United States District Court, D. Colorado
GILBERT D. DAVIS, Plaintiff,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.
MEMORANDUM OPINION AND ORDER REGARDING PENDING
B. Shaffer United States Magistrate Judge.
Judge Shaffer This matter comes before the court on a Motion
for Summary Judgment (doc. #32) filed on January 5, 2017 by
Defendant United States Department of Veterans Affairs
(“Defendant” or “VA”). Pro
se Plaintiff Gilbert Davis (“Plaintiff” or
“Mr. Davis”) filed an Opposition to Defendant
Motion for Summary Judgment (doc. #33) on January 18, 2017.
Defendant then filed a Reply (doc. #36) on February 1, 2017.
Also before the court are two motions - Plaintiff's
Motion to Compel Production (doc. #31), filed on December 29,
2016, and Plaintiff's Motion to Amend the Scheduling
Order (doc. #37), filed on March 15, 2017 - that this court
addressed during a hearing on July 11, 2017.
case was assigned to the Magistrate Judge on March 25, 2016.
Consent pursuant to 28 U.S.C. § 636(c) was obtained from
all parties on June 14, 2016. The court has carefully
considered the motions and related briefing, the entire case
file, and the applicable case law. For the following reasons,
Defendant's Motion for Summary Judgment is granted, and
Plaintiff's Motion to Compel and Motion to Amend the
Scheduling Order are denied.
Davis commenced this action seeking the production of agency
records maintained by the United States Department of
Veterans Affairs pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. On March 25, 2016,
Plaintiff filed his original Complaint for Injunctive Relief
(doc. #1),  alleging the following relevant facts.
April 30, September 24, and October 20, 2014, Mr. Davis sent
FOIA requests to the Denver Department of Veterans Affairs
Regional Office initially seeking specific documents in his
claim file and later seeking “a copy of [his entire]
DVA claim file.” See Redacted Complaint, at
¶¶ 14, 16, and 18. In response, Defendant gave
Plaintiff two corrupted CDs which allegedly contained his
claim file, but which Plaintiff was unable to read.
Id. at ¶ 19. Consequently, Plaintiff filed a
new FOIA request for his claim file on February 24, 2015.
Id. at ¶ 20. Defendant responded by sending
Plaintiff new readable CDs on March 30, 2015. Id. at
¶ 22. Plaintiff then modified his FOIA requests on
October 27, 2015, asserting that “the CDs provided
completely fail[ed] to contain a complete copy of the
‘Agency Record'” and asked for “an
appointment to review and make and to have copies of any
original records.” Id. at ¶ 27.
this lawsuit commenced, the parties filed joint Status
Reports (doc. #22 and #24) on July 18, 2016 and September 15,
Defendant's Motion for Summary Judgment
filed its Motion for Summary Judgment on January 5, 2017,
asserting that it has given Plaintiff all of the documents he
requested without exception. Moreover, Defendant insists that
it has conducted a reasonable search as required by the FOIA.
In his response brief, Mr. Davis argues that the VA has
maliciously and in bad faith refused to produce all the
agency records he has requested.
judgment is appropriate when 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).
“A ‘material fact' is one which could have an
impact on the outcome of the lawsuit.” Chasteen v.
UNISIA JECS Corp., 216 F.3d 1212, 1216 (10th Cir. 2000)
(quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986)). “A dispute over a
material fact is ‘genuine' if a rational [trier of
fact] could find in favor of the nonmoving party on the
evidence presented.” E.E.O.C. v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)
(citation omitted). The burden shifts to the party opposing
summary judgment once the movant has made its initial
movant who does not have the burden of proof at trial must
show the absence of a genuine fact issue. By contrast, a
movant who bears the burden of proof must submit evidence to
establish every essential element of its claim or affirmative
defense. In either case, once the motion has been properly
supported, the burden shifts to the nonmovant to show, by
tendering depositions, affidavits, and other competent
evidence, that summary judgment is not proper. Wausau
Bus. Ins. Co. v. U.S. Motels Mgmt., Inc., 341 F.Supp.2d
1180, 1182-83 (D. Colo. 2004) (citations omitted).
court must view the factual record and draw all reasonable
inferences therefrom in the light most favorable to the party
opposing the motion for summary judgment. United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962). However,
“a District Court must resolve any factual issues of
controversy in favor of the non-moving party only in the
sense that, where the facts specifically averred by the party
contradict facts specifically averred by the movant, the
motion must be denied.” Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990) (internal quotation
marks omitted). “Affidavits or other evidence offered
by a nonmovant must create a genuine issue for trial . . . it
is not enough that the evidence be merely colorable or
anything short of significantly probative.” Hall v.
Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (citation
and internal quotation marks omitted). Thus, the court must
determine whether Mr. Davis has met his burden of presenting
sufficient facts to overcome Defendant's motion.
