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Shah v. United States Department of Justice

United States District Court, E.D. Arkansas, Eastern Division

July 7, 2016

VIVEK SHAH Reg. #43205-422, PLAINTIFF
v.
UNITED STATES DEPARTMENT OF JUSTICE et al., DEFENDANT

          OPINION AND ORDER

          Kristine G. Baker United States District Judge.

         On March 27, 2015, pro se plaintiff Vivek Shah filed this action against the United States Department of Justice ("DOJ") and the Bureau of Prisons ("BOP") asserting claims under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a (Dkt. No. 2). Mr. Shah's complaint arises from five FOIA requests he made to the BOP from September 2014 through November 2014 (Id. at 2). Mr. Shah alleges that he has a legal right under FOIA to obtain the documents he seeks in his various requests and that the BOP has deprived him of that right.

         Now before the Court is defendants' motion for summary judgment (Dkt. No. 16). Mr. Shah has not responded to the motion. For the reasons set forth below, the Court grants defendants' motion for summary judgment (Dkt. No. 16). The Court enters judgment in favor of defendants and dismisses with prejudice Mr. Shah's claims.

         I. Factual Background

         Unless otherwise noted by citation, the following facts are taken from defendants' statement of undisputed facts submitted in support of their motion for summary judgment (Dkt. No. 17). Because Mr. Shah has not responded to defendants' motion for summary judgment, and has not proffered a statement of facts or contested any of defendants' stated facts, pursuant to Federal Rule of Civil Procedure 56(e)(2) and Local Rule 56.1(c), the Court deems admitted the facts set forth in defendants' statement of undisputed facts.

         On November 18, 2014, the BOP received a request under FOIA from Mr. Shah requesting a list of inmate names and identification numbers of inmates who had been convicted of 18 U.S.C. §§ 875(b), 875(c), 876(b) or 876(c) who had been incarcerated in the Federal Correctional Complex ("FCC") Forrest City Camp (Dkt. No. 17, Ex. A, ¶ 4). The request was identified as 2015-01335 (Id.). The BOP sent a response to Mr. Shah on December 3, 2014, stating that his request was denied because the BOP did not provide lists of inmates (Id., ¶ 5). There is no record in the BOP FOIA database that Mr. Shah filed any appeal of the denial of request 2015-01335 (Id., ¶ 6).

         On November 18, 2014, the BOP received a FOIA request from Mr. Shah seeking the latest copy of a report made by the American Correctional Association based on its evaluation of FCC Forrest City-Low (Id., ¶ 7). This request was identified as 2015-01334 (Id.). On November 26, 2014, the BOP sent a response to Mr. Shah indicating that it would need an extension of time to acquire and review the information requested based on "the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request." (Id., Attachment 5, ¶ 8). On June 29, 2015, the BOP responded to Mr. Shah's request (See Dkt. No. 17, Ex. A, ¶ 10). The response included the production of 29 pages of responsive documents, 24 pages of which were redacted and five pages of which were un-redacted (Id., ¶¶ 11-12). There is no record in the BOP FOIA database that Mr. Shah filed any appeal of the denial of request 2015-01334 (Id., ¶ 13).

         On September 10, 2014, the BOP received a FOIA request from Mr. Shah seeking a list of all inmates who have been held at low-security institutions after being sentenced for crimes of violence (Id., ¶ 14). This request was identified as 2014-09549 (Id.). On September 12, 2014, the BOP sent a response to Mr. Shah indicating that it would need an extension of time to acquire and review the information requested based on "the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request." (Id., Attachment 8, ¶ 15). On January 13, 2015, the BOP responded to Mr. Shah's request (See Dkt. No. 17, Ex. A, ¶ 17). In response, the BOP noted that it "does not maintain records or track data in the manner that you have described" and that "FOIA does not require federal agencies to create records in response to a FOIA request[;] instead it requires agencies to provide access to reasonably described, nonexempt, existing agency records." (Id., ¶ 18). There is no record in the BOP FOIA database that Mr. Shah filed any appeal of the denial of request 2014-09549 (Id., ¶ 19).

         On November 10, 2014, the BOP received a FOIA request from Mr. Shah seeking the FOIA Exempt section of his BOP Central File (Id., ¶ 20). This request was identified as 2015-01053 (Id.). On November 14, 2014, the BOP responded to Mr. Shah's request indicating that he could review his central file and request copies of the documents he wanted (Id., ¶ 21). On January 10, 2015, the BOP received Mr. Shah's appeal of FOIA request 2015- 01053 (Id., ¶ 22). The BOP responded to Mr. Shah's appeal on March 19, 2015 (Id., ¶ 23). In its response, the BOP identified four pages of documents that were responsive to Mr. Shah's request; however, only one page was released because the remaining three pages of documents were exempt from disclosure due to privacy and personal security concerns (Id.).

         On October 20, 2014, the BOP received a FOIA request from Mr. Shah seeking the total number of inmates at Federal Correctional Institution Milan for each year from 2010 through 2014 who were provided with more than six months of pre-release Residential Reentry Center ("RRC") placement and the reason given for the most recent 20 inmates who were provided with more than six months of pre-release RRC placement (Id., ¶ 24). This request was identified as 2015-00571 (Id.). On October 22, 2014, the BOP responded to Mr. Shah's request, noting that "documents responsive to your request must be searched for and collected from a field office, " which would require additional time to collect (Id., Attachment 15, ¶ 25).

         The BOP sent a second letter to Mr. Shah on February 11, 2015, that the request was still being processed, noting that the BOP receives a large number of requests and that requests are processed on a first in, first out basis (See Dkt. No. 17, Ex. A, Mack Decl., ¶ 26). The BOP responded to Request 2015-00571 on February 24, 2015 (Id., ¶ 27). The BOP granted the request in part but denied certain aspects of the request due to privacy and personal security concerns (Id., ¶ 28). Mr. Shah was sent 32 pages of information responsive to the request, including two pages in full and 30 pages released in part (Id.). Mr. Shah appealed this response, and the BOP responded to the appeal on July 23, 2015 (Id., ¶ 29). In its response to the appeal, the BOP reiterated its basis for withholding certain information pursuant to certain exemptions (Id.).

         II. Legal Standard

         Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact in dispute and that the nonmoving party is entitled to entry of judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         III. ...


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