                                                                                            FILED
                             UNITED STATES DISTRICT COURT                                   AUG 1 8 2009
                             FOR THE DISTRICT OF COLUMBIA
                                                                                      Clerk, U.S. District and
                                                                                        Bankruptcy Courts
Paul Adams Rush,                              )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No.
                                              )                               09 1557
                                              )
Federal Bureau of Investigation,              )
                                              )
               Defendant.                     )




                                   MEMORANDUM OPINION

       This matter is before the Court on plaintiffs pro se complaint and application to proceed

in forma pauperis. The Court will grant the application and will dismiss the case pursuant to 28

U.S.C. § 1915A(b)(1). Under that statute, the Court is required to screen a prisoner's complaint

and dismiss it as soon as feasible if the complaint, among other grounds, fails to state a claim

upon which relief may be granted.

       Plaintiff is a prisoner incarcerated at the Federal Correctional Institution in Bastrop,

Texas, seeking records from the Federal Bureau of Investigation under the Freedom of

Information Act ("FOIA"), 5 U.S.C. § 552. By Order filed on May 21,2009, this Court

dismissed plaintiff s complaint arising from the same set of facts underlying this action because

plaintiff had not exhausted his administrative remedies. See Rush v. Federal Bureau of

Investigation, Civ. Action No. 09-0955 (Memorandum Opinion finding complaint prematurely

filed). Meanwhile, the FBI informed plaintiff on May 11, 2009, that it had located approximately

800 pages of records responsive to his FOIA request and assessed him an approximate

duplication fee of$70.00. Complaint ~ 6 & Exhibit D. Plaintiff responded to the FBI's letter on
May 19,2009, by agreeing to pay the assessed fee. Id. ~ 9 & Exhibit F. Plaintiff initiated this

action after the FBI failed to respond to his "follow up request" of June 18, 2009. Id. ~ 11.

       FOIA claims are premised on an agency's improper withholding of records. See

McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters

Committee for Freedom of the Press, 445 U.S. 136, 150 (1980)) ("federal jurisdiction is

dependent upon a showing that an agency has (1) improperly; (2) withheld; (3) agency records")

(internal quotation marks omitted). As a general rule, a FOIA requester must exhaust his

administrative remedies before filing a lawsuit. See Oglesby v. Dep't of the Army, 920 F.2d 57,

65 (D.C. Cir. 1990). Exhaustion is not a jurisdictional barrier but "as a jurisprudential doctrine,

[the] failure to exhaust precludes judicial review" if a merits determination would undermine the

purpose of permitting an agency to review its determinations in the first instance. Hidalgo v.

FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003). The District of Columbia Circuit therefore has

interpreted the FOIA's exhaustion provisions as "requiring the completion of the administrative

appeal process before courts become involved, if the agency has responded to the request before

suit is filed." Oglesby, 920 F.2d at 65.

       Plaintiff has not permitted the administrative process to be completed by first obtaining

an initial determination of a withholding. See id. at 61 (exhaustion allows "the agency [the]

opportunity to exercise its discretion and expertise on the matter and to make a factual record to

support its decision ... [and] the top managers of an agency to correct mistakes made at lower

levels"). The Court therefore will dismiss the complaint for failure to state a claim. See Hidalgo,

344 F.3d at 1260 (vacating summary judgment and remanding for dismissal of un exhausted




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FOIA claim under Fed. R. Civ. P. 12(b)(6)). A separate Order accompanies this Memorandum

Opinion.




Date: August -.L, 2009




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