FILED
MAY 2 f 2009
UNITED STATES DISTRICT COURT
Clerk, U.S. District and
FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts
Paul Adams Rush,
Plaintiff,
v. Civil Action No. O~ 0955
Federal Bureau of Investigation,
Defendant.
MEMORANDUM OPINION
The plaintiff is a prisoner who has filed a pro se complaint and an application to proceed
in forma pauperis. The application will be granted and the complaint dismissed for failure to
state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).
The complaint and the documents attached thereto establish that plaintiff filed a request
with the Federal Bureau ofInvestigation ("FBI") in Washington, D.C., for information under the
Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552. The agency responded, saying a search
of central files had produced no responsive documents, and advising the plaintiff that he could
file a request with the appropriate FBI field office, which, in this case was the Houston Field
Office ("HFO"). The FBI's response also advised plaintiff that he could file an appeal and where
to do so. On March 19, 2009 plaintiff mailed his request to the HFO, and mailed a second
request on April 6, 2009. This pro se complaint was signed by plaintiff on April 17,2009, the
date the court uses as the date the complaint was filed under the prison mailbox rule. See
Houston v. Lack, 487 U.S. 266,270-71 (1988).
The FOIA provides that an agency must "determine within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of any such request whether to comply with
such request and shall immediately notify the person making such request of such determination
and the reasons therefor, and of the right of such person to appeal to the head of the agency any
adverse determination." 5 U.S.C. § 552(a)(6)(A)(i). The law provides that three days are added
to the time allowed when a party must act within a specified time. Fed. R.Civ. P. 6(d). Without
knowing exactly when the HFO received the request, it is a virtual certainty that it received the
request on Friday, March 20,2009, at the very earliest. (It is more likely that the HFO did not
receive the request until Monday, March 23 or later.) Even assuming that the request was
received by the HFO on March 20, the HFO had through Friday, April 17, 2009 to make its
determination, after which it was required to "immediately" notify the plaintiff of its
determination, and then communicate its determination by mail, including a notification to
plaintiff of his right to an administrative appeal from the HFO's determination.
"Exhaustion of administrative remedies is generally required before seeking judicial
review" in a FOIA case. Wilbur v. C.IA., 355 F.3d 675,677 (D.C. Cir. 2004) (quoting Oglesby
v. Dep't a/the Army, 920 F.2d 57,61 (D.C. Cir. 1990». "Although exhaustion ofa FOIA
request is not jurisdictional ... , still 'as a jurisprudential doctrine, failure to exhaust precludes
judicial review if the purposes of exhaustion and the particular administrative scheme support
such a bar.'" Id. (quoting Hidalgo v. FB.!, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (other
internal quotation marks and citations omitted). As it is obvious from the face of the complaint
and the documents attached thereto, that the plaintiff did not exhaust his administrative remedies
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before filing this action, the complaint will be dismissed without prejudice pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted.
A separate order accompanies this memorandum opinion.
Date: )5 kj1brf1
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