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Marlin Penn v. U.S. Department of Justice

March 7, 2012

MARLIN PENN, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

This action, in which plaintiff is proceeding pro se and in forma pauperis, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). The United States Department of Justice ("DOJ") moves (1) to dismiss the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), and its named employees, as improper defendants pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1); (2) to dismiss plaintiff's unexhausted claims pursuant to Rule 12(b)(1); and (3) for summary judgment pursuant to Rule 56. Def.'s Mot. for Summ. J. ("MSJ"), Dckt. No. 35-3. Plaintiff opposes the motion and also moves for the appointment of counsel. Pl.'s Opp'n to MSJ ("Opp'n"), Dckt. No. 38; see also Dckt. Nos. 40, 49, 52, 54, 55. For the reasons stated below, the DOJ's motions to dismiss and for summary judgment must be granted and plaintiff's motions to appoint counsel must be denied.

I. Background

In September 2010, plaintiff filed a complaint against the DOJ, ATF, and ATF employees Richard Huff and Priscilla Jones, challenging the refusal of the defendant federal agencies and employees to turn over information requested by plaintiff under the Freedom of Information Act, 5 U.S.C. § 552 (hereinafter "FOIA"). Compl., Dckt. No. 1. Then, in December 2010, plaintiff filed an amended complaint under FOIA, naming the same defendants as in his original complaint, and also naming ATF employee Jessie Price as a defendant. Am. Compl., Dckt. No. 9. Plaintiff made numerous FOIA requests concerning a Raven .25 Firearm that plaintiff contends was used to wrongfully convict him. Id.; see also Decl. of Averill P. Graham, Dckt. No. 35-1, Exs. A, H, O, V and X.

Plaintiff argues that the firearm trace information he seeks from ATF "conflicts with the information, evidence, and testimony used in his criminal conviction," and that the requested information would exonerate him. Am. Compl. at 4. He contends that the firearm at issue has been destroyed by the Los Angeles Police Department, that the only source for the information requested is ATF, and that the State of California refuses to obtain the information from ATF. Am. Compl. at 3-4, Ex. 1.*fn1 Therefore, he submitted numerous FOIA requests to ATF seeking to obtain the information.

A. Plaintiff's First FOIA Request

On October 20, 2004, plaintiff sent ATF a FOIA request seeking "the date and by whom this Phoenix Arms -- Raven .25 caliber (Ser. # 3022646) was unregistered." Def.'s Stmt. of Undisp. Facts ("SUF"), Dckt. No. 35-2, ¶ 1.*fn2 ATF responded with a letter informing plaintiff that there is no federal registration of firearms and, therefore, ATF does not maintain records relating to his request. SUF ¶ 3. In fact, there is no federal registration of firearms, and therefore ATF does not maintain records responsive to plaintiff's first request. SUF ¶ 4. On December 1, 2004, plaintiff filed an administrative appeal of the denial of his FOIA request with the Office of Information and Privacy ("OIP"). SUF ¶ 5. On January 18, 2005, and again on May 9, 2005, OIP affirmed ATF's denial of plaintiff's first FOIA request. SUF ¶¶ 6, 7.

B. Plaintiff's Second FOIA Request

On March 4, 2005, plaintiff amended his first FOIA request, which ATF treated as a second FOIA request. SUF ¶ 8. Plaintiff's letter requested information regarding "when Torrance Police notified the DOJ in regards to the recovery of a .25 caliber, Phoenix Arms- Raven, Serial No. 3022646." Graham Decl., Ex. H. By letter dated March 24, 2005, ATF denied the second request, withholding all responsive records in full under FOIA Exemption (b)(3) ("Exemption 3"). SUF ¶ 9. Plaintiff filed an administrative appeal on April 21, 2005, and on July 12, 2005, OIP affirmed ATF's denial. SUF ¶¶ 10-11.

C. Plaintiff's Third FOIA Request

On April 24, 2008, ATF received a third FOIA request dated April 15, 2008, from plaintiff through his Deputy Public Defender, Mr. Anthony Patti, in which he again requested "any and all records concerning the Firearm History for PHOENIX ARMS CO., 25 Cal., pistol, Raven, Ser. # 10205 or 3022646." SUF ¶ 12. The letter provided, among other things, that "[d]isclosure of the requested information to me, on behalf of my client, is in the public interest because police misconduct may have occurred and if it did, an innocent man may have been convicted of a crime." Graham Decl., Ex. O.

On April 29, 2008, ATF denied the request, explained that the documents were being withheld in full under FOIA Exemption 3, and provided plaintiff with instructions on how to file an administrative appeal. SUF ¶ 13. Mr. Patti filed an administrative appeal on June 6, 2008, and on August 26, 2008, OIP affirmed ATF's denial of plaintiff's third FOIA request. SUF ¶ 14. After a reconsideration request from Mr. Patti, OIP reaffirmed its decision on October 22, 2008. SUF ¶ 15.

D. Plaintiff's Fourth FOIA Request

On October 29, 2008, plaintiff, again through his attorney, Mr. Patti, requested "any and all records concerning the Firearm History for PHOENIX ARMS CO., 25 Cal., Pistol, Raven, Ser. # 10205 or 3022646." SUF ¶ 16. The request letter acknowledged that the request was duplicative. Id. On November 10, 2008, ATF rejected the request as duplicative, and enclosed and referred to two letters regarding plaintiff's third FOIA request, including a letter explaining plaintiff's administrative appeal rights. SUF ¶¶ 17-18. Plaintiff does not dispute that he did not file an administrative appeal of his fourth FOIA request. SUF ¶ 19; see generally Opp'n.

E. Plaintiff's Fifth FOIA Request

On February 27, 2011, plaintiff, through Mr. Patti, filed another FOIA request for the same information. SUF ¶ 20. On March 28, 2011, ATF denied the request on the basis of Exemption 3 and advised plaintiff of his right to seek administrative appeal. SUF ¶ 21. Plaintiff concedes that he did not file ...


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