UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) TIMOTHY DEMETRI BROWN, pro se, ) ) Plaintiff, ) ) v. ) 10-cv-1292 (RCL) ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) Defendants. ) )

MEMORANDUM OPINION

I. INTRODUCTION

Timothy Demetri Brown was convicted in 2002 on several charges related to his

“participation in a major drug distribution conspiracy stretching from 1993 to 1999.” United

States v. Brown,

(5th Cir. 2004); see also United States v. Brown, No.

01-cr-10012 (W.D. La. Apr. 8, 2003). Currently serving a life sentence, Brown brings this

complaint against the Federal Bureau of Investigation (“FBI”) and several other governmental

agencies, raising claims under the Administrative Procedure Act,

(“APA”) and

the Freedom of Information Act,

(“FOIA”). Defendants have moved to dismiss,

and there are several other motions—including plaintiff’s motion for a preliminary injunction

and plaintiff’s motion for partial summary judgment—before the Court. For the reasons stated

below, all of plaintiff’s motions will be denied, except his motion for leave to amend which will

be granted in part and denied in part. His FOIA claim against the FBI, Am. Compl./Pet. Review

4, ECF No. 18, and FOIA claim against the Tax Division of the Department of Justice (“DOJ”),

Second Am. Compl./Pet. Review 7, ECF No. 21-1 (“Second Am. Compl.”), remain, but all other claims and defendants will be dismissed from the case. An order will be entered requiring

defendants FBI and DOJ to produce Vaughn indexes for documents and files that are the subject

of plaintiff’s remaining FOIA claims.

II. BACKGROUND

Timothy Brown, along with his brother Christopher Michael Brown and coconspirator

Kenneth Wayne Pearson, were convicted on charges of conspiracy and distribution of crack

cocaine in 2002. See generally Brown,

. Plaintiff was also convicted on money

laundering charges, and the trial court ordered him to forfeit certain property belonging to him as

part of the judgment.

. Plaintiff’s direct appeal and a collateral attack were both denied,

and while Kenneth Pearson’s conviction was vacated by the Supreme Court, Pearson v.

United States,

(2005) (remanding for rehearing in light of the Court’s decision in

United States v. Booker,

(2005)), plaintiff’s petition for writ of certiorari was

denied, Brown v. United States,

(2006).

Incarcerated at Talledaga Federal Correctional Institution (“FCI-Talledaga”), after some

time in the general population, plaintiff was transferred to the prison’s Special Management Unit

(“SMU”), a separate section used to manage inmates that “present unique security and

management concerns.” Attach. 1 to Pl.’s Reply Defs.’ Mem. Points and Authorities Opp’n Pl.’s

Mot. Leave Am. and Supplement Compl./Pet. Review 2, ECF No. 27-1 (“Attach. Pl.’s Reply”).

“A multi-phase program whose mission is to teach self-discipline, pro-social values, and the

ability to successfully coexist with [other inmates],” Attach. 1 Mot. Prelim. Inj. and Order Show

Cause, ECF No. 29-1 (“Attach. Prelim. Inj.”), visitors to the unit have restricted privileges and

limited interaction with other prisoners.

Although he was generally dissatisfied with the

SMU’s amenities, plaintiff was particularly irritated by his mandated participation in “self-study,

2 individual, and group activities provided by Psychology Services,”

characterizing his stay at

the SMU as a “forced psychological treatment prolonged isolation regiment [sic],” Mot. Prelim.

Inj. and Order Show Cause 1, ECF No. 29 (“Mot. Prelim. Inj.”). The program was apparently

minimally successful, because at some point between February 23 and April 8, 2011, plaintiff

was transferred out of FCI-Talledaga to the Administrative Max facility in Florence, Colorado

(“ADX-GP”).

While in Talledaga, plaintiff filed suit against the FBI, asserting three claims under FOIA

and one asking the government to resolve what he termed “federal questions.” United States v.

Brown,

(D.D.C. 2009). Two of the FOIA claims concerned records related

to a book Mr. Brown was allegedly writing, and the other referred to plaintiff’s request for FBI

records on himself.

. The federal questions, which are similar to two of the APA claims

he brings here, asked the court (1) whether the government properly exercised jurisdiction over

the property that plaintiff forfeited and (2) what the legal status of the statutes under which

plaintiff was convicted is.

The court dismissed the FOIA claims for lack of administrative

exhaustion, and the federal question claim was dismissed because it sought relief not available

under FOIA.

at 123–24. Mr. Brown moved the court to reconsider and sought leave to amend,

but the motions were denied because he provided no basis for reconsideration and unduly

delayed seeking leave to amend. United States v. Brown,

(D.D.C. 2010).

Prior to denial of his motion for reconsideration and to amend, plaintiff initiated this suit,

asserting two APA claims against the FBI, one APA claim against the Department of Justice and

one FOIA claim against the FBI. Compl./Pet. Review, ECF 1 (“Compl.”). His first APA claim

argued that the FBI’s determination that

and 846—the statutes under which

plaintiff was convicted—were criminal laws was in error and sought an order correcting that

3 erroneous determination. The second suggested that the government had improperly asserted

jurisdiction over the property that he forfeited in the original case, United States v. Brown, No.

