Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the FBI conducted an adequate search for photos taken during the 2001 robbery of the Greenpoint Saving Bank in Rocky Point, New York, for which Marcus Micolo was convicted in state court. During his state trial, Micolo tried to obtain photos of the bank robbery that he believed were in the possession of the FBI. After his conviction, Micolo filed four FOIA requests with the FBI and the Department of Justice for the photos and related records. Micolo contended that the photos had been attached to an FBI FD-430 report which referred to the existence of surveillance photos. The agency's first searches found no records, but after Micolo provided more information confirming his identity, a later search involving its Sentinel system found 31 records in response to one request, and five pages in response to another, but no photos. Micolo argued that the fact that records were not released until later indicated that the agency's search had been conducted in bad faith. The court disagreed, noting that "the release of additional documents after the filing of a FOIA action demonstrates the agency's continued good faith efforts to locate responsive documents. . .[T]he fact that the initial searches did not locate these documents does not support a finding of bad faith, as the FBI is not required to locate every responsive document in order for the search to be reasonable." Micolo also questioned the reference in the FD-430 report that photos existed and were of "fair" quality. The court indicated that the FBI had told Micolo that "a submission must be uploaded within 15 workdays of the offense; it does not guarantee that photos were included within the file." The court found the agency's explanation acceptable, observing that "the information noted on the FD-430 Form is insufficient to establish bad faith. The fact that photographs were 'available' does not demonstrate that the photographs were in the FBI's possession at that time or when Plaintiff made his first request in January 2015."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2016-10-03	1	COMPLAINT against Sean O'Neill Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, filed by Sean O'Neill. (Attachments: # 1 Civil Cover Sheet, # 2 Cover Letter) (Ortiz, Grisel) (Additional attachment(s) added on 10/14/2016: # 3 Exhibit 1 to 47) (Ortiz, Grisel). (Entered: 10/14/2016)
2016-10-03	2	MOTION for Leave to Proceed in forma pauperis by Marcus Anthony Micolo. (Ortiz, Grisel) (Entered: 10/14/2016)
2016-10-03	3	Prisoner Authorization from Marcus Anthony Micolo. (Ortiz, Grisel) (Entered: 10/14/2016)
2016-10-13	4	Letter from Pro Se Office to Pro Se Litigant dated 10/13/2016 Re: Your civil action has been received and assigned a docket number and Judge(s). (Ortiz, Grisel) (Entered: 10/14/2016)
2016-10-13	5	NOTICE OF DEFICIENT FILING , litigant notified of deficiency(s) that must be corrected within fourteen (14) days . re 3 Prisoner Authorization (Ortiz, Grisel) (Entered: 10/14/2016)
2016-10-14	6	Notice of Related Case: The Civil Cover Sheet filed in civil action 16-cv-5635-JS-AKT was directly assigned as a Pro Se case related to 07-cv-4901-JS-AKT. (Ortiz, Grisel) (Entered: 10/14/2016)
2016-10-14	7	In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf . You may withhold your consent without adverse substantive consequences . Do NOT return or file the consent unless all parties have signed the consent. (Ortiz, Grisel) (Entered: 10/14/2016)
2016-10-25	8	Prisoner Authorization. (Coleman, Laurie) (Entered: 10/25/2016)
2016-10-25	9	LETTER dated 10/17/2016 from Marcus A. Micolo to the Clerk re Plaintiff advises that he is not consenting to a magistrate judge in this case. (Original letter annexed to the 8 Prisoner Authorization). (Coleman, Laurie) (Entered: 10/25/2016)
2017-01-17	10	Letter from Marcus A. Micolo to Clerk of Court dated 1/10/17 Re: Case status. (Valle, Christine) (Entered: 02/01/2017)
2017-01-30	11	Letter from C. Vukovich to Marcus Micolo dated 1/30/17 Re: In response to Plaintiff's letter; and to enclose an updated copy of the docket. (Valle, Christine) (Entered: 02/01/2017)
