; she argues only that BOP “improperly
withheld” the record and “offers no arguments supporting its decision to withhold it in the first
place.” Pl.’s BOP Opp’n 4. Given the uncontested evidence that specific requested record was
released in full, the Court grants summary judgment for this request.
39
c. OIG Requests
For Pinson’s four FOIA requests to OIG, Pinson had declared under penalty of perjury
that she did not receive the final responses. Pinson Decl., ECF No. 57-2. The DOJ says that OIG
records show that responses were sent in late 2016 and early 2017—around the same time that at
least some evidence suggests Pinson had difficulty receiving mail. Def.’s Reply at 4–5 (citing
Waller Decl. ¶¶ 7–10); see also supra n.5 (discussing Pinson’s transfer and mail difficulties).
Again it is Pinson’s word against the Government’s, and the Court cannot make a credibility
determination at this stage. See Fed. Ins. Co., 539 F. Supp. 2d at 66. DOJ sent Pinson
(additional) copies of OIG’s final determinations for all four requests last August when it served
her with a copy of its Reply brief. Field Decl. ¶¶ 3–4. Pinson has not filed anything suggesting
that she did not receive the materials at that time, but neither has DOJ filed anything suggesting
that Pinson either exhausted her appeal or received notice and gave up on it. The Court does not
see how the late service of the responses along with the Reply brief, absent something more, can
provide any basis for a grant of summary judgment that would otherwise be improper. The
Court therefore denies summary judgment regarding the OIG requests.
3. Uncontested Requests
In her Oppositions, Pinson did not respond to DOJ’s arguments in relation to her other FOIA
requests. In these cases, the Court “must determine for itself whether the record and any
undisputed material facts justify granting summary judgment.” Grimes, 794 F.3d at 97 (Griffith,
J., concurring) (citing Fed. R. Civ. P. 56(e)(3)).
40
a. FBI Requests
Regarding Pinson’s other FOIA requests to the FBI, the DOJ argues that Pinson failed to
exhaust administrative remedies on one of two grounds: (1) failure to provide third party
authorization or (2) failure to appeal the FBI’s determinations to OIP. Defs.’ Reply 6.
i. Request Nos. 1353986, 1364610, 1365503, & 1366537
The DOJ identifies Requests 1353986, 1364610, 1365503, and 1366537 as requests for
which Pinson failed to provide third party authorizations, thereby leading to a failure to exhaust
administrative remedies. Id. However, as to each request Pinson appealed the determination of
the FBI to OIP on grounds that such authorization was not needed due to overriding public
interest. Hardy Decl. Exs. C, R, W, & BB. While Pinson was ultimately not successful in her
administrative appeals, she did use and exhaust the administrative remedy available to her,
leaving her the right to file suit in federal court. Id. ¶¶ 9, 25, 33, 39. Accordingly, the Court
denies summary judgment for DOJ for Pinson’s claims relating to Requests 1353986, 1364610,
1365503, and 1366537 for failure to exhaust administrative remedies.
ii. Request Nos. 1365683 & 1371871
For Requests 1365683 and 1371871, Pinson received Glomar responses from the FBI,
which Pinson appealed. Id. ¶ 105. While Pinson was ultimately not successful in her appeal, she
did use and exhaust the administrative remedy available to her, leaving her the right to file suit in
federal court. Id. ¶ 107. Accordingly, the Court denies granting summary judgment for DOJ for
Pinson’s claims relating to Requests 1365683 and 1371871 for failure to exhaust administrative
remedies.
iii. Request Nos. 1354738, 1360576, & 1365468
DOJ identifies Requests 1354738, 1360576, and 1365468 as requests for which Pinson
failed to make an administrative appeal before seeking judicial review. Defs.’ Reply 6. Because
41
the record does not provide any evidence to show that Pinson appealed the final determinations
for these requests or failed to receive final responses for these requests, the Court finds no
genuine issue of material fact that would warrant the denial of summary judgment. Accordingly,
the Court grants summary judgment for DOJ for Pinson’s claims relating to Requests 1354738,
1360576, and 1365468.
