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Clervrain v. United States

United States District Court, D. Kansas

January 8, 2019

UNITED STATES OF AMERICA, et al., Defendants.



         This matter was dismissed by the Court on September 19, 2018. Since that date, Plaintiff has filed thirty-five (35) motions and a Notice of Appeal. Defendant United States filed a response to sixteen (16) of those motions and a Motion for Filing Restrictions on November 14, 2018. See ECF No. 87. The additional nineteen (19) motions were filed after Defendant's response.

         Plaintiff's Complaint challenged the BOP's decision to aggregate three FOIA requests and to deny his request for a fee waiver. He also initially included a Federal Tort Claims Act (FTCA) claim that was dismissed by the Court upon screening, after giving Plaintiff an opportunity to show cause why it should not be dismissed. Defendant filed a motion to dismiss or for summary judgment, which the Court granted on September 19, 2018. The Complaint was dismissed because Plaintiff failed to exhaust his administrative remedies on his fee waiver request, because the fee waiver denial was otherwise proper, and because the BOP's aggregation of the three requests was justified.

         Each of Plaintiff's thirty-five (35) motions is listed and addressed below. The motions cover a range of topics, are difficult to decipher, and are largely repetitive. Several could be construed as motions for relief from judgment. However, Mr. Clervrain's filing in this closed case of motions attempting to add claims or defendants, motions asking to consolidate all of his many cases, motions for discovery, motions attempting to force other federal agencies to “intervene”, motions asking to be transferred to a different prison or to home confinement, motions for computer access, and demands for a jury trial are ineffectual. Unless and until the case has been reopened, no motion other than a motion for relief from judgment is appropriate.

         A recurring theme in Plaintiff's filings with this Court, in this case as well as in his other cases, is that he believes he should not have to explain his claims or even file a proper Complaint before conducting discovery. He repeatedly argues he needs to conduct discovery first, apparently so he can bolster his vague, unsupported allegations. The Court is not, however, “required to permit plaintiff to engage in a ‘fishing expedition' in the hope of supporting his claim.” S.E.C. v. Goldstone, 301 F.R.D. 593, 643 (D.N.M. 2014) (quoting McGee v. Hayes, 43 Fed.Appx. 214, 217 (10th Cir. 2002)). “‘Discovery ... is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.'” Rivera v. DJO, LLC, No. CIV 11-1119, 2012 WL 3860744, at *8 (D.N.M. 2012) (quoting Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697, 2002 WL 1967023, at *2 (S.D.N.Y. 2002)).

         Another recurring theme in Plaintiff's motions is that he repeatedly tries to add unrelated, unsupported claims to this lawsuit. Motions seeking to pursue claims that are not alleged in the pleadings will be denied on their face. These claims are not properly joined with the FOIA claims he raised here. Plaintiff tries to argue they are supplements to his Complaint under Rule 15(d). Rule 15(d) is designed to allow a Plaintiff to supplement his pleading to add claims that arise after filing. The claims must not only arise after filing but also must be based on the same subject matter or claim for relief as set out in the original complaint. For instance, if Plaintiff had made another request to the BOP for documents under FOIA which was denied after he filed his Complaint, he might have been able to properly supplement his Complaint to add the new denial. Supplementing is not proper to add completely different or peripherally related claims. To add claims or parties following dismissal, Plaintiff must first move to reopen the case under 59(e) or 60(b), which he arguably has done, and then he must file a motion for leave to amend under Rule 15(b), with the proposed amended complaint attached. Here, the Court denies Plaintiff's request to reopen the case, so Plaintiff should not waste his time on a motion for leave to amend or on preparing an amended complaint.

         Plaintiff also repeatedly asks for access to the internet, Lexis, Westlaw, and MS Word, as well as unlimited copying of documents, unlimited envelopes and unlimited postage. Plaintiff does not state a valid claim for denial of access to the courts. The right to access to courts neither requires “unlimited access to a law library” nor allows inmates “the right to select the method by which access will be provided.” Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (citations omitted). His “ample filings [in this Court] belie any argument that he is being denied meaningful access to the courts.” Rudnick v. Raemisch, 731 Fed.Appx. 753, 755 (10th Cir. 2018). Moreover, Plaintiff has not shown that “the denial of legal resources hindered [his] efforts to pursue a nonfrivolous claim.” See id., quoting Penrod, 94 F.3d at 1403. Plaintiff's requests for relief are denied.

