EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 522, et seq.
SSA's motion for summary judgment was filed on April 10, 2013. ECF No. 17. Plaintiff was granted an extension of time until May 29, 2013 to file an opposition or statement of non-opposition to the motion. ECF No. 19. That deadline passed without plaintiff filing either. Therefore, on August 1, 2013, plaintiff was ordered to show cause, in writing, no later than August 30, 2013, why sanctions should not be imposed for his failure to timely file an opposition or statement of non-opposition. ECF No. 22.
Plaintiff filed his response to the order to show cause on September 9, 2013. He has also submitted his opposition to the motion for summary judgment. ECF No. 24. He explains that he is currently taking three types of medication due to head trauma that he suffered after he was attacked by two inmates on March 13, 2013. Id. at 2-3; see ECF No. 16 at 3. He claims that this medication has side effects that do "not agree with him. ..." ECF No. 24 at 2. He also indicated that he has experienced difficulty obtaining his legal property, and was having trouble gaining access to the law library at CSP-LAC. Id. In light of plaintiff's representations, the order to show cause is discharged and no sanctions shall be imposed.
Plaintiff was convicted of robbery and kidnapping and sentenced to life in prison. Pl.'s Mot. for Disc., ECF No. 23 at 27. He claims that he was convicted based on eyewitness testimony from Hipolito Luis Ortega, who testified on behalf of the government. Id. at 27, 32. Plaintiff contends that officers with the Los Angeles Police Department ("L.A.P.D.") assisted Mr. Ortega in obtaining a social security number ("SSN") in exchange for his testimony. Id. at 32. Plaintiff further alleges that his witness, Carlos Policzo, was not given similar assistance because, had he actually testified, his statements would have impeached Mr. Ortega's testimony.
Plaintiff contends that he is attempting to gather evidence to support his claim that the L.A.P.D. purchased Mr. Ortega's testimony by providing him with an SSN. On April 13, 2011, plaintiff sent via letter addressed to the SSA a FOIA request for:
Declaration of Dawn S. Wiggins ISO Def.'s Mot for Summ. J., ECF No. 17-2 at Ex. 1.
By letter dated May 27, 2011, the SSA informed plaintiff that it had received his request and that it would be processed as soon as possible. Id. at Ex. 2. On June 8, 2011, the SSA responded to plaintiff's request, informing him that the information he requested was protected by the Privacy Act of 1974. The letter explained that the production of the records he requested would violate the privacy interests of other individuals and therefore the records are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(6). The letter also informed plaintiff that if he disagreed with the decision, he could appeal it to the Executive Director for the Office of Privacy and Disclosure. Id. at Ex. 3.
On July 8, 2011, plaintiff appealed the SSA's June 8, 2011 action, arguing that his FOIA request should not have been denied because he did not seek any information that would have been provided on a social security application. He claims that he only sought "records that illustrate where Los Angeles Police Department, state or federal local prosecutors or their personnel, had provided assistance to our country's immigrants, including, but not limited to the proscribed names (Mr. Polictzo and Mr. Ortega), that received Social Security numbers between the years 1989-2000." Id. at 14 (Ex. 4). Plaintiff argued that the public interest in such information outweighs any privacy interest, and therefore the information he sought is not protected under 5 U.S.C. § 552(b)(6). Id. at 12-17 (Ex. 4). On September 30, 2011, the Office of Privacy and Disclosure sent plaintiff a letter responding to his appeal. Id. at Ex. 6. The letter stated that the SSA conducted a thorough search of its records, but did not discover any documents responsive to the following requests:
Id. The letter also informed plaintiff that if he believed that the decision was incorrect, he could seek review in a district court. Id.