iv. Request Nos. 13610160 & 13654504
For Requests 13610160 and 13654504, the FBI withheld responsive records as part of a
pending investigation of Pinson herself. Hardy Decl. ¶¶ 76, 85. Pinson appealed both requests
but was ultimately unsuccessful in her appeals, which OIP concluded in February and March
2017. Id. ¶¶ 83, 89. As of February 17, 2018, the FBI has ended the investigations, but the FBI
has discontinued any further processing of Pinson’s requests due to outstanding fees. Id. ¶¶ 84,
90. However, both of Pinson’s appeals predate the FBI’s decision on June 13, 2017 to
administratively close Pinson’s requests for failure to pay fees, and Pinson did use and exhaust
the administrative remedy available to her, leaving her the right to file suit in federal court for
these two requests. Id. ¶¶ 83, 89. Accordingly, the Court denies summary judgment for DOJ for
Pinson’s claims relating to Requests 13610160 and 13654504 on grounds of failure to exhaust
administrative remedies. Again, though, the fact that DOJ is not entitled to summary judgment
does not mean that it must move these claims forward. Pinson must pay any outstanding fees
first. See 28 C.F.R. § 16.10(i)(3).
v. Request Nos. 1360562 & 1372813
For Requests 1360562 and 1372813, the FBI withheld responsive records as part of
pending investigations. Hardy Decl. ¶¶ 95, 116. Pinson appealed both requests but was
ultimately unsuccessful in her appeals, which OIP concluded in June and November 2017. Id. ¶¶
100, 120. Though the FBI has since made certain records publicly available for Request
42
1360562, the FBI has discontinued any further processing of Pinson’s requests due to
outstanding fees. Id. ¶ 101. While Pinson was ultimately not successful in her appeal, she did use
and exhaust the administrative remedy available to her, leaving her the right to file suit in federal
court. Id. ¶¶ 100, 120. Accordingly, the Court denies granting summary judgment for DOJ for
Pinson’s claims relating to Requests 1360562 and 1372813 for failure to exhaust administrative
remedies. Again, Pinson must pay any outstanding fees to proceed on these requests. See 28
C.F.R. § 16.10(i)(3).
b. BOP Requests
For most of Pinson’s remaining FOIA requests to the BOP, the DOJ argues that Pinson
failed to make an administrative appeal before seeking judicial review.
i. Request Nos. 2015-03237, 2016-05251, 2017-01578, 2017-01817, 2017-03884, 2017-04065,
& 2017-04380
For Requests 2015-03237, 2016-05251, 2017-01578, 2017-01817, 2017-03884, 2017-
04065, and 2017-04380, the DOJ argues that, because Pinson never administratively appealed
the BOP’s final determination of these requests, she has not exhausted her administrative
remedies. BOP Mot. 3–5. Because the record does not provide any evidence to show that
Pinson appealed the final determinations for these requests or failed to receive responses for
these requests, the Court finds no genuine issue of material fact that would warrant the denial of
summary judgment. Accordingly, the Court grants summary judgment for Request 2015-03237,
2016-05251, 2017-01578, 2017-01817, 2017-03884, 2017-04065, and 2017-04380.
ii. Request Nos. 2011-07156, 2012-00039, 2013-01684, 2016-02371, & 2017-004435
DOJ argues that the remaining FOIA requests to BOP listed in Pinson’s Amended
Complaint, namely Requests 2011-07156, 2012-00039, 2013-01684, 2016-02371, and 2017-
004435, are either subject to other litigation or misidentified, Christenson Decl. ¶¶ 13, 132. In
43
her opposition, Pinson “stipulates to dismissal of claims relating to” these five requests. Pl.’s
BOP Opp’n 4. Accordingly, this Court grants summary judgment for the DOJ for Pinson’s
claims relating to Requests 2011-07156, 2012-00039, 2013-01684, 2016-02371, and 2017-
004435.
c. OIP Requests
DOJ argues that OIP legitimately discontinued processing Pinson’s FOIA requests due to
Pinson’s failure to pay outstanding fees to the FBI and BOP. Defs.’ Reply 2. Pinson has not
challenged this decision or alleged she was unaware of the decision to discontinue processing
because of the unpaid fees. Accordingly, the Court grants summary judgment for the DOJ for
Pinson’s claims relating to her two FOIA requests to the OIP.
