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explaining the preference in the Second Circuit for analyzing dismissal motions in FOIA cases under Rule 56
Summary of this case from Schwarz v. Department of JusticeOpinion
07 Civ. 8586 (DF).
December 22, 2008
MEMORANDUM AND ORDER
In this action, before me on consent pursuant to 28 U.S.C. § 636(c), pro se plaintiff Mervin R. Hadden ("Plaintiff") claims that defendant the Bureau of Prisons ("Defendant") has improperly withheld a videotape that Plaintiff duly requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA").
Before the Court is a motion by Defendant to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. 15.) For the reasons set forth below, Defendant's motion to dismiss the Complaint pursuant to Rule 12(b)(1) is denied, but Defendant's alternative motion for summary judgment under Rule 56 is granted, and the Complaint is therefore dismissed.
BACKGROUND
A. Factual Background
On September 26, 2006, while incarcerated at the United States Penitentiary Canaan, in Waymart, Pennsylvania ("USP Canaan"), Plaintiff was involved in an incident in which he claims to have been assaulted by another inmate. ( See Complaint, dated Aug. 7, 2007 ("Compl."), at ¶ 3 and Ex. A (Discipline Hearing Officer Report).) Staff members at USP Canaan, however, reported that Plaintiff and the other inmate had engaged in a fight with each other, and, as a result, Plaintiff was himself charged with the infraction of "fighting with another person." ( See Compl., at ¶ 6 and Ex. A.) Apparently, the incident was recorded on videotape, and the tape was observed by an officer, who stated that it supported the charge against Plaintiff. ( See Compl., Ex. A.) The charge against Plaintiff was then sustained, and he was sanctioned as a result. ( See id.)
On or about December 21, 2006, Plaintiff served a Freedom of Information Act request on Defendant, requesting the videotape and certain related evidence not at issue in this case. ( See Declaration of David Bober, dated Apr. 30, 2008 ("Bober Decl."), Ex. D.) By letter dated March 22, 2007, Defendant, through its Regional Counsel, responded to Plaintiff in writing, stating that: "A search was conducted and no records were found responsive to your request." (Compl., Ex. A (Letter to Mervin Robert Hadden from Henry J. Sakowski, dated Mar. 22, 2007 ("Sadowski Ltr.").) On April 12, 2007, Plaintiff appealed to the Department of Justice Office of Information and Privacy ( see Bober Decl., Ex. E), and, on or about July 3, 2007, his appeal was denied ( see Bober Decl., Ex. F (date partially illegible)).
See also Memorandum of Law in Support of Defendant's Motion To Dismiss the Complaint for Lack of Subject Matter Jurisdiction or, in the Alternative, for Summary Judgment, dated Apr. 30, 2008 ("Def. Mem."), at 4.
Plaintiff commenced this action on August 7, 2007, claiming that his rights under FOIA had been violated by Defendant's failure to produce the videotape.
Although the Court's docket reflects a filing date of October 3, 2007 for this submission ( see Dkt. 1), a pro se prisoner's papers are deemed filed when they are handed over to prison officials for forwarding to the court, see Houston v. Lack, 487 U.S. 266, 270 (1988), and this Court will therefore deem the Complaint to have been filed on August 7, 2007, the date when Plaintiff signed it, see, e.g., Rhodes v. Senkowski, 82 F. Supp. 2d 160, 165 (S.D.N.Y. 2000).
B. Defendant's Motion
On April 30, 2008, Defendant filed a motion to dismiss the Complaint or, alternatively, for summary judgment. (Dkt. 15.) In support of its motion, Defendant submitted a declaration of Special Investigative Agent Glenn Carrino ("Carrino"), in which Agent Carrino describes, under penalty of perjury, the nature of the search conducted by Defendant in response to Plaintiff's FOIA request, and states that the videotape in question could not be found. (Bober Decl., Ex. D (Declaration of Glenn Carrino, dated Apr. 2008 ("Carrino Decl.")).) In particular, Carrino states in his declaration that he had searched "the internal USP Canaan investigative files for copies of any videotape that would have been responsive to Plaintiff's request," but that he "was not able to locate any such videotape." (Carrino Decl., at ¶ 4.) In addition, Carrino states that, as the incident that resulted in the charge against Plaintiff "was not referred for criminal prosecution," but rather "was handled administratively through the inmate discipline process" ( id., at ¶ 3), the digital recordings that had been created by the institution's video surveillance cameras would not have been preserved for more than 14 days ( id., at ¶ 5). Plaintiff did not make his FOIA request until approximately three months after the date of the incident, and thus, according to Carrino, the videotape Plaintiff was requesting had not been preserved. ( See id., at ¶ 6.)
