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Bettwieser v. Gans

United States District Court, D. Idaho

March 31, 2017

MARTIN BETTWEISER, Plaintiff,
v.
BILLY GANS aka WILLIAM GANS and BILLY GANTZ, KELLY KALBFLEISCH, HERSCHEL HOWARD, and UNITED STATES POSTAL SERVICE, Defendants.

          MEMORANDUM DECISION AND ORDER

         INTRODUCTION

         On 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 Plaintiff's Complaint.

         Any 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).

         Both 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).

         As 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.

         Plaintiff 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.

         STANDARD OF REVIEW

         Pursuant 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.” Id.

         Where, 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)).

         The 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.

         This 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

         The 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.

         Plaintiff's claims are premised upon the Defendants' alleged failure to respond to his FOIA requests. More specifically, Plaintiff alleges:

• 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. (Exhibit 1).
• 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.)

         Plaintiff 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 added.)

         For 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.)

         On 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.) ...


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