Paul Joseph Freeman v. Glenn A. Fine

Case: 20-10615 Date Filed: 06/23/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10615
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cv-00409-MCR-HTC
PAUL JOSEPH FREEMAN,
Plaintiff-Appellant,
versus
GLENN A. FINE,
Principal Deputy Inspector General,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 23, 2020)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Paul Freeman, proceeding pro se, appeals the district court’s grant of
summary judgment as to Claim 1, asserting violations of the Freedom of
Case: 20-10615 Date Filed: 06/23/2020 Page: 2 of 8
Information Act (“FOIA”) and the court’s dismissal for failure to state a claim as
to Claims 2 and 3, asserting violations of Title 18 and Freeman’s due process and
equal protection rights. Fine has moved for summary affirmance and to stay the
briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
We review de novo an order granting summary judgment and an order
granting a motion to dismiss for failure to state a claim. Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011); Chaparro v.
Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). The court shall grant
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In considering a motion to dismiss for failure to state a claim, the
court reviews a plaintiff’s pro se allegations in a liberal fashion, accepts all factual
2
Case: 20-10615 Date Filed: 06/23/2020 Page: 3 of 8
allegations in the complaint as true, and evaluates all reasonable inferences derived
from those facts in the light most favorable to the plaintiff. See Hunnings v.
Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994). Mere “labels and conclusions”
are not accepted as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
complaint must state a plausible claim for relief, and “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The FOIA is primarily an access and disclosure statute. It provides for
wide-ranging citizen access to government documents and presumes them subject
to disclosure absent a clear showing to the contrary.” Ely v. F.B.I., 781 F.2d 1487,
1489 (11th Cir. 1986) (internal citation omitted). A district court has jurisdiction
in a FOIA action “to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). If a person receives all the information he
requested under FOIA, even if the information was delivered late, his FOIA claim
is moot to the extent that such information was sought. Chilivis v. S.E.C., 673 F.2d
1205, 1209-10 (11th Cir. 1982).
Criminal statutes generally do not provide a private cause of action. See
Love v. Delta Air Lines, 310 F.3d 1347, 1352-53 (11th Cir. 2002). “Statutes that
3
Case: 20-10615 Date Filed: 06/23/2020 Page: 4 of 8
focus on the person regulated rather than the individuals protected create no
implication of an intent to confer rights on a particular class of persons.” See
Alexander v. Sandoval, 532 U.S. 275, 289 (2001). Further, a federal court does not
order the prosecution of individuals at the request or invitation of a disgruntled
plaintiff. See Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir. 1987) (“[A]
private citizen has no judicially cognizable interest in the prosecution or non-
prosecution of another.”).
The denial of a FOIA request does not create a due process claim.
Trentadue v. Integrity Comm., 501 F.3d 1215, 1236-37 (10th Cir. 2007) (holding
that Integrity Committee’s failure to provide plaintiff with the documents
requested pursuant to FOIA did not violate plaintiff’s due process rights); Johnson
v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 777 (D.C. Cir. 2002) (holding that
“the comprehensiveness of FOIA precludes the creation of a Bivens 1 remedy”
when plaintiff alleged defendant’s “mishandling of [a] FOIA request violated his
constitutional right to due process under the Fifth Amendment”).
To state an equal protection claim, the plaintiff must allege either “that he
was treated differently from other similarly situated individuals” or “that the
defendant unequally applied a facially neutral ordinance for the purpose of
1
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971)
4
Case: 20-10615 Date Filed: 06/23/2020 Page: 5 of 8
discriminating against him.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558
F.3d 1301, 1307 (11th Cir. 2009).
Here, there is no substantial question that Freeman’s appeal of the summary
judgment order is moot because the documents were produced and that Freeman
failed to state a claim in regards to Claims 2 and 3 and because his appeal is
frivolous. See Groendyke Transp., Inc., 406 F.2d at 1162. First, the only relief
sought by Freeman in his complaint was the production of the documents. Even if
we were to accept Freeman’s argument that he never received the March 1 e-mail
containing the requested documents, Freeman received the documents on two other
occasions—via first-class mail on May 24, 2018 and through attachments by Fine
in his motion for summary judgment. Therefore, because Freeman received the
documents requested, his FOIA claim is moot. Chilivis, 673 F.2d at 1209-10.
