Viola v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANTHONY L. VIOLA, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-1411 (TSC)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, et al., )
)
Defendants. )
)
)
MEMORANDUM OPINION
Before the court in this Freedom of Information Act (FOIA) lawsuit are the following
pleadings:
• Defendants’ Supplemental Motion for Summary Judgment, ECF No. 55 and Plaintiff’s
Opposition, ECF No. 59;
• Plaintiff’s Motion to Vacate, ECF No. 60 and Plaintiff’s Affidavit in Support of
Motion to Vacate, ECF No. 61;
• Plaintiff’s Motion for Judgment, ECF No. 63;
• Plaintiff’s Civil Statement, ECF No. 64; and
• Plaintiff’s Motion to take Judicial Notice, ECF No 67.
Upon review of the pleadings and for the reasons set forth below, the court will DENY Plaintiff’s
motions and GRANT Defendants’ Supplemental Motion for Summary Judgment.
I. BACKGROUND
Pro se Plaintiff Anthony L. Viola originally sought third-party records from the Executive
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Office of the United States Attorney (EOUSA) and the FBI, both of which are components of the
United States Justice Department (DOJ). The court granted DOJ’s motion for summary judgment in
part, Viola v. DOJ, 306 F. Supp. 3d 321, 323 (D.D.C. 2018) (“Viola I”), and later granted Plaintiff’s
Motion to reconsider in part, Viola v. DOJ, No. 16-cv-1411 (TSC), 2019 WL 2437692 (D.D.C. June
11, 2019) (“Viola II”). DOJ now moves for summary judgment on one of the two issues remaining
post Viola II. Plaintiff moves the court to vacate prior orders, enter judgment in his favor and appoint
him counsel.
In 2011, an Ohio federal jury found Plaintiff guilty of conspiracy to commit mortgage fraud.
United States v. Lesniak, 8–cr–506 (N.D. Ohio), ECF Nos. 54, 245. Plaintiff brought numerous
unsuccessful challenges to his conviction, some of which involved claims that the United States
District Court Judge (hereinafter “sentencing judge”), who presided over Plaintiff’s federal criminal
trial and sentenced him, turned a blind eye to alleged prosecutorial misconduct and ineffective
assistance of counsel. Viola I, 306 F. Supp. 3d at 323. Plaintiff appears to believe that the sentencing
judge was trying to protect himself from potential embarrassment and/or prosecution because of his
purported connection to United States v. Calabrese, 11-cr-437 (N.D. Ohio), a public corruption
criminal prosecution that involved numerous Cuyahoga County, Ohio defendants. Viola I, 306 F.
Supp. 3d at 323–24. Part of the discovery turned over by the government in Calabrese contained
telephone calls between the sentencing judge and some of the targeted public officials. Id. at 324.
But the judge assigned to Calabrese found that none of the calls revealed wrongdoing or criminal
activity on the part of Plaintiff’s sentencing judge. Id.
Unconvinced, Plaintiff filed FOIA requests seeking records from the EOUSA regarding the
sentencing judge. Plaintiff also sought records regarding Paul Tomko, an FBI “expert” and
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“informant,” whom Plaintiff alleges reviewed key documents in Plaintiff’s mortgage fraud case and
who was later allegedly imprisoned for mortgage fraud. Id. at 325.
II. ANALYSIS
A. EOUSA
Plaintiff requested all records that “reference” the sentencing judge, as well as oral recordings
and transcripts of the judge’s conversations with targeted public officials James Dimora and Frank
Russo. Id. at 326. The EOUSA withheld the records pursuant to the Privacy Act, 5 U.S.C. § 552a,
because they concerned third parties and Plaintiff had not submitted: (1) consent from the third
parties, (2) proof that they were deceased, or (3) evidence that the public interest in disclosure
outweighed the third parties’ privacy interests. Viola I, 306 F. Supp. 3d at 326.
