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Elliott v. U.S. Dept of Agriculture

United States District Court, D. Maryland

July 10, 2018

DAMON ELLIOTT Plaintiff
v.
U.S. DEPT OF AGRICULTURE and U.S. GEN. SERVICES ADMINISTRATION Defendants

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

         In response to this complaint filed pursuant to the Freedom of Information Act (FOIA), Defendants move to dismiss or for summary judgment. ECF 9. Plaintiff, an inmate confined to the United States Penitentiary in Marion, Illinois, opposes the motion. ECF 12 and 15. Defendants filed a Response in Support of the dispositive motion. ECF 13. The Court finds a hearing unnecessary to determine the matters pending before it. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow. Defendants' motion shall be granted.

         Background

         Plaintiff Damon Elliott states he filed a FOIA request on October 3, 2016, with the United States Department of Agriculture (USDA), seeking:

[A] copy of the confirmatory deed and plat map that's linked to property [located at] 3696 Sellman Road Building 22; . . . the records that establish the property is within the special maritime and territorial jurisdiction of the United States; ... a copy of the documents that supports the real property of the parcel ... the individual assessment records for [the property: ... a copy of the tax records for the United States of America, lot 92, Map 18. account 01-0070326 Sellman Road; and a copy of the document(s) that confers concurrent or exclusive jurisdiction to the United States of America over [the property]; and the U.S. accepted from the State of Maryland agreement.

ECF 1-1 at p. 1. Elliott interpreted the non-response from the agency as a denial of his request and filed an appeal with the United States General Services Administration (GSA) on December 2, 2016. ECF 1-1 at p. 3.

         Elliott sent another FOIA request to the USDA which was also dated October 3, 2017. ECF 2. In that request he sought:

A copy of the notice of such acceptance document(s) ceding of jurisdiction with the Governor of the State of Maryland, and the report of the Attorney General of the United States that a perfect title/deed had been secured over the land an property of 3696 Sellman Road Building No. 22; ... a copy of the deed, plat, and map number's (sic) that's linked to property 3696 Sellman Road Building No. 22; ... a copy of the Tax records for this same property;. . . a copy of the individual assessments records; ... a copy of the account number district identifier; a copy of the document(s) that supports the real property for property 3696 Sellman Road Building No. 22; and ... all other records that establish and demonstrate ownership of this same property.

ECF 2-1 at p. 1. Elliott filed an appeal with GSA on December 2, 2016, after receiving no response to his request. Id. at p. 3. Elliott filed the instant lawsuit after he received no response from either agency. ECF 2.

         In response to Elliott's complaint, the USDA through counsel states it never received Elliott's October 3, 2016 requests and GSA never received the FOIA appeals. Defendants explain that FOIA requests directed to the USDA are received by the Research, Education, and Economics (REE) FOIA Office by email, fax, or mail, or through internal mail when a FOIA request is misdirected. See ECF 9 at Ex. 1. ¶ 6, (Declaration of Stasia Hutchison). When FOIA requests are received by the REE FOIA Office, they are logged in and assigned a FOIA tracking number. Id. Copies of all FOIA requests received by the REE FOIA Office are maintained in either a paper and/or an electronic file under the assigned FOIA tracking number or the name of the requester. Id. USDA uses the “FOIAXpress" log system to track requests. Id. A person making a FOIA request may appeal the agency's FOIA response by writing to the Administrator of the Agricultural Research Service (ARS) for the USDA, at USDA's address. See id., at ¶ 7. Each FOIA appeal received by the Administrator is logged in by the agency's Controlled Correspondence Office and forwarded to the REE FOIA Office for processing. See Id. Stasia Hutchison, the FOIA Officer for REE USDA, states under oath that she did not receive either of Elliott's October 3, 2016 FOIA Requests, nor the December 2, 2016 FOIA Appeals. Id. When the USDA REE FOIA Office was notified of Elliott's lawsuit regarding a non-response to his FOIA requests and appeals, Hutchison searched the FOIAXpress log system and electronic files. Id. at ¶ 8. She did not find any records of either his FOIA requests or his appeals. Id. Hutchison further avers that had her office received such requests and appeals, they would have been located in the electronic files. The REE FOIA Office is the only office that would have received and processed the requests. Id. Because all FOIA requests are processed by Hutchison, and because she did not find any record of Elliot's FOIA requests or the appeals, neither ARS nor USDA received the requests and appeals which are the subject of this action. Id., at ¶¶ 5 & 8.

         On January 31, 2017, the Assistant Secretary for Civil Rights FOIA Office received a different FOIA request from Plaintiff dated December 15, 2016, and referred it to the REE FOIA Office on February 2, 2017. Id. at ¶ 9 & pp. 20-21. This December 15, 2016 FOIA request differs in substance from October 3. 2016 FOIA requests. Id. The December 15, 2016 FOIA request seeks one category of records which Elliott also sought in his first FOIA request: all records that demonstrate that the Property "is within the special maritime and territorial jurisdiction of the United States and property belonging to the U.S. Dept [sic] of Beltsville Agriculture Research Center." ECF 9 at Ex. 1, p. 20. ARS responded to the December 15, 2016 FOIA request on February 24 and March 31, 2017. Id. at ¶ 9. Additionally, ARS has received from Elliott, by letter postmarked September 21, 2017, both a FOIA request and a FOIA appeal also bearing the date of October 3, 2016, and December 2, 2016, respectively. ECF 9 at Ex. 1, p. 2, ¶ 10; pp. 23-27. This FOIA request and appeal was received by ARS on October 27, 2017. and seeks most of the documents previously sought in the first two FOIA requests, as well as additional documents. See ECF 1-1, p. 1, ECF 2-1. p. 1; ECF 9 at Ex. 1, pp. 23-27. ARS was processing this new request at the time the Defendants filed their dispositive motion, November 14, 2017.

         In his affidavit responding to Defendants' Motion to Dismiss or for Summary Judgment, Elliott states that Defendants admit they received his October 3, 2016 FOIA requests on October 31, 2017. ECF 12 at p. 2. He further states that they admit receiving a FOIA request dated February 2, 2017, on February 24, 2017; received his letter dated March 7, 2017, on March 31, 2017; and that he submitted another FOIA request on November 29, 2017. Id. at p. 1. Elliott does not offer any evidence that Defendants received his FOIA requests and appeals and did not provide a timely response to those requests based on the date they were received by the agency.

         In his Motion for Extension of Time to file a response (ECF 14), Elliott states he requires additional time to file a response to Defendants' dispositive motion because he "only received it on January 24, 2018." Id. at p. 1. This, he asserts, despite having already filed an affidavit that responds to the dispositive motion on December 18, 2017. ECF 12. The motion shall be denied and the subsequent reply (ECF 15), which provides no further evidence or argument that advances his cause, is not considered in the context of this Memorandum Opinion as it represents an improper surreply. See Local Rule 105.2(a)(D. Md. 2016), see also Chen v. Mayor & City Counsel of Baltimore, et al., 292 F.R.D. 288, 295 (D. Md. 2013), affd, 546 Fed.Appx. 187 (4th Cir. 2013). "Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citations omitted), affd, 85 Fed.Appx. 960 (4th Cir. 2004). Given his previously filed affidavit responding to Defendants' motion, Elliott had the opportunity to contest the matters asserted by Defendants.

         Standard ...


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