Rozo v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HECTOR ROZO, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0427 (BAH)
)
U.S. DEPARTMENT OF JUSTICE et al., )
)
Defendants. )

MEMORANDUM OPINION

In this action brought pro se under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552, the defendants conducted a search for records responsive to the plaintiff’s FOIA request

but located no records. Asserting that their search was adequate, the defendants have moved

for summary judgment under Federal Rule of Civil Procedure 56. Defs.’ Mot. for Summ. J., ECF

No. 11. The plaintiff has not complied with the Order of September 3, 2013, ECF No. 13,

advising him about responding to the defendants’ motion and giving him until October 10,

2013, to oppose the motion. Having considered the defendants’ unrefuted evidence of an

adequate search, the Court will grant the defendants’ motion and enter judgment accordingly.

I. LEGAL STANDARD

Pursuant to Rule 56, summary judgment shall be granted “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011); Tao v. Freeh,

27 F.3d 635, 638 (D.C. Cir. 1994). To determine which facts are material, the Court looks to the

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substantive law on which each claim rests. Anderson, 477 U.S. at 248. Summary judgment is

properly granted against a party who “fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The court should

state on the record the reasons for granting . . . the [summary judgment] motion.” Fed. R. Civ.

P. 56(a).

“ ‘FOIA cases typically and appropriately are decided on motions for summary

judgment.’ ” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders

of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). With respect to the

adequacy of an agency's search efforts, summary judgment may be based solely on information

supplied in the agency's supporting declarations that “explain in reasonable detail the scope

and method of the agency’s search,” id. at 181 (citing Perry v. Block, 684 F.2d 121, 126 (D.C. Cir.

1982)), and “demonstrate beyond material doubt that [the] search was reasonably calculated

to uncover all relevant documents.” Students Against Genocide v. Dep't of State, 257 F.3d 828,

838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C.

Cir. 1995)). “The adequacy of a search ‘is judged by a standard of reasonableness and depends,

not surprisingly, upon the facts of each case.’ ” Mobley v. CIA, 924 F. Supp. 2d 24, 26 (D.D.C.

2013) (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Since an

adequate search is established by the “appropriateness” of the search methods employed, not

the “fruits of the search,” the sole fact that documents were not located cannot support a

finding of an inadequate search. Scaff-Martinez v. Drug Enforcement Admin., 770 F. Supp. 2d

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17, 21-22 (D.D.C. 2011) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.

Cir. 2003); Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 390-91 (D.C. Cir. 2007)).

II. DISCUSSION

The September 3, 2013 Order warned the plaintiff that his failure to refute the

defendants’ factual assertions in accordance with Rule 56(c)(e) -- the text of which was set out

in the order -- might result in entry of judgment for the defendants. The plaintiff has

completely failed to come forward with any evidence to rebut the defendants’ declaration

establishing their reasonably adequate search for responsive records. See Decl. of Michelle

Smith, ECF No. 11-2, ¶¶ 5-13 (recounting her searches conducted in 2011, 2012, and 2013).

Hence, the Court finds on the undisputed factual record that the defendants are entitled to

judgment as a matter of law. See Grimes v. District of Columbia, 923 F. Supp. 2d 196, 198

(D.D.C. 2013) (“The 2010 Amendments to Federal Rule of Civil Procedure 56 . . . and the

accompanying Advisory Committee Notes do not prohibit this Court from granting summary

judgment where, as here, the nonmovant fails to demonstrate a genuine dispute as to any

material fact.”). A separate order accompanies this Memorandum Opinion.

/s/ Beryl A. Howell
UNITED STATES DISTRICT JUDGE

DATE: November 12, 2013

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