2017-02-07	12	MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Plaintiff's request to proceed in forma pauperis is GRANTED. and the Complaint is sua sponte DISMISSED as against O'Neill and DEEMED AMENDED to name the Department of Justice as the sole Defendant. The Clerk of the Court is directed to amend the caption of the Complaint, to forward a copy of the Summons, Complaint, and this Order to the United States Marshal Service for service upon the Department of Justice without prepayment of fees, and to serve notice of entry of this Order in accordance with Rule 77(d)(1) of the Federal Rules of Civil Procedure by mailing a copy of this Order to the pro se Plaintiff at his last known address. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 2/7/2017. C/M (Valle, Christine) (Entered: 02/08/2017)
2017-02-17	13	SUMMONS Issued as to Department of Justice, U.S. Attorney, EDNY and U.S. Attorney General. (Attachments: # 1 RIDER) (Valle, Christine) (Entered: 02/17/2017)
2017-03-28	14	PROCESS RECEIPT AND RETURN by Marcus Anthony Micolo Re: U.S. Attorney, Eastern District of New York (NOTICE ONLY) served on 3/27/2017. (Valle, Christine) (Entered: 04/03/2017)
2017-04-19	16	Letter from Marcus Micolo to Clerk of Court Pro Se Office dated 4/14/17 Re: To inquire regarding the status of case. (Valle, Christine) (Entered: 04/26/2017)
2017-04-25	15	Letter MOTION for Extension of Time to File Answer by Department of Justice. (Freismuth, Megan) (Entered: 04/25/2017)
2017-04-25	17	Letter from C. Vukovich to Marcus Micolo dated 4/25/17 Re: In response to Plaintiff's letter; and to enclose an updated docket sheet. (Valle, Christine) (Entered: 04/26/2017)
2017-04-26	18	ORDER deferring ruling on 15 Motion for Extension of Time to Answer. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 4/26/2017. (Roman, Joshua) (Entered: 04/26/2017)
2017-05-02	19	NOTICE AND ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT BY MAIL Returned Executed by Marcus Anthony Micolo. Department of Justice served on 4/5/2017, answer due 6/5/2017. (Valle, Christine) (Entered: 05/05/2017)
2017-05-08	20	REPLY in Support re 18 Order on Motion for Extension of Time to Answer, 15 Letter MOTION for Extension of Time to File Answer /Deferred Ruling filed by Department of Justice. (Freismuth, Megan) (Entered: 05/08/2017)
2017-05-09		ORDER granting 15 Motion for Extension of Time to Answer. Upon review of Defendant's supplemental submission [DE 20], the Court GRANTS Defendant's motion seeking an extension of time within which to Answer or otherwise respond to Plaintiff's Complaint. As such, Defendant shall serve its Answer or otherwise respond to the Complaint by May 26, 2017. Ordered by Magistrate Judge A. Kathleen Tomlinson on 5/9/2017. (Roman, Joshua) (Entered: 05/09/2017)
2017-05-24	21	ANSWER to 1 Complaint, by Department of Justice. (Attachments: # 1 Declaration of Service) (Freismuth, Megan) (Entered: 05/24/2017)
2017-05-24	22	Notice of MOTION to Produce or for Issuance of Subpoena by Marcus Anthony Micolo. (Valle, Christine) (Entered: 05/30/2017)
2017-06-02	23	Letter from Marcus A. Micolo to Judge Seybert & Judge Tomlinson dated 5/30/2017 Re: Letter Reply to the Defendant's May 24, 2017 Answer in this matter. (Valle, Christine) (Entered: 06/08/2017)
2017-06-12	24	Letter Respectfully Requesting Conference re. Plaintiff's Motion and Briefing Schedule by Department of Justice (Freismuth, Megan) (Entered: 06/12/2017)
2017-06-14	28	DECLARATION by Marcus Anthony Micolo. (Valle, Christine) (Entered: 06/19/2017)
2017-06-15		ELECTRONIC ORDER re 24 Letter filed by Department of Justice. The Court is in receipt of the Government's letter regarding Plaintiff's discovery motion (Docket Entry 22). At this preliminary stage, the Court declines to construe the motion as one for summary judgment. The parties are advised that any future filings related to Plaintiff's discovery motion should be directed to Judge Tomlinson. The Clerk of the Court is directed to mail a copy of this Electronic Order to the pro se Plaintiff. Ordered by Judge Joanna Seybert on 6/15/2017. (Edwards, Tracy) (Entered: 06/15/2017)
