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Case TitleDONATO v. EXECUTIVE OFFICE UNITED STATES ATTORNEYS et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv00632
Date Filed2016-04-04
Date Closed2018-03-31
JudgeJudge Ketanji Brown Jackson
PlaintiffANTHONY DONATO
Case DescriptionAnthony Donato, a federal prisoner, submitted FOIA requests to the Executive Office for U.S. Attorneys, the FBI, and the Bureau of Prisons for records related to what Donato referred to as a phony murder conspiracy. EOUSA indicated that it would take 55 hours to search potentially responsive records. The FBI issued Donato a Glomar response neither confirming nor denying the existence of records, and BOP failed to respond to several of Donato's requests. He appealed the delays and denials to OIP without success. He then filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantEXECUTIVE OFFICE UNITED STATES ATTORNEYS
DefendantFEDERAL BUREAU OF INVESTIGATION
DefendantBUREAU OF PRISONS
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [29]
FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that the FBI and EOUSA properly responded to Anthony Donato's FOIA requests concerning a plot to disrupt the incarceration of Dominick Cicale, a former captain in the Bonanno organized crime family, although EOUSA has not shown that it provided Donato his two hours of free search time and 100 pages of documents after rejecting his fee waiver request. But Jackson found that the Bureau of Prisons has so far has failed to show that it conducted an adequate search for records Donato requested from that agency. While incarcerated at the Metropolitan Correction Center in New York, Cicale ordered other inmates to "create mischief." He also allegedly spread a rumor that another crime figure had hired a correctional officer to kill him. Donato filed a series of FOIA requests for records about the alleged Cicale plot. He also requested from BOP, records concerning the factors the agency used in transferring him to various prisons. EOUSA located 55 boxes of potentially responsive records in the U.S. Attorney's Office for the Eastern District of New York. The agency told Donato that an additional 55 hours would be necessary to search those records and estimated a cost of $1,540. Donato then requested a fee waiver, which EOUSA denied. Donato appealed to the OIP, which upheld EOUSA's denial of a fee waiver but told the agency to provide Donato with two hours of free search time and 100 of records. The FBI refused to search for records on third parties and issued a Glomar response neither confirming nor denying the existence of records. Donato argued that the records had been made public during the trial, but the FBI rejected his public domain claim. BOP located 225 pages concerning the murder conspiracy and withheld them all. As to Donato's request for records about his prison placement, the agency ultimately located two documents, neither of which were the type of document Donato had requested. Finding Donato had not provided any evidence of a public interest in disclosure of the FBI's records that would overcome its Glomar response, Jackson noted that "to prevail under the public domain doctrine, Donato must show that the FBI has acknowledged that it investigated Cicale's alleged scheme, and that it would be likely to have records about the plot, and Donato has done nothing to demonstrate any such acknowledgement by the FBI." In support of his request for a fee waiver from EOUSA, Donato indicated he had sent letters to several reporters and had also committed to disclose records on a website called "Access Legal Aide." Skeptical of Donato's ability to disseminate information through the website, Jackson pointed out that "Donato has not provided any details about the reach of the Access Legal Aide website; indeed, the sole detail that Donato has offered is a link to Access Legal Aide's purported website, yet as far as this Court can tell, the listed website either does not exist or is not actually publicly available. Consequently, whatever this publication might be, it is plainly not a sufficient means for Donato to disseminate any of the requested records." However, Jackson noted Donato was entitled to two hours of free search time and 100 pages of free records and ordered EOUSA to clarify whether it had provided that service to Donato. Jackson found BOP's responses to Donato's requests insufficient. She observed that "the statements that BOP has submitted themselves provide no basis whatsoever for any determination that BOP's searches for records were reasonable."