Plaintiff initiated this action on November 15, 2012. ECF No. 1. He alleges in his complaint that (1) the SSA failed to conduct a sufficient search of its records, and (2) that the SSA waived its right to assert any FOIA exemption as a basis for not producing the requested records. Id. On April 10, 2013, SSA filed a motion for summary judgment. ECF No. 17. Submitted with the motion is a declaration from the Deputy Executive Director for the Office of Privacy and Disclosure in the Office of the General Counsel at the SSA, which outlines the search that was conducted in response to plaintiff's FOIA request. ECF No. 17-2.
As noted, plaintiff included in his oppositions to summary judgment a request to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d). ECF No. 23. He also filed a motion to expand the record 3 days after he filed his Rule 56(d) motion. ECF No. 26. That motion requests that the court consider additional exhibits in deciding his Rule 56(d) motion. SSA's opposition to the Rule 56(d) motion states that it considered these documents in drafting its opposition and therefore the agency has no objections to the filing and consideration of this document. See ECF No. 39 at 36. Accordingly, it and its exhibits have been considered by the court.
While his motion requests leave to conduct discovery, the motion is in substance an opposition to SSA's motion for summary judgment. On December 18, 2013, SSA filed an opposition to plaintiff's Rule 56(d) motion. ECF No. 39. The opposition included a supplemental declaration, which provides a more detailed description of the searches conducted by the SSA than the declaration filed with its motion for summary judgment. ECF No. 39-1. Plaintiff was provided an opportunity to respond to SSA's opposition and the supplemental declaration, see ECF No. 42, but he declined to do so.
The purpose of the FOIA is to inform citizens about "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 775 (1989). FOIA mandates a policy of broad disclosure of government documents when production is properly requested. 5 U.S.C. § 552(a)(3). The general philosophy of the FOIA is full agency disclosure, unless information is exempted under clearly delineated statutory language. Dep't of the Air Force v. Rose, 425 U.S. 352, 260-61 (1976). "FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).
An agency may deny disclosure of its records only if the information falls within one of the nine statutory exemptions to the disclosure requirement under 5 U.S.C. § 552(b). Multnomah County Medical Soc'y v. Scott, 825 F.2d 1410, 1413 (9th Cir. 1987). The government has the burden of establishing that one of the exemptions applies. Id. Exemptions to FOIA are narrowly construed. John Doe Agency, 493 U.S. at 151. To satisfy its burden, the agency cannot rely on "conclusory and generalized allegations of exemptions." Church of Scientology of Cal. v. U.S. Dep't of Army, 611 F.2d 738, 742 (9th Cir. 1979) (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)). Instead, the agency's proof must be "detailed enough for the district court to make a de novo assessment of the government's claim of exemption." Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997) (quoting Doyle v. FBI, 722 F.2d 554, 555-56 (9th Cir. 1983)).
In a FOIA case, "federal jurisdiction is dependent on a showing that an agency has (1) improperly (2) withheld (3) agency records." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (internal quotation marks omitted). "Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements." Id. "The burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not `agency records' or have not been `improperly' `withheld.'" Id. at 142 n. 3. Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Lawyers Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep't of Treasury, 534 F.Supp.2d 1126, 1131 (N.D. Cal. 2008) ("As a general rule, all FOIA determinations should be resolved on summary judgment.").
An issue in many FOIA summary judgment motions is the agency's search. The agency must "demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (citing Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). The "issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Id. The agency may demonstrate the adequacy of its search by submitting affidavits describing the agency's search procedures that "are relatively detailed in their description of the files searched and the search procedures, and [ ] are nonconclusory and not impugned by evidence of bad faith." Zemansky, 767 F.2d at 573. "Once an agency makes a showing that it conducted a search in good faith, `with reasonable detail, that the search method ... was reasonably calculated to uncover all relevant documents,' the agency's position can only be rebutted `by showing that the agency's search was not made in good faith.'" Kelly v. U.S. Census Bureau, 2011 WL 3962489, at *2 (N.D. Cal. Sept.7, 2011) (quoting Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) and Maynard v. C.I.A., 986 F.2d 547, 560 (1st Cir. 1993)). "Agency affidavits enjoy a presumption of good faith that withstands purely speculative claims about the existence and discoverability of other documents." Chamberlain v. U.S. Dep't of Justice, 957 F.Supp. 292, 294 (D.D.C. 1997); Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985). For example, a requester's speculation that responsive records "could have been destroyed or removed" does not create a genuine issue for trial. Marks v. U.S. Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978). Nor is the fact that somewhere there may be additional responsive documents relevant to the question of whether the agency's search was adequate. NYC Apparel FZE v. U.S. Customs & Border Prot., 484 F.Supp.2d 77, 88 (D.D.C. 2007).
