United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
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
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
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
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)).
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
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.
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
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
for Amending After Filing All Motions for Discovery in Such
Complex Controversies (ECF No. 57)
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.
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
for Consideration and Oppositions Pursuant to Fed.R.Civ.P.
50, 52(b), 59, and 60 (ECF No. 58)
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.
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).
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
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.”).
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.
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?
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.
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).
for Continuation of Circumstances and Retaliation by the
Defendants Transferred (ECF No. 59)
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
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.
to Compel and Similarity (FOIA) Circumstances as Evidence in
Supporting the Case (ECF No. 60)
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
for Constitutionality Claims and Defenses (ECF No.
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
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.
other arguments and requests in this motion are denied
because the Court finds they have no merit. This motion is
for Permissible Intervention for the (FOIA) Controversial
Allegations (ECF No. 62)
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.
for Opposition the Defendants Omnibus Responses and Bad Faith
Intent (ECF No. 63)
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
to Compel the (BOP) for Legal Materials as an Indigent Inmate
Against Apartheid (ECF No. 64)
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).
as Notice for the Defendants Avoiding the Allegation of
"Criminal Enterprises" in Responses (ECF No.
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
for Placement in Home Confinement and Exceptional
Circumstances to Litigate the Controversies (ECF No.
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.
for the Defendant(s) Failure to Consider Circumstantial
Evidence in the (FOIA) Allegations (ECF No. 70)
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.
to Compel for Efficient Law ...