FLEMING v. MEDICARE FREEDOM OF INFORMATION GROUP et al

Filing 163

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge G. Michael Harvey on 7/24/18. (lcgmh1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RHONDA FLEMING,
Plaintiff,
v.
MEDICARE FREEDOM OF
INFORMATION GROUP, et al.

Civil Action No.
1:15-cv-01135 (EGS/GMH)

Defendants.

MEMORANDUM OPINION AND ORDER
This is a Freedom of Information Act (“FOIA”) case in which Plaintiff seeks records
related to her criminal conviction for health care fraud in the Southern District of Texas. Though
Plaintiff’s ultimate goal appears to be to prove that she is actually innocent of these crimes, the
single claim before this Court is the adequacy of Defendants’ FOIA searches. Because Plaintiff is
a prolific filer, in 2016 the Court required her to obtain permission from the Court before making
new filings in this case, and reminded her of that obligation most recently on May 25, 2018.
Thereafter, in a span of eleven days, Plaintiff filed three Motions for Permission to File Pleadings,
in which she requests permission to file a “Motion to Proceed In Forma Pauperis/Appointment of
Counsel” and “Motion for Evidentiary Hearing/Discovery” [Dkt. 148-1], a “Motion to Expedite
Proceedings” [Dkt. 150-1], and a “Motion to File Status Document” [Dkt. 151-1].1 Defendants’

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The docket entries relevant to this memorandum opinion are: (1) Plaintiff’s Complaint [Dkt. 1]; (2) the November
2017 Report & Recommendation [Dkt. 122]; (3) Plaintiff’s “Motion for Relief from Two Judgments Pursuant to Rule
60(d)(3) and the All Writs Act” [Dkt. 136]; (4) Defendants’ Opposition to Plaintiff’s Motion for Two Judgments [Dkt.
145]; (5) Plaintiff’s Reply to Defendants’ Opposition [Dkt. 149]; (6) Plaintiff’s “Motion to Proceed In Forma
Pauperis/Appointment of Counsel” and “Motion for Evidentiary Hearing/Discovery” [Dkt. 148-1]; (7) Plaintiff’s
“Motion to Expedite Proceedings” [Dkt. 150-1]; (8) Plaintiff’s “Motion to File Status Document” [Dkt. 151-1]; and
(9) Defendants’ Opposition [Dkt. 154]. All citations to page numbers within a particular document will be to the ECF
docket page numbers assigned to the document.

opposition to all three motions was filed on June 7, 2018.2 [Dkt. 154]. For the reasons that follow,
all of Plaintiff’s Motions for Permission to File Pleadings will be denied.
I.

BACKGROUND

In 2010, Plaintiff was convicted in the Southern District of Texas on 67 counts of Medicarerelated health care fraud and related offenses in connection with her submission of fraudulent
claims to Medicare using supplier numbers purchased from Hi-Tech Medical Supply and First
Advantage Nursing. See Judgment, United States v. Fleming, No. 4:07-cr-513 (S.D. Tex. Feb. 8,
2010), ECF No. 626. Plaintiff alleges that she was not provided with Medicare billing records
during her criminal trial. [Dkt. 1 at 1–2]. In May 2014, she filed FOIA requests with the Medicare
Freedom of Information Group (“MFIG”) and the Executive Office of U.S. Attorneys (“EOUSA”).
Id. at 2. Dissatisfied with Defendants’ response, Plaintiff filed a Complaint in the United States
District Court for the District of Minnesota alleging that Defendants failed to release records within
the scope of her FOIA requests and seeking a declaratory judgment, damages, and attorney’s fees
for various alleged violations of her civil rights, including claims asserting that the prosecution
fabricated evidence at her criminal trial. Id. at 3–4. All of Plaintiff’s Bivens and due process
claims were dismissed by the District of Minnesota. See Dkt. 15 at 3–4.
The case was transferred to this Court in July 2015. See Dkt. 56. The single claim before
this Court is Plaintiff’s FOIA claim. See Dkt. 122 at 2. Plaintiff has been a prolific and duplicative
filer, which resulted in an order dated September 1, 2016, requiring her to seek permission from
the Court before filing motions in this case (the “September 1, 2016 Order”). Minute Entry dated
Sept. 1, 2016. Most recently, she has filed the following submissions relevant to this motion:
“Motion for Appointment of Counsel” and “Motion for Video Conference Evidentiary Hearing”

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As of the date of this memorandum opinion, Plaintiff has not filed a reply to Defendants’ opposition [Dkt. 154].