01-cr-10012 (W.D. La. Apr. 8, 2003), and his third concerned the DOJ’s refusal to respond to a

petition he sent asking them to promulgate clear and concise rules for United States Attorney’s

Offices (“USAO”) to determine when it is proper to prosecute someone under the Controlled

Substances Act. Compl. The only FOIA claim plaintiff brought at that time was related to

recordings of an FBI buy-bust that plaintiff alleges he was subject to, recordings which plaintiff

claims would show that he was not part of the drug trade.

Defendants moved to dismiss,

arguing that the plaintiff did not have standing to bring the APA claims; that some of his claims

were barred by claim preclusion; that defendant failed to state a claim under the APA; and that

plaintiff could not impliedly invalidate his criminal conviction through civil suit. Defs.’ Mot.

Dismiss, Nov. 8, 2010, ECF No. 11 (“Mot. Dismiss”). Thereafter, plaintiff filed a motion for

partial summary judgment on the FOIA claim, Mot. Partial Summ. J., ECF No. 15 (“Part. Summ.

J.”), a motion to strike the motion to dismiss, and a motion for more definite statement for that

motion, Mot. Strike and Mot. More Definite Statement, ECF No. 16 (“Mot. Strike”).

On November 30, 2010 plaintiff amended his complaint, adding a FOIA claim against the

Bureau of Prisons for failing to provide administrative records for Program Statement 5217.01,

which describes the rules and aims of the SMUs. Am. Compl. 5. Mr. Brown also included an

APA claim against BOP for failing to respond to his petition to repeal Program Statement

5217.01.

Two weeks later plaintiff filed a motion to amend his complaint in which he sought

to add seven additional FOIA claims against a variety of agencies. Second Am. Compl. 5-7.

Defendant Bureau of Prisons (“BOP”) moved to dismiss plaintiff’s first amended complaint on

December 20, Def. Federal Bureau of Prisons’ Mot. Dismiss, ECF No. 22 (“BOP Mot.

4 Dismiss”), and opposed his motion to amend on January 3, 2011. Plaintiff then filed a motion for

preliminary injunction on Feb. 10, 2011, asking the Court to enjoin BOP from including plaintiff

in the SMU, which Brown claimed constituted torture and forced psychological treatment, Mot.

Prelim. Inj.

IV. DISCUSSION

Before the Court are defendants’ Motion(s) to Dismiss, ECF Nos. 11, 22, Plaintiff’s

Motion for Partial Summary Judgment, ECF No. 15, Plaintiff’s Motion to Strike/Motion for a

More Definite Statement, ECF No. 16, Plaintiff’s Motion for Leave to Amend, ECF No. 21, and

Plaintiff’s Motion for Preliminary Injunction/Order to Show Cause, ECF No. 29. For the reasons

set out below, the Court will deny all of plaintiff’s motions excepting his motion for leave to

amend, which will be granted as to Claim XII against the Tax Division of the DOJ. The Court

will grant defendants their motions to dismiss, although not insofar as they request that defendant

FBI be dismissed from the case.

A. Plaintiff’s Standing to Assert APA Claims

Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.

Co.,

(1994), and a Rule 12(b)(1) motion for dismissal presents a threshold

challenge to a court’s jurisdiction. Haase v. Sessions,

(D.C. Cir. 1987). In

evaluating such a motion, the Court must “accept as true all of the factual allegations contained

in the complaint,” Wilson v. District of Columbia,

(D.D.C. 2010) (citing

Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit,

(1993)),

and should review the complaint liberally while accepting all inferences favorable to the

plaintiff. Barr v. Clinton,

(D.C. Cir. 2004). At the same time, the Court

may consider relevant materials outside the pleadings, Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005), and must remain cognizant that “the plaintiff’s factual allegations

in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a

12(b)(6) motion for failure to state a claim.” Wilson,

(quotations omitted). In

defending against a Rule 12(b)(1) motion, the plaintiff bears the burden of demonstrating that

jurisdiction exists. Khadr v. United States,

(D.C. Cir. 2008).

An integral part of establishing a court’s jurisdiction is meeting the “irreducible

constitutional minimum of [Article III] standing . . . [which] contains three elements. First, the

plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.

Second, there must be a causal connection between the injury and the conduct complained of—

the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the

result of the independent action of some third party not before the court. Third, it must be likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Ass’n of Am. Physicians,

, 180 (D.C. Cir. 2009) (quoting Lujan, 504 U.S. at

560–61). “At the pleading stage, ‘general factual allegations of injury resulting from the

defendant’s conduct may suffice,’ and the court ‘presumes that general allegations embrace the

specific facts that are necessary to support the claim.’” Sierra Club v. EPA,

(D.C. Cir. 2002) (quoting Lujan, 504 U.S. at 561). However, “nondescript and conclusory

allegations of injury are not the type of general factual allegations from which the Court may

presume the specific facts necessary to ensure that the plaintiff has standing, and are insufficient

to meet the plaintiff’s burden of alleging an injury in fact that is concrete and particularized.”

Wright v. McPhie, No. 04-cv-1204,

, at *3 (D.D.C. Sept. 27, 2005) (internal

citations removed).