The EOUSA also withheld the records because they were exempt pursuant to FOIA
Exemption (b)(6), which allows an agency to withhold “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” as well
as Exemption (b)(7)(C), which allows an agency to withhold “records or information compiled for
law enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” Viola I, 306 F. Supp. 3d at 326; 5 U.S.C. § 552(b)(6), (b)(7)C).
The EOUSA instead searched its LIONS records database using various forms of Plaintiff’s
name, as well as other search terms from his FOIA request. Viola I, 306 F. Supp. 3d at 326–29.
Because Plaintiff had been prosecuted by the U.S. Attorney’s Office for Northern District of Ohio,
the agency searched its computer tracking system for the records maintained by that office. Id. at
326–27. According to an EOUSA declarant, each U.S. Attorney’s Office “maintains the case files for
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criminal matters prosecuted by that office” and there were “no other records or systems or locations
within the EOUSA in which . . . files pertaining to plaintiff’s request were maintained.” Id.
Plaintiff challenged the search as inadequate, disputing that responsive files were confined to
the U.S. Attorney’s Office for the Northern District of Ohio. Id. at 327. He argued that because the
FBI and other federal agencies had joined forces with Ohio state law enforcement officials to form
the Mortgage Fraud Task Force (MFTF), whose work led to his prosecution, the FBI was required to
“search the joint federal-state task force” records. Id. at 327–28.
This court rejected Plaintiff’s argument because he had not overcome the presumption
accorded the EOUSA’s declaration that any relevant MFTF records maintained by DOJ would be
found in the agency’s database. Id. at 328–29. Instead, Plaintiff offered “purely speculative claims
about the existence and discoverability of other documents” which did not undermine the EOUSA’s
assertions. Id. at 329; see SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(“Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of other documents.”) (cleaned up and
citation omitted). And even if the EOUSA had transferred documents to the MFTF as Plaintiff
alleged, this court agreed with the EOUSA that it had no duty to search files it did not maintain.
Viola I, 306 F. Supp. 3d at 329; see Dipietro v. Exec. Off. for U.S. Att’ys, 357 F. Supp. 2d 177, 182
(D.D.C. 2004) (citation omitted) (“No agency is obligated to produce records that it does not
maintain.”); Weisberg v. DOJ, 705 F.2d 1344, 1363 (D.C. Cir. 1983) (“[E]ven if an agency creates a
document, FOIA requires disclosure only of records ‘for which agencies have chosen to retain
possession or control.’”) (internal alterations omitted) (citing Kissinger v. Reporters Committee, 445
U.S. 136 (1980)).
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Plaintiff filed a motion to reconsider, contending that the court had not considered an
argument he claimed to have raised in his briefs—namely that the MFTF constituted a federal agency
for FOIA purposes. Viola II, 2019 WL 2437692, at * 2. The cases Plaintiff cited in support of this
argument, however, stood for a slightly different proposition: that under some circumstances,
disclosure may be required even where records are held by a non-agency, if the agency either created
or obtained the records, and was in control of the records at the time of the FOIA request. Id. at *3
(citing U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 144 (1989)).
Here, there was no evidence that these criteria were met. The DOJ declaration explained that
there were no records systems outside its Ohio LIONS database where files pertaining to the
mortgage fraud prosecution were maintained. Viola I, 306 F. Supp. 3d. at 326–27; Viola II, 2019 WL
2437692, at *1–2. And Plaintiff’s own evidence was inconsistent with his position, and actually
supported the agency’s declarant. Viola II, 2019 WL 2437692, at *2–3. Plaintiff submitted an
affidavit from Arvin Clar, a former MFTF Director and Assistant Director, who explained that certain
“cooperating” federal entities shared information with the MFTF, but those entities were not
“signatory participating members” to the Memorandum of Understanding establishing the task force.
Id. at *2. Moreover, no federal agencies provided funding for the investigation, and the MFTF
“possessed its own secured evidence room or location under the supervision of the Task Force
director for the purpose of securing and maintaining” evidence, and no federal agency “had any right
of authority or control over the activities of” the task force. Id. In light of this evidence, the court
denied Plaintiff’s motion to reconsider the adequacy of EOUSA’s search.