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[Dkt. 58 (denied at Dkt. 97)]; “Motion for Writ of Ad Testificandum” [Dkt. 67 (denied at Dkt.
97)]; “Motion for Discovery” [Dkt. 68 (denied at Dkt. 97)]; “Motion for Appointment of Counsel”
and “Motion to Proceed In Forma Pauperis” [Dkt. 70 (denied at Dkt. 97)]; “Motion to Expedite
Recognition” [Dkt. 77 (denied at Dkt. 97)]; “Motion for Evidentiary Hearing” [Dkt. 88 (denied at
Dkt. 122)]; “Motion for Partial Summary Judgment” [Dkt. 88 (denied at Dkt. 122)]; “Motion for
Appointment of Counsel” [Dkt. 110 (denied at Dkt. 123)]; and “Motion for Leave to File
Pleadings,” which included a “Motion for Appointment of Counsel” [Dkt. 118]. The Court denied
this last motion on the grounds that the Court had previously denied Plaintiff’s request for
appointment of counsel and because Plaintiff at the time had another motion for appointment of
counsel pending before the Court. Minute Entry dated Jan. 23, 2017.
On November 16, 2017, the undersigned issued a Report and Recommendation that
recommended granting in part and denying in part Defendants’ motion for summary judgment and
denying Plaintiff’s motion for partial summary judgment (the “November 2017 R&R”). [Dkt. 122
at 27–28]. That Report and Recommendation was adopted by District Judge Emmet G. Sullivan
on June 6, 2018. [Dkt. 152]. Also pending before the Court is Plaintiff’s “Motion for Relief from
Two Judgments Pursuant to Rule 60(d)(3) and the All Writs Act” [Dkt. 136], which will be
addressed by the undersigned in a separate report and recommendation3 [Dkt. 162]. Pursuant to
the September 1, 2016 Order, the Court now considers Plaintiff’s motions for permission to file
pleadings.4 [Dkt. 148; Dkt. 150; Dkt. 151].

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When a “pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of
confinement” is referred to a magistrate judge, the analysis takes the form of a Report and Recommendation. Fed. R.
Civ. P 72(b)(1), (3); see also 28 U.S.C. § 636(b).
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Pursuant to Rule 72 of the Federal Rules of Civil Procedure, a magistrate judge may rule on non-dispositive matters
referred to him in an Order; the referring district judge will set aside any part of the Order to which objections have
been filed only if it is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b).

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II.

LEGAL STANDARD

Although district courts should respond to prolific pro se litigants with “determination and
imagination,” In re Green, 669 F.2d 779, 786 (D.C. Cir. 1981), “the court has an obligation to
protect and preserve the sound and orderly administration of justice,” Urban v. United Nations,
768 F.2d 1497, 1500 (D.C. Cir. 1985) (quoting In re Martin-Trigona, 737 F.2d 1254, 1262 (2d
Cir. 1984)). To serve this obligation, a district court may “enjoin litigants who abuse the court
system.” Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam). See also 28 U.S.C.
§ 1651(a) (“[A]ll courts established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
law.”). Litigiousness alone does not rise to the level of abuse, however. The court should also
take into account both the “number and content of . . . filings, and the effect of those filings on the
agencies and the district court.” In re Powell, 851 F.2d 427, 433–34 (D.C. Cir. 1988). “Faced
with a situation where its docket [is] burdened and defendants [are] being called upon to answer
multiple, impenetrable [pleadings], a district court [may be] justified in taking action.” Pavilonis
v. King, 626 F.2d 1075, 1079 (1st Cir. 1980).
III.

DISCUSSION

Presently before the Court are Plaintiff’s motions for permission to file a motion to proceed
in forma pauperis [Dkt. 148-1], a motion for appointment of counsel [Dkt. 148-1], a motion for an
evidentiary hearing or discovery [Dkt. 148-1], a motion to expedite proceedings [Dkt. 150-1], and
a motion to file status documents [Dkt. 151-1]. In this action, Plaintiff has twice filed motions to
proceed in forma pauperis [Dkt. 2; Dkt. 70], both of which were denied by the Court. See Dkt. 3
at 4; Dkt. 97 at 18. Plaintiff has filed five motions for appointment of counsel [Dkt. 41; Dkt. 58;
Dkt. 70; Dkt. 110; Dkt. 118], all of which were denied by the Court. See Dkt. 55 at 4; Dkt. 97 at

