                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
BENJAMIN CUNNINGHAM,               )
                                   )
            Plaintiff,             )
                                   )
      v.                           )    Civil Action No. 13-960 (RMC)
                                   )
SEAN O’NEILL, et al.,              )
                                   )
            Defendants.            )
_________________________________  )

                                            OPINION

               Pro se Plaintiff Benjamin Cunningham brought this suit under the Freedom of

Information Act (FOIA), 5 U.S.C. § 552, to compel the release of certain records relating to Mr.

Cunningham’s prior civil rights suit, Cunningham v. McCluskey, Civil Case No. 05-10169

(S.D.N.Y.), against individual Deputy U.S. Marshals and a New York City Police Department

detective. Because FOIA authorizes relief only against covered federal agencies and the

Defendants here are all individuals, this case will be dismissed.

                                            I. FACTS

               The origin of this case goes back some years. In 2005, United States Deputy

Marshals searched Mr. Cunningham’s New York City residence looking for his brother, fugitive

Terrence Cunningham. Upon arriving at the house, the Deputy Marshals seized Benjamin

Cunningham. While the search continued, Mr. Cunningham fled, handcuffed and in his

underwear, and ran into or was sideswiped by a bus. He then managed to board the bus. The

bus carried city transit officers; they held Mr. Cunningham until the U.S. Deputy Marshals

retrieved him. After verifying that Mr. Cunningham was not Terrence, the officers released him.




                                                 1
See Cunningham v. U.S. Congress House Ethics Comm., Civil Case No. 12-1935 (Compl. [Dkt.

1]). 1

               Based on this incident, Mr. Cunningham unsuccessfully sued the individual

Deputy Marshals and a New York Police Department detective alleging Fourth and Fifth

Amendment violations. The district court granted summary judgment in favor of the defendants.

See Cunningham v. McCluskey, Civil Case No. 05-10169 (S.D.N.Y. Aug. 8, 2011) (Order

adopting Report and Recommendation; qualified immunity barred the Fourth Amendment claim

and the Fifth Amendment due process claim was not cognizable due to remedy available under

the Federal Tort Claims Act). Mr. Cunningham appealed, but the Second Circuit dismissed the

appeal as frivolous. See Cunningham v. McCulskey, No. 11-3597 (2d Cir. Feb. 14, 2012)

(Mandate), cert. denied, 133 S. Ct. 124 (Oct. 1, 2012). 2

               Subsequently, Mr. Cunningham filed this FOIA suit against the following

Defendants, all of whom are individual federal officials: Sean O’Neill, Chief of Administrative

Appeals for the Office of Information Privacy, Department of Justice; Judge Deborah Batts, U.S.

1
 In Civil Case No. 12-1935, Mr. Cunningham brought suit in this Court against Congressman
Serrano and the House Ethics Committee. The Court dismissed the case because the
Congressman and the Committee were immune under the Speech or Debate Clause of the U.S.
Constitution. See Cunningham v. U.S. Congress House Ethics Comm., Civil Case No. 12-1935
(Order [Dkt. 5] at 2-3 (citing U.S. Const. Art. I, § 6)).
2
  Arising from these same circumstances, Mr. Cunningham filed another suit in the Southern
District of New York, seeking a writ of mandamus to compel the Federal Crime Victim Office to
provide him crime victim benefits and counseling, to pay his medical bills related to injuries he
sustained the day his home was searched, and to reimburse him for cash that the Marshals
allegedly took from his home. The district court dismissed the case. See Cunningham v. Gillis,
Civil Case No. 09-1768 (S.D.N.Y.) (Feb. 25, 2009 Opinion and Order), appealed, No. 13-260
(2d Cir. Jan. 24, 2013), appeal dismissed (2d Cir. Feb. 11, 2013). Further, Mr. Cunningham sued
the United States in the Court of Federal Claims, alleging that the district court judge and
magistrate, who presided over his suit against the law enforcement officers, had improperly
handled the case and conspired against him. The Court of Federal Claims dismissed the case for
lack of jurisdiction and the Federal Circuit affirmed. Cunningham v. United States, No. 11-
330C, 2011 WL 5825147 (Fed. Cl.) (Nov. 16, 2011), aff’d, 479 F. Appx. 974 (Fed. Cir. 2012).