6 Under

, “agencies are obligated to fully and promptly consider rulemaking

petitions and provide a petitioner with a prompt reply.” Mendoza v. United States Dep’t of

Justice, No. 89-cv-1979,

, at *3 (D.D.C. 1990). See also WWHT,

Inc. v. Fed. Commc’ns Comm’n,

, 813 (D.C. Cir. 1981) (“an agency must receive

and respond to petitions for rulemaking.”) However, “[t]he fact that Congress may have given all

interested parties the right to petition . . . does not in turn automatic[ally] confer Article III

standing when that right is deprived . . . the grant of a procedural right alone cannot serve as the

basis for Article III standing unless the procedures in question are designed to protect some

threatened concrete interest of [the petitioner] that is the ultimate basis of his standing.” Gettman

v. DEA,

(D.C. Cir. 2002) (internal citation removed); see also Fund

Democracy, LLC v. SEC,

(D.C. Cir. 2002) (“A party has standing to challenge

an agency's failure to abide by a procedural requirement only if the government act performed

without the procedure in question will cause a distinct risk to a particularized interest of the

plaintiff.”). Concurring in Fund, Judge Edwards suggested that the court would not deny

standing “in cases where a statute or regulation affords a party such a particularized procedural

right.”

. Because the Administrative Procedure Act is less than crystal-clear on plaintiff’s

statutory right to a response, even this broader interpretation will not automatically confer Article

III standing over plaintiff’s claim. See

(e) (“Prompt notice shall be given of the

denial in whole or in part of a written application, petition, or other request made in connection

with any agency proceeding.”) (emphasis added). Because Mr. Brown’s request is not made in

connection with any agency proceeding, the statute itself does not afford him the right to a

response.

7 Defendants argue that Mr. Brown does not have standing to bring his APA claims

because he does not have a threatened concrete interest in any of the petitions. Each APA claim

will be examined individually.

1. Plaintiff’s Challenge to

and 846

Plaintiff’s first APA claim is essentially a restatement of one of the “federal questions”

that was dismissed in his prior action. He contends that the FBI and USAO have erroneously

determined that 21 U.S.C §§ 841 and 846 (the sections of the U.S. Code under which he was

convicted and sentenced, Brown,

) are criminal laws. Am. Compl. 3. Arguing

that these sections “have never been properly enacted by congress as criminal laws,”

and that

they “have never been adopted for general federal police power jurisdiction,”

plaintiff asks

the Court to “issue an order that the agency(s)’ actions, decisions, claim and/or interpretation of

Title

and 846 is [sic] in error. . . . That [the sections] are NOT

criminal laws,”

. The claim will be dismissed for lack of subject-matter jurisdiction and

because it is barred under Heck v. Humphrey,

(1987), and its progeny.

To the extent that plaintiff argues that his continued incarceration under

and 846 constitutes an injury-in-fact and gives him standing, his claim is foreclosed by Heck and

its progeny. In Heck, the Court held that a plaintiff could not recover damages under

for an allegedly unconstitutional conviction unless “the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s issuance of a

writ of habeas corpus.” 512 U.S. at 486–87. Plaintiff argues that Heck applies only to damages

under

, but “courts have extended Heck’s rationale beyond the context of §

1983 to a variety of situations where a plaintiff has been convicted of a federal crime and later

8 files a civil action which, if successful, would necessarily imply the invalidity of plaintiff’s

conviction.” Terry v. SBA,

(D.D.C. 2010). The court in Terry refused, as

the Court does today, “to step impermissibly into the shoes of the court which originally imposed

the sentence.”

(internal citations omitted).

Plaintiff’s conviction was upheld on direct appeal, Brown

, and

although the Supreme Court vacated and remanded the Fifth Circuit’s decision with regards to

one of Mr. Brown’s codefendants, Pearson v. United States,

(2005), his own

conviction has never been successfully challenged. Heck was decided to dispose of precisely the

type of claims brought by plaintiff here: “[requiring invalidation] avoids parallel litigation . . .

and it precludes the possibility of the claimant succeeding in [a civil action] after having been

convicted in the underlying criminal prosecution, in contravention of a strong judicial policy

against the creation of two conflicting resolutions arising out of the same or identical

transaction.” Heck v. Humphrey,

. Not only did plaintiff have—and take—the

opportunity to directly challenge his conviction, he also unsuccessfully attempted to litigate this

issue in his first civil suit. See Brown,

.

Beyond an impermissible interest in challenging his conviction, plaintiff does not and

cannot explain how a determination by this Court that

and 846 are not criminal

laws will “more directly and tangibly [benefit him] than it [would] the public at large.” Lujan,

504 U.S. at 573. He has not demonstrated any “threatened concrete interest,” Gettman,

, upon which his standing could rest. Mr. Brown’s joyride on the federal court merry-go-

round must—like all good things—come to an end. Heck v. Humphrey bars his attempt to

collaterally attack his criminal conviction, and because he does not have a cognizable interest in

9 this claim that rises above the level of a generally available grievance about government, he fails

to meet the minimum requirement of standing.

2. Claim Challenging Court’s Jurisdiction over Plaintiff’s Property

In plaintiff’s second APA claim he argues that the FBI, USAO, and United States

Attorney General (“AG”) improperly “obtained legislative jurisdiction over property at 3708

Third Street, Alexandria, Louisiana.” Am. Compl. 3. The property in question was forfeited by

the plaintiff as part of the judgment against him in his criminal proceeding. Brown,

. He and two innocent-owner claimants unsuccessfully challenged the forfeiture on

appeal.

at 764–766. Although plaintiff’s attempts to dispute the government’s jurisdiction

over the property failed in both his original criminal case and on appeal, his persistence knows

no limits—and little logic—and he questions the government’s jurisdiction again here, citing a

string of irrelevant regulations and statutes in an attempt to bolster what is clearly a spurious

claim.