Rule 56(d) permits a party opposing a motion for summary judgment to request an order deferring the time to respond to the motion and permitting that party to conduct additional discovery upon an adequate factual showing. See Fed. R. Civ. P. 56(d) (requiring party making such request to show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition."). A Rule 56(d) affidavit must identify "the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). The party must also demonstrate that "there is some basis for believing that the information sought actually exists." Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n. 5 (9th Cir. 2009).
"Procedurally, district courts typically decide FOIA cases on summary judgment before a plaintiff can conduct discovery." Lawyers for Civil Rights of SF Bay Area, 534 F. Supp. 2d at 1132 (citing Jones v. Federal Bureau of Investigation, 41 F.3d 238, 242 (6th Cir. 1994)). "While ordinarily the discovery process grants each party access to evidence, in FOIA and Privacy Act cases, discovery is limited because the underlying case revolves around the propriety of revealing certain documents." Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008).
The threshold question in considering leave to conduct discovery in a FOIA case is whether the "agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains." Schrecker v. U.S. Dep't of Justice, 217 F.Supp.2d 29, 35 (D.D.C. 2002). Discovery should not be permitted "when it appears that discovery would only ... afford [the plaintiff] an opportunity to pursue a bare hope of falling upon something that might impugn the affidavits." Military Audit Project v. Casey, 656 F.2d 724, 751-52 (D.C. Cir. 1981) (quotations omitted). "If a court is satisfied that the affidavits supplied by the agency meet the established standards for summary judgment in a FOIA case and the plaintiff has not adequately called these submissions into question, no factual dispute remains, and discovery is inappropriate." Lawyers for Civil Rights of SF Bay Area, 534 F. Supp. 2d at 1132.
The SSA argues that it performed searches reasonably calculated to discover documents relevant to plaintiff's request and that its searches satisfy the FOIA's requirements. ECF No. 17 at 8-11. It also argues, in the alternative, that to the extent that its search was not adequate, it did not have to produce any documents in response to plaintiff's request because such documents would be properly withheld under FOIA exemption 6. Id. at 11-16.
The SSA submitted the declaration of Dawn Wiggins in support of its. ECF No. 17-2. In response, plaintiff argues that the declaration is insufficient to establish that an adequate search was conducted. The SSA, although not conceding the issue, apparently realized that Ms. Wiggins's declaration was lacking the requisite detail to establish the adequacy of the search. Accordingly, SSA filed a supplemental declaration with its opposition to plaintiff's request to conduct discovery. ECF No. 39-1. That latter declaration does demonstrate that an adequate search was conducted.
Ms. Wiggins declares that she is the Deputy Director for the Office of Privacy and Disclosure and is responsible for processing the SSA's FOIA requests. ECF No. 39-1 ¶ 1. The SSA has 10 regional offices and over 1,300 field offices. Id. ¶ 2. The SSA has issued over 450 million Social Security numbers ("SSN"). Id. The SSA maintains records related to these SSNs, as well as records relating to the SSA's administrative, operating and business practices. Id. The SSA maintains SSNs and information about SSNs in a Privacy Act system of records entitled the Master Files of Social Security Number Holders and SSN Applications (Numident), System of Record Number 60-0058. Id. ¶ 7. Due to the large number of records maintained by the SSA, it cannot locate records pertaining to individuals unless the agency is provided the individual's SSN or other sufficient identifying information. Id. ¶ 5. To locate an individual's SSN, the agency generally requires the person's full name, date of birth, and both parents' names. Id.
