Petrucelli v. Dep't of Justice

51 F.Supp.3d 142

John A. Petrucelli, Plaintiff

v.Department Of Justice, Defendant.

Civil Action No. 11–1780RBW

United States District Court, District of Columbia.

Signed June 27, 2014

John A. Petrucelli, White Deer, PA, pro se.

Paul David Wolf, Denver, CO, Seth Langer Rosenberg, Harlan J. Protass, Clayman & Rosenberg, New York, NY, for Plaintiff.

Timothy E. Broomhead, Kevin Michael Laden, Sobia Haque, Theresa Ekeoma Dike, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

REGGIE B. WALTON, United States District Judge

This matter came before the Court on the Defendant's Renewed Motion to Dismiss or, Alternatively, Motion for Summary Judgment. ECF Nos. 40–41.¹ On March 31, 2014, the Court granted the defendant's motion in part and denied it in part without prejudice.² This Memorandum Opinion sets forth the reasons for the decision.

I. BACKGROUND

The plaintiff, a federal prisoner, brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552 (2006), against the United States Department of Justice (“DOJ”), demanding the release of records maintained by the Federal Bureau of Prisons (“BOP”), the Executive Office for United States Attorneys (“EOUSA”), and the Federal Bureau of Investigation (“FBI”), and also against the BOP under the Privacy Act, see 5 U.S.C. § 552a (2006). It appears that the information of interest to the plaintiff pertains to the date of his arrest and his eligibility for the death penalty. See Complaint for Injunctive Relief and Monetary Damages in Excess of $10,000, ECF No. 1 (“Compl.”) ¶¶ 5–6, 11; Plaintiff['s] Second Amended Complaint for Injunctive Relief and Monetary Damages in Excess of $10,000, ECF No. 10 (“Am.Compl.”) ¶¶ 5–6.

A. The Plaintiff's Criminal History

The plaintiff's criminal history has been summarized as follows:

Throughout the early 1990s, John Petrucelli was a member of the Tanglewood Boys, a violent gang that regularly engaged in murder, armed robbery, burglary, loan sharking, and bookmaking in the Bronx and Westchester County[, New York]. The Tanglewood Boys' membership was comprised chiefly of young men who wished to become members of the Luchese Organized Crime Family.

In the early morning of June 20, 1995, Tanglewood Boy member Darin Mazzarella was shot by Michael Zanfardino, an associate of the rival Genovese Family. Petrucelli witnessed the shooting. A few hours later, near P.S. 108 in the Bronx, Petrucelli stabbed Paul Cicero, a cousin of a Genovese Family associate, to avenge the shooting of Mazzarella. Sean McKernan, a childhood acquaintance of both Petrucelli and Cicero, saw Petrucelli lunge at Cicero from his position seated on a stoop near P.S. 108, but he did not observe the stabbing because a concrete wall blocked the lower three-quarters of Petrucelli's and Cicero's bodies. After Petrucelli left the scene, Cicero passed in front of the stoop where McKernan was sitting and said, “That bastard Johnny just stabbed me” while clutching his stomach. Cicero subsequently bled to death on the operating table at a nearby hospital.

On June 21, 1995, the day after the shooting and stabbing, Steven Crea, the Underboss of the Luchese Family, summoned Petrucelli to a meeting. Crea explained that the Genovese Family had contacted him to prevent the Tanglewood Boys from taking revenge against Zanfardino. Petrucelli informed Crea that he had stabbed Cicero in response to Mazzarella's shooting. Petrucelli then fled to Las Vegas, where he stayed with his grandmother, and later his aunt and uncle, for several weeks.

A few days later, Acting Boss of the Genovese Family, Liborio Bellomo, requested a meeting with Joseph Defede, the Acting Boss of the Luchese Family, to discuss the circumstances surrounding the shooting and stabbing. Bellomo asked Defede to ensure that the Tanglewood Boys not to [sic] pursue Zanfardino and argued that the Cicero murder constituted sufficient revenge against the Genovese Family for Mazzarella's shooting. Defede granted Bellomo's request.

In early 1996, after Mazzarella had recovered from his gunshot wounds, he met with Defede to discuss his desire to retaliate against Zanfardino. Defede explained that revenge would be unjustified because of Cicero's murder and instructed Mazzarella not to exact retribution. Several days later, at Defede's request, Mazzarella and Zanfardino met and formally called a truce.

Petrucelli v. United States, No. 05–cv–9582, 2009 WL 4858081, at *1–2 (S.D.N.Y. Dec. 15, 2009). “The original indictment against [the] plaintiff resulted from a long FBI investigation into [the] plaintiff['s] ... organized crime activities.” Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, Alternatively, Motion for Summary Judgment, ECF No. 23 (“Def.'s First Mem.”), Declaration of David M. Hardy (“Hardy Decl.”) ¶ 5. Ultimately, the plaintiff was charged with and convicted of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1), and is serving a term of life imprisonment. Hardy Decl. ¶ 5; see United States v. Petrucelli, 97 Fed.Appx. 355 (2d Cir.2004) (affirming conviction on direct appeal).