Issues: Determination - Glomar response, Public Interest Fee Waiver, Adequacy - Search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-04-041COMPLAINT against BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (Filing fee $ 0.00) filed by ANTHONY DONATO. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(jf) (Entered: 04/05/2016)
2016-04-04SUMMONS Not Issued as to BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (jf) (Entered: 04/05/2016)
2016-04-042MOTION for Leave to Proceed in forma pauperis by ANTHONY DONATO (jf) (Entered: 04/05/2016)
2016-04-043PRISONER TRUST FUND ACCOUNT STATEMENT for period of six months by ANTHONY DONATO (jf) (Entered: 04/05/2016)
2016-04-044ORDER directing an initial partial filing fee in the amount of $121.04 from Prison Account of Anthony Donato and granting 2 MOTION for Leave to Proceed In Forma Pauperis (see order for full details). Signed by Judge Amy Berman Jackson on 03/30/2016. (jf) (Entered: 04/05/2016)
2016-04-195SUMMONS (5) Issued as to BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (md) (Entered: 04/19/2016)
2016-05-056RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 0/29/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/29/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 5/29/2016.) (jf) (Entered: 05/06/2016)
2016-05-197RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. BUREAU OF PRISONS served on 5/9/2016 (jf) (Entered: 05/19/2016)
2016-05-278MOTION for Extension of Time to File Answer by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) Modified on 5/27/2016 (jf). (Entered: 05/27/2016)
2016-06-14Filing fee Received from ANTHONY DONATO in the amount of $ 350.00, receipt number 4616078459 (zrdj) (Entered: 06/14/2016)
2016-06-159RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. EXECUTIVE OFFICE UNITED STATES ATTORNEYS served on 5/27/2016 (td) (Entered: 06/16/2016)
2016-06-1610Ex Parte MOTION for Extension of Time to August 22, 2016 by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 06/16/2016)
2016-08-2211ANSWER to 1 Complaint by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION.(McBride, Patricia) (Entered: 08/22/2016)
2016-09-0112MOTION to Clarify re 10 MOTION for Extension of Time to August 22, 2016 by ANTHONY DONATO (jf) (Entered: 09/06/2016)
2016-10-1313MOTION for Clarification of Motion for Extension of Time by ANTHONY DONATO (jf) (Entered: 10/14/2016)
2016-10-14MINUTE ORDER: It is hereby ordered that defendants' motions for extensions of time 8 10 are granted nunc pro tunc, and plaintiff's motions for clarification 12 13 are granted. It is further ordered that, not later than November 4, 2016, defendants shall file either a dispositive motion or a proposed schedule for further proceedings in this case. Plaintiff is not required to file any documents at this time. Signed by Judge Ketanji Brown Jackson on 10/14/16. (ms) (Entered: 10/14/2016)
2016-10-14Set/Reset Deadlines: Dispositive Motions/Proposed Schedule due by 11/4/2016. (hs) (Entered: 10/14/2016)
2016-11-0314NOTICE of Proposed Briefing Schedule by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 11/03/2016)
2016-11-04MINUTE ORDER: It is hereby ORDERED that Defendant's Motion for Summary Judgment is due January 11, 2017; Plaintiff's opposition and cross-motion, if any, are due February 8, 2017; Defendant's reply and its opposition to Plaintiff's cross-motion are due March 1, 2017; Plaintiff's reply is due March 29, 2017. Signed by Judge Ketanji Brown Jackson on 11/4/16. (ms) (Entered: 11/04/2016)
2016-11-04Set/Reset Deadlines: Defendant's Motion for Summary Judgment is due by 1/11/2017. Plaintiff's opposition and cross-motion, if any are due by 2/8/2017. Defendant's reply and its opposition to Plaintiff's cross-motion are due by 3/1/2017. Plaintiff's reply is due 3/29/2017. (nbn) (Entered: 11/07/2016)
2016-12-2115MOTION for Extension of Time to File MSJ by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 12/21/2016)
2017-01-03MINUTE ORDER: It is hereby ORDERED that Defendant's Motion to Enlarge Time 15 is GRANTED. Defendant shall file its motion for summary judgment by February 11, 2017; Plaintiff's opposition and cross-motion, if any, are due March 13, 2017; Defendant's reply and its opposition to Plaintiff's cross-motion are due April 12, 2017; Plaintiff's reply is due Mary 12, 2017. Signed by Judge Ketanji Brown Jackson on 1/3/17. (ms) (Entered: 01/03/2017)
2017-02-0816Unopposed MOTION for Extension of Time to 2-28-17 by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 02/08/2017)
2017-02-2817MOTION for Extension of Time to File by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 02/28/2017)