Notwithstanding the court’s two prior decisions on the issue, Plaintiff raises the same
argument again in his opposition to DOJ’s Supplemental Summary Judgment Motion, ECF No. 59,
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Pls. Opp. to Supp. Mot. at 1, 4, as well as in his Motion to Vacate, ECF No. 60 at 1, 4–6, and in his
“Additional Documents in Support of Pending Pleadings,” ECF No. 64 at 1. He again asks this court
to reconsider its ruling, claiming to have discovered “new evidence.”
Pursuant to “Rule 54(b) of the Federal Rules of Civil Procedure, the district court may revise
its own interlocutory orders ‘at any time before the entry of judgment adjudicating all the claims and
all the parties’ rights and liabilities.’” Davis v. Joseph J. Magnolia, Inc., 893 F. Supp. 2d 165, 168
(D.D.C. 2012). But Rule 54 relief is “discretionary” and “should not be granted unless the movant
presents either newly discovered evidence or errors of law or fact which need correction.” Id.(quoting Nat’l Trust for Hist. Pres. V. U.S. Dep’t of State, 834 F. Supp. 453, 455 (D.D.C. 1993)).
“Newly raised” evidence does not meet the Rule 54 standard where it was “previously available.”
Schoenbohm v. FCC, 204 F.3d 243, 250 (D.C. Cir. 2000) (quoting ICC v. Bhd. of Locomotive Eng’rs,
482 U.S. 270, 283 (1987)).
Here, with one exception, all Plaintiff’s “new” evidence was available before March 31, 2018
and June 6, 2019, when this court issued its prior rulings on the EOUSA search. See ECF No. 60,
Mot. to Vacate at 1–2; ECF No. 61, Pls. Aff. at Exs. H–L.
Moreover, even if the evidence were new, it does not support Plaintiff’s position regarding
EOUSA control over the MFTF records. Plaintiff proffers an undated document, with references to
2009, that appears to be the grant proposal to establish the MFTF. ECF No. 61, Pls. Aff. at Ex. H.
He also proffers a January 11, 2011 hearing transcript excerpt of what appears to be an argument by a
federal prosecutor, stating that “we do not have control” over certain unnamed files and that the
government did not have the ability to force someone “in the county” to turn them over. Id. at Ex. I.
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In another 2011 transcript excerpt, a federal prosecutor simply states that his office was “a part of”
the MFTF. ECF No. 64-1 at Ex. A.
Plaintiff also submitted the Memorandum of Understanding mentioned by MFTF official
Clar. ECF No. 61, Pls. Aff. at Ex. J. The Memorandum does not discuss federal control of MFTF
records, but suggests that only local entities maintained the evidence: “Any information gathered
and/or report(s) generated by TF #08-1 during the course of its investigation that is maintained by the
task force, a prosecutor, the Attorney General, a special prosecutor, or the Commission is deemed a
confidential law enforcement investigatory record for purposes of ORC 149.43.” Id. at 3. Plaintiff’s
“new” evidence also includes the resume of a former MFTF employee, whom Plaintiff claims died
during the mortgage fraud investigation and whom Plaintiff mentioned in his March 2017 opposition
to DOJ’s summary judgment motion. ECF No. 61, Pls. Aff. at Ex. K; see Viola I, 306 F. Supp. 3d at
328. The relevance of this document is unclear, as is the relevance of a subpoena the MFTF sent to
the Cuyahoga County human resource office seeking employment records for the employee, ECF No.
61 at Ex. L, and what appears to be a description of a video that apparently discusses the agencies
that collaborated on the MFTF, id. at Ex. M.
As the moving party, Plaintiff has the burden of demonstrating that he is entitled to relief
pursuant to Rule 54. See Stewart v. Fed. Commc'ns Comm'n, 189 F. Supp. 3d 170, 173 (D.D.C.
