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Black v. United States Department of Homeland Security

United States District Court, D. Nevada

March 28, 2014

P. JEFFREY BLACK, Plaintiff(s),
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is pro se plaintiff Jeffrey Black's motion for summary judgment. (Doc. # 66). Defendant United States Department of Homeland Security ("DHS") filed a response in opposition. (Doc. # 68).

Also before the court is DHS' cross motion for summary judgment. (Doc. # 69). Though the response deadline has passed, plaintiff has not filed an opposition.

I. Background

Plaintiff brought this Freedom of Information Act ("FOIA"), 5 U.S.C. ยง 552, case to seek a report of investigation ("ROI") and related records that Immigration and Customs Enforcement's ("ICE") Office of Professional Responsibility ("OPR") prepared in response to a complaint filed by plaintiff. Plaintiff's complaint accused his supervisors at the Federal Air Marshal Service of misconduct.

Plaintiff filed his first FOIA request on October 4, 2007, seeking records related to OPR's investigation of his complaint. On November 7, 2007, ICE informed plaintiff that it had located 575 pages of responsive records. ICE produced 14 of these records in their entirety and 6 of these records in part to plaintiff. ICE withheld the remainder of the records, citing FOIA exemptions 6 and 7(C).

On December 7, 2009, plaintiff filed a second FOIA request, which sought similar information to the first FOIA request. ICE conducted a search for responsive records, and located 7 analog tapes, 3, 316 pages of physical records, and 14 compact disks. Plaintiff filed the instant lawsuit while ICE was reviewing these records. ICE ultimately determined that it could release 273 of the records in full and 221 with redactions. ICE withheld the remainder of the records pursuant to FOIA exemptions 6, 7(C), and 7(E).

On October 31, 2011, plaintiff filed a motion for summary judgment. (Doc. # 31). On February 14, 2012, DHS filed a cross motion for summary judgment. (Doc. # 34). On August 2, 2012, the court issued an order denying both motions. (Doc. # 39). The court summarily denied plaintiff's motion for failure to authenticate evidence, and denied defendants' motion for failure to establish a rational nexus between DHS' law enforcement activities and the withheld documents. Id.

On July 31, 2013, the parties participated in a settlement conference in this matter. (Doc. # 61). After failing to reach a settlement, the parties stipulated to a briefing schedule regarding cross motions for summary judgment. Though the parties agreed that plaintiff would have through March 21, 2014, to file his response to DHS' motion for summary judgment, (doc. # 64), to date, no response has been filed.

II. Legal Standard

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); Fed.R.Civ.P. 56(c); see also Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002) (expressing the standard for authentication of evidence on a motion for summary judgment). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answer to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324; Fed.R.Civ.P. 56(c).

III. Analysis

A. Plaintiff's motion for ...


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