2017-03-01MINUTE ORDER: Defendants' 16 17 Motions for Extension of Time are granted. Defendants shall file their dispositive motion by 3/3/17; Plaintiff shall file his opposition and cross-motion, if any, by 4/7/17; Defendants shall file their reply and opposition to plaintiff's cross-motion by 5/3/17; Plaintiff shall file his reply by 6/21/17. Signed by Judge Ketanji Brown Jackson on 3/1/17. (ms) (Entered: 03/01/2017)
2017-03-02Set/Reset Deadlines: Cross Motions due by 4/7/2017. Response to Cross Motions due by 5/3/2017. Reply to Cross Motions due by 6/21/2017. Dispositive Motions due by 3/3/2017. Response to Dispositive Motions due by 4/7/2017. Reply to Dispositive Motions due by 5/3/2017. (gdf) (Entered: 03/02/2017)
2017-03-0318MOTION for Summary Judgment by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Statement of Facts, # 2 Declaration FBI-HARDY, # 3 Exhibit FBI-HARDY, # 4 Declaration EOUSA-LUC., # 5 Exhibit EOUSA-LUC., # 6 Declaration BOP-WALLACE, # 7 Exhibit BOP-WALLACE, # 8 Declaration BOP-RAYMOND, # 9 Exhibit BOP-RAYMOND)(McBride, Patricia) (Entered: 03/03/2017)
2017-03-0619Order advising plaintiff to respond by 4/7/2017 to 18 Defendants' Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 3/6/17. (ms) (Entered: 03/06/2017)
2017-03-1720MOTION to Clarify, MOTION for Extension of Time by ANTHONY DONATO (jf) (Entered: 03/20/2017)
2017-04-27MINUTE ORDER: Plaintiff has received two versions of the Memorandum of Points and Authorities in Support of Defendants Motion for Summary Judgment and Defendants' Statement of Material Facts As To Which There Is No Dispute. He has no access to PACER, and he cannot determine which versions he has received are the same versions filed with the Court. Plaintiff explains that he cannot prepare a proper response without knowing which versions are correct. It is hereby ordered that, by May 5, 2017, defendant shall send plaintiff a complete copy of its motion (with all attachments) and shall file a notice of compliance with the Court. It is further ordered that plaintiff's motions to clarify and for an extension of time 20 20 are granted. Plaintiff's opposition and cross-motion, if any, are due by June 5, 2017; defendants' reply and opposition are due by July 5, 2017; plaintiff's reply is due by August 4, 2017. Signed by Judge Ketanji Brown Jackson on 4/27/17. (ms) (Entered: 04/27/2017)
2017-05-0521NOTICE of Compliance With The Court's Order by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 05/05/2017)
2017-05-16Set/Reset Deadlines: Cross Motions due by 6/5/2017. Response to Cross Motions due by 7/5/2017. Reply to Cross Motions due by 8/4/2017. Response to Motion for Summary Judgment due by 6/5/2017. Reply to Motion for Summary Judgment due by 7/5/2017. (gdf) (Entered: 05/16/2017)
2017-05-2422MOTION for Leave to File Excess Pages by ANTHONY DONATO (jf) (Entered: 05/24/2017)
2017-05-31MINUTE ORDER: Plaintiff's 22 Motion for Leave to File Excess Pages is hereby GRANTED. Signed by Judge Ketanji Brown Jackson on 5/31/17. (ms) (Entered: 05/31/2017)
2017-06-0523Memorandum in opposition to re 18 MOTION for Summary Judgment filed by ANTHONY DONATO. (Attachments: # 1 Exhibit, # 2 Declaration, # 3 Text of Proposed Order)(jf) (Entered: 06/06/2017)
2017-06-1424MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION (McBride, Patricia) (Entered: 06/14/2017)
2017-06-27MINUTE ORDER: Defendants' 24 Motion for Extension of Time is granted, and their Reply re 18 MOTION for Summary Judgment is due by 8/9/2017. Signed by Judge Ketanji Brown Jackson on 6/26/17. (ms) (Entered: 06/27/2017)
2017-08-0225REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by BUREAU OF PRISONS, EXECUTIVE OFFICE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (McBride, Patricia) (Entered: 08/02/2017)
2017-08-1726MOTION for Extension of Time to File Response as to 18 MOTION for Summary Judgment by ANTHONY DONATO (jf) (Entered: 08/18/2017)
2017-08-30MINUTE ORDER: Plaintiff's 26 Motion for Extension of Time is granted, and his Reply is due by 9/15/2017. Signed by Judge Ketanji Brown Jackson on 8/30/17. (ms) (Entered: 08/30/2017)
2017-09-2227SURREPLY to re 18 MOTION for Summary Judgment filed by ANTHONY DONATO. "Leave to file GRANTED" signed by Judge Ketanji Brown Jackson on 09/22/2017" (jf) (Entered: 10/02/2017)
2018-03-3128ORDER granting in part and denying in part 18 Motion for Summary Judgment. Memorandum Opinion to follow shortly, absent unforeseen circumstances. Signed by Judge Ketanji Brown Jackson on 03/31/2018. (lckbj1) (Entered: 03/31/2018)
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