2016). Having offered no “newly discovered” evidence and/or no relevant evidence that would
support his position regarding the MFTF, he has failed to meet this burden to show that the EOUSA’s
search was inadequate.
B. FBI Search: Sentencing Judge
Plaintiff sent similar FOIA requests to the FBI, seeking audio files and transcripts of the
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recordings of the sentencing judge’s conversations with Dimora and Russo, as well as any FBI 302
forms regarding the judge, and any related notes. Viola I, 306 F. Supp. 3d at 329–30. Because of
Privacy Act restrictions and because the requested documents included law enforcement files, the
FBI withheld responsive records pursuant to FOIA Exemptions 6—relating to personnel and medical
files—as well as law enforcement records Exemptions 7(A), 7(C), 7(D) and 7(E). Id. at 332. With
respect to Exemption 7(A), which allows an agency to withhold law enforcement records where
disclosure “could reasonably be expected to interfere with enforcement proceedings,” the FBI refused
to disclose the FBI 302s because at the time the request was filed, there were several pending appeals
in the Cuyahoga County cases. Id.; 5 U.S.C. § 552(b)(7)(A).
Finally, the FBI also withheld the tapes and transcripts regarding the sentencing judge
pursuant to Exemption 3, which allows agencies to withhold records “specifically exempted from
disclosure by statute” because the tape recordings and transcripts are protected pursuant to Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–20, concerning lawful
interception and recording of electronic communications. Viola I, 306 F. Supp. 3d at 333. The FBI
explained that the recordings and transcripts were sealed pursuant to a court order, which was itself
sealed. Id.
Plaintiff did not respond to the FBI’s Exemption 6 or 7 arguments, nor did he respond to the
FBI’s Statement of Facts, Viola I at 333, even though the court warned him that failing to respond
might result in the court treating the matter as conceded. ECF Nos. 17, 24. Instead, Plaintiff
challenged only the Exemption 3 withholding, arguing that the tapes were “widely” disseminated
during discovery in the corruption prosecutions, were played in open court, and the government had
not sought a protective order. Viola I, 306 F. Supp. 3d at 333.
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After taking judicial notice of the docket in one of the Cuyahoga County corruption cases,
which contained several motions and orders—some of which are sealed—involving protective orders,
see United States v. Calabrese, 11-cr-437 (N.D. Ohio), ECF Nos. 31, 38, this court rejected
Plaintiff’s argument regarding the tapes because he failed to produce competent evidence supporting
his contention that the tapes had been disseminated. Viola I, 306 F. Supp. 3d at 333.
In his motion to reconsider, Plaintiff again argued the tapes had been widely disclosed, but did
not cite to a judicial proceeding in which the tapes and/or transcripts were disclosed without a
protective order, instead merely speculating that there was no protective order—despite evidence
from the United States v Calabrese, 11-cr-437 (N.D. Ohio) docket to the contrary. Viola II, 2019 WL
2437692 at *5–6. Consequently, the court rejected this argument. Id.Plaintiff also challenged, for the first time, the FBI’s reliance on Exemption 7(A), which
relates to ongoing criminal investigations. Id. at *6. He contends that a search of the law computer
in prison confirmed there were no pending appeals in the Cuyahoga County corruption cases. Id.
The FBI did not directly address Plaintiff’s argument in its reply, but argued that even if
Exemption 7(A) was inapplicable, the other exemptions upon which it relied still supported its
decision to withhold the records. ECF No. 38, Defs. Opp. to Mot. to Reconsider at 4. The court
neglected to address this argument in its Opinion on the motion to reconsider, instead finding that the
agency had not met its burden on the Exemption 7(A) withholding. See Viola II, 2019 WL 2437692at *6–7.
