United States District Court, D. Colorado
DEMETRIUS T. FREEMAN, Plaintiff,
v.
EXECUTIVE OFFICE OF U.S. ATTORNEYS, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
Currently
before the Court are cross-motions for summary judgment.
Defendant Executive Office of U.S. Attorneys filed its Motion
for Summary Judgment on August 19, 2019. (Doc. # 21.)
Plaintiff Demetrius T. Freeman filed his Motion for Summary
Judgment on September 9, 2019. (Doc. # 29.) For the following
reasons, the Court grants Defendant's Motion for Summary
Judgment (Doc. # 21) and denies Plaintiff's Motion for
Summary Judgment (Doc. # 29).
I.
BACKGROUND
A.
PROCEDURAL HISTORY
Plaintiff,
Demetrius T. Freeman, filed a pro se Complaint on
March 22, 2019, which did not meet Federal Rule of Civil
Procedure 8 because it failed to provide short and plain
statements of his claims. (Doc. # 1.) On May 8, 2019,
Magistrate Judge Gordon P. Gallagher ordered Plaintiff to
file an amended complaint that met the pleading requirements
pursuant to Rule 8. (Doc. # 8.) Plaintiff filed his Amended
Complaint on May 31, 2019. (Doc. # 11.)
In his
Amended Complaint, Plaintiff asserts one claim pursuant to 42
U.S.C. § 1985(2) alleging that six
Defendants[1] and the Executive Office for United States
Attorneys (“EOUSA”) conspired to interfere with
his civil rights by obstructing justice. (Doc. # 11.) Among
other things, Plaintiff contends that the Defendant AUSAs
attended and cross examined him at his grand jury hearing and
influenced the grand jury's indictment in 2006, prior to
the AUSAs taking an oath of office. (Id. at 5-6.)
Plaintiff further alleges that in 2019, Defendant EOUSA
denied his Freedom of Information Act (“FOIA”)
requests for copies of his grand jury cross examination
transcripts and arrest warrants, which Plaintiff claims are
“necessary to prevent injustice” that the alleged
“ongoing and active conspiracy against his
rights” caused. (Id. at 7-8.) As relief,
Plaintiff seeks ten million dollars, “plus the cost of
litigation, ” and “the release of the information
sought as to grand jury transcripts, and federal arrest
warrants.” (Id. at 10.)
On June
28, 2019, Magistrate Judge Gallagher issued a Recommendation
to dismiss Plaintiff's Amended Complaint “for
failure to comply with the pleading requirements of [Rule] 8
to the extent Plaintiff is asserting a conspiracy claim under
42 U.S.C. § 1985(2)” and to dismiss the six
Defendants.[2] (Doc. # 15 at 7.) However, the Magistrate
Judge “constru[ed] the amended Prisoner Complaint
liberally” and determined that Plaintiff “is
asserting a separate claim under the FOIA” against
Defendant EOUSA. (Id. at 3).
On July
19, 2019, Judge Lewis T. Babcock accepted and adopted
Magistrate Judge Gallagher's recommendation and issued an
order dismissing six defendants and the conspiracy claim
pursuant to 42 U.S.C. § 1985(2) without prejudice. (Doc.
# 17.) Following this Order, only Plaintiff's FOIA claim
remained.
On
August 19, 2019, Defendant EOUSA moved for summary judgment
on that remaining claim on the grounds that Defendant's
“withholding of the requested grand jury transcript was
proper” pursuant to FOIA exemption three, 5 U.S.C.
§ 552(b)(3), and that Defendant never received a FOIA
request for Plaintiff's arrest warrants. (Doc. #
21.)[3]
On September 9, 2019, Plaintiff also moved for summary
judgment on the grounds[4] that grand jury transcripts could be
disclosed to him because he displayed a “particularized
need” for them and that he requested only transcripts
of his own cross examination. (Doc. # 29 at 5, 8.) On
September 16, 2019, Plaintiff filed a supplement to his
summary judgment motion in which he claimed that Defendant
EOUSA previously disclosed grand jury transcripts and
therefore cannot deny him the grand jury transcripts that he
requested. (Doc. # 34 at 3.) Defendant EOUSA responded that
“it is irrelevant to Plaintiff's FOIA request
whether his request falls within an exemption from disclosure
under [Rule] 6(e)” because FOIA exemption three still
applies. (Doc. # 42 at 1-2.)
B.
FACTUAL BACKGROUND
The
Court finds that the following material facts are undisputed.
Plaintiff is currently a prisoner in the United States
Penitentiary in Florence, Colorado. On September 27, 2018,
Plaintiff submitted a FOIA request to Defendant asking for
transcripts of Plaintiff's cross examination during the
June 8, 2006 grand jury proceedings that occurred in the
Southern District of Georgia. (Doc. # 21-1 at 3-4, ¶ 5.)
On October 22, 2018, Defendant EOUSA denied Plaintiff's
FOIA request pursuant to FOIA exemption three, reasoning that
“grand jury material is exempt from mandatory release
pursuant to 5 U.S.C. § 552(b)(3)” because Federal
Rule of Criminal Procedure 6(e) prohibits disclosure of grand
jury information. (Id. at 11.) On or about November
11, 2018, Plaintiff appealed Defendant EOUSA's denial of
his FOIA request and asserted that secrecy pursuant to Rule
6(e) does not apply to grand jury witnesses, such as himself,
who are asking only for their cross examination.
(Id. at 15-16.) However, the Office of Information
Policy affirmed Defendant EOUSA's decision on February
15, 2019, stating that FOIA exemption three applies if there
is a statute prohibiting the release of that information, and
that Rule 6(e) prohibits that disclosure. (Id. at
19-20.)
Additionally,
Defendant EOUSA provided uncontradicted evidence showing that
it performed a search for all FOIA requests from Plaintiff,
including any requests for copies of his arrest warrants, and
that the results of the search incontrovertibly established
that Defendant EOUSA never received such a request.
(Id. at 4, ¶ 9.) As such, it is undisputed that
Defendant EOUSA did not receive a FOIA request regarding
arrest warrants from Plaintiff.
II.
APPLICABLE LEGAL PRINCIPLES
A.
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