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Gabrion v. United States Department of Justice

United States District Court, S.D. Indiana, Terre Haute Division

September 21, 2016

MARVIN GABRION, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE and UNITED STATES BUREAU OF PRISONS, Defendants.

          ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Hon. William T. Lawrence, United States District Court Judge.

         This cause is before the Court on the parties' cross-motions for summary judgment. The motions are fully briefed, and the Court, being duly advised, GRANTS the Defendants' Motion (Dkt. No. 46) and DENIES the Plaintiff's motion (Dkt. No. 39) for the reasons set forth below.

         I. STANDARD

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.”). When the Court reviews cross-motions for summary judgment, as is the case here, “we construe all inferences in favor of the party against whom the motion under consideration is made.” Speciale v. Blue Cross & Blue Shield Ass'n, 538 F.3d 615, 621 (7th Cir. 2008) (quotation omitted). “‘[W]e look to the burden of proof that each party would bear on an issue of trial.'” Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007) (quoting Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)). However, a party who bears the burden of proof on a particular issue may not rest on its pleadings, but must show what evidence it has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and “the court is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).

         II. BACKGROUND

         On December 31, 2012, attorneys for Plaintiff Marvin Gabrion, an inmate who was sentenced to death in the United States District Court for the Western District of Michigan, filed on his behalf with the BOP a request for records relating to information maintained during his custody at USP Terre Haute. The BOP sent acknowledgment letters to Margaret O'Donnell, one of Gabrion's attorneys, on January 17, 2013, and January 29, 2013. Gabrion filed the instant civil action in January 2015. It was not until February 23, 2015, - after the filing of the instant lawsuit - that the BOP finally provided records and other materials responsive to Gabrion's December 31, 2012, FOIA request. The BOP provided additional material on February 28, 2015; March 31, 2015; April 17, 2015; August 27, 2015; and October 15, 2015. This material totaled 4, 283 pages of documents and recordings of 18 telephone calls in full and 1, 700 pages of documents in part.

         The groups of documents that remain at issue and the reasons given for withholding them as described in the Vaughn index are as follows:

Group Number

Pages

Description

Exemption

Justification

10

1

Incident Report issued to third-party inmate

(b)(6) (b)(7)(C)

Exemptions (b)(6) and (b)(7)(c) were applied to withhold

regarding incident in the USP Terre Haute Special Confinement Unit on August 30, 2007.

information regarding the BOP's discipline of third-party inmates. Disclosure of this information would be an unwarranted invasion of the other individual's privacy.

11

19

Staff Injury Assessment and Photographs, dated May 25, 2009.

(b)(6) (b)(7)(C)

Exemptions (b)(6) and (b)(7)(C) were applied to withhold the personal information, description of injuries and images of staff. Disclosure of this information would be an unwarranted invasion of another individual's privacy.

13

A

1

Correspondence dated July 20, 2009, from third party, noninmate addressed to USP Terre Haute Counselor Bruce Ryherd regarding communications with inmate Gabrion and placement on his approved telephone list.

(b)(6) (b)(7)(C) (b)(7)(E) (b)(7)(F)

Exemptions (b)(6) and (b)(7)(C) were applied to withhold these records as they pertain solely to third-party individuals. Exemptions (b)(7)(E) and (b)(7)(F) were also applied as disclosure of these documents would reveal law enforcement techniques, procedures and guidelines in monitoring and classifying inmates and could reasonably be expected to endanger the life or physical safety of third-party individuals if disclosed.

B

1

Correspondence dated November 7, 2005, from USP Terre Haute Warden Mark Bezy to third party, non-inmate regarding correspondence privileges with inmate Gabrion.

C

2

Correspondence dated October 24, 2005, from third party, non-inmate regarding correspondence privileges with inmate Gabrion.

D

1

Correspondence dated January 16, 2007, from a third party, non-inmate addressed to USP Terre Haute Counselor B. Ryherd

regarding placement on inmate Gabrion's approved telephone list.