DOJ subsequently filed its currently pending supplemental motion for summary judgment on
the issue of the FBI’s Exemption 7(A) withholding. ECF No. 55. A DOJ declarant confirmed on
October 23, 2019 that an appeal was pending in the case against Dimora, Dimora v. United States,
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18-4260 (6th Cir.). ECF No. 55, Defs. Supp. MSJ at 8–9. The agency also reiterated its argument
that the records are exempt pursuant to the other exemptions it had relied on in its original briefing.
Id. at 4.
Plaintiff responded that the Dimora conviction had since been upheld on direct appeal and
Dimora’s 28 U.S.C. § 2255 habeas petition attacking his sentence had been denied. ECF No. 59, Pls.
Resp. to Supp. MSJ at 2–3. The D.C. Circuit has explained that “Exemption 7(A) is temporal in
nature,” and so the underlying law enforcement “proceeding must remain pending at the time of our
decision, not only at the time of the initial FOIA request.” Citizens for Resp. & Ethics in v. DOJ, 746
F.3d 1082, 1097 (D.C. Cir. 2014) (citations omitted).
The DOJ did not file a reply in support of its Supplemental Motion for Summary Judgment,
and therefore has not responded to Plaintiff’s argument on Exemption 7(A). Plaintiff asks this court
to therefore treat his argument as conceded. ECF No. 63. But DOJ’s failure to respond is not fatal
for two reasons.
First, contrary to Plaintiff’s assertion, a review of the public docket in Dimora reveals that the
Sixth Circuit did not deny the habeas petition and the matter is indeed ongoing. On August 31, 2020,
the Sixth Circuit vacated the District Court’s denial of Dimora’s habeas petition and remanded the
case for further proceedings. Dimora, 18-4260, ECF No. 51. The Circuit mandate issued on January
6, 2021, id. at ECF No. 62, and on March 14, 2022, the District Court granted the petition in part and
set a sentencing date for June 8, 2022. United States v. Dimora, 10-cr-387-SL (N.D. Ohio), ECF No.
1226. Because Dimora is facing sentencing, his criminal proceedings are not “final,” and therefore
the court finds that the FBI has met its burden with respect to Exemption 7(A). See Basey v. Dep’t of
the Army, No. 4:16-CV-00038-TMB, 2018 WL 8798586, at *9 (D. Alaska May 14, 2018) (“Although
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Plaintiff’s trial has concluded and Plaintiff is currently awaiting sentencing, the Court finds that
Exemption 7(A) remains applicable at least pending the conclusion of sentencing and the statutory
period for a notice of appeal.”); Adionser v. DOJ, 811 F. Supp. 2d 284, 298 (D.D.C. 2011), aff’d in
part sub nom. Adionser v. DOJ, No. 11-5093, 2012 WL 5897172 (D.C. Cir. Nov. 5, 2012) (finding
that “because [the] co-defendant’s conviction [wa]s not final, disclosure of the withheld materials
could reasonably be expected to interfere with the ongoing criminal proceeding.”) (emphasis in
original); Citizens for Resp. & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1089–90, 1096–98 (D.C. Cir.
2014) (reversing District Court court’s grant of summary judgment to an agency that withheld FD-
203s pursuant to Exemption 7(A) where “several outstanding convictions and sentencing
proceedings” had yet to be completed at the time of the District Court decision, but the sentencings
had been completed and all appeals confirmed by the time of the Court of Appeals decision); Kansi v.
DOJ, 11 F. Supp. 2d 42, 44 (D.D.C. 1998) (citations omitted) (noting that “potential for interference
with witnesses and highly sensitive evidence that drives the 7(A) exemption exists at least until
plaintiff’s conviction is final”).