Plaintiff first cites

for the proposition that the Attorney General has the

authority to determine the jurisdictional status of property. Am. Compl. 3. The regulation,

however, has absolutely no bearing on the government’s ability to seize property but instead

regulates the Attorney General’s “authority to determine whether the federal government has

criminal jurisdiction over acts committed upon federal land.” United States v. Gabrion,

(6th Cir. 2008). Plaintiff’s reliance on

is equally erroneous. Although

it is not clear what plaintiff thinks

says, the statute in fact covers the processes

by which the United States government may choose to “obtain exclusive jurisdiction in the

United States over land or an interest in land it acquires.”

. Namely, it permits

the United States to decline jurisdiction over land it purchases or acquires an interest in, and

10 describes the appropriate process by which authorized governmental actors can decide to attain

jurisdiction—for the purposes of criminal prosecution or federal regulation—over property.

Fortunately, plaintiff’s venture into the zone of irrelevance is limited to those two easily-

dispelled citations, and the judgment is clearly proper under

(a), which permits

courts to order forfeiture of “any property constituting, or derived from, any proceeds the person

obtained . . . as the result of [violations of the Controlled Substances Act].”

(a).

Even were the forfeiture order improper, plaintiff was given the opportunity to challenge the

forfeiture on appeal and was unsuccessful. Heck v. Humphrey bars a civil inquiry into the matter,

as explained above.

3. Plaintiff’s Petition to Repeal Program Statement 5217.01

Plaintiff raises a claim concerning the Bureau of Prisons’ failure to respond to his

“Petition to Repeal,” in which he asked the BOP to initiate proceedings to consider the repeal of

Program Statement 5217.01 (in essence asking them to repeal the Special Management Unit

system). Plaintiff seeks an order from the court that the BOP process his petition. Am. Compl. 6.

Though this Court need not—and does not—pass judgment on whether Mr. Brown would

have had Article III standing were he still part of the Special Management Units, it is clear that

his transfer to ADX-GP negates any “particularized,” Fund,

, or “threatened

concrete interest,” Gettman,

, he may have had in the petition while an inmate at

FCI-Talledaga. No longer subject to the program, plaintiff’s interest—at best—amounts to a

“generally available grievance about government,” and does not provide adequate injury to

support standing. Lujan, 504 U.S. at 573-74. The court in Gettman “wish[ed] to make clear” their

resistance to transforming “the federal courts into ‘no more than a vehicle for the vindication of

the value interests of concerned bystanders,’” id. at 435 (citing Allen v. Wright,

,

11 756 (1984)), and plaintiff’s transfer to the Ad-Max facility in Florence makes him into just such

a concerned bystander. Mere denial of a procedural right is not itself sufficient injury-in-fact, as

made evident by Gettman and Fund. In short, plaintiff does not have standing to bring this claim.

4. Plaintiff’s Petition to the Justice Department

Mr. Brown also challenges the Justice Department’s lack of response to a petition he

filed asking them to “promulgate clear and concise rules for United States Attorney(s) to

determine when it is lawful to prosecute a state citizen for a federal control [sic] substance

regulatory violation.” Am. Compl. 5. Plaintiff’s first amended complaint contained only the

conclusory allegation that he had been “adversely effected [sic],” id. at 1, by the agency’s

unresponsiveness, and as such his initial complaint would be dismissed for lack of standing. See

Wright,

, at *3 (holding that nondescript and conclusory allegations of injury

are not the type of allegations from which the court will infer facts to ensure standing at the

pleadings stage).

In his second amended complaint, plaintiff alleges that he “is under imminent threat of

being federally prosecuted for the sell [sic] of ‘PROCAINE.’” Second Am. Compl. 1. Procaine is

a known “diluting or ‘cutting’ agent,” United States v. Johnson,

(D.C. Cir.

2010), “commonly cut with cocaine for the purpose of stretching out the amount of crack

produced,” United States v. Franklin,

(5th Cir. 1998). Presumably plaintiff

wants the DOJ to promulgate rules clarifying whether or not Procaine is covered by the

Controlled Substances Act. The mere denial of a procedural right being insufficient to establish

standing, Gettman,

, Mr. Brown must demonstrate that denial of this procedural

right affects a threatened concrete interest that is the ultimate basis of his standing.

Though

his—alleged—past prosecution and conviction for Procaine distribution, see Pl.’s Reply Defs.’

12 Mem. of Points and Authorities in Opp’n to Pl.’s Mot. for Leave Am. and Supplement

Compl./Pet. Review 4, ECF No. 27 (“Pl.’s Reply”), might give rise to a concrete interest,

plaintiff is barred under Heck and Terry from challenging his original criminal conviction in a

civil suit under the APA. See Terry,

. Even assuming that plaintiff was

previously prosecuted for Procaine distribution—an assumption completely unjustified in light of

the total absence of evidence in the record—and that his conviction was a threatened concrete

interest, his suit would be dismissed under Terry for failure to state a claim upon which relief

could be granted.

Alternatively, plaintiff attempts to demonstrate a threatened concrete interest by claiming

in his motion for leave to amend that he is currently under investigation for Procaine distribution.

Mot. Leave Am. and Supplement Compl./Pet. Review 3, ECF No. 21 (“Mot. Leave”). Somewhat

curiously—and this may be a testament to plaintiff’s limited knowledge of the “investigation”—

in his actual complaint he says only that he is under imminent threat of prosecution. Second Am.