E

1

Correspondence dated January 15, 2007, from a third party, non-inmate addressed to USP Terre Haute Unit Manager R. White regarding placement on inmate Gabrion's approved telephone list.

F

2

Correspondence dated March 21, 2002, from USP Terre Haute Warden Keith E. Olson to third party, noninmate regarding communications between third parties and inmate Gabrion.

G

1

Correspondence dated July 7, 2003, from USP Terre Haute Warden Keith E. Olson to a thirdparty, non-inmate regarding visitation privileges.

H

1

Partial correspondence dated June 25, 2003, from a third party, noninmate addressed to USP Terre Haute Warden Keith E. Olson.

14

44

Inmate Population Monitoring Records contained in inmate Gabrion's Special Investigative Services File, dated January 30, 2013, June 10, 200? [sic], and May 28, 2009.

(b)(6) (b)(7)(C) (b)(7)(E) (b)(7)(F)

Exemptions (b)(6) and (b)(7)(C) were applied to withhold information pertaining to third-party individuals. Disclosure of this information would be an unwarranted invasion of other individuals' privacy Exemptions (b)(7)(E) and (b)(7)(F) were applied to withhold monitoring, classification and management techniques and determinations regarding inmate Gabrion,

including the information relied upon to make those determinations. Disclosure of these records would endanger the life or physical safety of inmate Gabrion, third-party inmates and staff and enable inmates to circumvent and/or nullify the effectiveness of this monitoring and classification procedure.

15

6

Inmate Population Monitoring Records contained in inmate Gabrion's Special Investigative Services file, dated September 12, 2001.

(b)(7)(E) (b)(7)(F)

Exemption (b)(7)(E) was applied to withhold law enforcement techniques used to manage and monitor the inmate population. Disclosure of these records would enable inmates to circumvent and/or nullify the effectiveness of this technique. Exemption (b)(7)(F) was applied to withhold the programming assignments the BOP uses to classify and monitor groups of inmates. Although the FOIA requestor is seeking these records on inmate Gabrion's behalf and with his consent, the programming assignment is sensitive information that, if released while inmate Gabrion remains incarcerated, is nonetheless likely to endanger his life or physical safety if known by other individuals.

17

5

Program Forms contained in inmate Gabrion's Central File dated January 30, 2013.

(b)(7)(E) (b)(7)(F)

Exemption (b)(7)(E) and (b)(7)(F) were applied to withhold these records used by the BOP to monitor and classify inmate Gabrion. Disclosure of these records would enable inmates to circumvent and/or nullify the effectiveness of this monitoring and classification system and would endanger the life or physical safety of inmate Gabrion and staff.

18

16

Inmate Population Monitoring Records

(b)(6) (b)(7)(C)

Exemptions (b)(6) and (b)(7)(C) were applied to these records to

contained in inmate Gabrion's Special Investigative Services file, dated May 28, 2009 and June 10, 2009.

(b)(7)(E) (b)(7)(F)

withhold personal information of third parties. Disclosure of this information would be an unwarranted invasion of the other individuals' privacy. Exemptions (b)(7)(E) and (b)(7)(F) were applied to withhold techniques and procedures used by the BOP to monitor and track inmates subject to specific reporting requirements. Disclosure of these records would enable inmates to circumvent monitoring and would endanger the life or physical safety of third parties.

19

5

Central Inmate Monitoring (CIM) Clearance and Separatee Data for Marvin Gabrion, dated May 25, 2009.

(b)(6) (b)(7)(C) (b)(7)(E) (b)(7)(F)

These records were withheld under (b)(6), (b)(7)(C), (b)(7)(E) and (b)(7)(F). The withheld information consists of inmate names, register numbers, and staff comments regarding the BOP's incarceration and management of those inmates. The BOP has determined that these individuals need to be separated from inmate Gabrion. Release of this information would constitute an unwarranted invasion into third-party inmates' privacy interests, would reveal law enforcement techniques or procedures, the disclosure of which would reasonably be expected to risk circumvention, and is likely to endanger the life or physical safety of the third-parties if known by inmate Gabrion or other individuals due to the same reasons underlying their separatee status.