         Having reviewed and considered all of Plaintiff's thirty-five (35) post-dismissal motions, the Court finds Plaintiff has raised no proper grounds for relief from the judgment. He has not explained why the Court was wrong to find that the BOP's decision to aggregate his requests was justified, wrong to find that he did not follow the proper administrative procedures and exhaust his remedies on the fee waiver issue, or wrong to find the BOP's denial of a fee waiver was also justified. Plaintiff's requests for relief from judgment are therefore denied, as further discussed below.

         While pro se litigants are entitled to a measure of leeway, the Court cannot devote all of its time to Plaintiff's cases, particularly on post-dismissal motions that have every appearance of being frivolous, nor does the Court expect the U.S. Attorney to do so. Therefore, Defendants are relieved of responding to Plaintiff's motions unless ordered to do so by the Court. Plaintiff is hereby informed that if he files additional motions in this case, they are subject to summary dismissal.

         Motion for Amending After Filing All Motions for Discovery in Such Complex Controversies (ECF No. 57)

         In this wide-ranging motion, Plaintiff appears to be asking for discovery under Rules 26 and 56(d) so he can prove his allegations of “secret operations”, mass deportations, overcrowding, and criminal activity, presumably within the Bureau of Prisons. He alleges Defendants denied his fee waiver request to protect “higher officials”, “domestic terrorist actors”, and “greed capitalist actors.” Plaintiff further claims “the entire INA [Immigration and Naturalization Act] should be declared unconstitutional because its promote terms and language of discrimination, even if Webster's was defined ‘alien' as a foreigner, at this current time Plaintiff alleges that term refers as ‘negro' inferiority or relevant to call an ‘ant' because it only an ant should declare inferior than American citizen, they are so strange in a way that they lift anything, and the Defendants can not prove how a foreign of any country will be different physically with any American citizens.” ECF No. 57 at 4-5. Plaintiff concludes by asking the Court to reconsider because of his need to investigate his claims, and he also requests access to MS Word and the internet.

         The Court denies Plaintiff's motion. The relevant issues to this lawsuit were whether the BOP properly aggregated his FOIA requests and properly denied his request for a fee waiver based on the information he provided at the time. The Court found in favor of Defendants and dismissed the lawsuit. Nothing Plaintiff alleges in this motion is relevant to that determination.

         Motion for Consideration and Oppositions Pursuant to Fed.R.Civ.P. 50, 52(b), 59, and 60 (ECF No. 58)

         In this motion, Plaintiff alleges the dismissal of this case was “not in good faith.” He complains the Court dismissed his lawsuit without considering his FTCA claim, aggregation, or fee waiver, as well as the intent behind the aggregation: to withhold evidence of criminal activity and apartheid. He further complains he did not actually respond to Defendants' motion to dismiss, and he should not have to respond until Defendants provide him with the information he asked for in his FOIA requests. In addition, Plaintiff asks that all of his cases be consolidated and that this Court forward his motion to the Fifth Circuit Court of Appeals to reinstate one of his cases that was dismissed by the U.S. District Court for the District of Maryland.

         Because this motion was filed within 28 days of the entry of judgment, the Court construes it as a motion to alter or amend a judgment under Rule 59(e). Defendants have filed a response (ECF No. 87). Rule 59(e) provides the Court may reconsider a final decision if the moving party can establish (1) an intervening change in the controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

         Plaintiff does not claim there has been an intervening change in the controlling law or that there is new evidence available. Hence, Plaintiff must establish that the judgment was clearly erroneous or resulted in manifest injustice. He does not do so. His argument that the Court did not address his FTCA claim is erroneous; the Court found Plaintiff did not state a valid FTCA claim in two Orders (ECF No. 7 at 3-4 and ECF No. 15 at 1-2). Plaintiff has never explained how that finding was wrong. Plaintiff's argument that he did not actually respond to Defendant's motion to dismiss is also disingenuous. Moreover, if he had anything relevant to argue in response to the motion to dismiss, he should have included it here to demonstrate the Court's dismissal was clearly erroneous.