Second, DOJ’s failure to file a reply brief is not fatal to its argument because it lawfully relied
on other exemptions to withhold the requested records, Viola I, 306 F. Supp. 3d at 330, 332–34, and
Plaintiff did not—in the original summary judgment briefing, briefing on the motion to reconsider or
during the current round of briefing—respond to DOJ’s argument that the other stated exemptions are
sufficient to support withholding the records. And, although the agency did not produce a Vaughn
index, that is likewise not fatal to the government’s motion for summary judgment on the remaining
exemptions. See Maydak v. DOJ, 218 F.3d 760, 766 (D.C. Cir. 2000) (“[T]he government does not
necessarily have to produce a Vaughn index to justify denying a FOIA request under other
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exemptions . . . . [W]e have upheld the government’s assertion of FOIA exemptions other than 7(A)
based on something less than a Vaughn index.”) (citations omitted). Finally, the DOJ declarant
averred that the FBI was unable to reasonably segregate “any information without causing harm to
the asserted exemptions.” ECF No. 23-1, Defs. Renewed Statement of Facts ¶¶ 37, 41–42; ECF No.
23-2, Defs. Exs., Attachment 2, Second Hardy Decl. ¶¶ 26, 63–64. Accordingly, the court will grant
DOJ’s supplemental summary judgment motion on the issue of the FBI’s search for records relating
to the sentencing judge.
C. FBI Search: Tomko
Plaintiff also requested FBI 302s relating to Paul Tomko and any reports that he provided to
the FBI or United States Attorney’s office. Viola I, 306 F. Supp. 3d at 329–30. During the first
round of briefing, the court found that the parties had not addressed the issue of exhaustion as it
related to the Tomko request and ordered further briefing. Id. at 331–32, 334.
The FBI eventually released records regarding Tomko on September 9, 2019. ECF No. 55,
Defs. Supp. MSJ at 6–7. After additional litigation, the FBI agreed to release additional non-exempt
records and this court entered an order consistent with the agency’s representations. See id.;
10/16/2019 Min. Order. In its pending supplemental summary judgment brief, the FBI explained that
it was prepared to release additional non-exempt records regarding Tomko on or before November
15, 2019, and again on December 16, 2019. Defs. Supp. MSJ at 7. There is no allegation that the
FBI failed to do so.
Consequently, the only remaining issue in this litigation is whether the FBI fulfilled its FOIA
obligations with respect to the release of the Tomko records. By separate order, the court will direct
the parties to file a joint status report or proposed briefing schedule on this issue.
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D. Plaintiff’s motions
Plaintiff’s motions are without merit. For the reasons already explained, the court will deny
Plaintiff’s Motion for Judgment, ECF No. 63, in which he points out that DOJ did not respond to his
motion to vacate and asks this court to treat his arguments as conceded and grant judgment in his
favor.
In Plaintiff’s Motion to take Judicial Notice, he asks this court to consider “admissions” DOJ
made in a FOIA case he filed in Pennsylvania federal court seeking records relating to his
prosecution. ECF No. 67. Plaintiff contends DOJ’s “admissions” in that case are evidence that the
agency had an obligation to search the MFTF files. In support, he proffers a motion DOJ filed with
the Third Circuit, in June 2020, in which it admits that, while reprocessing responsive records on
remand, the EOUSA “referred to the FBI a number of records for which the FBI was the custodian.
When the FBI received those records, it discovered that they had not been processed during the initial
phase of district court litigation. The FBI investigated why the records were not initially processed
and found that when it had initially searched for and gathered records, it had inadvertently failed to
obtain all portions of the responsive records.” ECF No. 67, Attachment at ECF p. 3. These
representations do not amount to “admissions” that would alter the court’s findings on the MFTF
records, and therefore the court will deny Plaintiff’s motion.
In his Motion to Vacate, ECF No. 60, and accompanying evidentiary submissions, ECF No.
61, Plaintiff asks this court to vacate its prior decisions based on “newly discovered” evidence. Much
of this motion contains arguments on matters that are not before this court and are outside of this
court’s jurisdiction, such as alleged impropriety associated with his criminal prosecution and
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decisions the sentencing judge made in the criminal proceedings. The motion also contains new
arguments and relies on purportedly new evidence that does not support Plaintiff’s position and
which this court has already addressed above. Accordingly, the court will deny the motion to vacate.