In response to plaintiff's appeal, the SSA searched its records to determine whether it had any documents responsive to plaintiff's request for records concerning the Los Angeles Police Department and the Los Angeles District Attorney's Office's involvement with individuals obtaining SSNs form 1989 to 2000. Id. ¶ 8. Specifically, the Office of Privacy and Disclosure requested the SSA's San Francisco Regional Office and the Office of Inspector General to search for documents responsive to plaintiff's FOIA request. Id. The SSA selected these locations for its search because the San Francisco Regional Office has jurisdiction over the day-to-day operations for the residential Los Angeles area and the Office of Inspector General has the most involvement with law enforcement. ECF No. 17-2 ¶ 13.
The San Francisco Regional Office advised Ms. Wiggins that it searched its paper files and electronic files for documents responsive to plaintiff's FOIA request. ECF No. 39-1 ¶ 9. Specifically, the San Francisco Regional Office had both its Tri-Counties Area Director Office and its Los Angeles Metropolitan Area Director Office perform searches since these offices serve the Los Angeles area. The offices searched a variety of paper files, which are indexed by name or topic, that they determined may contain responsive documents. Id. They also conducted an electronic search of their M and S shared drives, which includes shared files that are generally accessible to either all staff or management. Id. The search terms utilized in performing the searches of their electronic drives and paper files included LAPD, Rampart, Los Angeles District Attorney, and LAPD Rampart Division. Id. Any documents identified during these searches were further reviewed to determine whether they were responsive to plaintiff's FOIA request. Id.
As for the Office of Inspector General, it had three of its components, the Office of Audit, Office of Technology and Resources Management, and Office of Investigation, conduct similar searches. Id. ¶ 10. These components searched report files from 1989 to 2000, allegation comment records, and records in the OIG's central database. Id. This included both paper and electronic records. Id. These searches also included LAPD, Rampart, Los Angeles District Attorney, and LAPD Rampart Division as search terms. Id. All records identified by these searches were further reviewed to determine whether they were responsive to plaintiff's request. Id. The Office of Inspector General also asked long-time employees in the San Francisco area to see if anyone was familiar with the subject of plaintiff's request. Id.
The locations and records searched by the SSA were those the agency determined would most likely contain records responsive to plaintiff's FOIA request. Id. ¶ 11. These searches, however, failed to uncover any responsive records. ECF No. 17-2 ¶ 12.
The declarations submitted by SSA establishes that it conducted adequate searches in response to plaintiff's request for records pertaining to the L.A.P.D. and L.A. District Attorney's office assisting immigrants in obtaining SSNs. The SSA conducted searches at the offices the agency believed to most likely possess documents responsive to plaintiff's request. Furthermore, given the search terms utilized, the records searched were reasonably calculated to uncover records containing the names of immigrants residing in the Los Angeles area between 1989 and 2000 that received an SSN with the assistance of the L.A.P.D. or the L.A. District Attorney's Office. This would have included any records reflecting assistance Mr. Ortega and Mr. Polictzo received from these agencies in obtaining an SSN.
Plaintiff argues that there is reason to believe that the SSA did not conduct its search in good faith. ECF No. 23 at 11. First, plaintiff argues that Ms. Wiggins is the individual who initially denied his FOIA request on the ground that all records requested were exempt from disclosure, but she is also the person who is attesting to the sufficiency of the search. Id. He claims that this establishes that the search was not conducted in good faith. Nothing in those facts shows bad faith on behalf of the SSA. Instead, it shows that the SSA reviewed plaintiff's appeal and concluded that Ms. Wiggins's initial decision was incorrect. There mere fact that the Executive Director of the Office of Privacy and Disclosure disagreed with Ms. Wiggins's initial decision does not show the search for responsive records was conducted in bad faith.