d. EOUSA Requests
i. Request No. 2017-00357
For FOIA Request 2017-00357, the DOJ closed the case (because Pinson failed to
provide the requisite notarization of her signature) and notified Pinson of her right to appeal the
closure. See Wilkinson Decl. Ex. I. Because the record does not provide any evidence to show
that Pinson provided the authorization, appealed the closure of the case, or failed to receive
communications regarding this request, the Court finds no genuine issue of material fact that
would warrant the denial of summary judgment. Accordingly, the Court grants summary
judgment for the DOJ for Pinson’s claims relating to Request 2017-00357.
ii. Request No. 2017-00359
DOJ argues that Request 2017-00359 is misidentified. Id. ¶ 16. Because Pinson does not
challenge this representation and because the record does not provide any evidence that this not
the case, the Court finds no genuine issue of material fact that would warrant the denial of
44
summary judgment. Accordingly, this Court grants summary judgment for the DOJ for Pinson’s
claims relating to Requests 2017-00359.
iii. Request Nos. 2017-00934, 2016-04056, 2017-00412, & 2017-00417
For the remainder of Pinson’s FOIA requests to EOUSA, namely Requests 2017-00934,
2016-04056, 2017-00412, and 2017-00417, the EOUSA avers that it directed each request to the
relevant United States Attorney’s office.
In two of the requests (Nos. 2016-04056, 2017-00417), Pinson sought public record
information about “Speechnow.org v. Federal Election Commission, No. 08-5223 and 09-5342.”
Id. ¶¶ 5, 23. Although the EOUSA reported it has no responsive documents in relation to the
2016 request (on the grounds that the U.S. Attorney’s Office for the District of Columbia was not
a party to either case, see id. ¶ 8), in response to the identical 2017 request, the office took the
additional step of searching the public electronic docket for both cases and released 543 pages to
Pinson in full. Nails Decl. ¶ 13, ECF No. 49-8.
Request No. 2017-00934, which sought certain public records relating to a particular
case, was forwarded to the U.S. Attorney’s Office for the District of Colorado, but a search of
the relevant case management system revealed no responsive records. T. Robinson Decl. ¶ 3,
ECF No. 49-10. Finally, as to Request No. 2017-00412, a similar request for public case-related
documents was sent to the U.S. Attorney’s Office for the Southern District of Indiana, which
identified 193 pages of responsive documents and released them in full. Wilkinson Decl. ¶ 21.
Because all four of these requests sought public documents and did not involve the
application of any exemptions, the only issue for this Court to consider is whether the searches
were adequate. See Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (noting
that an “agency must demonstrate that it has conducted a search reasonably calculated to uncover
all relevant documents”) (internal citation and punctuation omitted). In light of the fact that the
45
requests were highly specific (seeking public records relating to certain cases), that the EOUSA
adequately explained the steps the individual offices took to locate relevant documents, and the
presumption of good faith afforded to agency declarations, SafeCard Servs. Inc., 926 F.2d at
1200, the Court agrees with DOJ that the searches were adequate. Accordingly, the Court grants
summary judgment for the DOJ for Pinson’s claims relating to Nos. 2017-00934, 2016-04056,
2017-00412, & 2017-00417
e. USMS Request
As relevant here, the request to USMS sought records concerning Pinson and others who
joined her in making the request. Kil Decl. ¶ 2, ECF No. 49-6. As Ms. Kil explains in her
declaration, the USMS searched its centralized Justice Detainee Information System (JDIS)
using Pinson’s name and other identifying information. Id. ¶ 14. Based on that search, the
agency concluded that two district offices were likely to have responsive information, and each
office subsequently conducted its own search of records. Id. ¶ 15–18. One office—the USMS
office in the Western District of Oklahoma—found 38 pages of potentially responsive
documents. Id. ¶ 18. It ultimately released 32 pages in full and 6 pages in part, with the
information withheld under FOIA Exemptions (b)(7)(C) and (b)(7)(F). Id. Ex. F, Vaughn Index,
ECF No. 49-6 at 24–25; 5 U.S.C. § 552(b)(7). The partially withheld pages were part of two
documents compiled by the agency “in the course of arrest and custody of” Pinson. Kil Decl. ¶
26. Under Exemption 7(C), the agency withheld the name and personal information of a law
enforcement officer “associated with a criminal matter involving [Pinson],” id. ¶ 28, as well the
name of a third-party mentioned in a report, id. ¶ 30. Under Exemption 7(F), the agency
withheld the names of individuals involved in a threat investigation relating to Pinson. Id. ¶ 33.