Furthermore, Freeman fails to allege evidence to support his argument that the
Department of Defense failed to investigate his whistleblower complaint, and, even
if Freeman were correct about the investigation, FOIA does not provide him or the
district court with authority to demand a fuller, different, or new investigation. See
Ely, 781 F.2d at 1489; 5 U.S.C. § 552(a)(4)(B).
Further, there is no substantial question that Freeman failed to state a claim
in regards to Claims 2 and 3. First, as to Claim 2, Freeman alleged that Fine
violated “28 U.S.C.” and later clarified that Fine violated at least 16 different
5
Case: 20-10615 Date Filed: 06/23/2020 Page: 6 of 8
subsections of Title 18. This allegation fails not only for its lack of specificity
relating to how Fine violated the different subsections but also because criminal
statutes do not provide for private civil causes of action. See Love, 310 F.3d at
1352-53. Second, as to Claim 3, Freeman failed to state a claim that his due
process and equal protection rights were violated because (1) the denial or
mishandling of a FOIA request does not create a due process claim, see Trentadue,
501 F.3d at 1236-37; Johnson, 310 F.3d at 777, and (2) Freeman failed to allege
that he was treated differently or that Fine “unequally applied a facially neutral
ordinance for the purpose of discriminating against him.” See Leib, 558 F.3d at
1307.
Moreover, the arguments raised by Freeman in his appeal concerning the
district court and magistrate judge’s alleged legal errors are frivolous because they
are without arguable merit in law or fact. See Napier, 314 F.3d at 531. First,
Freeman argues that the district court erred because the magistrate judge did not hold
a pre-trial conference after receiving his objections to the R&R and the district court
did not acknowledge his objections, but the district court did acknowledge the timely
objections in its order and the magistrate judge is not required to hold a pre-trial
hearing on objections to the R&R. Second, Freeman argues that the district court
failed to enforce the Federal Rules of Evidence because the facts before the court
were “unmistakably disputed” because the documents turned over by Fine were
6
Case: 20-10615 Date Filed: 06/23/2020 Page: 7 of 8
inaccurate; however, Freeman failed to present evidence to demonstrate that the
documents were inaccurate and is seemingly using this argument to attack the
substance of the underlying investigation, which is not permitted under FOIA. See
Ely, 781 F.2d at 1489; 5 U.S.C. § 552(a)(4)(B). Lastly, Freeman argues that the
district court erred in its administration of case management because the court did
not consider his timely raised objections, but this argument is meritless because, as
shown in both court orders, the district court acknowledged and overruled Freeman’s
objections.
Therefore, because there is no substantial question the district court properly
granted summary judgment to Fine, as the requested documents were produced,
and that the district court properly dismissed Freeman’s second and third claims, as
he failed to state a claim for which relief could be granted, we GRANT the
government’s motion for summary affirmance. See Groendyke Transp., Inc., 406
F.2d at 1162. Accordingly, we DENY the accompanying motion to stay the
briefing schedule as moot.
Additionally, after the time to file a reply to Fine’s motion for summary
affirmance had lapsed, Freeman moves our Court to impose sanctions against Fine
because “any filing of such frivolous motion for summary affirmance is vexatious
to the court without rationale and injurious to [him].” Freeman argues that Fine
and his counsel were required to make mandatory disclosures under Federal Rule
7
Case: 20-10615 Date Filed: 06/23/2020 Page: 8 of 8
of Civil Procedure 26(a), including the contents of the document containing the
authenticity record, and the failure to make those disclosures and to file a motion
for summary affirmance entitles him to sanctions. Because Fine’s motion for
summary affirmance is not without rationale or merit, we DENY Freeman’s
motion for sanctions.
8