Submitted Without Oral Argument.
Opinion PER CURIAM.
In this Freedom of Information Act (FOIA) suit, the district court granted summary judgment against a pro se plaintiff, recently released from prison, without first explaining the nature of the summary judgment motion to the plaintiff or fully considering whether the plaintiff had received adequate time to respond to the defendant's motion. We conclude that the district court should have deferred disposition of the summary judgment motion pending further assurance that plaintiff had been accorded adequate time to respond and understood the risk attending failure to respond. Accordingly, we reverse.
In 1977, while he was imprisoned in South Carolina, Gene Ham submitted to the FBI an FOIA request for all information concerning him. The FBI released numerous documents, but deleted information from some of the documents. After an administrative appeal the FBI released additional information, but continued to delete material that it claims consists of names of FBI agents, names of persons of investigative interest other than Ham, the identity of a cooperating nonfederal law enforcement officer, the identity of a confidential source, confidential information furnished by a confidential source, names of persons interviewed, information supplied by local law enforcement agencies, and information furnished by informants on a regular basis. The FBI defended these deletions on the ground that the information was protected by exemptions 7(C) and 7(D) of FOIA.
In January 1979, while still imprisoned in South Carolina, Ham filed this pro se action seeking release of the withheld information. At a status hearing on February 22, 1979, Government counsel told the district judge that Ham, who was not present, had requested appointment of counsel. The district court denied this request, finding that there is no provision for the appointment of counsel in FOIA cases.
Ham was released from prison on March 23, 1979. He neglected, however, to give the district court prompt notice of his address change. Accordingly, a Government motion to dismiss the complaint or grant summary judgment was mailed on April 22, 1979, to the prison where Ham had been incarcerated. Ham apparently did not receive the motion at that time.
On May 14, 1979, Ham filed an address change with the district court. Because of this notice, the district judge directed the Government to mail another copy of the summary judgment/dismissal motion to Ham. This was done during the second week of July. In a letter notarized August 23, 1979, however, Ham informed the district court that he had not received any copy of the Government's motion until August 10. Accordingly, he requested an extension of time so that he could prepare a proper reply.
In an order and memorandum opinion filed August 30, 1979, the district court denied Ham's motion for an extension of time, treated the Government's motion as conceded,
This court has recognized that district judges should accord special attention
The district court's failure to provide such an explanation is aggravated in this case by the court's denial of Ham's request for an extension of time. Local court rules require a party to file an opposition to a summary judgment motion within ten days after service of the motion. United States District Court for the District of Columbia Rule 1-9(d). Rule 6(e) of the federal rules adds three days to this period when, as in this case, service is made by mail. Ham's response to the Government's summary judgment motion, therefore, was due within thirteen days after the motion was mailed to Ham in July 1979.
Ham's August 23 letter, however, stated that he had not received a copy of the Government's motion until August 10, 1979, and that he needed time to prepare a proper response. If Ham's claim was true, it should count as "excusable neglect" for his failure to oppose the motion within thirteen days of the July service.
The Government urges that, even if pro se litigants in Ham's position generally should be given clear information concerning court procedures, we should affirm the district court's judgment in this case because Ham's suit is frivolous. We decline, however, to address the merits of the lawsuit before Ham has had an opportunity to answer the Government's arguments. Since the district court's swift disposition deprived Ham of that opportunity, we reverse and remand.
We note, finally, that on remand the Government should remedy a defect in its Statement of Material Facts that may have further impeded Ham's ability to respond to the summary judgment motion. The Government's statement does not set out the undisputed material facts; instead, it incorporates by reference portions of affidavits previously submitted to the court. In Gardels v. CIA, 637 F.2d 770 (D.C. Cir. 1980), this court held that a Government Statement of Material Facts that merely incorporated by reference several Government affidavits was insufficient to satisfy local district court rule 1-9(h).
We remand to the district court for fresh consideration of the Government's summary judgment motion. After the Government has submitted an adequate Statement of Material Facts, the district court should explain the nature of the summary judgment motion to Ham and should allow him sufficient time to respond. As noted above, we express no opinion on the merits of the Government's motion.
Reversed and remanded.
5 U.S.C. § 552(b)(7)(C), (D) (1976).
While the law clerk's letter cautioned Ham that he should respond to Government motions promptly, we do not believe it met the standard prescribed by Hudson. The letter was written before the Government filed its summary judgment motion. A general warning does not have the immediacy of a specific instruction accompanying motion papers. More important, the law clerk's letter did not explain the nature of summary judgment to Ham nor did it inform him that a failure to respond to a summary judgment motion might result in the entry of judgment against him.