2017-06-15	25	SCHEDULING ORDER: A telephone status conference will be held in this case on September 8, 2017 at 11 a.m. Counsel for defendants will initiate the call to Chambers at (631)712-5670, using an outside operator. Appropriate arrangements must be made in advance with the prison officials by Attorney Freismuth. All parties must participate. Attorney Freismuth is directed to serve a copy of the attached Order on the Pro Se Plaintiff forthwith and to file proof of service on ECF promptly. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/15/2017. (Roman, Joshua) (Entered: 06/15/2017)
2017-06-15	26	RESPONSE to Motion re 22 Notice of MOTION to Produce or for Issuance of Subpoena and in Response to Discovery Scheduling Order filed by Department of Justice. (Freismuth, Megan) (Entered: 06/15/2017)
2017-06-15	27	DECLARATION re 25 Scheduling Order,, of Service by Department of Justice (Freismuth, Megan) (Entered: 06/15/2017)
2017-06-16	29	Letter from Marcus A. Micolo to Clerk of Court; Judge Joanna Seybert dated 6/13/17 Re: Reply to June 12, 2017 Missive of AUSA. (Valle, Christine) (Entered: 06/22/2017)
2017-06-23	30	ORDER denying 22 Motion to Produce. SEE ATTACHED ORDER for details. Defendant's counsel is directed to serve a copy of the attached Order on the Pro Se Plaintiff forthwith and file proof of such service on ECF promptly. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/23/2017. (Roman, Joshua) (Entered: 06/23/2017)
2017-06-23	31	CERTIFICATE OF SERVICE by Department of Justice re 30 Order on Motion to Produce, (Freismuth, Megan) (Entered: 06/23/2017)
2017-06-28	32	NOTICE of Plaintiff's Narrative Statement filed by Marcus Anthony Micolo. (Valle, Christine) (Entered: 07/05/2017)
2017-07-10	33	Letter MOTION for Extension of Time to File /Serve Rule 56.1 Statements by Department of Justice. (Freismuth, Megan) (Entered: 07/10/2017)
2017-07-10	35	Letter from C. Zenz to Pro Se Litigant dated 7/10/2017 Re: Enclosed correspondence is being returned without docketing or consideration for the reason(s) set forth herein. (Valle, Christine) (Entered: 07/13/2017)
2017-07-11		ORDER granting 33 Motion for Extension of Time to File. The motion is GRANTED. As such, Defendant shall serve its Rule 56.1 Statement by August 23, 2017. Plaintiff shall serve his Rule 56.1 Counter-statement by September 20, 2017. Any pre-motion conference letter to Judge Seybert for purposes of engaging in summary judgment motion practice must be filed by October 4, 2017. Counsel for Defendant is directed to serve a copy of this Electronic Order on the Pro Se Plaintiff forthwith and file proof of such service on ECF promptly. Ordered by Magistrate Judge A. Kathleen Tomlinson on 7/11/2017. (Roman, Joshua) Modified on 7/11/2017 (Entered: 07/11/2017)
2017-07-12	34	DECLARATION re Order on Motion for Extension of Time to File,, Declaration of Service by Department of Justice (Freismuth, Megan) (Entered: 07/12/2017)
2017-09-05	36	PLAINTIFF'S COUNTER/REPLY TO DEFENDANT'S RULE 56.1 STATEMENT filed by Marcus Anthony Micolo. (Valle, Christine) (Entered: 09/07/2017)
2017-09-29	37	Letter MOTION for pre motion conference by Department of Justice. (Attachments: # 1 Rule 56.1 Statement, # 2 Rule 56.1 Statement) (Freismuth, Megan) (Entered: 09/29/2017)
2017-10-05	38	Letter from Marcus A. Micolo to Clerk of Court, dated October 2, 2017 re: To Reply to the 37 Letter MOTION for pre motion conference. (Attachments: # 1 part 2) (Fagan, Linda) (Entered: 10/06/2017)
2017-10-16	39	Notice of Related Case indicated on the civil cover sheet in case 17-CV-5938(JS)(AKT). (Landow, Concetta) (Entered: 10/16/2017)
2017-10-16	40	Notice of Related Case indicated on the civil cover sheet in case 17-CV-5991(JS)(AKT). (Landow, Concetta) (Entered: 10/16/2017)
2017-10-17		ELECTRONIC ORDER denying 37 Motion for Pre Motion Conference. Defendant's request for a pre-motion conference (Docket Entry 37) is DENIED. The Court finds that a pre-motion conference is unnecessary, and GRANTS Defendant leave to move for summary judgment. Defendant shall file its motion on or before November 17, 2017. Plaintiff shall file his opposition on or before December 18, 2017, and Defendant's reply, if any, shall be filed on or before January 3, 2018. The Clerk of the Court is directed to mail a copy of this Electronic Order to the pro se Plaintiff. Ordered by Judge Joanna Seybert on 10/17/2017. (Edwards, Tracy) (Entered: 10/17/2017)