The plaintiff alleges that “[o]n January 28, 2002[, he] was arrested by F.B.I. Agents Orango and Munger,” Am. Compl. ¶ 10, with the assistance of “a fully armed F.B.I. Swat team,” id. ¶ 11. He further alleges that he “was photographed and fingerprinted by F.B.I. Agents while being held in the White Plains headquarters” office, id. ¶ 13, after which he “was transported by ... Agents Orango and Munger to [the BOP's Metropolitan Detention Center in Brooklyn, New York (MDC Brooklyn) ] at about 5:00 PM” on that same date. Id. ¶ 15. These agents, the plaintiff alleges, transported him from MDC Brooklyn “to his arraignment at [the] Manhattan Federal Court” on February 1, 2002. Id. ¶ 16. The plaintiff apparently believes that responsive records showing an “original arrest date of January 28, 20[0]2, and favorable evidence ... could exculpate [him] from unlawful confinement.” Affidavit of Facts in Support of [ ]Notice[ ] of Missing Facts of Evidence, ECF No. 27 ¶ 4.

B. The Plaintiff's Request for Amendment of BOP Records

Through the BOP's administrative remedy procedure, see Def.'s First Mem., Declaration of Donna Johnson, ECF No. 23–2 (“Johnson Decl.”) ¶¶ 9–10, on September 11, 2011, the plaintiff submitted the following request to the Warden of the Federal Correctional Institution in Manchester, Kentucky:

I am writing in reference to my record date of arrest and arrival to [the] BOP ... as being incorrect. “1/31/02” I ask ... that my arrest date and arrival to M.D.C. Brooklyn reflect the correct date of Jan. 28[,] 2002.... I ... ask for my records to be amended showing [my] actual arrest, incarceration at M.D.C. Brooklyn being Jan. 28, 2002.

Johnson Decl., Ex. B (Request for Administrative Remedy dated September 11, 2011). After having reviewed “the U.S. Marshals Report, Presentence Investigation Report (PSR), Prisoner Remand Form, and the SENTRY data base,” and after having made “contact with the FBI's field office in the Southern District of New York,” the Acting Warden informed the plaintiff that his “date of arrest in Yonkers, New York, and subsequent delivery to MDC Brooklyn [was] January 31, 2002.” Id., Ex. B (Request for Administrative Remedy, Remedy ID # 656846–F1, Part B—Response from R.D. Ranum, Acting Warden, dated October 4, 2011). He further stated that “[t]here [was] no documentation which indicates an earlier date of arrest.” Johnson Decl. ¶ 12. The plaintiff's administrative appeal to the BOP's Mid–Atlantic Regional Office of the denial to amend his BOP records was subsequently denied. Id. ; see id., Ex. B (Regional Administrative Remedy Appeal, Part B—Response from C. Eichenlaub, Regional Director, Mid–Atlantic Region, BOP, dated November 22, 2011).

C. The Plaintiff's Requests for BOP Records

1. FOIA/PA Request Number 2010–07999

In the plaintiff's first FOIA request to the BOP, he sought the following:

(1) any and all records, reports, files, memos and materials to include electronic filings that contain any information concerning my initial intake screening on January 28, 2002 at [MDC Brooklyn];(2) a copy of the log book on January 28, 2002 at [MDC Brooklyn] when I was delivered into their custody;

(3) Copy of the warrant being executed for my arrest and delivery to [MDC Brooklyn];

(4) Copy of fingerprint card taken during intake screening and other data taken by ... MDC officials or staff upon my intake and processing; [and]

(5) copy of medical information taken by medical staff at [MDC Brooklyn] during my medical screening on January 28, 2002[.]

Johnson Decl., Ex. C (Freedom of Information Act and Privacy Act request dated March 12, 2010) at 1. Because the plaintiff was incarcerated at the United States Penitentiary in Canaan, Pennsylvania (“USP Canaan”) at the time of this request, its Legal Services Department staff and the Secretary of the plaintiff's Unit Team searched for medical and other records responsive to the request, which had been assigned FOIA Request Number 2010–07999. See id., Ex. D–E (email messages dated May 20, 2010 and May 24, 2010, respectively). Of 56 pages of records deemed responsive to the request, the BOP released 55 pages in full and withheld one page in full under FOIA Exemption 7(F). Id. ¶¶ 20–21; see id., Ex. F (Letter to the plaintiff from Henry J. Sadowski, Regional Counsel, Northeast Regional Office, BOP, dated September 21, 2010).

The plaintiff pursued an administrative appeal to the DOJ's Office of Information Policy (“OIP”), id. ¶ 46, which remanded the matter to the BOP, id. ¶ 49. At the time the BOP's declarant executed her declaration following the remand, the agency had not yet completed the re-processing of the records. Id. ¶ 52. The BOP thereafter reviewed 22 pages of records, 18 of which were released in full and three of which were released in redacted form after information was deleted pursuant to FOIA Exemptions 6, 7(C), ad 7...