Plaintiff also challenges the sufficiency of Ms. Wiggins's declaration in establishing that an adequate search was conducted. Id. at 12. He contends that the declaration relies on vague search descriptions. Id. While the first Wiggins declaration was insufficient to show whether an adequate search was conducted, the supplemental declaration cured that deficiency. Plaintiff has not challenged the adequacy of Ms. Wiggins's supplemental declaration, nor could he. As explained above, it shows that an adequate search was conducted regarding plaintiff's request for records pertaining to immigrants receiving assistance from local government agencies. Accordingly, plaintiff has not shown that the search conducted was performed in bad faith.
The searches performed, however, did not encompass all the records requested by plaintiff. The searches were limited to records regarding assistance the L.A.P.D. and L.A. District Attorney's Office provided to immigrants trying to obtaining an SSN. The searches conducted were not reasonably calculated to discover records showing whether Mr. Ortega received an SSN number in 1989, or records showing the dates Mr. Ortega and Mr. Polictzo applied for, were approved for, and received SSNs. Accordingly, the agency failed to conduct an adequate search in regards to these particular requests. However, as discussed below, any such records are exempt from disclosure.
SSA argues that, even though it conducted a search, all documents that would have been uncovered in response to plaintiff's FOIA request could have been withheld under exemption 6. ECF No. 17 at 11-16.
Exemption 6 allows an agency to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 522(b)(6). This exemption was "intended to cover detailed Government records on an individual which can be identified as applying to that individual." U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982). The term "similar files" has a "broad, rather than narrow, meaning." Id. at 600. "When disclosure of information which applies to a particular individual is sought from Government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person's privacy." Id. at 602.
Here, plaintiff seeks records containing information specific to Mr. Ortega and Mr. Polictzo, and therefore the records would constitute "similar files." The court must therefore consider whether production of the information contained in such records "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 522(b)(6). "To answer this question, [the court] must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure." Prudential Locations LLC v. U.S. Dep't of Hous. & Urban Dev., 739 F.3d 424, 430 (9th Cir. 2013). "A broad range of personal privacy interests are cognizable under FOIA, including under Exemption 6." Id. Individuals have a personal privacy interest in controlling information concerning his or her person, which includes "keeping personal facts away from the public eye." Id. at 431.
SSA argues that the records requested in relation to when Mr. Ortega and Mr. Polictzo applied for and were approved for SSNs are private in nature. ECF No. 17 at 13. Indeed, responding to this request would require production of the applications submitted by these individual, which would contains the applicant's full name, previous SSN, place and date of birth, mother's birth name, mother's SSN, father's name, father SSN, daytime phone number, and mailing address. See ECF No. 17 at 22 (Ex. B) (copy of an application for social security card). There is a privacy interest in such information. See Associated Press v. U.S. Dep't of Justice, 549 F.3d 62, 65 (2nd Cir. 2008) ("Personal information, including a citizen's name, address, and criminal history, has been found to implicate a privacy interest cognizable under the FOIA exemptions." (citing U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994)). The information sought is specific to these individuals, and would consist of their private information.