2017-10-17	41	Letter in Response to Docket Entry #38, Plaintiff's letter dated October 2, 2017 by Department of Justice (Freismuth, Megan) (Entered: 10/17/2017)
2017-11-17	42	Notice of MOTION for Summary Judgment by Department of Justice. (Freismuth, Megan) (Entered: 11/17/2017)
2017-11-17	43	MEMORANDUM OF LAW Re: MOTION for Summary Judgment by Department of Justice. (Freismuth, Megan) Modified on 11/27/2017 to correct entry information. (Valle, Christine). (Entered: 11/17/2017)
2017-11-17	44	RULE 56.1 STATEMENT OF MATERIAL FACTS filed by Department of Justice. (Freismuth, Megan) (Entered: 11/17/2017)
2017-11-17	45	DECLARATION of DAVID M. HARDY by Department of Justice (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL) (Freismuth, Megan) Modified on 11/17/2017 (Baran, Charles). (Main Document 45 replaced on 11/20/2017) (Fagan, Linda). (Main Document 45 replaced on 11/20/2017) (Fagan, Linda). (Main Document 45 replaced on 11/20/2017) (Fagan, Linda). (Main Document 45 replaced on 11/20/2017) (Fagan, Linda). (Main Document 45 replaced on 11/20/2017) (Fagan, Linda). (Main Document 45 replaced on 11/20/2017) (Fagan, Linda). (Main Document 45 replaced on 11/20/2017) (Marziliano, August). (Entered: 11/17/2017)
2017-11-17	46	DECLARATION re 43 MOTION for Summary Judgment , 42 Notice of MOTION for Summary Judgment , 45 Declaration,,, 44 Rule 56.1 Statement of Material Facts by Department of Justice (Freismuth, Megan) Modified on 11/17/2017 (Baran, Charles). (Entered: 11/17/2017)
2017-11-17		Motions terminated; docketed incorrectly Re: 43 MOTION for Summary Judgment filed by Department of Justice. (Valle, Christine) (Entered: 11/27/2017)
2017-11-27		Incorrect Case/Document/Entry Information: Document 43 filed on 11/17/2017 by Attorney Megan Freismuth as "Motion for Summary Judgment" has been modified to reflect correct entry information. This document is a Memorandum of Law and NOT a Motion. All corrections have been entered. (Valle, Christine) (Entered: 11/27/2017)
2017-11-29	47	REPLY in Opposition Re: 42 Notice of MOTION for Summary Judgment, filed by Marcus Anthony Micolo. (Valle, Christine) (Entered: 12/01/2017)
2017-12-27	48	Letter in lieu of Reply by Department of Justice (Freismuth, Megan) (Entered: 12/27/2017)
2018-09-19	49	Letter from Marcus Micolo to Clerk of Court dated 9/15/18 Re: Status of case. (Valle, Christine) (Entered: 09/20/2018)
2018-09-19	50	Letter from J. Grady to Marcus Micolo dated 9/19/2018 Re: In response to letter dated 9/15/2018; and to enclose a copy of the docket sheet. (Valle, Christine) (Entered: 09/20/2018)
2018-09-27	51	MEMORANDUM & ORDER granting 42 Motion for Summary Judgment; For the foregoing reasons, Defendant's motion for summary judgment (Docket Entry 42) is GRANTED, and Plaintiff's Complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark the case CLOSED. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 9/27/2018. C/M; C/ECF (Valle, Christine) (Entered: 09/27/2018)
2018-09-27	52	CLERK'S JUDGMENT - It is ORDERED AND ADJUDGED that Plaintiff Marcus Anthony Micolo take nothing of Defendant Department of Justice; that the Defendant's motion for summary judgment is granted; that Plaintiff's complaint is dismissed with prejudice; that this case is hereby closed; and that in forma pauperis status for the purpose of any appeal is denied. Ordered by the Clerk of Court on 9/27/2018. (Tirado, Chelsea) (Entered: 10/01/2018)
2018-10-18	53	NOTICE OF APPEAL as to 52 Clerk's Judgment by Marcus Anthony Micolo. IFP status for the purpose of any appeal is denied. (Landow, Concetta) (Entered: 10/23/2018)
2018-10-23		APPEAL FILING FEE DUE re 53 Notice of Appeal; Payment in the amount of $505.00, can be made in person to the clerks office or mailed in. (Landow, Concetta) (Entered: 10/23/2018)
2018-10-23		Electronic Index to Record on Appeal sent to US Court of Appeals. 53 Notice of Appeal; Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (Landow, Concetta) (Entered: 10/23/2018)
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