46
Beyond these “extremely limited” withholdings, “no reasonably segregable non-exempt portions
of the pages” were withheld. Id. ¶ 34.
As to the adequacy of the search, the Court finds that Ms. Kil’s detailed explanation of
the search process establishes that the agency undertook a search reasonably calculated to
uncover all relevant documents. See Steinberg, 23 F.3d at 551. As to the exemption themselves,
the documents meet Exemption 7’s threshold requirement: being compiled for law enforcement
purposes. 5 U.S.C. § 552(b)(7). As Ms. Kil explains, the documents were generated by the
agency in the course of the arrest and detention of Pinson and thus “quite obviously related to the
[USMS’s] law enforcement duties.” Blackwell v. F.B.I., 646 F.3d 37, 40 (D.C. Cir. 2011). Kil
Decl. ¶ 29–31. Under Exemption 7(C), Ms. Kil also reasonably stated why the privacy interest
of the law enforcement officer and the third-party mentioned in the report outweighed any
conceivable public interest in the information. Id.; see also Am. Civil Liberties Union v. Dep’t of
Justice, 655 F.2d 1, 6–7 (D.C. Cir. 2011); Davis v. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C.
Cir. 1992). Similarly, she justified the use of Exemption 7(F), which allows the withholding of
information that could “could reasonably be expected to endanger the life or physical safety of
any individual,” 5 U.S.C. § 552(b)(7)(F), to protect the names of individuals involved in a threat
investigation. While the details here are somewhat elusive, in light of the presumption of good
faith afforded to agency declarations, SafeCard Servs. Inc., 926 F.2d at 1200, and the “broadly
stated” scope of the exemption, Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d
518, 523 (D.C. Cir. 2015), the Court credits Ms. Kil’s affidavit and finds the exemption
applicable.
Lastly, Ms. Kil’s explanation of the agency’s careful efforts to release all segregable
information is satisfactory, particularly in light of the minimal, highly-specific withholdings. See
47
Milton v. U.S. Dep’t of Justice, 842 F. Supp. 2d 257, 260 (D.D.C. 2012) (“An affidavit stating
that an agency official conducted a review of each document and how she determined that no
document contains segregable information fulfills the agency’s obligation.”).
Because the Court finds the agency has carried its burden, and because Pinson has not
argued otherwise, the Court grants summary judgment to the DOJ as to the claims relating to
USMS. 6
B. Claims Subject to Dismissal
1. Legal Standard
Because the DOJ moves to dismiss Pinson’s FOIA claims against the CIA and her APA
claim based solely on the pleadings, the remainder of the DOJ’s motion is appropriately
evaluated under a motion to dismiss standard pursuant to Rule 12(b)(6). To survive a motion to
dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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) (internal
quotation marks and citations omitted); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
6
The Amended Complaint also asserts a violation of the Privacy Act, 5 U.S.C. § 552a.
Am. Compl. 1. The Court understands this to refer to Pinson’s challenge to the Privacy Act
Exemption applied to certain pages of the documents that were released in response to her
USMS request. See Kil Decl. ¶ 7. The USMS stated that portions of certain pages were
withheld pursuant to Privacy Act Exemption (j)(2), but also stated that “Plaintiff’s records were
processed for disclosure pursuant to the FOIA.” Id. ¶ 24. No party has made any mention of the
Privacy Act in its briefing, and Pinson does not appear to have advanced any separate argument
based on the Privacy Act in opposition to summary judgment concerning the USMS materials.
Accordingly, to the extent Pinson advanced any claim under the Privacy Act, the Court
understands the Government to have moved for summary judgment on that claim in connection
with the USMS materials. And to the extent such a motion was made, it is granted for the same
reasons that summary judgment was granted under FOIA for the USMS materials.
