Kelly v. Judge Advocate General of the Navy et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted twenty (20) days in which to submit to the court an initial partial filing fee of $22.50. Any objection to this order must be filed on or before the date payment is due. The failure to pay th e fees as required herein may result in dismissal of this action without prejudice. Within the same twenty-day period, plaintiff is required to show cause why this action should not be dismissed for failure to state a claim for relief in federal court under FOIA. Signed by Senior District Judge Sam A. Crow on 6/4/2012. (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
This civil action was filed pro se by an inmate of the United
States Disciplinary Barracks, Fort Leavenworth, Kansas.

Plaintiff

names several defendants, none of whom appears to be a federal
agency. He seeks an order requiring defendants to provide “a detail
justification for allegations contained in the Defendant’s Answer”
that “the requested documents are exempt from disclosure under the
Freedom of Information Act, 5 U.S.C. § 552.”

He also seeks an

itemization and index of the documents claimed to be exempt.

He

entitles his initial pleading “Motion under Vaughn v. Rosen to
Require Detail Indexing, Justification and Itemization,” citing
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974).

FILING FEE
The statutory fee for filing a civil action in federal court is
$350.00.

Plaintiff has filed a Notice that has been liberally

construed as him Motion to Proceed Without Prepayment of Fees (Doc.
2).

He has also submitted an affidavit in support (Doc. 3) and

financial information in support (Doc. 4).

Under 28 U.S.C. §

1915(b)(1), a plaintiff granted such leave remains obligated to pay
the full fee of $350.00 for filing a civil action.

He is merely

entitled to proceed without prepayment of the full fee, and instead
is required to pay the filing fee over time through payments
deducted

automatically

from

his

inmate

authorized by 28 U.S.C. § 1915(b)(2).

trust

fund

account

as

Furthermore, § 1915(b)(1),

requires the court to assess an initial partial filing fee of twenty
percent of the greater of the average monthly deposits or average
monthly

balance

in

the prisoner’s

account

for

the

six

months

immediately preceding the date of filing of a civil action.

Having

examined the records of plaintiff’s account, the court finds that
the average monthly deposit to plaintiff’s account for the relevant
time period was $112.50, and the average monthly balance was $70.66.
The court therefore assesses an initial partial filing fee of
$22.50, twenty percent of the average monthly deposit, rounded to
the lower half dollar.

Plaintiff must pay this initial partial

filing fee before this action may proceed further, and will be given
time to submit the fee to the court.

His failure to submit the

initial fee in the time allotted may result in dismissal of this
action without further notice.

SCREENING
Because Mr. Kelly is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)
2

and

(b);

28

U.S.C.

§

1915(e)(2)(B).
A court liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

Nevertheless, a pro se

without

supporting

factual

averments are insufficient to state a claim upon which relief can be
based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The

court “will not supply additional factual allegations to round out
a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”
1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
The court accepts all well-pleaded allegations in the

complaint as true.
2006).
not

Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.

“[W]hen the allegations in a complaint, however true, could

raise

appropriate.

a

claim

of

entitlement

to

relief,”

dismissal

is

Bell Atlantic Corp. V. Twombly, 550 U.S. 554, 558

(2007). The complaint must offer “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.”
Id. at 555.

Having screened all materials filed, the court finds

that the complaint is subject to being dismissed for the following
reason.

DISCUSSION
Plaintiff names as defendants “Judge Advocate General of the
Navy;” Robert E. Treuting, Doctor, Jefferson Parish Forensic Center;
Pat Brown, Director, McCrone Associates, Inc.; Louis D. Hunt, Jr.,
Doctor, North Carolina State University; FNU LNU (1), Chief of
Police, Raleigh Police Department; and FNU LNU (2), President,
University of Missouri-Columbia.
3

The
generally

Freedom

of

provides

Information
that

the

Act

public

(FOIA),
has

a

5

U.S.C.

right

of

§

552,

access,

enforceable in court, to federal agency records, subject to nine
specific exemptions.

Anderson v. Dep’t of Health and Human Servs.,

907 F.2d 936, 941 (10th Cir. 1990); Stewart v. U.S. Dept. Of
Interior, 554 F.3d 1236, 1239 (10th Cir. 2009); 5 U.S.C. 552(b).

A

“Vaughn index” is often used for reviewing the agency’s decision on
a request for information.