Plaintiff also asks this court to appoint him counsel in light of proceedings in the
Pennsylvania FOIA case. ECF No. 60 at 8–9; ECF No. 61, Pls. Aff. at Ex. O. In that case, Plaintiff
sought records from DOJ as well as from the state MFTF officials regarding the deceased MFTF
employee and “exculpatory evidence” the United States allegedly withheld in his mortgagee fraud
prosecution. ECF No. 60 at 8. After the Pennsylvania court granted DOJ summary judgment,
Plaintiff appealed, and he asserts that during the pendency of the appeal DOJ “admitted making
materially false statements concerning records in the possession of the” EOUSA. Id. at 8–9. But the
document Plaintiff proffers as evidence of this admission is a letter informing the Pennsylvania court
that, in the process of preparing its appellate brief, DOJ discovered that it had incorrectly described
certain documents in its Vaughn index filed before the District Court. ECF No. 61 at Ex. O.
Accordingly, DOJ asked the Court of Appeals to vacate the district court decision and remand the
matter, after which DOJ planned to prepare a new Vaughn index. Id.
Plaintiff also notes that the Third Circuit appointed counsel for him and asks this court to
review the brief filed by his appointed counsel in that matter and appoint counsel for him here. ECF
No. 60 at 8–9. The court will deny this request.
Plaintiff has not explained how any of the proceedings in his Pennsylvania case impact this
case, nor has he offered any reason to suggest that appointment of counsel is necessary and
appropriate. A plaintiff in a civil case does not have an absolute constitutional or statutory right to
court-appointed counsel. See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.1981). In this district,
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appointment of counsel from the Civil Pro Bono Panel is available to pro se plaintiffs who are
proceeding in forma pauperis. See LCvR 83.11(b)(3). Plaintiff is not proceeding in forma pauperis,
and even if he qualified for in forma pauperis status, a decision on whether to appoint counsel “must
take into account the nature and complexity of the action, the potential merit of the pro se party’s
claims, the demonstrated inability of the pro se party to retain counsel by other means, and the degree
to which the interests of justice will be served by appointment of counsel.” Plummer v. District of
Columbia, No. CIV.A.07-1161 (RMU), 2008 WL 3972183, at *2 (D.D.C. Aug. 27, 2008); LCvR
83.11(b)(3). Plaintiff has not established that his case meets any of those criteria.
In all his filings, Plaintiff has repeatedly asked this court to take action with respect to his
criminal prosecution and related litigation, even though this court has explained it has no connection
to or jurisdiction over those matters. Plaintiff also continues to raise new arguments and file
supplemental pleadings without leave of court, requiring the court and DOJ to repeatedly comb
through his filings to identify his position on the actual controversy at issue. And he continues to
make assertions and arguments that are clearly inconsistent with or unsupported by the evidence he
proffers.
Plaintiff’s filings follow his numerous post-trial motions and appeals in his criminal
proceedings, which led an Ohio federal court to declare him a “vexatious litigator” and enjoin him
from further filings associated with his sentence unless he obtained permission from the Sixth Circuit.
United States v. Lesniak, et al., 8-cr-506 (N.D. Ohio), ECF No. 541 at 6.
Going forward the court may strike any portion of Plaintiff’s pleadings that raise new
arguments other than those the court has identified for resolution. Plaintiff may not file supplemental
pleadings without leave of court, and any motion for leave to file shall be limited to one page.
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Plaintiff’s failure to adhere to the Federal Rules of Civil Procedure, the court’s local rules or this
court’s orders may result in sanctions, up to and including dismissal of this action.
III. CONCLUSION
For the reasons set forth above, the court will GRANT DOJ’s motion for summary judgment
as it relates to the documents it withheld regarding the sentencing judge. The court will issue an
order directing the parties to file a joint status report and/or proposed briefing schedule regarding
Plaintiff’s FOIA request for records relating to Tomko.
Date: March 31, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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