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When ruling on a motion to dismiss, the Court will ordinarily “accept as true all of the factual
allegations contained in the complaint,” Atherton v. Dist. of Columbia Office of the Mayor, 567
F.3d 672, 681 (D.C. Cir. 2009), and liberally construe it in plaintiff's favor. Porter v. CIA, 778
F.Supp.2d 60, 65 (D.D.C. 2011). However, “[t]he tenet that a court must accept as true all the
allegations contained in a complaint is inapplicable to legal conclusions” or “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (citing Twombly, 550 U.S. at 555).
A pro se plaintiff's complaint will be “held to less stringent standards than formal
pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see Koch v.
Schapiro, 699 F. Supp. 2d 3, 7 (D.D.C. 2010). However, the Supreme Court has made clear that
“while . . . some procedural rules must give way because of the unique circumstance of
incarceration,” there is no requirement “that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil v. United
States, 508 U.S. 106, 113 (1993).
2. CIA Requests
In her Amended Complaint, Pinson states that she submitted two FOIA requests to the
CIA, “which were neither answered, nor a file number of the request provided other than a letter
acknowledging the requests.” Amend. Compl. App. A. However, Pinson does not elaborate
further any factual allegations regarding these requests, such as the date the request was made,
the subject matter of the requests, or the date the letter acknowledging the requests was received.
Accordingly, the DOJ moved to dismiss Pinson’s FOIA claims against the CIA for failure to
state a claim, DOJ Mot. 30–32; Defs.’ Reply 3–4, which Pinson does not address in her
Oppositions. Because Pinson failed to address these arguments in her response to the DOJ’s
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motions to dismiss, the Court will dismiss Pinson’s FOIA claims against the CIA as conceded.
See Competitive Enter. Inst. v. U.S. Envntl. Prot. Agency, 67 F. Supp. 3d 23, 35 (D.D.C. 2014)
(citing CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482–83 (D.C. Cir. 1996);
Jones v. Air Line Pilots Ass’n, 713 F.Supp.2d 29, 39 (D.D.C. 2010); Hopkins v. Women’s Div.,
Gen. Bd. of Glob. Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002)).
3. APA Claims
Additionally, Pinson’s Amended Complaint alleges violations under the APA. Am.
Compl. 1. However, Pinson goes no further than listing “[v]iolation of the Administrative
Procedures Act, ” id., without specifying which agency action she wishes to challenge or any
other factual allegations. Accordingly, the DOJ moved to dismiss Pinson’s APA claims for
failure to state a claim, DOJ Mot. 32–33; Defs.’ Reply 4, which Pinson does not address in her
Oppositions. Because Pinson failed to address these arguments in response to the DOJ’s motions
to dismiss, the Court will dismiss Pinson’s APA claims as conceded. See Competitive Enter.
Inst., 67 F. Supp. 3d at 35.
IV. OTHER PENDING MOTIONS
A. Motion for Order to Disclose Addresses
Pinson’s Amended Complaint raises claims against several BOP employees. Am.
Compl. 1–2. Neither party has addressed these claims, and the Assistant United States Attorneys
who have filed the two pre-trial motions do “not currently represent those individuals” listed in
Pinson’s Amended Complaint. DOJ Mot. 2. Pinson has not served these individuals. The Court
therefore has no reason to address the substance of these claims in this opinion.
Pinson filed two motions for service upon two individual defendants in this case, ECF
Nos. 24, 42, possibly intending to request service on the BOP employees against whom she
50
brought claims in her Amended Complaint. However, because Pinson was unable to identify the
names and addresses of the individuals she wanted served, the Court denied these motions, as it
was “not possible for court officers to effect service on her behalf.” Order Denying Pl.’s Mots.
for Services Upon Individual Defs., ECF No. 43. Pinson has indicated that the Government, in
the absence of a court order authorizing disclosure, is “statutorily prohibited from supplying such
information to plaintiff,” and therefore moves for such an order. Pl.’s Mot. for Order to Disclose
Addresses, ECF No. 47. The BOP has not opposed the motion. In light of the potential security
and privacy concerns, the Court directs the BOP to file a brief indicating its position on the
disclosure of the home addresses of the individual defendants in this case or, alternatively,
suggesting whether there is some other appropriate means of effecting service on the individual
defendants.
