                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 JUSTIN CREDICO,

                Plaintiff,

         v.
                                                            Civil Action No. 15-1127 (RDM)
 DEPARTMENT OF HOMELAND
 SECURITY,

                Defendants.


                             MEMORANDUM OPINION AND ORDER

       Plaintiff Justin Credico, a pro se prisoner, brings this action under the Freedom of

Information Act (“FOIA”) against Defendant Department of Homeland Security (“DHS”),

seeking to compel a response to his FOIA request. In lieu of answering, DHS filed a motion to

dismiss or, in the alternative, for summary judgment, explaining that it never received Plaintiff’s

FOIA request and that, accordingly, Plaintiff failed to exhaust his administrative remedies. The

Court then discovered that there was reason to believe Plaintiff had three strikes under the Prison

Litigation Reform Act and ordered the parties to file supplemental briefs on that issue.

Defendant provided citations demonstrating that Plaintiff had indeed accumulated three strikes,

while Plaintiff argued that the three-strikes rule is unconstitutional. Having considered the

relevant issues, the Court concludes that the three-strikes rule is constitutional as-applied to

Plaintiff’s case and that it bars him from proceeding in forma pauperis because he has

accumulated three strikes in previous litigation. This case is, accordingly, DISMISSED without

prejudice.
                                      I.      BACKGROUND

       Under the Prison Litigation Reform Act (“PLRA”), a court may authorize the

commencement of an action without requiring the prepayment of the filing fee—known as

proceeding in forma pauperis, or “IFP”—if the prisoner submits both an affidavit demonstrating

that he is unable to pay the fee and a certified copy of his prison trust fund account statement for

the preceding six months. See 28 U.S.C. § 1915(a). This does not absolve the prisoner of

responsibility to pay the filing fee, but it permits the Court to “assess and, when funds exist, [to]

collect, as a partial payment of any court fees required by law, an initial partial filing fee”

calculated in accordance with the statute. Id. § 1915(b)(1). Subsequent monthly payments are

deducted from the prisoner’s trust account. Id. § 1915(b) (2). Where a prisoner is unable to

make even installment payments, however, the PLRA still permits the prisoner to bring suit

under “a ‘safety valve’ provision,” which directs that “‘[i]n no event shall a prisoner be

prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no

means by which to pay the initial partial fee.’” Thomas v. Holder, 750 F.3d 899, 904 (D.C. Cir.

2014) (Tatel, J., concurring) (quoting 28 U.S.C. § 1915(b)(4)).

       At issue here is the so-called “three-strikes rule,” which bars prisoners from proceeding

under these provisions “if the prisoner has, on 3 or more prior occasions, while incarcerated or

detained in any facility, brought an action . . . dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g).




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There is a statutory exception to the rule if the prisoner is “under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g). 1

       Plaintiff in the present case is a pro se prisoner who brought an action under FOIA, 5

U.S.C. § 552. He alleges that he submitted a FOIA request to DHS but received no response.

See Dkt. 1 at 5. At the time Plaintiff filed this action, he also filed a motion for leave to proceed

IFP pursuant to the PLRA. See Dkt. 2. This Court granted him leave to so proceed on July 15,

2015, directed that he pay an initial, partial filing fee of $3.54, directed that he pay 20% of his

income credits from the preceding month to his trust fund account, and required that he make the

remaining payments each time his trust fund account exceeds $10 until the remaining balance of

the $350.00 filing fee is satisfied. See Dkt. 4.