Anderson, 907 F.2d at 942.

“A Vaughn

index is a compilation prepared by the agency . . . listing each of
the withheld documents and explaining the asserted reason for its
nondisclosure.”

Id. at 940, n.3 (citing see Vaughn, 484 F.2d at

820).
Plaintiff

purports

to

defendants under the FOIA.

information

from

the

named

However, FOIA governs requests made for

records of a federal agency.
796 (10th Cir. 2009).

seek

See Trentadue v. F.B.I., 572 F.3d 794,

5 U.S.C. § 551(1) clearly defines agency to

which the Act applies as “each authority of the Government of the
United States.” Thus, a complaint under FOIA is not the appropriate
means by which to seek judicial review of a denial of records
requested from sources that are not federal agencies.

Records

maintained by a state agency or individuals employed at state or
local entities are not “federal government information,” and FOIA
does not apply to such records.
public information acts.

States generally have their own

For example, Kansas has the Kansas Open

Records Act (KORA), K.S.A. § 45-215 through 45-223, which governs
public disclosure of records held by state agencies in Kansas.
claim of a violation of the KORA would be a state law claim.

Any
This

court has no jurisdiction over claims that state law has been
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violated.

State law claims must be filed in the appropriate state

court.
The only named defendant in this case that might be associated
with a federal agency is the “Judge Advocate General of the Navy.”
However, under the FOIA, a person seeking information from a federal
agency must first submit a request to the appropriate agency, and
that request must have been denied.1

Furthermore, the person must

have administratively appealed the agency’s denial.2

Only after

these steps have been properly completed, is it time for a plaintiff
to

file

suit

in

defendant/agency

federal
from

court

under

withholding

the

agency

FOIA
records

to

enjoin

or

to

the

order

production of the requested records. Plaintiff does not allege that
he submitted a FOIA request for information to a federal agency.
Nor does he describe what documents or information he requested in
a FOIA request, or provide the agency’s response to his FOIA
request.
In addition, plaintiff alleges no facts which establish that
this court has personal jurisdiction over any of the six defendants,
1

Federal jurisdiction under the FOIA “is dependent on showing that an
agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records’.” United States
Department of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)(quoting Kissinger
v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (1980)).
Unless each of these criteria is met, a district court lacks jurisdiction to force
an agency to comply with FOIA’s disclosure requirements. See 5 U.S.C. § 552; In
re Lucabaugh, 262 B.R. 900 (E.D.Pa. 2000).
If plaintiff has not properly
completed these steps, he cannot establish that any records have been improperly
withheld under FOIA. His case would be legally frivolous, and dismissed under 28
U.S.C. § 1915(e)(2)(B)(i).
2

5 U.S.C. § 552(a)(6)(A)(i) and (ii) require a party to exhaust all
administrative remedies within the federal agency before seeking redress in
federal court.
The record does not indicate that Mr. Kelly filed an
administrative appeal from any denial or partial denial of his FOIA request. “A
court lacks subject matter jurisdiction and must dismiss a FOIA claim if the
plaintiff has failed to exhaust administrative remedies.” Barvick v. Cisneros,
941 F.Supp. 1015, 1018 FN3 (D.Kan. 1996)(citing see Trenerry v. I.R.S., 78 F.3d
598, 1996 WL 88459, *1 (10th Cir. 1996); Lanter v. Department of Justice, 19 F.3d
33, 1994 WL 75876, *1 (10th Cir. 1994); Voinche v. F.B.I., 999 F.2d 962, 963 (5th
Cir. 1993)).

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all of whom appear to be residents of states other than Kansas.
Plaintiff is given time to show cause why this action should
not be dismissed for failure to state a claim in federal court under
the cited statutory authority and for lack of jurisdiction.

If he

fails to show good cause within the time allotted, this action may
be dismissed without further notice.
IT IS THEREFORE ORDERED that plaintiff is granted twenty (20)
days in which to submit to the court an initial partial filing fee
of $ 22.50.

Any objection to this order must be filed on or before

the date payment is due.

The failure to pay the fees as required

herein may result in dismissal of this action without prejudice.
IT IS FURTHER ORDERED that within the same twenty-day period,
plaintiff is required to show cause why this action should not be
dismissed for failure to state a claim for relief in federal court
under FOIA.
IT IS SO ORDERED.
Dated this 4th day of June, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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