In his original FOIA request and again in his opposition to SSA's motion for summary judgment, however, plaintiff argues that such records must be produced because the "public has an interest about the LAPD RAMPART and their contacts with particular federal agencies to accommodate them in their corruption; specifically, intimidating and coercing witnesses and victims of crime into cooperating with them in exchange for providing them with" SSNs. See ECF No. 17-2 at 6 (Ex. A). As provided above, the SSA conducted an adequate search for records pertaining to the L.A.P.D. and L.A. District Attorney's Office helping immigrants obtain SSNs. No responsive documents were found. As to plaintiff's request for documents showing when Mr. Ortega and Mr. Polictzo applied for, were approved for, and received SSNs, there is no indication that these documents will promote the asserted public interest. Rather, it is apparent that plaintiff has a personal interest in the information sought. Specifically, plaintiff is attempting to find evidence to assist him in overturning his conviction. See ECF No. 23 at 26-35. However, plaintiff's "personal stake in using the requested records to attack his convictions does not count in the calculation of the public interest." Oguaju v. U.S., 288 F.3d 448, 450 (D.C. Cir. 2002); see Nishnic v. United States Dep't of Justice, 671 F.Supp. 776, 791 (D.D.C. 1987) (requester's interest in Brady material is a "decidedly private interest").
Furthermore, "the only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would `she[d] light on an agency's performance of its statutory duties' or otherwise let citizens know `what their government is up to.'" Dep't of Def., 510 U.S. at 497 (1994) (quoting Reporters Comm., 489 U.S. at 773) (alteration in original). Records specific to these two individuals would shed little light on how the SSA is performing its statutory duties.
Accordingly, the portion of plaintiff's FOIA request pertaining to Mr. Ortega and Mr. Polictzo is categorically exempted under exemption 6. Furthermore, the SSA conducted an adequate search for the remaining requested records. Therefore, SSA is entitled to summary judgment.
In response to SSA's motion for summary judgment, plaintiff filed a motion for discovery pursuant to Federal Rule of Civil Procedure 56(d). While the majority of the motion is directed to attacking the merits of plaintiff's motion for summary judgment, the pleading does request leave to conduct discovery in this case.
Plaintiff first contends that he should be granted leave to conduct discovery because no discovery has been conducted to date. ECF No. 23 at 8. Discovery, however, is rarely needed in FOIA actions. See Lawyers for Civil Rights of SF Bay Area, 534 F. Supp. 2d at 1132 ("Procedurally, district courts typically decide FOIA cases on summary judgment before a plaintiff can conduct discovery."). Plaintiff has not shown any specific need for discovery in this action.
Next, plaintiff states that discovery is needed to show what methods SSA used to conduct its search. ECF No. 23 at 9. This argument is based on the inadequacy of Ms. Wiggins's first declaration. Id. As discussed above, Ms. Wiggins's supplemental declaration adequately recites the specific details of the search that was conducted. Plaintiff does not argue otherwise. The SSA has shown the particulars as to the scope and specific methods of the search and those details demonstrate that SSA performed a search reasonably calculated to uncover the requested records. Therefore, discovery is not needed in this case. See Lawyers for Civil Rights of SF Bay Area, 534 F. Supp. 2d at 1132 ("If a court is satisfied that the affidavits supplied by the agency meet the established standards for summary judgment in a FOIA case and the plaintiff has not adequately called these submissions into question, no factual dispute remains, and discovery is inappropriate.").
Plaintiff also argues that discovery will lead to evidence showing a link between the L.A.P.D. and the SSA issuing SSNs to immigrants. As previously discussed, the SSA conducted an adequate search that did not uncover records responsive to this issue. The court will not grant leave to conduct discovery based on speculation that records exist that would show that SSA failed to conduct an adequate search. See Military Audit Project, 656 F.2d at 751-52 (discovery should not be permitted "when it appears that discovery would only ... afford [the plaintiff] an opportunity to pursue a bare hope of falling upon something that might impugn the affidavits."). Since SSA conducted an adequate search, there is no need to conduct discovery. Accordingly, plaintiff's Rule 56(d) motion must be denied.
Accordingly, it is hereby ORDERED that the August 1, 2013 order to show cause is discharged. No sanctions are imposed.
Further, it is RECOMMENDED that:
1. Defendant's motion for summary judgment, ECF No. 17, be granted;
2. Plaintiff's motion to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d), ECF No. 23, be denied; and
3. The Clerk of the Court be directed to enter judgment in defendant's favor and close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is cautioned that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