In his opposition to Defendant's motion, Plaintiff points out that the Discipline Hearing Officer's Report indicates that the September 2006 incident actually was "referred to the FBI pending possible prosecution." (Bober Decl., Ex. A.) Based on this, Plaintiff argues that Carrino is incorrect in his assertion that the matter had not been criminally referred, and suggests that the contradiction undermines Carrino's statement that the videotape was not preserved. ( See Plaintiff's Verified Response to Defendant's Motion To Dismiss or, in the Alternative, Motion for Summary Judgment, dated June 26, 2008 ("Pl. Opp."), at ¶ 5.) Further, Plaintiff asserts that he spoke with "two different staff members at the Otisville F.C.I." (the federal correction institution where Plaintiff was incarcerated subsequent to his incarceration at USP Canaan), and that these staff members informed him that, once the digital image from a surveillance camera is reviewed on "the high-tech digital system[,] . . . it will always be able indefinitely time wise to be produced or brought up again." ( Id., at ¶ 6.) Plaintiff also states that he was told by these Otisville staff members that "the system that is in operation at [USP Canaan] . . . is even more `state of the art' than the system at Otisville," and that, because the video in question was initially reviewed by an officer at USP Canaan, "the image would be able to be produced and viewed up until this very day." ( Id.)
While Plaintiff's opposition is titled a "Verified Response" to Defendant's Motion, Plaintiff's statements are neither sworn to before a notary, nor expressly made under penalty of perjury. ( See Pl. Opp. at 4.)
On July 28, 2008, Defendant submitted reply papers, including a reply declaration of Special Investigative Technician John G. Gintz, Jr. ("Gintz"), who states that he looked into the discrepancy in Defendant's moving papers and determined from Defendant's files that, in fact, the 2006 incident involving Plaintiff was never referred to the FBI for potential criminal prosecution, and that the statement to the contrary contained in the Discipline Hearing Officer Report was apparently "an administrative error." (Declaration of John G. Gintz, Jr., dated July 28, 2008 ("Gintx Decl."), at ¶¶ 5-6.) Gintz goes on to state that, regardless of this, he nonetheless conducted a search of the Evidence Safe where the video images would have been stored on a compact disc, had the matter been criminally referred. ( Id., at ¶¶ 8-9.) Gintz reports that he found no such compact disc. ( Id.,, at ¶ 9.) Finally, Gintz states that the video system at USP Canaan does not, as Plaintiff presumes, "automatically save video when a technician pulls that video up for review." ( Id., at ¶ 8.) Rather, according to Gintz, video surveillance footage at USP Canaan is only saved to a workstation hard drive or compact disc when the operator "manually mark[s] [it] to be saved," and that, "[d]ue to limits on storage capacity and resources, this two-step process to save video is only done if the case is going to be referred to the FBI." ( Id.)
DISCUSSION
Congress enacted FOIA "to promote honest and open government and to assure the existence of an informed citizenry to hold the governors accountable to the governed." Grand Central P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (citation and internal quotation marks omitted). "A requester dissatisfied with the agency's response that no records have been found may challenge the adequacy of the agency's search by filing a lawsuit in the district court after exhausting any administrative remedies." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citing 5 U.S.C. § 552(a)(6)(A)(i) (C)).
Here, Defendant does not challenge whether Plaintiff has adequately exhausted his administrative remedies, but rather moves to dismiss his Complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, or moves alternatively for summary judgment under Rule 56. The crux of Defendant's argument is that it has produced two declarations, made under penalty of perjury, of persons with knowledge, demonstrating that a reasonable search has been made for the videotape in question, and that the tape could not be located. Although some courts have applied Rule 12(b)(1) to determine whether, in light of such evidence, a court will lack a jurisdictional basis to hear a plaintiff's FOIA claim, the more recent trend is for motions like this one to be analyzed according to summary judgment standards, as discussed below.
I. APPLICABLE LEGAL STANDARDS
A. Rule 12(b)(1)
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) if the Court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed.R.Civ.P. 12(b)(1)). In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), evidence outside the pleading may be considered. See Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). The burden of proof is on the plaintiff to prove the existence of subject matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).