Compl. 1 (emphasis added). Because the alleged injury from future prosecution is conjectural

and hypothetical, it cannot be a source of standing. With regard to standing, “[a]t the pleading

stage, ‘general factual allegations of injury resulting from the defendant’s conduct may suffice,’

and the court ‘presumes that general allegations embrace the specific facts that are necessary to

support the claim.’” Sierra Club v. EPA,

(D.C. Cir. 2002) (citing Lujan, 504 U.S.

at 561) (emphasis added). However, “conclusory allegations of injury are not the type of general

factual allegations from which the Court may presume the specific facts necessary to ensure that

the plaintiff has standing, and are insufficient to meet the plaintiff’s burden of alleging an injury

in fact that is concrete and particularized.” Wright,

, at *3 (internal citation

removed).

13 Although plaintiff says he is under imminent threat of prosecution, the only evidence he

proffers to substantiate that claim is an unlabeled, undated inventory of evidence, which has

entries on separate lines for “30 Photographs of Package Containing Procaine” and “Photos of

UPS – Procaine Notes From Procaine Shipment.” Mot. Leave 8. Large portions of the document

are redacted, and nothing in it indicates either that it is related to Mr. Brown or that it is part of

an ongoing investigation.

Though on a motion to dismiss the court will view the pleadings in

the light most favorable to the nonmoving party, plaintiff alleges no more than a conjectural or

hypothetical injury, and the word “imminent” is not a magic phrase—as perhaps plaintiff

hopes—that will transform his baseless accusations from conjecture to injury-in-fact. Courts may

not “accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out

in the complaint,” Iqbal, 129 S. Ct. at 1949, and plaintiff’s assertion that he is being prosecuted

is not supported by any facts set out in the complaint. Leaving aside the absurdity of plaintiff’s

assertion that federal agents would waste resources investigating a man serving a life term for

distribution of Procaine, plaintiff’s paranoid belief that he is being prosecuted is not a

“threatened concrete interest,” and plaintiff’s argument is done in by “the purely speculative

nature of the harm and its remediability.” Gettman,

. There is no indication in

plaintiff’s criminal case that he was prosecuted for Procaine possession or distribution, and the

mere inclusion of Procaine in a document whose source, subject-matter, and tie to Mr. Brown are

absolutely unclear is the type of “nondescript and conclusory allegation,”

from which the

Court should not presume the specific facts necessary to ensure that standing exists. 1 Although

1 Though the DOJ could have easily disposed of plaintiff’s claim by submitting an affidavit demonstrating that Mr. Brown was not currently under investigation, they instead elected to take a more circuitous route, claiming that there is no statute under which plaintiff could be prosecuted for Procaine distribution. Mem. Points and Authorities Opp. Pl.’s Mot. Leave Am. and Supplement Compl./Pet. Review 5, ECF No. 25. While that is all well and good, it is only tangential to plaintiff’s claim that he is being prosecuted, and has the odd effect of affirming plaintiff’s position. After all, if there is no law under which he could be prosecuted yet he still is being prosecuted, perhaps there do need to be more clear rules and regulations. Fortunately for defendants, plaintiff cannot carry the burden required of

14 plaintiff attempted to remedy the standing issue in his second amended complaint, the amended

complaint would not withstand a motion to dismiss, so his motion to amend will be denied as

futile and his claim dismissed. See James Madison, Ltd. v. Ludwig,

(D.C.

Cir. 1996) (holding that amendments can be denied where they would not withstand a motion to

dismiss).

B. Administrative Exhaustion

1. Plaintiff’s Motion for Leave to Amend the Complaint to Add New FOIA Claims Plaintiff has moved for leave to amend his complaint, adding seven new FOIA claims

against a number of defendant agencies. Plaintiff’s motion will be denied as to six of these

claims, and granted as to Claim XII against the Tax Division.

A party may amend its pleading once as a matter of course. Fed. R. Civ. P. 15(a)(1). After

amending as a matter of course, a party may amend “only with the opposing party’s written

consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a)(2). Because plaintiff has already amended his complaint as a matter of course, Am.

Compl., and the defendants do not give consent, it is up to the court to give plaintiff leave to

amend.

“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.” James Madison, Ltd.,

. See also Foman

v. Davis,

(1962) (listing reasons to deny motion for leave to amend). Plaintiff

does not allege administrative exhaustion for six of his seven new claims, and therefore fails to

state a claim upon which relief can be granted. Because these claims would not survive a motion

to dismiss, the amendment is denied as futile as to claims VII-XI and XIII, which are dismissed

him, or the DOJ would be in the unenviable position of having to defend a prosecution they themselves admitted was not permitted by law.

15 without prejudice. James Madison, Ltd.,

. His motion for leave to amend is

granted as to his FOIA claim against the Tax Division of the DOJ, Second Am. Compl. 7.

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). To satisfy this test, 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,

(2007). “[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual allegations contained in the

complaint,” Atherton v. District of Columbia,

(D.C. Cir. 2009), and grant a

plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI

Commc’ns Corp.,

(D.C. Cir. 1994). A court, however, may not “accept

inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the

complaint.” Ashcroft v. Iqbal,

(2009). In other words, “only a complaint

that states a plausible claim for relief survives a motion to dismiss.” Id.; see also Atherton,

(holding that complaint must plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged”).