B. Motions for Preliminary Injunctions
Pinson also filed three motions for preliminary injunctions, ECF Nos. 56, 58, and 67. 7 In
this case, the Court has already denied three prior motions for preliminary injunction that raised
similar issues. See Mem. Op. Denying Pl.’s Mot. for Preliminary Inj. & Mot. to Appoint
Counsel, ECF No. 25.
Specifically, Pinson’s fourth and fifth motions for preliminary injunctions assert that
Defendant’s employees have “banned legal phone calls, postage, or her legal files in their
entirety.” Fourth Preliminary Inj. Mot. at 1, ECF No. 56. Accordingly, Pinson asks the Court to
7
Pinson also moved twice to “supplement” her fourth and fifth motions for preliminary
injunctions, which the Court hereby grants. See Mot. to Supplement, ECF No. 62, and Second
Mot. to Supplement, ECF No. 64. In her fifth motion, ECF No. 58, Pinson also moved for an
extension of time to file her response to BOP’s motion for summary judgment; the Court hereby
denies that portion of the motion as moot, as Pinson has already filed her response.
51
“enjoin” interference with her “access to postage or legal calls,” id. at 2, and seeks the “release of
plaintiff’s legal files,” Fifth Preliminary Inj. Mot. at 2, ECF No. 58. Plaintiff’s sixth motion also
seeks to “enjoin[] defendants from limitations on access to paper, envelopes, [and] pens.” Sixth
Preliminary Inj. Mot. at 1, ECF No. 67. 8
Defendants oppose all three motions. See Defs.’ Opp. to Pl.’s Fourth and Fifth Mots.
Preliminary Inj. (“Defs.’ First PI Opp’n”), ECF No. 65, Defs.’ Opp. to Pl.’s Sixth Mot.
Preliminary Inj. (“Defs.’ Second PI Opp’n”), ECF No. 72. Defendants argue that the motions
exceed the proper scope of a preliminary injunction motion and that, in any case, Pinson’s
allegations “lack any factual basis.” Defs.’ First PI Opp’n at 2.
1. Legal Standards
“[A] preliminary injunction is an injunction to protect [the] plaintiff from irreparable
injury and to preserve the court’s power to render a meaningful decision after a trial on the
merits.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting
11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures
§ 2947 (2d ed. 1992)). “[T]he decision to grant injunctive relief is a discretionary exercise of the
district court’s equitable powers.” John Doe Co. v. Consumer Fin. Prot. Bureau, 235 F. Supp.
3d 194, 201 (D.D.C. 2017) (quoting Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C.
Cir. 1989)). A preliminary injunction is an “extraordinary remedy,” and one is “never awarded
as of right.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
8
The Court hereby also denies Pinson’s motion for hearing on her sixth motion for
preliminary injunction. See Mot. for Hearing, ECF No. 68. Plaintiff proposes presenting the live
testimony of various fellow inmates. Id. at 1. However, “[t]he practice in this jurisdiction is to
decide preliminary injunction motions without live testimony where possible,” D.D.C. Civ. R
65.1(d), and the Court concludes that such a hearing is unwarranted here.
52
To warrant preliminary injunctive relief, the moving party “must establish that [it] is
likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in [its] favor, and that an injunction is in
the public interest.” Id. at 20. Of these factors, likelihood of success on the merits and
irreparable harm are particularly crucial. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir.
2011) (reading Winter “to suggest if not to hold ‘that a likelihood of success is an independent,
free-standing requirement for a preliminary injunction’”) (quoting Davis v. Pension Benefit
Guar. Corp., 571 F.3d 1288, 1296 (2009) (Kavanaugh, J., concurring)); Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal citations and
quotation marks omitted) (“[A] movant must demonstrate at least some injury for a preliminary
injunction to issue, for the basis of injunctive relief in federal courts has always been irreparable
harm.”).
