Alvin v. DOJ, No. 14-143, 2015 WL 2233120 (M.D. Ala. May 12, 2015) (Watkins, C. J.)

Alvin v. DOJ, No. 14-143, 2015 WL 2233120 (M.D. Ala. May 12, 2015) (Watkins, C. J.)

Re: Request for records concerning interception of certain wire and oral communications

Disposition: Adopting Magistrate Judge's Report and Recommendation; granting defendant's motion for summary judgment; overruling plaintiff's objections

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court adopts the Magistrate Judge's recommendation that plaintiff "failed to properly exhaust his administrative remedies."  The court explains that while "[plaintiff] has shown that the OEO erred in failing to include his Bureau of Prisons number on its initial mailing, a mere mistake on the part of a defendant is insufficient in and of itself to show that a plaintiff is entitled to equitable tolling."  The court notes that "[d]efendants acknowledged the mistake, and the letter was re-mailed."  Moreover, "[t]he letter listed December 4, 2012 as the issuance date of the letter and specifically informed [plaintiff] that the appeal deadline would be timed from the date of the letter."  The court finds that "[b]ecause it is [plaintiff's] burden to show that his untimely filing was the result of 'extraordinary circumstances that are both beyond his control and unavoidable even with diligence,' [plaintiff's] objection is due to be overruled."  With respect to plaintiff's alternative argument "that regardless of equitable tolling, his appeal should be considered timely because he placed his appeal in the mail . . . prior to the . . . deadline," the court finds that "[b]ecause the Eleventh Circuit, like several other circuits, has failed to extend the prison mailbox rule to FOIA administrative appeals, [plaintiff's] objection in favor of the rule's extension is due to be overruled."
   
• Litigation Considerations, Adequacy of Search:  The court adopts the Magistrate Judge's recommendation that defendant "set forth the search terms used, the type of searches performed, and specifically stated that [it] was unaware 'of any other method or means by which a further search could be conducted which would be likely to locate any other records.'"  The court also finds that "[plaintiff's] uncorroborated assertion that he did in fact mail the request and a copy of an undated and unmarked request is insufficient to rebut Defendants' showing that they 'conducted a search reasonably calculated to uncover all relevant documents.'"