       DHS moved to dismiss or, in the alternative, for summary judgment, arguing that

Plaintiff had not exhausted his administrative remedies because DHS had never received his

FOIA request. See Dkt. 10 at 5. Plaintiff, in turn, moved for a subpoena duces tecum, asking the

Court to order production of a copy of his prison’s mail logbook, which would allegedly prove

that he had indeed sent his FOIA request. See Dkt. 8 at 1. Plaintiff has since cross-moved for

summary judgment as well. See Dkts. 17–18. In the course of considering these motions, the

Court reviewed an unpublished opinion from the Third Circuit that indicated that Plaintiff had

previously conceded that he had accumulated three strikes under 28 U.S.C. § 1915(g). See

Credico v. BOP FDC Warden of Philadelphia, 592 Fed. App’x 55, 56 (3rd Cir. 2014). In light



1
  The D.C. Circuit has also recognized that the three-strikes rule does not apply to certain actions
brought in habeas corpus, as habeas petitions are not considered “civil actions” for purposes of
the PLRA. See Blair-Bey v. Quick, 151 F.3d 1036, 1039–42 (D.C. Cir. 1998). This exception
carve-out does not apply, however, to habeas actions challenging prison conditions, which
remain subject to the PLRA’s filing-fee requirements. See id. at 1042; cf. Thomas, 750 F.3d at
905 (Tatel, J., concurring).

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of this information, the Court ordered the parties to “address whether this case should be

dismissed without prejudice on the grounds that Plaintiff has ‘three strikes’ under 28 U.S.C. §

1915(g).” Feb. 2, 2016, Minute Order. The Court further provided that, in the alternative,

“Credico may pay the filing fee on or before [March 2, 2016].” Id. The parties each timely

responded to the Court’s order. See Dkts. 20, 21. 2

        The Court now concludes that Plaintiff is subject to the three-strikes bar and thus can

proceed only if he pays the entire filing fee. Because he has not done so, the Court must dismiss

the complaint without prejudice.

                                       II.     DISCUSSION

        The government has demonstrated that Credico has accumulated three strikes. See

Credico v. Milligan, 544 F. App’x 46, 48 (3d Cir. 2013) (“[W]e will dismiss Credico's appeal as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it does not have an arguable basis in

fact or law.”); Credico v. Unknown Official for U.S. Drone Strikes, 537 F. App’x 22, 23 (3d Cir.

2013) (“Accordingly, we hold that this appeal is frivolous, and will dismiss it pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).”); Credico v. CEO Idaho Nat. Lab., 461 F. App’x 78, 79 (3d Cir.

2012) (same). This alone is sufficient to establish that Credico may not proceed without paying

the filing fee in its entirety. As a result, the Court need not review all 54 cases identified by the

government in which Plaintiff has appeared as a plaintiff, petitioner, or intervenor. See Dkt. 21

at 3; Dkt. 21-1 at 2.

        Plaintiff does not dispute that he has three strikes. Instead, he argues that the three-

strikes rule is unconstitutional because it inhibits his access to the courts. See Dkt. 20 at 6–7.



2
  Plaintiff also filed a “Reply” to the Court’s order. See Dkt. 22. The Court did not grant leave
for either party to file reply briefs in response to the Court’s February 2, 2016, Minute Order, but
it did review the filing and concludes that it raises no new arguments that need to be addressed.
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“Courts have confronted, in diverse settings,” the question whether financial barriers to litigation

meet constitutional muster, M.L.B. v. S.L.J., 519 U.S. 102, 110 (1996) (internal quotation marks

omitted), and has held that “in certain situations, a litigant is constitutionally entitled to a waiver

of filing fees,” Asemani v. USCIS, 797 F.3d 1069, 1076 (D.C. Cir. 2015). “The primary

circumstance in which the Constitution requires waiver of court fees is when an indigent person

challenges his criminal conviction.” Id. Beyond that, the Supreme Court has “recognized a

narrow category of civil cases in which the [government] must provide access to its judicial

processes without regard to a party’s ability to pay court fees.” M.L.B., 519 U.S. at 113. That

category, however, is limited to cases involving “fundamental interest[s],” like the interest in

“establishing or dissolving a marriage,” id. at 114–15, or the interest in challenging the

termination of parental rights, id. at 128. But, “[a]bsent a fundamental interest or classification

attracting heightened scrutiny,” the government’s “need for revenue to offset the expense of its

court system” provides sufficient justification to enforce fee requirements. Id. at 115–116. As a

result, “a constitutional requirement to waive a court fee in civil cases is the exception, not the

general rule,” id. at 114; it does not, for example, extend to fees required to obtain a bankruptcy

discharge, see United States v. Kras, 409 U.S. 434, 446–48 (1973), or to litigation brought

challenging the termination of welfare benefits, see Ortwein v. Schwab, 410 U.S. 656, 659–61

(1973) (per curiam).

