Carter v. United States

ORLANDO CARTER, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Case No. 1:16CV530

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 20, 2017

District Judge Michael R. Barrett

Magistrate Judge Karen L. Litkovitz

OPINION & ORDER

Plaintiff Orlando Carter asserts a single cause of action under the Freedom of Information Act, claiming that he is entitled to an Order compelling production of documents he requested - but has not received - from the United States Attorney's Office ("USAO") in Cincinnati, Ohio. (Doc. 3, ¶15). This matter is before the Court on: (1) Plaintiff's objections to the Magistrate Judge's report recommending dismissal of Plaintiff's Verified Complaint pursuant to Fed. R. Civ. P. 56 (Doc. 17); and (2) Plaintiff's Motion to Amend/Supplement Original Complaint ("Motion to Amend") (Doc. 9).¹

I. FACTUAL BACKGROUND

In June 2010, Plaintiff Orlando Carter was sentenced to a total of 180 months'imprisonment after a jury found him guilty on 11 fraud-related counts. United States v. Carter, No. 1:08-cr-51 (S.D. Ohio Jun. 9, 2010). Plaintiff alleges that, in securing the convictions against him, the government used two exhibits at trial that indicated there was a creditor-borrower relationship between PNC Bank and Plaintiff's company in the amount of $4 million. (Doc. 3, ¶¶9-10). To support his belief that the exhibits used at trial were not "valid" or "truthful" (Doc. 3, ¶13), Plaintiff claims that he submitted valid FOIA requests to the USAO in Cincinnati on February 8, 2016, seeking "certified and authenticated" records relating to the alleged "$4,000,000 obligation the government claims [Plaintiff's company] had with PNC in 2004." (Doc. 3, ¶14).

Plaintiff asserts that he never received a response to his February 8, 2016 FOIA requests, and that he is entitled to judicial review and an order compelling the government to respond because he constructively exhausted his administrative remedies. To support his allegation that his FOIA requests were indeed sent to and received by Defendants, Plaintiff offers: (1) his Verified Complaint attaching a copy of his February 8, 2016 FOIA requests addressed to the United States Attorney's Office, 221 East 4th Street, Suite 400, Cincinnati Ohio 45202, (2) a June 10, 2016 declaration (Doc. 10) attesting that the FOIA requests were sent to the foregoing address via certified mail with tracking number 7007 3020 0002 0305 6504; (3) a copy of Plaintiff's certified mail receipt (Doc. 10-1, PAGEID# 117) with the foregoing tracking number; and (4) a printout of tracking information (Doc. 10-1, PAGEID# 118) showing delivery of the package associated with the foregoing number on February 12, 2016 at 1:43 p.m. in Cincinnati, Ohio 45202. Defendants have submitted their own declaration, in which the Cincinnati USAO's Deputy Civil Chief states that the USAO's tracking system "does not reflect that the letter at issue . . . was received by the [USAO] for the Southern District of Ohio or the Executive Officefor the United States Attorneys." (Doc. 8-1, PAGEID# 103).

II. PROCEDURAL BACKGROUND

a. Motion to Dismiss/Motion to Amend

On June 9, 2016, Defendants filed a motion to dismiss Plaintiff's Verified Complaint for lack of subject matter jurisdiction, arguing that the Court lacked jurisdiction over the matter because Plaintiff failed to exhaust administrative remedies before filing the instant action. Specifically, Defendants argued that it was Plaintiff's burden to plead and ultimately prove that he exhausted all administrative remedies, which requires proof that the government indeed received the FOIA requests at issue. (Doc. 8, PAGEID# 99). Defendants argued that the allegations in Plaintiff's Verified Complaint, and its attached documents, were insufficient to make such a showing. (Id.) To establish non-receipt of the FOIA requests, Defendants attached to their motion the above-referenced affidavit of Cincinnati's Deputy Civil Chief. (Doc. 8-1). Defendants further argued that, regardless of whether the Cincinnati USAO received the requests, Plaintiff's FOIA claim still fails because the Cincinnati USAO is not the component designated under FOIA to receive such requests. (Doc. 8, PAGEID# 99).