Under FOIA, "the district court[s] of the United States . . . [have] jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 5 USC § 552(a)(4)(B). "As noted by the Supreme Court, under FOIA, `federal jurisdiction is dependent on a showing that an agency has (1) `improperly' (2) `withheld' (3) `agency records.'" Grand Cent. P'ship., Inc., 166 F.3d at 478 (quoting United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)). "Only when each of these criteria is met may a district court `force an agency to comply with the FOIA's disclosure requirements.'" Id. Accordingly, "[w]hen an agency has demonstrated that it has not `withheld' requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA." Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 139 (1980). This means that an agency must actually possess responsive records before it can be found to have withheld them, and, accordingly, "agency possession or control is prerequisite to triggering any duties under the FOIA." Id. at 151; see also Chandler Pena v. United States Customs Border Patrol, 06 CV 2482 (NG) (LB), 2007 U.S. Dist. LEXIS 35099, at *5 (E.D.N.Y. May 14, 2007) ("Where documents do not exist, an action for their production is subject to dismissal.").
Thus, at least some courts have held "that an action for production of documents under FOIA is . . . subject to dismissal for lack of subject matter jurisdiction, where documents requested either do not exist or where the requester has been provided with all known documents." Haji v. B.A.T.F.E., 03 Civ. 8479 (DC), 2004 U.S. Dist. LEXIS 15583, at *6 (S.D.N.Y. Aug. 4, 2004) (quoting Mitchell v. Kemp, 91 Civ. 2983 (RWS), 1992 U.S. Dist. LEXIS 11030, at *7 (S.D.N.Y. July 27, 1992), aff'd, 999 F.2d 536 (2d Cir. 1993) (citing cases)); see also DiModica v. United States Dep't of Justice, 05 Civ. 2165 (GEL) (FM), 2006 U.S. Dist. LEXIS 1182, at *8 (S.D.N.Y. Jan. 11, 2006) (dismissing pro se FOIA claim for lack of subject matter jurisdiction); Robert v. Dep't of Justice, 04-CV-1961 (NGG) (ETB), 2005 U.S. Dist. LEXIS 39616, at *5 (E.D.N.Y. Mar. 1, 2005) (same), aff'd, 2006 U.S. App. LEXIS 9450 (2d Cir. Apr. 11, 2006). B. Rule 56
Despite the above-cited case law, courts in this circuit have increasingly shown a preference for analyzing dismissal motions in FOIA cases under Rule 56. See Robert v. Dep't of Justice, 193 Fed. Appx. 8, *9-10 (2d Cir. 2006) ("We are not certain. . . . that the district court was correct to characterize this as a jurisdictional issue. . . . As the Supreme Court more recently advised . . . it is unreasonable to read [language such as that used in Tax Analysts and Kissinger] as making all the elements of a cause of action jurisdictional.") (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89-90 (1998)); see also Megibow v. Clerk of the United States Tax Court, 04 Civ. 3321 (GEL), 2004 U.S. Dist. LEXIS 17698, at *5-6 (S.D.N.Y. Aug. 30, 2004) (despite "loose language" in Kissinger, plaintiff's FOIA claim "is not a question of the Court's subject matter jurisdiction; it is a question of the merits of [plaintiff's] claim."); AP v. United States Dep't of Justice, 06 Civ. 1758 (LAP), 2007 U.S. Dist. LEXIS 18443, at *8-9 (S.D.N.Y. Mar. 7, 2007) ("Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is the vehicle by which most FOIA actions are resolved") (citing Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.")); accord Jones-Edwards v. Appeal Bd. of NSA, 352 F. Supp. 2d 420, 423 (S.D.N.Y. 2005).
See also Montez v. Dep't of the Navy, 392 F.3d 147, 150 (5th Cir. 2004) ("In circumstances where `the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action for the district court . . . is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case' under either Rule 12(b)(6) or Rule 56.") (citing Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981)).
Under Rule 56(c), a motion for summary judgment may be granted when the parties' evidentiary submissions show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The moving party bears the burden of showing that no genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Accordingly, the Court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor," L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)). Nonetheless, opposition to summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Where the party opposing summary judgment is proceeding on a pro se basis, the Court must read that party's papers liberally and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). Even a pro se plaintiff, however, must present concrete evidence from which a reasonable jury could return a verdict in his favor. Jermosen v. Coughlin, 877 F. Supp. 864, 867 (S.D.N.Y. 1999). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 249-50 (1986) (citations omitted); see also Husbands v. City of New York, 05 Civ. 9252 (NRB), 2007 U.S. Dist. LEXIS 61042, at *14 (S.D.N.Y. August 16, 2007) ("if the nonmoving party does not present evidence from which a reasonable jury could return a favorable verdict, then summary judgment is appropriate.") (citing Golden Pacific Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004)).