        Most recently, the D.C. Circuit applied these principles to an action brought in federal

district court seeking to compel the U.S. Citizenship and Immigration Service to grant the

plaintiff a hearing on the denial of his application for naturalization. See Asemani, 797 F.3d at

1076. As here, the district court initially granted the plaintiff’s IFP application but subsequently

concluded that he did not qualify in light of the PLRA’s three-strikes rule. Id. at 1073. The



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plaintiff there challenged the merits of that decision and also argued, as Plaintiff does here, that

the PLRA was unconstitutional as applied to his case. Id. Notwithstanding the substantial

interest that immigrants may have in naturalization, the D.C. Circuit held that the PLRA was

constitutional as-applied. As the Court observed, naturalization “lacks many of the indicators

that the [Supreme] Court has found important in delimiting the ‘narrow category of civil cases in

which the State must provide access to its judicial processes without regard to a party’s ability to

pay court fees.’” Id. at 1078 (quoting M.L.B., 519 U.S. at 113). The immigration process, the

Court explained, does not directly “‘control[] or intrud[e] [up]on family relationships.’” Id.

(quoting M.L.B., 519 U.S. at 116). It is not “‘quasi criminal in nature.’” Id. (quoting M.L.B.,

519 U.S. at 116). And, “like bankruptcy discharge[s]” and “welfare benefits,” it “involves a

discretionary benefit conferred by statute.” Id.

       The same result applies here with even greater force. The right to obtain records under

FOIA exists solely by virtue of statute. It does not implicate any fundamental interest, like

family relationships. Indeed, if anything, Plaintiff’s interest in pursuing his FOIA request

involves an interest less substantial than an interest in obtaining a bankruptcy discharge, welfare

benefits, or a hearing on the denial of a naturalization application—all of which courts have held

are insufficient to trigger a right of access without paying relevant fees. And FOIA is not, by any

stretch, a procedure for challenging a criminal conviction or other wrongful confinement. All

that DHS asserts here, moreover, is that it never received Plaintiff’s FOIA request. Plaintiff

remains free to resubmit his request. Finally, although Plaintiff alludes to a “5th Amendment

property and due process issue,” Dkt. 20 at 4, he has filed only a FOIA claim. Even under the

most liberal reading—as necessary in a case involving a pro se plaintiff—his complaint does not

seek any redress for a Fifth Amendment violation. Plaintiff must do far more than mention a



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Fifth Amendment or due process interest in a supplemental brief to invoke the “narrow”

constitutional right to judicial access without paying court fees. The Court, accordingly, holds

that the PLRA’s three-strikes rule, 28 U.S.C. § 1915(g), is not unconstitutional as applied to

Plaintiff’s FOIA claim.

                                     III.   CONCLUSION

       Because Credico has three strikes under 28 U.S.C. § 1915(g), and because he is not

“under imminent danger of serious physical injury” under that statute, he cannot proceed with his

claim unless he pays the filing fee. His claim is therefore DISMISSED without prejudice.

Because the case is dismissed, the Court need not reach the merits of the case nor consider any

evidence pertaining to the merits. The pending motions, see Dkts. 8, 10, 18, are therefore

DENIED as moot.

       SO ORDERED.



                                                     /s/ Randolph D. Moss
                                                     RANDOLPH D. MOSS
                                                     United States District Judge




Date: March 11, 2016




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