                                                 2
District Judge, Southern District of New York; Magistrate Judge Kevin Fox, Southern District of

New York; David Bober, Assistant U.S. Attorney, District of New Jersey; Peter Skinner,

Assistant U.S. Attorney, Southern District of New York; Nicholas Ricigliano, Deputy U.S.

Marshal; Kristin Norris, FBI Special Agent; Jose Serrano, U.S. Congressman; Kerry Kircher,

General Counsel, U.S. House of Representatives; and Christine Davenport, Senior Assistant

Counsel, U.S. House of Representatives. The Complaint alleges:

               Defendants have willfully violated FOIA Laws against the (Pro-se)
               Plaintiff’s secured Civil Rights in order to CONCEAL legal facts
               about how defendants [Judge Batts, Magistrate Judge Fox, AUSA
               Bober, AUSA Skinner, DUSM Ricigliano, and Special Agent
               Norris] . . . have willfully Faked Up/Invented Up a North Carolina
               State’s Reliable Confidential Informant in order to DISMISSED
               the (pro-se) plaintiff’s Civil Rights case against defendant DUSM
               Nicholas Ricigliano & “etc” (05 Civ. 10169).

Compl. [Dkt. 1] at 3 (errors in original). The Complaint further alleges that all Defendants have

willfully concealed information and legal documents “regarding North Carolina State’s Reliable

Confidential Informant against the (pro-se) plaintiff’s FOIA Request.” Id. at 4. Mr.

Cunningham seeks $50,000,000. Id. Defendants have moved to dismiss. See Mot. to Dismiss

[Dkt. 7].

                                         II. ANALYSIS

               Even though pro se complaints are construed liberally, see Haines v. Kerner, 404

U.S. 519, 520 (1972) and United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004), the

complaint still must state a claim upon which relief can be granted. See Fed. R. Civ. P. 8,

12(b)(6). A district court may sua sponte––that is, without notice––dismiss a claim pursuant to

Rule 12(b)(6) where it is “patently obvious” that the plaintiff cannot possibly prevail based on

the facts alleged in the complaint. Baker v. Director, U.S. Parole Comm’n, 916 F.2d 725, 727

(D.C. Cir. 1990).


                                                 3
               Mr. Cunningham cannot possibly prevail here because he has sued individual

federal officials under FOIA and FOIA authorizes relief only against covered federal agencies.

See 5 U.S.C. § 552(a)(4)(B) (granting courts “jurisdiction to enjoin the agency from withholding

agency records”). An “agency” is “any executive department, military department, Government

corporation, Government controlled corporation, or other establishment in the executive branch

of the Government (including the Executive Office of the President), or any independent

regulatory agency.” Id. § 552(f)(1); see also id. § 105 (“Executive agency” means an Executive

department, a Government corporation, and an independent establishment). Thus, in FOIA cases

individual federal employees are not proper parties. Martinez v. BOP, 444 F.3d 620, 624 (D.C.

Cir. 2006).

               All of the Defendants here are individuals and cannot be sued under FOIA.

Furthermore, many of the federal officials who are Defendants here are not employed in the

executive branch: Judge Batts and Magistrate Judge Fox are officials in the judicial branch and

Congressman Serrano, General Counsel Kircher, and Senior Assistant Counsel Davenport are

officials in the legislative branch. FOIA covers only agencies in the executive branch of

government. 5 U.S.C. § 552(f)(1). Thus, the Complaint will be dismissed for failure to state a

claim.

                                      III. CONCLUSION

               For the reasons stated above, Defendants’ motion to dismiss [Dkt. 7] will be

granted and this case will be dismissed. All other pending motions will be denied as moot. A

memorializing Order accompanies this Opinion.

Date: July 17, 2013                                               /s/
                                                    ROSEMARY M. COLLYER
                                                    United States District Judge



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