United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
February 1, 2017, Chief United States Magistrate Jude Ronald
E. Bush issued a Report and Recommendation
(“Report”), recommending that the Defendant
United States Postal Service's Motion to Dismiss (Dkt.
22) be denied in part and granted in part. (Dkt. 37.) More
specifically, the Report recommended that the Motion to
Dismiss be denied with respect to subject matter jurisdiction
and granted with respect to the individual United States
Postal Service (“USPS”) employees. (Id.
at p. 15). The result of such a ruling would allow Plaintiff
to proceed with his Freedom of Information Act
(“FOIA”) and Privacy Act claims against the USPS
but not the individual USPS employees named in
party may challenge the Magistrate Judge's proposed
recommendation by filing written objections within fourteen
days after being served with a copy of the Report. 28 U.S.C.
§ 636(b)(1)(C). The district court must then “make
a de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings
and recommendations made by the Magistrate Judge.
Id.; see also Fed. R. Civ. P. 72(b).
Plaintiff and the USPS filed objections to the Report arguing
it erred in its conclusions and findings. (Dkts. 39, 40.)
Both parties also filed responses to one another's
objections. (Dkts. 41, 42.) In addition, Plaintiff filed a
Reply in support of his objections. (Dkt. 43.) The matter is
now ripe for this Court's consideration. Fed.R.Civ.P. 72;
Local Civ. R. 72.1(b).
explained more fully below, the Court will adopt the Report
in part and reject it in part. The Court generally agrees
with the Report's factual findings and adopts the
Report's recommendation regarding the dismissal of the
claims against the individual USPS employees. Nevertheless,
the Court disagrees with the Reports conclusion as to the
claims against the USPS and finds that all of the claims,
including those against the USPS, should be dismissed as a
matter of law.
has the burden of demonstrating that he made a valid FOIA
request and exhausted his administrative remedies. Neither
the Plaintiff's allegations in the Complaint nor the
facts in the record are sufficient to support a reasonable
inference that Plaintiff made a valid FOIA request delivered
to the USPS consistent with USPS regulations. Accordingly,
whether determined as a motion to dismiss based on the
allegations in the Complaint alone or converted to a summary
judgment motion and taking into account all of the materials
submitted by the Plaintiff in support of his claims, the
Court finds that Plaintiff's claims fail as a matter of
law and the Complaint must be dismissed in its entirety.
to 28 U.S.C. § 636(b)(1)(C), this Court “may
accept, reject, or modify, in whole or in part, the findings
and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
however, no objections are filed the district court need not
conduct a de novo review. To the extent that no
objections are made, arguments to the contrary are waived.
See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1)
(objections are waived if they are not filed within fourteen
days of service of the Report and Recommendation).
“When no timely objection is filed, the Court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.”
Advisory Committee Notes to Fed.R.Civ.P. 72 (citing
Campbell v. United States Dist. Court, 501 F.2d 196,
206 (9th Cir.1974)).
Court has reviewed the entire Report as well as the record in
this matter for clear error on the face of the record and
none has been found. The Court has also conducted a de
novo review of the Report in light of the Objections and
other filings in this case and finds as follows.
review was undertaken with the Court being mindful that the
Plaintiff is a pro se litigant and, as such, the
filings and motions are construed liberally. See Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). That
being said, while pro se litigants are held to less
stringent standards, a litigant's pro se status
does not excuse him or her from complying with the procedural
and substantive rules of the court. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Jackson v.
Carey, 353 F.3d 750, 757 (9th Cir. 2003).
background facts of this case are well articulated in the
Report and the Court incorporates them in this Order. (Dkt.
37.) The Plaintiff, Martin Bettwieser, filed the Complaint
pro se in this matter asserting violations of FOIA
and the Privacy Act. (Dkt. 1.) The named Defendants are Billy
Gans, Kelly Kalbfleisch, Herschel Howard, and the USPS.
claims are premised upon the Defendants' alleged failure
to respond to his FOIA requests. More specifically, Plaintiff
• That Bill Gans (aka Billy Gantz) was hand delivered a
[FOIA] Request and Privacy Act Request that was hand stamped
for delivery and delivered on July 27, 2015. A 30 day request
time was asked for to view and copy the requested
information. No written or oral response was issued or given
to the Plaintiff in that time frame.
• The Plaintiff mailed a certified letter to Billy
Gantz, clearly stating FOIA Officer on the face of the
envelope on September 03, 2015, with a letter asking if there
were any problems processing the FOIA request and allowing an
additional 10 working days to respond to the request.
• The certified letter was delivered to an agent on
September 05, 2015. On September 10, 2015, the letter was
placed unopened in my work area, endorsed
“Refused.” On that date, I asked Billy Gantz if
it was he that endorsed the letter and he said he did. I
asked him if he would date it but he refused. I asked him why
he refused it and would not date or acknowledge the question
and walked off.
(Dkt. 1, ¶¶ V-VII.)
concludes that he has exhausted all administrative remedies
related to the FOIA Requests. (Dkt. 1, p. 3.) In support of
this conclusion, he alleges that he “has made every
effort, to the agency, through the individuals to
respond to his FOIA request.” (Dkt. 1, p. 3)(emphasis
relief, Plaintiff seeks an order compelling the agency
“to answer his FOIA Request and to produce as
requested.” (Dkt. 1, p. 4.) Plaintiff also seeks
“sanctions and/or an investigation of the individuals
and/or the agency and/or those responsible for non-compliance
to the FOIA request.” (Dkt. 1, p. 4.)
March 18, 2016, the USPS filed the instant Motion to Dismiss.
(Dkt. 22.) The USPS argues: (1) the Court does not have
jurisdiction over Plaintiff's FOIA and Privacy Act claims
because the USPS never received a request for records and
Plaintiff failed to exhaust his administrative remedies and
(2) Plaintiff has no right of action against the
individually-named Postal Service employees, no cognizable
claim for attorney's fees, and no right to recover
monetary relief under FOIA. (Dkt. 22-1, p. 4.) ...