2. Analysis
Pinson fails to demonstrate that she is likely to succeed on the merits or that she will
suffer irreparable harm absent a preliminary injunction.
Pinson’s alleged denial of access to records, phone calls, and research can essentially be
characterized as a denial of Pinson’s constitutional right to access the courts. A claim based on
the denial of such right requires a “very high bar of showing that [Pinson] had been injured by
[her] lack of access. Pinson v. DOJ, 273 F. Supp. 3d 1, 10 (D.D.C. 2017); see also Lopez v.
District of Columbia, 300 F. Supp. 3d 253, 256 (D.D.C. 2018) (internal citations and quotation
marks omitted) (granting defendants’ motion to dismiss because plaintiff’s “path to the court
[wa]s not completely foreclosed” and thus he was not “presently denied an opportunity to
litigate” as required “to make out a forward-looking constitutional-right-of-access [to the courts]
53
claim”); Isaac v. Samuels, 132 F. Supp. 3d 56, 59–60 (D.D.C. 2015) (citations omitted) (granting
defendants’ motion to dismiss because plaintiff could not show “actual prejudice or injury from
BOP’s failure to provide him with state law materials” to challenge his conviction during his
incarceration). Here, Pinson does not identify any motion or complaint that she has been
prevented from filing, and “is thus far from demonstrating ‘that a nonfrivolous legal claim ha[s]
been frustrated or . . . impeded.’” Pinson, 273 F. Supp. 3d at 10 (quoting Lewis v. Casey, 518
U.S. 343, 353 (1996)). To the contrary, Pinson has responded to the government’s motions and
continued filing motions in this case. See Pl.’s DOJ Opp’n; Pl.’s BOP Opp’n. Accordingly, she
has not demonstrated a likelihood of success on the merits on a claim for lack of access to the
courts.
Similarly, Pinson has also not demonstrated that she will suffer irreparable harm absent an
injunction. As mentioned, Pinson currently appears to have access to her documents and is able
to effect filings in this case. See, e.g., John Doe Co., 235 F. Supp. at 202 (noting that
demonstrating irreparable harm requires pointing to an injury “both certain and great[,] . . . actual
and not theoretical[,]” and so imminent “that there is a clear and present need for equitable
relief” (internal quotation marks omitted) (quoting Chaplaincy of Full Gospel Churches, 454
F.3d at 297)).
Thus, because she has not pointed to an irreparable harm that would result from failing to
grant any of the injunctions and because she is not likely to succeed on the merits, Pinson’s
motions for preliminary injunctive relief are denied.
C. Motions for Sanctions
Pinson also moves for sanctions against Defendants for submitting “a materially false and
perjurious declaration,” which was included with Defendants’ opposition to Pinson’s sixth
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motion for a preliminary injunction. Pl.’s Mot. for Sanctions at 1, ECF No. 73. 9 The core
allegation is that a prison official misstated the number of sheets of paper prisoners are allocated
per week. J. Ulrich Decl., ECF 76-1. However, it appears that the misstatement was minor
(involving a discrepancy of one page per week) and, thus, would not have been material to the
Court’s consideration of the issues presented. See Defendants’ Opp’n Mot. for Sanctions, ECF
No. 76. And in any case, even crediting Pinson’s account, there is no allegation that the
misstatement was made in bad faith, and thus the motion for sanctions must be denied. United
States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992) (citing Roadway Exp., Inc. v. Piper, 447
U.S. 752, 767 (1980)) (“[I]t is settled that a finding of bad faith is required for sanctions under
the court's inherent powers.”).
D. Motions to Appoint Counsel
Pinson has also moved twice for the Court to appoint him counsel. The Court already
considered and denied appointing counsel in this case, see Mem. Op. Denying Pl.’s Mot. for
Preliminary Inj. & Mot. to Appoint Counsel, ECF No. 25, Pinson argues now that she “lacks
access to a law library and papers accumulated in this case,” Pl.’s Mot. to Appoint Counsel at 1,
ECF No. 66. More recently, she states that “she was violently attacked in prison” and “her
prescription eyeglasses were broken [and] she cannot read.” Pl.’s Renewed Mot. to Appoint
Counsel at 1, ECF No. 77.
