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Davidson v. Bureau of Prisons

United States District Court, E.D. Kentucky, Lexington Division

March 19, 2013


Page 771

Clifton B. Davidson, Plaintiff, Pro se, LEXINGTON, KY.

For Bureau of Prisons, Defendant: Andrew Louis Sparks, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY.


Karl S. Forester, United States Senior Judge.

Page 772


Plaintiff Clifton B. Davidson has filed a motion seeking relief from the Order dismissing his complaint filed under the Freedom of Information Act, 5 U.S.C. § 552 (" FOIA" ). Davidson's motion also seeks an order awarding him court costs of $793.00, arguing that he has " substantially prevailed" in this FOIA action. [R. 26] The Court will deny Davidson's motion because he has not established grounds warranting relief from the Order dismissing his FOIA complaint. However, pursuant to 5 U.S.C. § 552(a)(4)(5) and 28 U.S.C. § 1920(1), the Court will grant Davidson partial relief as to his request for his court costs, and will order the BOP to reimburse Davidson for the $350.00 filing fee, which he has paid in full.


In his FOIA complaint, Davidson alleged that in early 2010, the American Correctional

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Association (" ACA" ) audited FMC-Lexington; that on March 3, 2010, he sent a letter requesting the results of the audit to the Department of Justice's (" DOJ" ) Office of Policy Information; that on March 18, 2010, the DOJ received Davidson's request and forwarded it to the BOP; and that in a June 8, 2010, letter, the BOP advised Davidson that it had identified documents responsive to his request, estimated the number of pages involved, and requested that he prepay the necessary copying fees pursuant to 28 C.F.R. § 16.11. Davidson alleged that he authorized the BOP to deduct the $33.70 copying charge from his inmate account but that he never received the documents, and that on November 4, 2011, the $33.70 copying fee, previously deducted from his inmate account, was refunded to his inmate account without explanation

Davidson claimed that the BOP had violated FOIA by withholding the documents for which he had paid. He demanded unspecified damages, and an order (1) finding the BOP in violation of FOIA, (2) refunding his copying costs, and (3) directing the BOP to provide him with the documents he had requested in his letter. In April 2012, the Court directed the BOP to respond to Davidson's FOIA claims. [R. 10]

The BOP filed a motion to dismiss the complaint, or in the alternative, for summary judgment. [R. 13] Clinton D. Stroble, Assistant General Counsel in the BOP's FOIA/ Privacy Act Section, acknowledged that due to an oversight by a former employee, the BOP failed to properly respond to Davidson's document requests between June 2010 and June 2012. [R. 13-1, ¶ ¶ 4-5] Stroble further explained that after being directed to respond to Davidson's complaint, the BOP recognized its error, re-opened Davidson's FOIA request, and assigned another FOIA specialist to process his request for documents. [ Id. ] The BOP argued that because it had begun processing Davidson's FOIA request, an active case or controversy no longer existed, and the Court lacked subject matter jurisdiction over the case; that Davidson was not entitled to " expedited" production of the documents he requested; and that Davidson was ineligible for attorneys fees under 5 U.S.C. § 552(a)(4)(E) because he was proceeding without counsel. [R. 13, pp. 2-4; 5-6]

Davidson responded that the Court had subject matter jurisdiction over this proceeding because the BOP had improperly withheld agency records which he requested in 2010, and had admitted that its failure to comply with his request stemmed from a former employee's error and/or agency oversight. Davidson requested the production of the requested documents and for his court costs, but acknowledged that he was not entitled to attorney's fees. [R. 15, pp. 12-14] On August 1, 2012, the BOP replied that it had compiled 372 pages of documents responsive to Davidson's request and would send the documents to him once he had prepaid the $37.20 copying fee as required by 28 C.F.R. § 16.11(c). [R. 20, p. 1]

On November 6, 2012, the Court entered a Memorandum Opinion and Order (" the Opinion and Order" ) and Judgment granting the BOP's motion for summary judgment. The Court determined that, while the BOP had failed to respond to Davidson's FOIA request for over two years, under the applicable case law no case or controversy remained because the BOP had begun processing Davidson's FOIA request. [R. 24, 25]

Davidson then filed his motion under Federal Rule of Civil Procedure 60(b) seeking relief from the Opinion and Order. Davidson argues that the BOP was neither procedurally nor substantively entitled to summary judgment; that the government's

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description of what it intended to provide to him does not match his requests; that since August 2012, he had tried to pay the copying fee twice but that the BOP had not provided him with the documents for reasons out of his control; that as a prevailing party, he is entitled to his costs of almost $793.00; and that both the ...

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