Fleming v. Medicare Freedom of Information Group et al

Filing 55

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Adopting 47 Report and Recommendation; Granting 33 Motion to Transfer/Change Venue filed by Hugh Gilmore, Medicare Freedom of Information Group, Susan Gerson, Other Unknown DOJ Officials, Depa rtment of Justice, Albert A Balboni, Mary Jane Collard, Vendetta Dutton; Denying 54 Motion to Stay filed by Rhonda Fleming (Written Opinion). Signed by Senior Judge David S. Doty on 7/13/2015. (PJM) Modified text on 7/13/2015 (LEG). cc: Rhonda Fleming.

Download PDF
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Civil No. 15-594(DSD/HB) Rhonda Fleming, Plaintiff, ORDER v. Medicare Freedom of Information Group; Hugh Gilmore; Vendetta Dutton; Mary Jane Collard; Department of Justice; Susan Gerson; Albert A. Balboni; and Other Unknown DOJ Officials, all in their individual and official capacities, Defendants. Rhonda Fleming, #20446-009, FCI Waseca, P.A. Box 1731, Waseca, MN 56093, pro se. Gerald Wilhelm, Assistant U.S. Attorney, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, counsel for defendants. This matter is before the court upon the objections by pro se plaintiff Rhonda Fleming to the June 24, 2015, report recommendation (R&R) of Magistrate Judge Hildy Bowbeer. and The magistrate judge recommends that the court transfer this Freedom of Information Act (FOIA) case to the United States District Court for the District of Columbia. Fleming raises several objections to the R&R. The court reviews the R&R de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b). After a thorough review of the file and record, the court finds that the R&R is well-reasoned and correct. Pursuant to 5 U.S.C. § 552(a)(4)(B), the venue for a FOIA claim is proper in the district in which the complainant resides, in which the agency records are located, or in the District of Columbia. The R&R concludes that the venue in this district is improper because it is neither the place of Fleming’s residence nor where the agency records are located. Fleming argues that even if the records are not physically located here, they are accessible electronically and therefore present in this district for purposes of FOIA. Fleming fails to provide factual support or legal authority for this proposition, however, and the court finds none.1 Further, the record supports the conclusion that the documents at issue are physically located outside this district. See Gilmore Decl. ¶ 6 (declaring that none of the records requested by Fleming can be found in the District of Minnesota); Balboni Decl ¶ 5(same). Fleming next argues that the R&R incorrectly concludes that the place of her imprisonment, Waseca, Minnesota, is not her residence. As stated in the R&R, involuntary 1 and temporary Fleming argues that her court records, including her presentence investigation report, are all accessible electronically. She is incorrect. The court here does not have the ability to access sealed documents filed in another district. 2 detention is insufficient to establish residence in the district of incarceration. Brimer v. Levi, 555 F.2d 656, 657 (8th Cir. 1997). Fleming lastly argues that the interests of justice require the case to remain here. The court disagrees. The interests of justice are best served by allowing the case to proceed elsewhere rather than dismissing it entirely for improper venue. Fleming also argues that the case should remain here because she has moved to amend the complaint to raise a claim of actual innocence under 28 U.S.C. § 2241. That motion has not been granted, however, and Fleming is free to file a new action brought under § 2241 in the appropriate district. The court’s decision to transfer the case does not affect that right. As a result, the R&R appropriately recommends transferring this case to the United States District Court for the District of Columbia. After submitting her objections to the R&R, Fleming filed a motion to stay her FOIA claim so that she may proceed under § 2241. As noted, however, the court has not granted Fleming the required leave to amend her complaint to include a claim under § 2241. a result, the court denies the motion to stay. As Accordingly, IT IS HEREBY ORDERED that 1. The R&R [ECF No. 47] is adopted in its entirety; 2. The objections to the R&R [ECF No. 52] are overruled; 3. The motion to transfer venue [ECF No. 33] is granted; 3 4. The case is transferred to the United States District Court for the District of Columbia; 5. The motion to stay [ECF No. 54] is denied; and 6. The remaining pending motions [ECF Nos. 4, 11, 19, 22, 26, 40, 41, and 53] are denied as moot without prejudice. Dated: July 13, 2015 s/David S. Doty David S. Doty, Judge United States District Court 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?