Kelly v. Judge Advocate General of the Navy et al
Filing
10
ORDER ENTERED: Plaintiff's motion 2 for leave to proceed without prepayment of fees is granted. This action is dismissed without prejudice for lack of jurisdiction. Signed by Senior District Judge Sam A. Crow on 12/18/2012. (Mailed to pro se party Detric A. Kelly by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DETRIC A. KELLY,
Plaintiff,
v.
CASE NO. 12-3067-SAC
JUDGE ADVOCATE GENERAL
OF THE NAVY, et al.,
Defendants.
O R D E R
On June 4, 2012, the court screened the complaint filed
herein and issued an order requiring plaintiff to pay an initial
partial filing fee and to show cause why this action should not
be dismissed for reasons stated in the screening order.
noted
in
that
order,
plaintiff
sought
an
order
As
requiring
defendants to provide “a detail justification” for allegations
that “requested documents are exempt from disclosure under the
Freedom
of
Information
Act,
5
U.S.C.
§
552”
as
well
as
an
itemization and index of the documents claimed to be exempt.
Plaintiff paid the initial partial filing fee as ordered and has
filed
a
Response
with
several
exhibits
attached.
Having
considered all the material filed, the court finds that this
1
action must be dismissed for lack of jurisdiction.
“The Freedom of Information Act (FOIA) vests jurisdiction
in federal district courts to enjoin an agency from withholding
agency records and to order the production of any agency records
improperly withheld from the complainant.”
Kissinger v. Reports
Committee for Freedom of the Press, 445 U.S. 136, 139 (1980).
“[T]he
only
agency.”
proper
defendant
in
a
FOIA
action
is
a
federal
Abuhouran v. Nicklin, 764 F.Supp.2d 130, 133 (D.D.C.
2011)(quoting Isasi v. Jones, 594 F.Supp.2d 1,4 (D.D.C. 2009),
aff’d 2010 WL 2574034 (C.A.D.C. 2010)); Scherer v. U.S., 241
F.Supp.2d 1270, 1278 (D.Kan.), aff’d 78 Fed.Appx. 687 (10th Cir.
2003).
In the screening order, the court found that the only
named defendant in this case
even
associated with a federal
agency was the “Judge Advocate General of the Navy,” and that
plaintiff
alleged
no
facts
establishing
that
this
court
has
personal jurisdiction over this defendant or any of the other 5
named defendants, all of whom appeared to be residents of states
other than Kansas.
Mr. Kelly has not amended his complaint to
name a federal agency as defendant.
The court dismisses this
action against all defendants that are not a federal agency
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim.
In addition, the court notes that plaintiff’s own exhibits
of responses to his requests for records provide that the agency
does not have control over at least some of the records he
2
seeks.
Most importantly, in his Response, Mr. Kelly alleges no
additional facts and makes no legal argument establishing that
this court has jurisdiction over his FOIA request.
5 U.S.C. §
552(B) provides in pertinent part:
On complaint, the district court of the United States
in the district in which the complainant resides, or
has his principal place of business, or in which the
agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production
of any agency records improperly withheld from the
complainant.
Plaintiff does not allege that he is a Kansas resident.
He is
not a resident of Kansas simply by virtue of his confinement in
this state.
agency
Nor does he allege any facts indicating that the
records
he
seeks
are
situated
in
Kansas.
To
the
contrary, he provides exhibits that he has sought these records
from officials located in states other than Kansas.
The court
concludes that plaintiff has failed to show that this court has
jurisdiction over his FOIA request.
Accordingly, this action is
dismissed, without prejudice, for lack of jurisdiction.
IT
IS
THEREFORE
BY
THE
COURT
ORDERED
that
plaintiff’s
Motion for Leave to Proceed without Prepayment of Fees (Doc. 2)
is granted, and that plaintiff is hereby assessed the remainder
of
the
filing
fee
of
$350.00,
to
be
paid
in
installments
automatically deducted from his inmate account pursuant to 28
3
U.S.C. § 1915(b)(2).
plaintiff
is
The Finance Office at the Facility where
currently
incarcerated
is
directed
to
collect
monthly payments from plaintiff’s account and pay them to the
clerk of the court in the amount of twenty percent (20%) of the
prior month’s income each time the amount in plaintiff’s account
exceeds
filing
ten
fee
dollars
($10.00)
obligation
has
until
been
paid
plaintiff’s
in
full.
outstanding
Plaintiff
is
directed to cooperate fully with his custodian in authorizing
disbursements
to
satisfy
the
filing
fee,
including
but
not
limited to providing any written authorization required by the
custodian or any future custodian to disburse funds from his
account.
IT
IS
FURTHER
ORDERED
that
this
action
is
dismissed,
without prejudice, for lack of jurisdiction.
The clerk is directed to send a copy of this order to the
finance
office
at
the
institution
in
which
plaintiff
currently confined and to the court finance office.
IT IS SO ORDERED.
Dated this 18th day of December, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
4
is
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