On a summary judgment motion, the Court "cannot try issues of fact; it can only determine whether there are issues to be tried." Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); accord Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). Where there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party, summary judgment is appropriate. See Liberty Lobby, 477 U.S. at 248.
C. Local Civil Rule 56.1
The local rules of this Court require a party moving for summary judgment under Rule 56 to submit "a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civ. R. 56.1(a). In response, the opposing party must submit "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." Local Civ. R. 56.1(b). Each statement of fact by the moving party "will be deemed admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph in the statement . . . by the opposing party." Local Civ. R. 56.1(c). In addition, all statements of fact by either party must be followed by a citation to evidence which would be admissible at trial. Local Civ. R. 56.1(d).
"[D]istrict courts in the Southern and Eastern Districts of New York have interpreted . . . Local Rule 56.1 to provide that `where there are no citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion.'" Holtz v. Rockefeller Co., 258 F.3d 62, 73 (2d Cir. 2001) (collecting cases and stating that a Local Rule 56.1 statement "cannot be a substitute for an affidavit as to the facts") (citation omitted). On the other hand, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules . . . and nothing in the Civil Rules of the Southern District requires a court to punish a party for noncompliance." D.H. Blair Co. v. Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006) (citations and internal punctuation omitted); see also Holtz, 258 F.3d at 73 (Court may conduct "assiduous review of the record," even where party fails to submit a Local Rule 56.1 statement).
II. DEFENDANT'S MOTION
In this case, Plaintiff has failed to show by a preponderance of the evidence that Defendant "withheld" responsive records. The declarations submitted by Defendant indicate that it searched for, but did not locate, a videotape responsive to Plaintiff's request, and Plaintiff has not presented credible evidence to challenge these declarations. While some courts might find that such circumstances call the Court's jurisdiction into question, see supra at 6-7, this Court agrees with the authority holding that the matter is more appropriately analyzed under the framework of Rule 56, and thus it will turn to Defendant's alternative motion for summary judgment.
In connection with Defendant's summary judgment motion, neither party has submitted the requisite statement under Local Civ. R. 56.1, even though Defendant informed Plaintiff of the contents of that Rule. ( See Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment, dated Apr. 30, 2008 ("Notice To Pro Se Litigant") (Dkt. 16).) Further, while Plaintiff states that his opposition is "sw[orn] and affirm[ed]" to be "true and correct," it does not constitute evidence in admissible form, as Plaintiff's statements are neither notarized nor made under penalty of perjury. ( See n. 3, supra.) Nonetheless, rather than reject either party's submissions as formally defective, the Court has considered them in their entirety, together with the documents relied upon by the parties. The facts underlying this case are straightforward and easily discernable from the statements of the parties and the submitted exhibits, and, even if Plaintiff's statements were sworn, they would not be sufficient to create a material issue of fact.
Defendant's Notice to Plaintiff informed him of the need to submit evidence in order to oppose the motion for summary judgment and stated clearly that "[a]ny witness statements must be in the form of affidavits" and that "[y]ou may submit your own affidavit and/or the affidavits of others." (Notice To Pro Se Litigant, at 2.)
Under Second Circuit law,
[i]n order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate. . . . Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search . . . are sufficient to sustain the agency's burden. Affidavits submitted by an agency are accorded a presumption of good faith. . . . [In order to defeat summary judgment,] the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations. . . .Jones-Edwards v. Appeal Bd. of NSA, 196 Fed. Appx. 36, 37 (2d Cir. 2006) (citing Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994).
In claims where the adequacy of a search is at issue, "[t]o merit summary judgment . . . an `agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.'" Dinsio v. Fed. Bureau of Investigation, No. 05 Civ. 6159L, 2007 U.S. Dist. LEXIS 60269, at *3 (W.D.N.Y. Aug. 16, 2007) (quoting Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C. Cir. 2001). "In response to a challenge to the adequacy of its search, the agency may provide a `reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched.'" Smith v. Fed. Bureau of Investigation, 448 F. Supp. 2d 216, 220-21 (D.D.C. 2006) (citing Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). An agency, however, need only have conducted an appropriate search, and "[i]t is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request." Students Against Genocide, 257 F.3d at 337 (quoting Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982)).
