                                                                                         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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