The same day that Defendants moved to dismiss, Plaintiff sought leave to amend his Verified Complaint. Plaintiff argued that his proposed amendments "will assist the Court with additional information . . . as to whether the Defendant[s] acted arbitrarily or capriciously regarding the failure to respond to Carter's FOIA request." (Doc. No. 9, PAGEID# 105). Plaintiff proposed various amendments (Doc. No. 9-1) pertaining to the "wrongful conduct" and "false accusations" of the government. He states that unless the government "provide[s] the certified records pursuant to [his] FOIA request," the Court will continue to be "misled and deceived . . . by the government employees involved in [his] investigation and prosecution" and Plaintiff will "continue to be unjustly incarcerated." (Doc. No. 9-1, PAGEID# 111-12).

b. Report and Recommendation

On August 16, 2016, the Magistrate Judge issued a Report & Recommendation addressing the government's motion to dismiss. The Magistrate Judge rejected Defendants' Rule 12(b)(1) argument, reasoning that "Congress has not given a clear statement that a plaintiff's failure to exhaust administrative remedies strips a federal court of jurisdiction to consider his complaint." Carter v. United States, No. 1:16-cv-530, 2016 U.S. Dist. LEXIS 108317, at *6 (S.D. Ohio Aug. 16, 2016) (Doc. No. 14, PAGEID #232). However, the Magistrate Judge recommended dismissal on the basis that failure to exhaust administrative remedies "may still be grounds for dismissal of plaintiff's complaint under Rule 12(b)(6) for failure to state a claim on which relief can be granted." Id. at *7 (Doc. No. 14, PAGEID# 233). Because the parties supported their arguments regarding exhaustion with documents beyond the pleadings, the Magistrate Judge converted the motion to dismiss into a motion for summary judgment. Ultimately, the Magistrate Judge recommended dismissal because, as part of his purported burden to prove that he exhausted his administrative remedies, "plaintiff failed to meet his burden of establishing that the [USAO] received his FOIA request." (Doc. No. 14, PAGEID# 235). The R&R does not address Plaintiff's Motion to Amend.

c. Objections to the R&R

On September 8, 2016, Plaintiff timely filed the following objections to the Magistrate Judge's R&R:

1. Based upon the USPS's August 19, 2016 proof of receipt confirming that the United States Attorneys [sic] Office for the Southern District of Ohio (USAO) signed for and received the February 8, 2016 FOIA Request, the Report erroneously bases its Recommendation on the wholly unreliable testimony of [Cincinnati's Deputy Civil Chief];2. Based upon the USPS's August 19, 2016 proof of receipt confirming the USAO received the February 8, 2016 FOIA Request and the Defendant's failure to respond within the required statutory time limit, Carter has constructively exhausted his administrative remedy, granting this Court jurisdiction over this case;

3. The Report fails to give Carter the required notice of the Court's intent to convert the Defendant's motion to dismiss to a motion for summary judgment and the consequences of the same, prejudicially depriving Carter of his opportunity to conduct discovery, and present new evidence to support his record;

4. The report erroneously relies upon the prestige of the government, causing prejudicial effect upon Carter. Thus, the Report must be denied;

5. Because competing affidavits show a genuine factual dispute about whether or not Defendant received the February 8, 2016 FOIA Request, the Report erroneously makes a Recommendation for summary judgment prior to the resolution of the dispute. Thus, summary judgment is premature and not appropriate;

6. The Report, as required by Rule 56, fails to view the evidence in the light most favorable to the opposing party. Thus, Carter, who opposes, objects to the recommendation for summary judgment; and

7. The Report fails to consider the normal course and ordinary business practice in receiving mail by the USAO.

In light of the R&R's emphasis on Plaintiff's failure to meet his burden of proof regarding exhaustion, Plaintiff attached to his objections new evidence to support that his FOIA requests were sent to and received by the USAO in Cincinnati, in the form of Plaintiff's September 2, 2016 affidavit attaching a "proof of receipt" provided to him by the USPS. The proof of receipt purports to show the signature of the individual signing for the package associated with the above-referenced tracking number, as well as a handwritten address for the signer. Below the signature and handwritten address, the following statement appears: "The above signature containing the address and signature of the recipient is provided to the customer as a proof of receipt that was provided after the actual certified letter was received by the recipient. This is provided as a service to the sender on August 19, 2016." The foregoing statement purports to bear the signature of Joy Andreasen, General Clerk of the USPS, with a stamp stating "Winchester VA August 19, 2016."

III. ANALYSIS

A. Plaintiff's Objections to the R&R

1. Standard of Review

When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). After review, the district judge "may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; 28 U.S.C. § 636(b)(1).

2. The Court Accepts the Magistrate Judge's Recommendation, but Orders Dismissal on Rule 12(b)(6) Grounds Rather than Rule 56 Grounds

The...