         Plaintiff also argues that the Court did not consider his claim that Defendant's intent behind the aggregation decision was to withhold evidence of criminal activity and apartheid. The Court found Defendant had demonstrated its decision complied with the terms of 28 C.F.R. § 16.10(h), i.e., it was justified in aggregating Plaintiff's FOIA requests. Plaintiff has the burden to show Defendant's reliance on the terms of the regulation was pretextual. The agency's declarations are presumed to be submitted in good faith, and Plaintiff's mere speculation cannot rebut the presumption. Banks v. Dep't of Justice, 605 F.Supp.2d 131, 140 (D.D.C. 2009), citing see SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). “The factual assertions in the BOP's declarations are accepted as true absent a showing by plaintiff of his own declarations or documentary evidence to the contrary.” Banks, 605 F.Supp.2d at 140, citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). Plaintiff has offered only his own self-serving, unsupported allegation to rebut the presumption of good faith, which is insufficient to create a genuine issue of material fact regarding the BOP's asserted reason for aggregating Plaintiff's requests. See Schoenman v. F.B.I., 573 F.Supp.2d 119, 147 (D.D.C. 2008) (discussing pretext in the context of law enforcement exception to disclosure under FOIA), citing see Hastie v. Potter, Civ. No. 00-5423, 2001 WL 793715, at *1 (D.D.C. June 28, 2001) (finding no genuine issue of material fact where the sole evidence plaintiff provided was “her own self-serving and conclusory statement”); Saunders v. DiMario, Civ. No. 97-1002, 1998 WL 525798, at *4 (D.D.C. Aug.14, 1998) (“Plaintiff has otherwise offered the type of self-serving allegations that are simply insufficient to establish pretext.”).

         Plaintiff seems to lose sight of the fact that at no time did the BOP deny his FOIA requests. The BOP merely found that his three identical requests made at the same time should be aggregated and that Mr. Clervrain was not entitled to a fee waiver. If Plaintiff had come up with $308.50, the BOP would have provided him with the documents he requested (and presumably still would). The Court notes that amount is less than the filing fee for this action.

         Finally, Plaintiff's argument that he should not have to respond to the motion to dismiss until he receives the documents he asks for in his FOIA request is frankly ridiculous. How would documents relating to (1) contact information for each of 57 federal penal institutions; (2) the admission and orientation handbook for each institution; (3) the current financial statement for commissary purchases and funds distribution; (4) the current financial statement for the inmate telephone system and funds distribution; (5) copies of items sold in the commissary and the wholesale prices for each item; (6) documents identifying inmates incarcerated at each institution by race and each institution's classification level; and (7) information regarding each warden including their experience, salary, and bonuses demonstrate Defendant should not have aggregated his multiple FOIA requests or demonstrate Plaintiff was entitled to a fee waiver?

         Nothing Plaintiff has argued in this motion or any of the thirty-four (34) other motions he has filed since dismissal causes the Court to believe it committed clear error by dismissing this action or that the dismissal results in manifest injustice. Plaintiff's motion is denied.

         If Plaintiff also intended ECF No. 58 as a motion to recuse, such motion is also denied. Plaintiff failed to file the affidavit required under 28 U.S.C. § 144 and failed to establish that a reasonable person would believe the Court has displayed such “deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994).

         Motion for Continuation of Circumstances and Retaliation by the Defendants Transferred (ECF No. 59)

         Plaintiff makes the following allegations: Defendants have repeatedly transferred him without justification over the last seven years; Defendants have exposed him to extortion in some unexplained way; and someone named Jose Santana has engaged in unspecified misconduct that somehow supports Plaintiff's claim that the BOP aggregated his FOIA requests to hide evidence. Plaintiff asks the Court to initiate an investigation against Defendants, to order Defendants to show cause why he has to be incarcerated in Texas or any prison in the South, and to order him housed in home confinement.

         This motion is denied. Unless and until the case has been reopened, no motion other than a motion for relief from judgment is appropriate. To the extent this could be considered a motion for relief from judgment, it is denied.

         Motion to Compel and Similarity (FOIA) Circumstances as Evidence in Supporting the Case (ECF No. 60)

         As far as the Court can discern, Plaintiff is complaining about injury claims. This motion raises no new issues and provides no information relevant to this lawsuit. The motion is denied. Unless and until the case has been reopened, no motion other than a motion for relief from judgment is appropriate.

