Kelly v. Judge Advocate General of the Navy et al
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,
CASE NO. 12-3067-SAC
JUDGE ADVOCATE GENERAL
OF THE NAVY, et al.,
O R D E R
This civil action was filed pro se by an inmate of the United
States Disciplinary Barracks, Fort Leavenworth, Kansas.
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.
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).
The statutory fee for filing a civil action in federal court is
Plaintiff has filed a Notice that has been liberally
construed as him Motion to Proceed Without Prepayment of Fees (Doc.
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
authorized by 28 U.S.C. § 1915(b)(2).
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
immediately preceding the date of filing of a civil action.
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.
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
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).
Nevertheless, a pro se
averments are insufficient to state a claim upon which relief can be
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
court “will not supply additional factual allegations to round out
a plaintiff’s complaint or construct a legal theory on a plaintiff’s
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
The court accepts all well-pleaded allegations in the
complaint as true.
Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.
“[W]hen the allegations in a complaint, however true, could
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
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.
enforceable in court, to federal agency records, subject to nine
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).
“Vaughn index” is often used for reviewing the agency’s decision on
a request for information.
Anderson, 907 F.2d at 942.
index is a compilation prepared by the agency . . . listing each of
the withheld documents and explaining the asserted reason for its
Id. at 940, n.3 (citing see Vaughn, 484 F.2d at
defendants under the FOIA.
However, FOIA governs requests made for
records of a federal agency.
796 (10th Cir. 2009).
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.
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.
court has no jurisdiction over claims that state law has been
State law claims must be filed in the appropriate state
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
these steps have been properly completed, is it time for a plaintiff
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
In addition, plaintiff alleges no facts which establish that
this court has personal jurisdiction over any of the six defendants,
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).
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
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
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.
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
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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