A FOIA plaintiff fails to state a claim upon which relief can be granted under Fed. R.

Civ. P. 12(b)(6) when he or she fails to allege administrative exhaustion. See United States v.

Bestor, No. 04-cv-2049,

, at *11 (“No FOIA claim is stated in the

absence of an allegation that the requester exhausted his administrative remedies.”). Courts have

consistently confirmed that “FOIA requires exhaustion of [the] appeal process before an

individual may seek relief in the courts.” Oglesby v. U.S. Dep’t of the Army,

, 61–62

(D.C. Cir. 1990). The burden of demonstrating administrative exhaustion is on the plaintiff. See

16 Arnold v. U.S. Secret Serv., No. 05-cv-0450,

, at *4 (D.D.C. Sept.

29, 2006) (“It is plaintiff’s burden to show his prior exhaustion of his administrative remedies.”);

Schoenman v. FBI, No. 04-cv-2202,

, at *49–50 (D.D.C. March 31,

2006) (affirming that the burden of demonstrating exhaustion is on the plaintiff). There are good

reasons to place the burden of demonstrating exhaustion on the plaintiff: “[i]f a party could avoid

the exhaustion requirement merely by asserting that they had pursued all available administrative

relief, administrative agencies would be placed in the position of having to prove the negative:

that proper avenues of appeal had not been pursued.” Williams v. McCausland, No. 90-cv-7563,

, at *4 (S.D.N.Y. Jan. 18, 1994), cited with approval in Bestor,

, at *12; Arnold,

, at *4.

Plaintiff here has done little other than allege that he submitted FOIA requests and has

not received the documents he requested. By way of example, his claim against the DEA reads,

in its entirety: “Drug Enforcement Administration has unlawfully refused and/or withheld

records in the agency’s files concerning plaintiff. . . . Plaintiff filed a FOIA request with the

agency on January 31, 2009. . . . Plaintiff’s request was assigned number 09-0533-P. . . . The

agency unlawfully withheld records and/or claimed inapplicable exemptions.” Second Am.

Compl. 5. All his other claims—with one exception, discussed below—are similarly deficient.

at 5–7. Mr. Brown has not placed information into the record showing that the agency denied

his request or that he appealed their denial, and he has therefore failed to allege administrative

exhaustion. Bestor,

, at *11.

The only claim that goes a step further is claim XII, one of his FOIA claims against the

Department of Justice. Plaintiff claims, not in his complaint but in his reply to defendants’

opposition, that he “filed appeal of the denial of the requested records on November 29, 2010.”

17 Pl.’s Reply at 4. In Bestor, the plaintiff received an unsatisfactory response to his initial request

and appealed, but in his suit failed to allege that the agency had received his appeal or responded

to it. Bestor,

, at *9. His failure to carry that burden was enough to

doom the complaint.

Although Mr. Brown’s allegations are analogous, in Bestor the Court

emphasized that plaintiff “essentially concede[d] the facts set forth by the defendant in its motion

[to dismiss],”

, and that he did not “dispute the facts asserted by the defendant,”

Plaintiff does just the opposite here, insisting that he did file an appeal and has still not received

satisfactory relief. According to his reply, plaintiff filed an appeal on November 29, 2010,

meaning the thirty day period within which the agency would be required to respond has long

passed. See

(a)(6)(A)(2). His administrative remedies are almost certainly

exhausted, whether actually or constructively. Though we urge plaintiff to submit evidence

clearly demonstrating exhaustion of his administrative remedies should defendant file for

summary judgment, his claim against the Tax Division of the DOJ would survive a motion to

dismiss and for that reason leave to amend is granted. 2 His other FOIA claims, however, will not

survive a dispositive motion, and his motion for leave to amend will be denied as futile as to

those claims.

2. Plaintiff’s FOIA Claim Against the BOP

Defendant Bureau of Prisons has not moved to dismiss plaintiff’s FOIA claim for

administrative records of Program Statement 5217.01, Am. Compl. at 5, but because plaintiff

fails to allege administrative exhaustion his claim will be dismissed with leave to amend.

2 Defendants’ reliance on Wolf v. CIA,

(D.D.C. 2008), is misguided, and their argument that allowing the amendment will prejudice their client is absurd. In Wolf the court balked at adding claims whose related searches would require $147,000 and 3675 hours to complete.

The burden placed on defendant by one additional FOIA claim—90 hours by the defendants’ estimate— in the present case is relatively miniscule. As plaintiff’s FOIA claim against the DOJ is not dismissed, it will be necessary for defendant to produce a Vaughn index for the documents that are the subject of plaintiff’s request.

18 Mr. Brown’s claim against the BOP shares the deficiencies of those in his second

amended complaint: his complaint merely states that “[t]he agency has refused to provide the

records” he requested. Am. Compl. 5. Thus, he has clearly failed to state a claim upon which

relief may be granted. See Bestor,

, at *11 (denying relief where

plaintiff pleads more, including that the plaintiff received a response and filed an appeal).