         Motion for Constitutionality Claims and Defenses (ECF No. 61)

         In this motion, Plaintiff argues dismissal was premature and that there were genuine issues of material fact, which he fails to describe. He does, however, make an argument that different federal correctional facilities are “unrelated matters” under 28 C.F.R. 16.10(h) because each institution may operate differently and the responsive information for each will be different. He seems to say that if this argument is not successful, 28 C.F.R. 16.10(h) should be declared unconstitutional because it promotes discriminatory enforcement. He concludes by asking for discovery and for consolidation of all his cases across the country.

         The Court is relieved that Plaintiff addresses a relevant issue in this motion. 28 C.F.R. § 16.10(h) provides, “Multiple requests involving unrelated matters shall not be aggregated.” There is a dearth of case law on what constitutes “unrelated matters.” Plaintiff's requests ask for the same information with the only difference being the first request was sent to the Mid-Atlantic Region of the BOP requesting the same information for 19 correctional institutions, the second to North Central Region encompassing 18 institutions, and the third to the Southeast Region encompassing 20 different institutions. The BOP concluded these requests involve related matters. The agency's determination is entitled to a presumption of good faith. Espinoza v. Dep't of Justice, 20 F.Supp.3d 232, 239 (D.D.C. 2014). Plaintiff's argument that the requests are unrelated matters because each institution may operate differently and the information for each will be different is incongruous with his grouping of multiple institutions in each request. In addition, Plaintiff has provided nothing more than speculation to attempt to overcome the presumption of good faith. Upon reconsideration, the Court declines to change its judgment on the issue of aggregation.

         Plaintiff's other arguments and requests in this motion are denied because the Court finds they have no merit. This motion is denied.

         Motion for Permissible Intervention for the (FOIA) Controversial Allegations (ECF No. 62)

         Plaintiff moves pursuant to Rule 24(b) (Permissive Intervention) to consolidate his cases filed in Texas, California, Georgia, Pennsylvania, and Maryland. Even if this Court could grant such a request, the United States Judicial Panel on Multidistrict Litigation has rejected Plaintiff's attempt to consolidate his cases. See Civil Docket for No. KS/5:17-cv-03194, referencing MDL No. 2860 (Lead Case). This motion is denied.

         Motion for Opposition the Defendants Omnibus Responses and Bad Faith Intent (ECF No. 63)

         Plaintiff alleges defense counsel “continuously acting the same as pattern to interfere with the court proceedings” and has acted with the “purpose of confusing him” by filing an omnibus response to eighteen (18) of Plaintiff's motions. Plaintiff asks the Court to order Defendants to respond separately to each of his motions. Unless and until the case has been reopened, no motion other than a motion for relief from judgment is appropriate. Moreover, this motion utterly lacks merit. The motion is denied.

         Motion to Compel the (BOP) for Legal Materials as an Indigent Inmate Against Apartheid (ECF No. 64)

         Plaintiff again alleges Defendants have denied him access to the courts. Unless and until the case has been reopened, no motion other than a motion for relief from judgment is appropriate. In addition, this motion is denied for the reasons stated above (at 3).

         Motion as Notice for the Defendants Avoiding the Allegation of "Criminal Enterprises" in Responses (ECF No. 65)

         Plaintiff again attempts to add claims and argues the aggregation of his FOIA requests and the denial of a fee waiver was pretextual. To the extent this could be considered a motion for relief from judgment, it is denied for the previously stated reasons.

         Motion for Placement in Home Confinement and Exceptional Circumstances to Litigate the Controversies (ECF No. 69)

         Plaintiff asks the Court to order he be held in home confinement pursuant to 18 U.S.C. § 3582. This Court does not have jurisdiction over Plaintiff's sentencing. Plaintiff is again reminded this lawsuit involves FOIA requests and was dismissed on September 19, 2018. This motion is denied.

         Motion for the Defendant(s) Failure to Consider Circumstantial Evidence in the (FOIA) Allegations (ECF No. 70)

         Plaintiff alleges actions of the BOP are evidence of Defendants' “bad faith intent” in aggregating his FOIA requests and denying a fee waiver. This issue is addressed above. This motion is denied.

         Motion to Compel for Efficient Law ...

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