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Davis v. United States Department of Veterans Affairs

United States District Court, D. Colorado

August 22, 2017

GILBERT D. DAVIS, Plaintiff,


          Craig B. Shaffer United States Magistrate Judge.

         Magistrate 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.

         This 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.


         Mr. 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), [1] alleging the following relevant facts.

         On 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.

         After this lawsuit commenced, the parties filed joint Status Reports (doc. #22 and #24) on July 18, 2016 and September 15, 2016, respectively.


         A. Defendant's Motion for Summary Judgment

         The VA 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.

         Summary 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 showing.

         A 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).

         The 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.

         Because 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).

         As one 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)).

         “Summary 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)).

         As the 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. ...

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