United States District Court, D. Maryland
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
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.
Damon Elliott states he filed a FOIA request on October 3,
2016, with the United States Department of Agriculture
[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.
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.
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.
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.
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.
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.