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.

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

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