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18; Dkt. 123 at 3; Minute Entry dated Jan. 23, 2017. Plaintiff has filed six motions for discovery
or evidentiary hearings [Dkt. 4; Dkt. 41; Dkt. 58; Dkt. 68; Dkt. 88; Dkt. 119], all of which were
denied by the Court. See Dkt. 55 at 4; Dkt. 97 at 18; Dkt. 122 at 28; Minute Entry dated Jan. 23,
2017. Finally, Plaintiff has filed three motions for expedited proceedings [Dkt. 11; Dkt. 26; Dkt.
77], all of which were denied by the Court. See Dkt. 55 at 4; Dkt. 97 at 18. Accordingly, Plaintiff’s
motions for leave to file motions to proceed in forma pauperis, for appointment of counsel, for
discovery or an evidentiary hearing, and for expedited proceedings are denied because the Court
has denied nearly identical motions in the past, and Plaintiff asserts no new factual allegations or
legal arguments in support of her motions now. [Dkt. 148-1; Dkt. 150-1].
Furthermore, these motions will be denied because the arguments she presents are not
meritorious. Specifically, Plaintiff is not eligible for in forma pauperis status because she has
triggered the “three strikes” provision of section 1915(g) of the Prison Litigation Reform Act of
1995, Pub. L. No. 104-134, 110 Stat. 1321-66 to 77 (codified at 11 U.S.C. § 523; 18 U.S.C. §§
3624, 3626; 28 U.S.C. §§ 1346, 1915, 1915A, 1932; 42 U.S.C. §§ 1997−1997h), and has not shown
“imminent danger of serious physical injury” such that she would be entitled to an exception to
the statute.5 See 28 U.S.C. § 1915(g); see also Fleming v. Ratliff, 235 F.3d 1341, WL 1672906, at

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Here, Plaintiff claims that she was “found to be in imminent danger in accordance with Section 1915(g)” in Fleming
v. United States, No. 7:17-cv-0009, (N.D. Tex. filed Feb. 3, 2017), and “remains under attack from LGBTQ male and
female inmates who allege they are transgender persons . . . because the defendants in the other case have not removed
male inmates from the women’s federal prisons.” [Dkt. 148-1 at 1–2]. However, Plaintiff’s case in Texas is unrelated
to her FOIA case before this Court. Moreover, Plaintiff is no longer incarcerated in that Texas prison. See Minute
Entry dated Apr. 20, 2018 (as of this date it appears Plaintiff is incarcerated at the Federal Correctional Institute in
Hazelton, West Virginia). In a letter filed with the Court on June 21, 2018, Plaintiff asserted that she was being
“beaten and tortured” in the West Virginia facility in which she is currently incarcerated. [Dkt. 157]. The Court
forwarded Plaintiff’s letter to the U.S. Attorney's Office for the Northern District of West Virginia and the Federal
Bureau of Investigation Field Office in Pittsburgh, Pennsylvania, and ordered a response from Defendants. See Minute
Entry dated June 22, 2018. In response, Defendants disputed all of Plaintiff’s claims and asserted that “Plaintiff later
denied that she had been abused and claimed she did not fear for her safety at Hazelton.” [Dkt. 160 at 2]. It is now
clear that, between the dates of May 31, 2018, and June 25, 2018, Plaintiff has made those same allegations repeatedly
in a case pending in the Northern District of West Virginia. See Fleming v. Warden of SFF Hazelton, Case No. 5:18cv-43 (N.D. W. Va.), ECF Nos.14 (alleging that prison officials have mistreated Plaintiff); 20 (alleging that prison
officials have denied Plaintiff access to the courts); 25 (alleging beating and torture at the hands of prison officials);

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*1 (5th Cir. 2000) (per curiam) (unpublished table disposition) (barring Plaintiff from “proceeding
IFP in any civil action or appeal brought in a United States court unless she is under imminent
danger of serious physical injury”). Similarly, even if Plaintiff were eligible for appointment of
counsel under section 1915(e)(1),6 each of the factors in Local Civil Rule 83.11(b)(3) weigh
against appointment of counsel in this case. 28 U.S.C. 1915(e)(1); D.D.C. Civ. R. 83.11(b)(3). As
for discovery, it is rarely granted in FOIA cases and Plaintiff has not adequately shown that
Defendants have acted in bad faith such that granting discovery would be justified here. See
Voinche v. FBI, 412 F. Supp. 2d 60, 71−72 (D.D.C. 2006). Finally, Plaintiff has not shown good
cause under 28 U.S.C. § 1657(a) such that expediting proceedings in this case would be
appropriate. Thus, as all of Plaintiff’s proposed motions are both meritless and duplicative of those
that have been denied by the Court in the past, permission to file them will be denied.
Plaintiff also requests permission to file “document[s] on the status of the Defendant’s
production of records,” that purportedly “will aid in the administration of justice and later reduce

