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Freeman v. Executive Office of Us Attorneys

United States District Court, D. Colorado

December 19, 2019




         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


         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.)


         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.


         A. ...

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