Although the BOP has not moved to dismiss, the Court may grant a 12(b)(6) motion to dismiss

sua sponte. Baker v. Director, U.S. Parole Comm’n,

. 727 (D.C. Cir. 1990). The

Court will, however, grant leave to amend because “sua sponte dismissal of a complaint for

failure to state a claim without leave to amend is error unless ‘the claimant cannot possibly win

relief. . . . This will be the case either when the facts alleged affirmatively preclude relief, or

because, even though plaintiff makes clear that he has facts to add to his complaint, he would not

have a claim upon which relief could be granted even with those facts.’” Plummer v. Mayor,

, 107 (D.C. Cir. 2010) (citing Razzoli v. Fed. Bureau of Prisons,

(D.C. Cir. 2000)) (internal citations removed). The facts here do not affirmatively preclude

relief—the issue is that plaintiff has not alleged enough, not that any undisputed facts prevent

him from succeeding on the merits—and Mr. Brown would have an actionable claim if he would

explicitly allege administrative exhaustion by pointing to specific documents.

B. Plaintiff’s Motion to Strike/Motion for a More Definite Statement

Plaintiff filed a motion to strike defendants’ motion to dismiss on November 22, 2010,

arguing that defendants’ motion “raises issues wholly unrelated to the matters before this Court”

and was “presented only to attempt to vilify the plaintiff.” Mot. Strike. Whatever the caliber of

complainant’s conspiratorial contentions, his motions have no basis in the Rules of Civil

Procedure, which are clear on the subject: “[t]he court may strike from a pleading an insufficient

19 defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f)

(emphasis added). “[A] cursory review of the Federal Rules of Civil Procedure informs that non-

pleadings . . . are not subject to motions to strike.” Great Socialist People’s Libyan Arab

Jamahiriya v. Ahmad Miski,

(D.D.C. 2010). See also Fed. R. Civ. P. 7(a)

(the only pleadings allowed are “(1) a complaint; (2) an answer to a complaint; (3) an answer to a

counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party

complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an

answer.”); 2 James Wm. Moore et al., Moore’s Federal Practice – Civil ¶ 12.37 (3d ed. 2011)

(“Only material included in a ‘pleading’ may be the subject of a motion to strike, and courts have

been unwilling to construe the term broadly. Motions, briefs or memoranda . . . may not be

attacked by the motion to strike.”).

Plaintiff’s motion for a more definite statement is also clearly invalid: “A party may

move for a more definite statement of a pleading to which a responsive pleading is allowed.”

Fed. R. Civ. P. 12(e) (emphasis added). Because a motion to dismiss is neither a pleading nor a

pleading to which a responsive pleading is allowed, it cannot be struck from the record nor is it

subject to a motion for a more definite statement.

C. Plaintiff’s Motion for Preliminary Injunction

Preliminary injunctions are “an extraordinary remedy, [and] courts should grant relief

sparingly,” United Gov’t Sec. Officers of Am. Int’l Union v. Serv. Emp’rs’ Int’l Union,

(D.D.C. 2009), and only when “the movant, by a clear showing, carries the

burden of persuasion.” Mazurek v. Armstrong,

(1997). In order to issue a

preliminary injunction, the moving party must demonstrate “1) a substantial likelihood of

success on the merits, 2) that it would suffer irreparable injury if the injunction is not granted, 3)

20 that an injunction would not substantially injure other interested parties, and 4) that the public

interest would be furthered by the injunction.” Mova. Pharm. Corp. v. Shalala,

(D.C. Cir. 1998). Importantly, the purpose of a preliminary injunction “is merely to

preserve the relative positions of the parties until a trial on the merits can be held,” Univ. of Tex.

V. Camenisch,

(1981)), and any relief to be granted “must be narrowly

tailored to the harm shown,” Neb. Dep’t of Health & Human Servs. v. U.S. Dep’t of Health &

Human Servs.,

, 330 (D.D.C. 2006) (overturning injunctive relief ordered by district

court where relief granted was not part of plaintiff’s complaint); see also IBT/HERE Emp.

Representatives’ Council v. Gate Gourmet Div. Americas,

(D.D.C. 2005)

(“any injunction that the court issues must be carefully circumscribed and tailored to remedy the

harm show.”).

Plaintiff’s motion here seeks relief that is not only equivalent to, but exceeds the relief he

would get should he succeed on the merits. Mr. Brown asks the Court to issue a preliminary

injunction against the BOP “to cease and desist its forced psychological treatment prolonged

isolation regiment [sic] and its retaliation against plaintiff for refusing the unlawful treatment.”

Mot. Prelim. Inj. 1. But “[a] preliminary injunction is just that—preliminary. It does not

substitute for a trial, and its usual office is to hold the parties in place until a trial can take place.”

Cobell v. Norton,

(D.C. Cir. 2004) See also Dressler v. Wilson,

(D.D.C. 1957) (preliminary injunctions should be “very rarely allowed in cases where

the temporary relief would, in effect, be the same as that which would be accorded by a final

judgment if the plaintiff prevailed at the trial.”) The only claim to which this motion could

potentially be related is plaintiff’s APA claim against the BOP, in which he seeks an order

forcing them to respond to his petition to repeal Program Statement 5210.17. Am. Compl. at 5.

21 However, even if plaintiff succeeded on the merits, the relief to which he would be entitled

would merely be a response to his petition to repeal. Defendant BOP could—and presumably

would—deny his petition. Because a preliminary injunction would far exceed the relief plaintiff

would get if he succeeded on the merits, it will not be granted.

Even were the scope of plaintiff’s injunction limited to relief this Court would be within

its power to grant, his motion is moot. Plaintiff has been transferred from FCI-Talledaga to an

Administrative Max prison in Florence, CO, Change Address 1, ECF No. 37, where he is no

longer subjected to the alleged “psychological torture” he was suffering in the SMUs at FCI-

Talledaga. This Court would be remiss to issue an order freeing plaintiff from a program from

which he has he already been released.

D. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for summary judgment on his FOIA claim against the FBI. Part. Summ. J.

In his motion, plaintiff argues that FBI “has been acting in bad faith and in violation of [FOIA]

since November 2001,” claiming that “[t]he records [he has been requesting] are not exempt

from disclosure.” Id. at 5.

Summary judgment should be granted when the “materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations,

. . . admissions, interrogatory answers, or other materials” show “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)–(c). This standard requires more than the mere existence of some factual dispute between

the parties; “the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc.,

, 247–48 (1986). “A fact is ‘material’ if a dispute over it might

affect the outcome of a suit under the governing law.” Holcomb v. Powell,

, 895

22 (D.C. Cir. 2006). “An issue is ‘genuine’ if the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Doe v. IRS,

(D.D.C. 2009)

(citing Anderson,

).

The record, though sparse, demonstrates that plaintiff has not carried the burden

necessary for summary judgment to issue. Genuine issues of material fact exist and summary

judgment for a FOIA plaintiff is improper where “the record lacks sufficient detail as to the

nature of the documents held by [the agency] and the exemptions that may or may not justify

disclosure.” Santos v. DEA,

(D.D.C. 2004). Plaintiff’s claim here is little

more than a bald assertion that the FBI acted improperly and in bad faith by claiming

inapplicable exemptions. Part. Summ. J. at 5. Although “summary judgment is appropriate for a

FOIA plaintiff when the requested material, ‘even on the agency’s version of the facts, falls

outside the proffered exemption,’” Trulock v. DOJ,

(D.D.C. 2003) this

court is required to draw all inferences in favor of the non-moving party, Matsuhita, 475 U.S. at

587. Plaintiff has failed to point to any documents or any part of the record to show what the

exemptions the FBI claimed were, let alone that those claims were erroneous. While he may be

able to establish that the agency acted improperly and in bad faith at trial, plaintiff cannot

demonstrate that there is no genuine issue as to these material facts, and his motion is denied.

E. Plaintiff’s Remaining FOIA Claim

Defendants have asked the Court to dismiss the FBI from plaintiff’s remaining FOIA

claim, arguing that “the only proper party against which Plaintiff may seek relief under FOIA in

this action is Defendant DOJ.” Mot. Dismiss 17. A small number of courts in this circuit have

held that the cabinet-level agency should be substituted for the component agency as the

defendant in a FOIA action. See, e.g., Judicial Watch, Inc. v. FBI,

, 31

23 (D.D.C. 2002). This Court does not think that necessary, however, given the plain meaning of

the statute 3 and the number of cases in this circuit which have held that the FBI may be a

defendant for the purposes of FOIA. See Peralta v. U.S. Attorney’s Office, 136 F.3d at 173 (D.C.

Cir. 1998) (“we have observed previously that FBI is ‘clearly . . . covered’ by the FOIA”) (citing

McGehee v. CIA,

(D.C. Cir. 1983)); Cloonan v. Holder, No. 08-cv-700,

(D.D.C. Mar. 8, 2011) (“naming components as defendants . . .

is appropriate since the statute’s plain language is clear”); Peralta v. U.S. Attorney’s Office,

(D.D.C. 1999) (“given that many of the documents at issue in this case

originated with FBI . . . the Court finds that FBI is a proper defendant in this case.”); see also

Lair v. Dep’t of Treasury, No. 03-cv-827,

, at *8 (D.D.C. Mar. 21,

2005) (“naming components [as defendants] is proper”). Substitution could also “impede the

purposes of the FOIA by preventing persons from receiving information in the most direct and

efficient manner.” Peralta,

. No court has found that FOIA does not apply to

the FBI, see, e.g., Judicial Watch, Inc. v. FBI,

, and the fact that the FBI “has

litigated numerous FOIA cases in its own name before the Supreme Court, this court, and other

circuit courts, with the DOJ as one of its components appearing as counsel,” Peralta, 136 F.3d at

173-74, also suggests that substitution would be an unnecessary distraction. Because it is not

required by statutory language nor binding precedent, the motion is denied.

To ensure that defendant’s “allegations of exempt status are adequately justified,”

Vaughn v. Rosen,

(D.C. Cir. 1973), it will be necessary for defendant FBI to

produce a Vaughn index for the documents requested in plaintiff’s first FOIA claim.

3 The Freedom of Information Act covers “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”

(1). See also

at § 552(f)(1) (agency “includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government . . . or any independent regulatory agency”).

24 V. CONCLUSION

Upon full consideration of the parties’ filings, applicable law, and the record herein,

defendants’ motions to dismiss are granted, except insofar as they request the dismissal of

defendant Federal Bureau of Investigation. Plaintiff’s motion to strike and for a more definite

statement is denied, and his motions for a preliminary injunction and partial summary judgment

are denied. His motion for leave to amend is denied as futile as to all claims, except that it is

granted insofar as it seeks to add a FOIA claim against the Tax Division of defendant DOJ. His

FOIA claim against the FBI will also be permitted to go forward, and the court asks defendants

FBI and DOJ to produce Vaughn indexes for the documents that are the subject of plaintiff’s

FOIA requests.

A separate Order consistent with these findings shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on June 24, 2011.

25