30 (alleging beating in retaliation for lawsuit); 31 (alleging sexual assault by prison officials); 33 (same). As the
Northern District of West Virginia is both the district in which Plaintiff is held and the district in which this alleged
conduct occurred, that is a more appropriate venue in which to present these claims. See Minute Entry dated June 29,
2018. Plaintiff has also failed to show that the imminent danger alleged has any connection to her FOIA case before
this Court. See McFadden v. U.S. Dep’t of Justice, 270 F. Supp. 3d 82, 87−90 (D.D.C. 2017) (revoking the plaintiff’s
in forma pauperis status because he violated section 1915(g)’s three strikes provision, and noting that “[m]ultiple
decisions from this district . . . as well decisions in every circuit to have resolved the issue, agree that § 1915(g)
requires some nexus between the imminent danger asserted by the prisoner and the cause of action the prisoner seeks
to litigate IFP”); see also Asemani v. U.S. Citizenship & Immigration Servs., 797 F.3d 1069, 1074 (D.C. Cir. 2015)
(quoting Pinson v. Samuels, 761 F.3d 1, 5 (D.C. Cir. 2014)) (“[T]he availability of the imminent danger exception
turns on ‘whether the prisoner is under imminent danger of serious physical injury when he bring[s] his action,’ not
‘whether he later in fact suffers’ (or earlier suffered) such a threat.”). Accordingly, since Plaintiff has three strikes
and has failed to show that she is in imminent danger of serious physical injury related to her FOIA case, she does not
qualify for section 1915(g)’s exception, and her motion to proceed in forma pauperis is denied.
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Some courts interpret the language in section 1915(g)—“In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section . . .”—to bar prisoners who trigger its three strikes provision
from receiving any benefit under section 1915, including appointment of counsel under section 1915(e)(1). See, e.g.,
Brightwell v. Lehman, 637 F.3d 187, 192 & n.6 (3d Cir. 2011). In the D.C. Circuit, the decision of whether to appoint
counsel ultimately lies within the district court’s discretion. See Debrew v. Atwood, 792 F.3d 118, 131 n.*** (D.C.
Cir. 2015) (“Some circuit courts have held a prisoner who is ineligible to proceed in forma pauperis under 28 U.S.C.
§ 1915(g) is therefore also ineligible to obtain appointed counsel under 28 U.S.C. § 1915(e)(1) . . . We leave to the
district court to decide in the first instance whether it may appoint counsel under § 1915(e)(1) or any other authority.”).

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the litigation in the case.” [Dkt. 151 at 1]. The documents in question are a FOIA request letter
from Plaintiff dated March 17, 2015, which includes an excerpt from the indictment in her criminal
case in the Southern District of Texas [Dkt. 151-1 at 4−7]; a letter from Defendant Hugh Gilmore,
Director of Freedom of Information Group, dated April 10, 2018, id. at 8−9; additional FOIA
findings referenced by Mr. Gilmore in his April 10 letter, id. at 10; and previous records released
to Plaintiff in response to her prior FOIA requests, id. at 11−21. Because filing these documents
on their own is unnecessary and serves only to clutter the docket, Plaintiff’s motion for permission
to file status documents will be denied. Plaintiff may, of course, attach newly obtained documents
related to her FOIA request as exhibits to a future opposition or cross-motion for summary
judgment in support of her argument that Defendants’ FOIA searches remain inadequate.
Finally, in the interest of the “sound and orderly administration of justice,” Urban, 768
F.2d at 1500, Plaintiff is warned that filing future motions (including motions for permission to
file motions) that are duplicative or repetitive of motions that have previously been filed and denied
by the Court, or that address claims other than those at issue in this current action, will result in
those motions being summarily dismissed.7
For the foregoing reasons, it is hereby

7

Plaintiff was issued similar warnings in United States v. Fleming by both the district court, Criminal Action H–07–
513–01, 2017 WL 3411920, at *2 (S.D. Tex. June 1, 2017) (“Defendant is warned that her persistent abuse of the
judicial system by raising arguments or claims that have been raised and addressed in her prior motions or proceedings
before this Court . . . will result in this Court's imposition of sanctions against her, including, but not limited to,
monetary penalties and limitations on her ability to file further lawsuits, motions, or pleadings. Moreover, Defendant's
continued conduct in pursuing frivolous or repetitive filings regarding the same subject matter will subject her to
additional and progressively more severe sanctions.”), and by the Fifth Circuit, 694 F. App’x 349 (5th Cir. 2017)
(“Fleming is WARNED that frivolous, repetitive, or otherwise abusive filings will invite the imposition of sanctions,
including dismissal, monetary sanctions, and restrictions on her ability to file pleadings in this court and any court
subject to this court's jurisdiction.”).

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ORDERED that Plaintiff’s Motion for Permission to File Pleadings [Dkt. 148], Motion
for Leave to File Motion to Expedite Proceedings [Dkt. 150], and Motion for Leave to File Status
Document [Dkt. 151] are DENIED.
SO ORDERED.
G. Michael Harvey
2018.07.24 12:07:53
-04'00'
__________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE

Date: July 24, 2018

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