9
One of Pinson’s motions for preliminary injunction included a reference to a “motion
for sanctions” in the title, but the body of motion did not raise any arguments relating to
sanctions. See Fourth Preliminary Inj. Mot., ECF No. 56. The Court therefore discusses
sanctions only with respect to the free-standing sanction motion, ECF No. 73.
55
1. Legal standard
While a civil litigant is not guaranteed counsel, see Gaviria v. Reynolds, 476 F.3d 940,
943 (D.C. Cir. 2007), federal courts are authorized by statute to “request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); accord Willis v. FBI, 74 F.3d 531,
532 (D.C. Cir. 2001). “The district court judge controls the ‘discretionary’ decision of whether to
appoint counsel, and that decision ‘will be set aside only for abuse.’” Pinson v. DOJ, 273 F.
Supp. 3d at 4 (quoting Willis, 74 F.3d at 532). Local Civil Rule 83.11 applies in determining
whether appointment of counsel is appropriate in FOIA cases. Willis, 74 F.3d at 533. The Court
must balance several factors:
(i) the nature and complexity of the action; (ii) the potential merit of the pro se
party’s claims; (iii) the demonstrated inability of the pro se party to retain counsel
by other means; and (iv) the degree to which the interests of justice will be served
by appointment of counsel, including the benefit the Court may derive from the
assistance of the appointed counsel.
D.D.C. Civ. R. 83.11 (b)(3). Any one factor may be controlling. Willis, 74 F.3d at 532 (“Given
the magistrate[] [judge’s] conclusion that [the plaintiff] was capable of handling his relatively
straightforward FOIA case unaided, the magistrate did not need to go any further.”).
2. Analysis
None of the four factors in Local Civil Rule 83.11 persuade the Court that appointment of
counsel is appropriate.
As to the first factor, this matter is reasonably complex. But mere fact that “many
requests” are involved does not “increase the complexity [of her case] by very much.” Pinson,
273 F. Supp. 3d at 5. And Pinson has proven very able in pursuing the case and advancing her
arguments.
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As to the second, the merits of Pinson’s claims remains unclear. This litigation is still, in
a sense, in an early stage, with Defendants continuing to rely on preliminary arguments relating
to exhaustion. Of the claims that have proceeded to the merits, most of the FOIA claims have
been resolved against Pinson. Some other claims have been dismissed for lack of specificity.
Thus, this factor weighs weakly against the appointment of counsel.
As to the third, Pinson has also not demonstrated to the Court through any filings that she
is unable to obtain counsel on her own. None of Pinson’s communications with the Court have
indicated her efforts or inability to obtain counsel. Thus, “[t]aking the unusual step of appointing
civil counsel would be particularly inappropriate in light of [Pinson’s] failure to show that [s]he
has previously sought counsel . . . .” Saunders, 2016 WL 4921418 at *15.
Finally, as to the interests of justice: Pinson has a history of litigation in federal court,
repeatedly engaging in litigation against the DOJ pro se—demonstrating her ability to engage in
litigation without the assistance of counsel. The degree to which the interests of justice will be
served by the assistance of appointed counsel thus does not seem to outweigh the burden placed
on, and limited resources of, the Civil Pro Bono Panel.
Ultimately, Pinson’s argument appears to be an alternative formulation of her complaints
about access to materials and papers. And indeed, Pinson’s more recent allegation that she has
broken her glasses and cannot read strikes the Court as serious. But it alone does not justify the
appointment of counsel. The Court trusts that BOP will make adequate provisions for her
eyewear and orders Defendants to inform the Court of the status of Pinson’s eyewear within 30
days.
57
V. CONCLUSION
For the foregoing reasons, the DOJ’s partial motions to dismiss and for summary
judgment are GRANTED in part and DENIED in part. Plaintiff’s motions for sanctions,
preliminary injunctions, hearing, sanctions, and appointment of counsel are DENIED.
Defendants are further ordered to file a status report (1) indicating their position on the release of
individual defendants’ addresses and (2) indicating whether Pinson has appropriate eyewear. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 30, 2020 RUDOLPH CONTRERAS
United States District Judge
58