In order to rebut the presumption of good faith accorded to an agency affidavit, Jones-Edwards, 196 Fed. Appx. at 37, "[t]he plaintiff is not required to present evidence that would be admissible at a trial, but something more than his bare allegations is needed," id. at 38 (quotations marks and citation omitted). To rebut an agency's affidavit successfully, the plaintiff must provide "factual support," rather than "mere speculation." Id. This means that "[c]onclusory allegations that other, undisclosed records `must' exist somewhere, that they are within defendants' control, and that defendants must therefore have conducted an inadequate search, or that they are deliberately concealing the records, are not enough to [defeat summary judgment]." Dinsio, 2007 U.S. Dist. LEXIS 60269, at *6 (citing Anderson v. United States Dep't of Justice, No. 05 Civ. 2248, 2007 U.S. Dist. LEXIS 22493, at *9 (E.D.N.Y. Mar. 28, 2007) (collecting cases)); see also Oglesby, 920 F.2d at n. 13 (plaintiff provided no proof that the requested documents existed, and his own conviction that they must have been created because of the importance of the subject matter amounted to "pure speculation" and was insufficient to raise a material issue of fact with respect to the adequacy of the agency's search).
In sum, "[a] district court in a FOIA case may grant summary judgment in favor of an agency `on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'" Grand Cent. P'ship., Inc., 166 F.3d at 478 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)) (emphasis omitted).
In this case, Defendant has provided declarations from two agency representatives that show that the agency conducted an adequate and reasonable search for a videotape responsive to Plaintiff's request. The Carrino declaration is reasonably specific as to the nature of the search conducted, explaining that Carrino personally searched "the internal USP Canaan investigative files." (Carino Decl., at ¶ 4.) The follow-up declaration by Gintz adds that he conducted a further search, checking the "Evidence Safe" where the video images in question would have been stored on a compact disc, had there been a criminal referral of the incident in question. (Gintsz Decl., at ¶¶ 8-9.) Both of these witnesses also state that, despite their efforts, the videotape or a digital version of the tape could not be found. ( See Carino Decl., at ¶ 4; Gintz Decl., at ¶ 9.) As a general principle, "[d]efendants are not required to conduct an exhaustive search — only one reasonably calculated to reveal responsive documents." Whitfield v. United States Dep't of the Treasury, 04 Civ. 0679 (GK), 2006 U.S. Dist. LEXIS 59116, at * 15 (D.D.C. Aug. 21, 2006) (citing Defenders of Wildlife v. USDA, 311 F. Supp. 2d 44, 54 (D.D.C. 2004) ("The agency need not search every record in the system or conduct a perfect search.")). Here, Defendant's efforts, as set forth in the submitted declarations, are sufficient to show that not one, but two reasonable searches were conducted.
As for Plaintiff's opposition, even if it were in admissible form, it would not call into question the reasonableness of Defendant's searches or constitute evidence of agency bad faith. At bottom, Plaintiff's arguments as to why the videotape were likely preserved, at least in digital form, are based on supposition. Essentially, Plaintiff takes information about video equipment and video review procedures used at a wholly different facility, and simply assumes that the same type of technology and video review methodology would have been in effect at the facility where the incident occurred. While Plaintiff may have a good faith belief that the videotape or its video images still exist, neither his belief nor his conclusory allegations as to the supposed existence of the tape are sufficient to rebut Defendant's statements to the contrary. See, e.g., Jones-Edwards v. Appeal Bd. of NSA Central Security Agency, 352 F. Supp. 2d 420, 422 (S.D.N.Y. 2005) ("Plaintiff's belief . . . that [the agency] did not make a reasonable search — because if it had it would have found something — is not enough to withstand [a] motion for summary judgment"); Dinsio, 2007 U.S. Dist. LEXIS 60269, at *6 ("Conclusory allegations that other, undisclosed records `must' exist somewhere, that they are within defendants' control, and that defendants must therefore have conducted an inadequate search, or that they are deliberately concealing the records, are not enough to [rebut the agency's declaration].") (citing Anderson, 05 Civ. 2248, 2007 U.S. Dist. LEXIS 22493, at *9).
Under the circumstances, summary judgment in Defendant's favor is warranted.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss the Complaint for lack of subject matter jurisdiction is denied, but Defendant's alternative motion for summary judgment is granted. The Complaint is hereby dismissed, and the Clerk of the Court is requested to close this case on the Court's docket.SO ORDERED