                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
WILLIE LEE DAVIS GETER,              )
                                     )
      Plaintiff,                     )
                                     )
      v.                             ) Civil Action No. 08-1863 (RWR)
                                     )
CYNTHIA SYDNOR et al.,               )
                                     )
      Defendants.                    )
____________________________________)

                              FINAL MEMORANDUM ORDER

       Plaintiff Willie Lee Davis Geter filed this pro se complaint under the Freedom of

Information Act, 5 U.S.C. § 552 (“FOIA”). Defendants filed a motion to dismiss the complaint

or to grant summary judgment. By Order dated December 11, 2008, the plaintiff was advised of

his obligations to respond to the motion, and was warned that failure to respond by January 22,

2009 could result in facts alleged by the defendant being treated as admitted and the motion

being treated as conceded. Because the plaintiff has not responded, the facts set forth in the

defendants’ statement of material facts will be treated as admitted, as authorized by Local Civil

Rule 7(h), and the complaint will be dismissed for failure to state a claim upon which relief may

be granted.

       Along with the dispositive motion, the defendants filed a statement of material facts

supported by a sworn statement by an agency official. The statement of material facts

establishes, among other things, that defendants responded to the plaintiff’s FOIA request by

letter, advising that they did not maintain the records plaintiff was seeking and further advising

him of the his appeal rights. (Def.’s Stmt. of Mat. Facts ¶¶ 7-8.) The statement of material facts
also establishes that the plaintiff did not pursue his appeal rights. (Id. ¶ 9.) Because a

precondition of filing a civil action filed under the FOIA is the prior exhaustion of administrative

remedies, the complaint in this action fails to state a claim upon which relief may be granted.

See Jones v. U.S. Dep’t of Justice, 576 F. Supp. 2d 64, 66 (D.D.C. 2008) (stating that failure to

exhaust in a FOIA case “is properly the subject of a motion brought under Rule 12(b)(6) for

failure to state a claim upon which relief may be granted.”). Accordingly, it is hereby

       ORDERED that the motion to dismiss the complaint be, and hereby is, GRANTED. The

complaint is DISMISSED for failure to state a claim upon which relief may be granted. 28

U.S.C. § 1915(e)(2)(B)(ii).

       This is a final, appealable order. See Fed. R. App. P. 4.

       SIGNED this 9th day of February, 2008.


                                                                /s/
                                                       RICHARD W. ROBERTS
                                                       United States District Judge




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