Concepcion v. US Customs and Border Protection Division ( 2010 )

FILED
APR 1 9 2010
UNITED STATES DISTRICT couRT c%':r'ié Zi”ii»'ciipt§y
FoR THE DISTRICT oF CoLUMBIA '" '°
Alberto C0ncepci0n,
Plaintiff,
v. Civil Action No.:
U.S. Customs and Border Protection et al.,
€€%/éé€&\ké
Defendants.
MEMORANDUM OPINION AND ORDER
The plaintiff has filed an application to proceed in forma pauperis and a pro se eomplaint.
The application will be granted and, except for the claims and defendants dismissed by this
Order, the complaint will be filed.
The plaintiff, Alberto Concepcion, is a federal prisoner serving time for violating federal
drug laws. He filed this lengthy complaint as one brought under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, and names as defendants the U.S. Customs and Border Protection
("CBP") and the U.S. Department of justice ("DOJ"). The complaint refers to a single FOIA
request that the plaintiff directed to the CBP, seeking a "history of passenger activity" relating to
his deceased brother, Miguel, from January l, l997, until the date of the request, July 8, 2008.
See Compl. 11 14 & Exs. N-7. The CBP acknowledged Concepcion’s FOIA request of July 8,
2008 and assigned it No. 2009Fl670. See id., Ex. N-9.' As relief, the plaintiff seeks "disclosurc
of all the specified requested . . . records related to any airline travels of l\/liguel" for the time
‘ The complaint appends a second FOIA request, of the same date, that seeks "a copy of
all records in possession of your agency on myself or which makes a reference to me." See z`d.
Exhibit N-8. The text of the complaint makes no reference to that FOIA request except to cite
the appended exhibit, see id. 1[ l4. Furthermore, the plaintiff seeks no relief with respect to the
FOIA request concerning himself appended to the complaint as Exhibit N-8. lt is not clear if this
request was part of FOIA request No. 2009Fl 670, or even if it was directed to the CBP,
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specified See Compl. at 20. The complaint does not allege, or otherwise demonstrate or suggest
that this suit encompasses a FOIA request plaintiff submitted to the DOJ. Therefore, the DOJ
will be dismissed because the complaint does not allege a FOIA claim against it.
The bulk of the complaint is comprised of what appears to be argument relating to
evidence used to prosecute the plaintiff; it does not appear to be related to the FOIA request
directed to the CBP. See id. 1111 13 ("Notice") & 22-4]. The "alternative" relief the plaintiff
seeks in relation to these arguments relating to his prosecution _ such as $400 million in
damages for withholding requested records, falsifying public records, invading the plaintiffs
privacy, wire fraud, mail fraud, aiding and abetting, obstruction of justice, lack of jurisdiction
over plaintiff s criminal case, kidnapping, bribery, extortion, and subornation of perjury, among
other things - is not available in a FOIA action. Accordingly, the claims related to the
unrealizable relief will be dismissed for failure to state a claim upon which relief may be granted.
In sum, the complaint will be treated as one against the CBP for the FOIA request dated
July 8, 2008 and identified as No. 2009Fl670. All other claims and defendants are dismissed for
failure to state a claim upon which relief may be granted under the FOIA. Accordingly, it is
hereby
ORDERED that the Department of Justice is DISMISSED as a defendant to this action;
and it is further
ORDERED that all claims seeking relief not available under the FOIA are DlSMISSED.
b
District Judge
Date: /§/ »L?/:'/