              Case: 20-10615    Date Filed: 06/23/2020   Page: 1 of 8



                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 20-10615
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 3:18-cv-00409-MCR-HTC


PAUL JOSEPH FREEMAN,

                                                              Plaintiff-Appellant,

                                      versus

GLENN A. FINE,
Principal Deputy Inspector General,

                                                              Defendant-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                 (June 23, 2020)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:

      Paul Freeman, proceeding pro se, appeals the district court’s grant of

summary judgment as to Claim 1, asserting violations of the Freedom of
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Information Act (“FOIA”) and the court’s dismissal for failure to state a claim as

to Claims 2 and 3, asserting violations of Title 18 and Freeman’s due process and

equal protection rights. Fine has moved for summary affirmance and to stay the

briefing schedule.

      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).

      We review de novo an order granting summary judgment and an order

granting a motion to dismiss for failure to state a claim. Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011); Chaparro v.

Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). The court shall grant

summary judgment “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In considering a motion to dismiss for failure to state a claim, the

court reviews a plaintiff’s pro se allegations in a liberal fashion, accepts all factual


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allegations in the complaint as true, and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. See Hunnings v.

Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994). Mere “labels and conclusions”

are not accepted as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A

complaint must state a plausible claim for relief, and “[a] claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

      “The FOIA is primarily an access and disclosure statute. It provides for

wide-ranging citizen access to government documents and presumes them subject

to disclosure absent a clear showing to the contrary.” Ely v. F.B.I., 781 F.2d 1487,

1489 (11th Cir. 1986) (internal citation omitted). A district court has jurisdiction

in a FOIA action “to enjoin the agency from withholding agency records and to

order the production of any agency records improperly withheld from the

complainant.” 5 U.S.C. § 552(a)(4)(B). If a person receives all the information he

requested under FOIA, even if the information was delivered late, his FOIA claim

is moot to the extent that such information was sought. Chilivis v. S.E.C., 673 F.2d

1205, 1209-10 (11th Cir. 1982).

      Criminal statutes generally do not provide a private cause of action. See

Love v. Delta Air Lines, 310 F.3d 1347, 1352-53 (11th Cir. 2002). “Statutes that


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focus on the person regulated rather than the individuals protected create no

implication of an intent to confer rights on a particular class of persons.” See

Alexander v. Sandoval, 532 U.S. 275, 289 (2001). Further, a federal court does not

order the prosecution of individuals at the request or invitation of a disgruntled

plaintiff. See Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir. 1987) (“[A]

private citizen has no judicially cognizable interest in the prosecution or non-

prosecution of another.”).

         The denial of a FOIA request does not create a due process claim.

Trentadue v. Integrity Comm., 501 F.3d 1215, 1236-37 (10th Cir. 2007) (holding

that Integrity Committee’s failure to provide plaintiff with the documents

requested pursuant to FOIA did not violate plaintiff’s due process rights); Johnson

v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 777 (D.C. Cir. 2002) (holding that

“the comprehensiveness of FOIA precludes the creation of a Bivens 1 remedy”

when plaintiff alleged defendant’s “mishandling of [a] FOIA request violated his

constitutional right to due process under the Fifth Amendment”).

         To state an equal protection claim, the plaintiff must allege either “that he

was treated differently from other similarly situated individuals” or “that the

defendant unequally applied a facially neutral ordinance for the purpose of



         1
             Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971)
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discriminating against him.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558

F.3d 1301, 1307 (11th Cir. 2009).

      Here, there is no substantial question that Freeman’s appeal of the summary

judgment order is moot because the documents were produced and that Freeman

failed to state a claim in regards to Claims 2 and 3 and because his appeal is

frivolous. See Groendyke Transp., Inc., 406 F.2d at 1162. First, the only relief

sought by Freeman in his complaint was the production of the documents. Even if

we were to accept Freeman’s argument that he never received the March 1 e-mail

containing the requested documents, Freeman received the documents on two other

occasions—via first-class mail on May 24, 2018 and through attachments by Fine

in his motion for summary judgment. Therefore, because Freeman received the

documents requested, his FOIA claim is moot. Chilivis, 673 F.2d at 1209-10.

Furthermore, Freeman fails to allege evidence to support his argument that the

Department of Defense failed to investigate his whistleblower complaint, and, even

if Freeman were correct about the investigation, FOIA does not provide him or the

district court with authority to demand a fuller, different, or new investigation. See

Ely, 781 F.2d at 1489; 5 U.S.C. § 552(a)(4)(B).

      Further, there is no substantial question that Freeman failed to state a claim

in regards to Claims 2 and 3. First, as to Claim 2, Freeman alleged that Fine

violated “28 U.S.C.” and later clarified that Fine violated at least 16 different


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subsections of Title 18. This allegation fails not only for its lack of specificity

relating to how Fine violated the different subsections but also because criminal

statutes do not provide for private civil causes of action. See Love, 310 F.3d at

1352-53. Second, as to Claim 3, Freeman failed to state a claim that his due

process and equal protection rights were violated because (1) the denial or

mishandling of a FOIA request does not create a due process claim, see Trentadue,

501 F.3d at 1236-37; Johnson, 310 F.3d at 777, and (2) Freeman failed to allege

that he was treated differently or that Fine “unequally applied a facially neutral

ordinance for the purpose of discriminating against him.” See Leib, 558 F.3d at

1307.

        Moreover, the arguments raised by Freeman in his appeal concerning the

district court and magistrate judge’s alleged legal errors are frivolous because they

are without arguable merit in law or fact. See Napier, 314 F.3d at 531. First,

Freeman argues that the district court erred because the magistrate judge did not hold

a pre-trial conference after receiving his objections to the R&R and the district court

did not acknowledge his objections, but the district court did acknowledge the timely

objections in its order and the magistrate judge is not required to hold a pre-trial

hearing on objections to the R&R. Second, Freeman argues that the district court

failed to enforce the Federal Rules of Evidence because the facts before the court

were “unmistakably disputed” because the documents turned over by Fine were


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inaccurate; however, Freeman failed to present evidence to demonstrate that the

documents were inaccurate and is seemingly using this argument to attack the

substance of the underlying investigation, which is not permitted under FOIA. See

Ely, 781 F.2d at 1489; 5 U.S.C. § 552(a)(4)(B). Lastly, Freeman argues that the

district court erred in its administration of case management because the court did

not consider his timely raised objections, but this argument is meritless because, as

shown in both court orders, the district court acknowledged and overruled Freeman’s

objections.

      Therefore, because there is no substantial question the district court properly

granted summary judgment to Fine, as the requested documents were produced,

and that the district court properly dismissed Freeman’s second and third claims, as

he failed to state a claim for which relief could be granted, we GRANT the

government’s motion for summary affirmance. See Groendyke Transp., Inc., 406

F.2d at 1162. Accordingly, we DENY the accompanying motion to stay the

briefing schedule as moot.

      Additionally, after the time to file a reply to Fine’s motion for summary

affirmance had lapsed, Freeman moves our Court to impose sanctions against Fine

because “any filing of such frivolous motion for summary affirmance is vexatious

to the court without rationale and injurious to [him].” Freeman argues that Fine

and his counsel were required to make mandatory disclosures under Federal Rule


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of Civil Procedure 26(a), including the contents of the document containing the

authenticity record, and the failure to make those disclosures and to file a motion

for summary affirmance entitles him to sanctions. Because Fine’s motion for

summary affirmance is not without rationale or merit, we DENY Freeman’s

motion for sanctions.




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