Mr. Davis is appearing pro se, the court
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. U.S. Gov't,
472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a court may not assume that a plaintiff can prove
facts that he has not alleged, or that a defendant has
violated laws in ways that a plaintiff has not alleged.
See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th
Cir. 2009) (court's role is not to act as the pro
se litigant's advocate); Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court
may not “construct arguments or theories for the
plaintiff in the absence of any discussion of those
issues”). This rule “applies to all proceedings
involving a pro se litigant, including . . . summary judgment
proceedings.” Hall, 935 F.2d at 1110 n. 3
(citations omitted). “[S]uch liberal construction is
intended  to overlook technical formatting errors and other
defects in Plaintiff's use of legal terminology and
proper English.” Smith v. Krieger, 643
F.Supp.2d 1274, 1279 (D. Colo. 2009) (citation omitted). But
the court cannot be a pro se litigant's
advocate, and “[p]ro se status ‘does not
excuse the obligation of any litigant to comply with the
fundamental requirements of the Federal Rules of Civil . . .
Procedure.'” Yang v. Archuleta, 525 F.3d
925, 927 n. 1 (10th Cir. 2008).
court recently noted, “FOIA was enacted to promote
honest and open government and to assure the existence of an
informed citizenry to hold the governors accountable to the
governed.” The Few, The Proud, The Forgotten v.
U.S. Dep't of Veterans Affairs, No. 3:16-cv-00647,
2017 WL 2312354, at *6 (D. Conn. May 26, 2017) (recognizing
that the underlying premise of FOIA is a “policy
strongly favoring public disclosure of information in the
possession of federal agencies”). But the fundamental
issue in FOIA litigation is “not whether there exists
further documents responsive to a FOIA request but whether
the agency conducted a reasonable search for responsive
documents.” Hamilton v. United States, No. CIV
14-0040 KBM/GBW, 2015 WL 12696083, at *3 (D.N.M. Mar. 5,
2015) (quoting Trentadue v. FBI, 572 F.3d 794, 807
(10th Cir. 2009)).
judgment is the procedural vehicle by which most FOIA actions
are resolved.” Nat. Res. Defense Council, Inc. v.
U.S. Dep't of Interior, 73 F.Supp.3d 350, 355
(S.D.N.Y. 2014). Where, as in this case, the agency contends
that it has fully complied with FOIA by producing all
responsive documents, the defendant may prevail on summary
judgment by demonstrating it has conducted a search
reasonably calculated to uncover all relevant documents. As
the D.C. Circuit has explained, “[t]he standard
governing a grant of summary judgment in favor of an
agency's claim that it has fully discharged its
disclosure obligations under FOIA is well-established. . . .
What the agency must show beyond material doubt is that it
has conducted a search reasonably calculated to uncover all
relevant documents.” Weisberg v. U.S. Dep't of
Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983)
(quoting Perry v. Block, 684 F.2d 121, 128 (D.C.
Cir. 1982)). The agency's search is measured by a
standard of “adequacy - not perfection” and the
agency is not required to search “‘every record
system' in response to each and every FOIA
request.” Schwartz v. Dep't of Defense,
No. 15-CV-7077 (ARR) (RLM), 2017 WL 78482, at *6 (E.D.N.Y.
Jan. 6, 2017). Rather, to prevail on a motion for summary
judgment, “the defending agency has the burden of
demonstrating that its search was adequate and that any
withheld documents fall within an exemption to FOIA.”
Whitson v. U.S. Forest Serv., Civ. 16-1090-LTB-NYW,
___ F.Supp.3d ___, 2017 WL 2242592, at *4 (D. Colo. May 23,
2017). Cf. Wadhwa v. Secretary, Dep't of Veterans
Affairs, No. 15-2777 (RBK-KMW), 2016 WL 937377, at *4
(D.N.J. Mar. 11, 2016) (“[t]he relevant inquiry is not
‘whether there might exist any other documents possibly
responsive to the request, but rather whether the search for
those documents was adequate”) (quoting Abdelfattah
v. U.S. Dep't of Homeland Security, 488 F.3d 178,
182 (3d Cir. 2007)).
party seeking summary judgment, the defendant agency can
sustain its burden by tendering in good faith
“reasonably detailed, nonconclusory affidavits.”
Zaldivar v. U.S. Dep't of Veterans Affairs, No.
CV 14-01493-PHX-DGC (DMF), 2016 WL 4429657, at *3 (D. Ariz.
Aug. 22, 2016), aff'd, 2017 WL 3499802 (9th Cir.
Aug. 16, 2017). An appropriate affidavit should set forth
facts demonstrating that the agency “made a good faith
effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep't
of Army, 920 F.2d 57, 68 (D.D.C. 1990) (quoting
Weisberg, 705 F.2d at 1351). Cf. Demoruelle v.
Dep't of Veterans Affairs, No. CIVIL 16-00562
LEK-KSC, 2017 WL 2836989, at *6 (D. Haw. ...