United States District Court, E.D. Michigan, Southern Division
DEAN R. KIBBE Plaintiff,
UNITED STATES, et al, Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [Doc. 9]
Victoria A. Roberts United States District Judge
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.
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.
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.
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.
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.
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].
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.
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).
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).
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