The opinion of the court was delivered by: Bloch, District J.
Defendant has filed a second motion for summary judgment (doc. no. 76) in this action. For the reasons set forth below, this motion is granted, and, accordingly, the remaining counts of Plaintiff's First Amended Complaint, Counts I, V, IX, X, and XI, are hereby dismissed with prejudice.
The Court, on March 30, 2006, issued an Order and Opinion disposing of Defendant's first summary judgment motion. Since the facts of the case were set forth in detail in that Opinion, the Court will not do so again here.
By way of summary, Plaintiff has raised two types of claims in his First Amended Complaint ("Amended Complaint" or "Am. Compl.") which essentially fall under two categories. Part I of the Amended Complaint sets forth 8 counts in which Plaintiff alleges that Defendant violated the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") and the Privacy Act of 1974, 5 U.S.C. § 552a ("PA") by refusing to provide him with records that he requested from various agencies which are components of the Department of Justice ("DOJ") pursuant to those statutes. In particular, Count I pertains to requests under the FOIA and PA to the United States Marshals Service ("USMS"); Count II pertains to requests to the Executive Office for United States Attorneys ("EOUSA"); Counts III and IV pertain to requests to the Federal Bureau of Investigation ("FBI"); Count V pertains to requests to the Federal Bureau of Prisons ("BOP"); and Count VII pertains to requests to the Office of Information and Privacy ("OIP"). Part II (Counts IX through XI and Count XII) of the Amended Complaint contains allegations regarding the interrogation of Plaintiff by DOJ agents and the disclosure of an affidavit by the DOJ to third parties.*fn1
On March 30, 2006, the Court issued its Order and Opinion granting in part and denying in part Defendant's first motion for summary judgment. In particular, the court granted summary judgment with respect to Counts II, III, IV, VII, and XII, and denied summary judgment with respect to Counts V, IX, X, and XI. As to Count I, the Court held that Plaintiff must exhaust his administrative remedies via the administrative appeals process as to the USMS's second disclosure of records and deferred ruling on that count until after the completion of the administrative review process. The Court retained jurisdiction over this count and stayed the proceedings pending the completion of the administrative appeal process.
Therefore, except for Count I, the Court has already entertained summary judgment challenges to all of the counts contained in the Amended Complaint.*fn2 Nonetheless, the Court is mindful that summary judgment is recognized as the primary mechanism by which a district court will resolve the issues presented in FOIA/PA cases. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993). Accordingly, the Court has decided to consider Defendant's present motion regarding the remaining counts.
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual dispute is material only if it might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. Whether a genuine issue of material fact is presented will be determined by asking if "a reasonable jury could return a verdict for the nonmoving party." Id. Thus, "the court should review all of the evidence in the record [and] ... must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations and internal quotation marks omitted) (noting that standard for judgment as a matter of law under Rule 50 is the same as that for summary judgment). Determining credibility, weighing the evidence, and drawing legitimate inferences from the facts are jury functions, not those of a judge. Id. "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151.
Where the non-moving party will bear the burden of proof at trial, the moving party need not refute the essential elements of the non-movant's case, but need only point out the insufficiency of the non-movant's evidence offered in support of those essential elements. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rule 56 requires the non-moving party to go beyond the pleadings and show, through the evidence of record, that there is a genuine issue for trial. Id. at 324.
Upon examination of the pleadings, briefs, statements of fact, and accompanying exhibits, and viewing the facts in a light most favorable to Plaintiff, this Court finds that there are no issues of material fact and that Defendant is entitled to judgment as a matter of law on Counts I, V, IX, X, and XI of the Amended Complaint.
As discussed more fully in the Court's March 30 Opinion, Plaintiff, on or around August of 2003, requested from the USMS all documents that relate to him, mention him, or otherwise list his name in 12 judicial districts and EOUSA headquarters. The initial search for records pertaining to Plaintiff was conducted in the thirteen district offices identified in his request. To aid in this search, each USMS office was supplied with Plaintiff's date of birth, social security number, and prisoner number, all of which were provided by Plaintiff. (Declaration of Florastine P. Graham ("Graham Declaration" or "Graham Decl.") at ¶ 2, Ex. A, ¶¶ 3-4)).*fn3
As a result of the search conducted by the specified USMS offices, 88 pages of records pertaining to Plaintiff were located in the Northern District of West Virginia and the Middle District of Pennsylvania in the Prison Processing and Population Management/Prisoner Tracking System (PPM/PTS), JUSTICE/USM-005, and the Warrant Information Network (WIN), JUSTICE/USM-007, systems of records. (Id. at ¶ 6).
As discussed in the March 30 Opinion, the Office of General Counsel ("OGC") indicated that Plaintiff should complete an enclosed Certification of Identity form, DOJ-361 and return the form to the USMS and that upon receipt of that information, the OGC would correspond further with Plaintiff regarding his request. (Id., Ex. D). Although Plaintiff initially appealed this request to the FOIA/PA Appeals Officer for the OIP (Id., Ex. E), he did, on November 24, 2003, complete and return the DOJ-361 form. (Id. at ¶ 8, Ex. F).*fn4
On December 15, 2003, the USMS released to Plaintiff 83 of the 88 records located in response to his request, 17 of which were disclosed with deletions pursuant to 5 U.S.C. § 552(b)(7)(C). (Id. at ¶ 9, Ex. G). Five documents were referred to the EOUSA. (Id.). Plaintiff filed an administrative appeal of the USMS's action on his request by a letter dated December 29, 2003, and the OIP, which is responsible for FOIA/PA appeals within the DOJ, subsequently closed this appeal by letter dated March 23, 2004, in response to Plaintiff's Amended Complaint. (Id. at ¶ 11, Exs. I, K).*fn5
As discussed in the March 30 Opinion, Plaintiff alleges in Count I that the USMS's initial search of its records in response to his FOIA/PA request for all files referencing him was inadequate because it did not produce particular files that he believes are contained in the agency's records. (Brief in Opposition to the Government's Motion for Summary Judgment as to Count I ("Plaintiff's Brief as to Count I" or "Pl. Brief as to Count I") at 3). He expressly did not challenge any of the withheld documents (which he acknowledges in his opposition to the present motion).
However, in light of Plaintiff's statements in his Brief as to Count I, the USMS conducted a second search for records relating to Plaintiff. (September 29, 2005 Declaration of William E. Bordley ("2005 Bordley Decl.") at ¶ 6). The USMS searched by hand its files regarding Keith Maydak, which had already been collected based on a prior FOIA/PA request made by Maydak, for records regarding Plaintiff. Moreover, a second search was made in the Western ...