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Kibbe v. United States

United States District Court, E.D. Michigan, Southern Division

February 28, 2018

DEAN R. KIBBE Plaintiff,
UNITED STATES, et al, Defendants.


          Victoria A. Roberts United States District Judge

         Dean R. Kibbe (“Kibbe”), filed a complaint against the United States government. Kibbe asks that the Court order the Government to grant his Freedom of Information Act (“FOIA”) request pursuant to 5 U.S.C. § 552(a). Kibbe also requests that the Court enter a cease and desist order and a permanent injunction, stopping and/or preventing the Government from hacking his computer.

         The Government filed a motion for summary judgment (“Motion”). In its Motion, the Government argues that: 1) it has fulfilled its disclosure obligations in response to Kibbe's FOIA request, since it conducted an adequate search for the requested document; and 2) Kibbe is not entitled to a permanent injunction, since he cannot offer any credible evidence to refute the fact that the CIA is not monitoring his communications. That motion is GRANTED.

         Kibbe also filed a motion for perpetual mandatory injunction. [Doc. # 12]. He asks the Court to enjoin the Government from enforcing federal marijuana laws; Kibbe believes it is necessary for him to smoke marijuana in order to respond to the Government's Motion. Because Kibbe responded to the Government's Motion for summary judgment, and because the Court grants that Motion, Kibbe's motion for perpetual mandatory injunction is MOOT.

         I. Background

         Kibbe, a United States Marine Corps veteran who served in the Vietnam War, claims to have attempted to obtain records concerning the Marines' “Combined Action Program” (“CAP”). Kibbe attaches letters to his complaint, from a Marine Corps Lieutenant Colonel to Kibbe's parents. These letters indicate that Kibbe was assigned to CAP during his time in Vietnam. According to Kibbe, CAP was a project under the jurisdiction of the Third Marine Amphibious Force in the Republic of Vietnam. This project, Kibbe says, was a merger between ground combat troops and spies. Kibbe claims that Marines were assigned by CAP to be military advisors to the South Vietnamese Popular Forces Troops (“Popular Forces”), who shared combat duties with the Marines and also acted as spies. The Central Intelligence Agency (“CIA”), according to Kibbe, used the Marines to perform combat activities through CAP, and assassinated the Marines after they completed these activities. Kibbe claims that this assassination was done using the CIA's “crack and splatter” method, which the CIA also used to assassinate President John F. Kennedy. [Complaint, Paragraph 1-4, 11]. In his response to the Government's Motion, Kibbe says that he would like to gather evidence to prove that the CIA murdered CAP Marines to keep spy activities secret.

         Kibbe submitted a FOIA request on January 3, 2017 for information on a Marine officer allegedly assassinated by the CIA after leaving the CAP. That request was closed on February 2, 2017. Kibbe submitted a second request on March 23, 2017, seeking “the complete unit diaries for the month of November 1968 and December 1968 for: Combined Action Company 1-3, First Combined Action Groups, Combined Action Program, Third Marine Amphibious Force Republic of Vietnam.” Before the Government completed this request, Kibbe filed this action on July 11, 2017.

         The Government attached to its Motion a declaration of Michael L. Peters (“Peters”), a FOIA analyst assigned to the Marine Corps. Peters declares that in an effort to locate the unit diaries Kibbe requested, he personally went to the Manpower Management Records and Performance Branch aboard Marine Corps Base Quantico on August 15, 2017. He was assigned this task because of his familiarity with its records. He specifically searched for the diaries of the “1st COMBINED ACTION GROUP, IIIMAF, FMF” for the period of November and December 1968. Using the “Reporting Unit Code (1968 RUC Book), ” Peters declares that he retrieved the reel that contained the unit diaries for the months of October through December 1968. He then examined the reel on a microfilm viewer/scanner, and made copies of responsive pages. Some pages of the unit diaries were barely legible. Peters declares that he stamped those images with “BEST COPY AVAILABLE USMC.” The diaries were printed upon completion of his search, electronically scanned, and made available to Kibbe via the U.S. Army's Aviation and Missile Research Development and Engineering Center's Safe Access File web application, and Kibbe's online FOIA account. [Motion, Ex. 3].

         In response to the Government's motion, Kibbe argues that: 1) non-exempt information is missing from the documents sent by the Government; and 2) genuine issues of fact surround his entitlement to a permanent injunction.

         Kibbe names the United States as the defendant in this action. Under FOIA, the Court has jurisdiction “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) (emphasis added). The proper defendant in this action is the United States Marine Corps. See Wright v. IRS, 1995 U.S. Dist. LEXIS 16118, *1 n.1 (E.D. Cal. Oct. 12, 1995) (where the Court noted that although the plaintiff listed the United States as a defendant, the proper defendant was the Internal Revenue Service, the agency that received the plaintiff's FOIA request).

         II. Legal Standard

         Under Federal Rule of Civil Procedure 56(a), “[t]he 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.” The movant bears the initial burden to inform the Court of the basis for its motion, and must identify particular portions of the record that demonstrate the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its burden, the non-moving party must set forth specific facts showing a genuine issue for trial. Id. at 324. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Unsupported, conclusory statements are insufficient to establish a factual dispute to defeat summary judgment, as is the mere existence of a scintilla of evidence in support of the non-movant's position; the evidence must be such that a reasonable jury could find in its favor. Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         In deciding a summary judgment motion, the Court “views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court only needs to consider the cited materials, but it may consider other evidence in the record. Fed.R.Civ.P. 56(c)(3). The Court's function at the summary judgment stage “is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249.

         III. ...

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