20

May 28, 2009 video recording in the USP Terre Haute Special Confinement Unit Visiting Room.

(b)(6) (b)(7)(C) (b)(7)(E) (b)(7)(F)

Exemption (b)(6) and (b)(7)(C) were applied to withhold the images of third-party individuals who were recorded in this video, as disclosure would be an unwarranted invasion of their

privacy. Exemptions (b)(7)(E) and (b)(7)(F) were also applied to withhold the video, as disclosure would reveal law enforcement procedures and techniques including, visiting room camera location, staff response time and procedures, and locations not recorded by the visiting room camera, which, if disclosed, could reasonably be expected to risk circumvention or endanger the life or physical safety of third parties.

Dkt. No. 36-1.

         III. DISCUSSION

         The Freedom of Information Act (“FOIA”) generally contemplates a policy of broad disclosure of government documents and serves the basic purpose of “ensur[ing] an informed citizenry, vital to the functioning of a democratic society.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA's purpose is to guarantee “that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 774 (1989).[1] Further, Congress has structured various exemptions from the FOIA's disclosure requirements in order to protect certain interests in privacy and confidentiality.

         Because disclosure is the “dominant objective” of FOIA, the Court narrowly construes FOIA Exemptions. Patterson v. I.R.S., 56 F.3d 832, 835 (7th Cir. 1995); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 181 (1993). As such, the government agency has the burden to support its decision to deny the FOIA request. Patterson, 56 F.3d at 836. The court must determine de novo whether the government has satisfied its burden. 5 U.S.C. § 552(a)(4)(B). In doing so, the court must give “meaningful reach and application” to the exemptions while also taking care to construe them narrowly, given the Act's general policy of disclosure. Solar Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998) (internal citations omitted). Because FOIA cases usually involve only a dispute over how the law is applied to the withheld records, rather than any factual dispute, whether the government is justified in invoking an exemption is typically decided at the summary judgment phase. See, e.g., id. at 1036; Wright v. Occupational Safety & Health Admin., 822 F.2d 642, 644 (7th Cir. 1987). The court may grant summary judgment in favor of the agency in a FOIA case “only if ‘the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.'” Patterson, 56 F.3d at 836 (quoting PHE, Inc. v. U.S. Dep't of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993)). Further, “[w]ithout evidence of bad faith, the veracity of the government's submissions regarding reasons for withholding the documents should not be questioned.” Matter of Wade, 969 F.2d 241, 246 (7th Cir. 1992) (citation omitted).

         The Defendants have asserted a privacy interest pursuant to FOIA Exemptions 6 and 7(C) for Groups 10, 11, 13, 14, 18, 19, and 20. Groups 10, 11, and 13 were withheld in full, while Groups 14, 18, 19, and 20 were withheld in part. Additionally, the Defendants have asserted exemptions under 7(E) and 7(F) for Groups 13, 14, 18, 19, and 20.[2] The Court notes that “[i]f the Court determines that information properly is withheld under one exemption, it need not determine whether another exemption applies to that same information.” Coleman v. Lappin, 607 F.Supp.2d 15, 23 (D.D.C. 2009) (citing Simon v. U.S. Dep't of Justice, 980 F.2d 782, 785 (D.C. Cir. 1992)).

         Generally, Exemption 7 shelters “records or information compiled for law enforcement purposes, ” when the production of the information may result in one of six enumerated harms. 5 U.S.C. § 552(b)(7)(A)-(F). As such, the withholding agency must prove both the threshold law enforcement purpose plus the danger that at least one of the specified harms may result from disclosure. See FBI v. Abramson, 456 U.S. 615, 622 (1982). Consistent with BOP's mission, which includes “provid[ing] for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, ” 18 U.S.C. § 4042(a)(2), the BOP is considered a law enforcement agency. An employee of the Bureau of Prisons ...


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