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McFadden v. U.S. Department of Justice

United States District Court, District of Columbia

September 7, 2017




         Plaintiff Reginald McFadden is currently serving a sentence at the Attica Correctional Facility in New York for murder, rape, robbery and kidnapping. Proceeding pro se, he brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking to compel the Department of Justice to release various records relating to laboratory tests and other assistance provided by the FBI to local law enforcement authorities in the course of their investigation of these crimes.

         In October 2015, the Court granted McFadden's motion for leave to proceed in forma pauperis (“IFP”). Dkt. 5. Approximately a year later, the Department moved to dismiss, or, in the alternative, for summary judgment, arguing that it had complied with its obligations under FOIA. Dkt. 26. Before ruling on that motion, however, the Court noted that McFadden had accumulated well in excess of three “strikes” within the meaning of 28 U.S.C. § 1915(g). Dkt. 32. The Court, accordingly, ordered that McFadden show cause on or before May 30, 2017, why his IFP status should not be rescinded. Id. In response, he argues that the Court should disregard some or all of his strikes and that, in any event, he should be permitted to proceed IFP because he is under “imminent danger of serious physical injury” due to an alleged failure of prison officials to treat his Hepatitis C. Dkt. 33 (citing § 1915(g)).

         Although seeking to invoke the “imminent danger” exception, McFadden does not contend that this FOIA action bears any connection to his medical condition. Accordingly, this case presents the question-unresolved to date by the D.C. Circuit-whether the “imminent danger” exception requires a nexus between the litigation in which the plaintiff seeks IFP status and the asserted imminent threat to his or her physical well-being. For the reasons explained below, the Court concludes that the exception is not available under these circumstances. Accordingly, the Court will VACATE its earlier order permitting McFadden to proceed IFP and will REVOKE his IFP status. If McFadden wishes to continue to pursue this action, he is ORDERED to pay the filing fee in full on or before October 10, 2017.

         I. BACKGROUND

         McFadden's FOIA complaint against the Department seeks “records . . . of [forensic evidence] test results” from “three . . . separate criminal cases” that “were prosecuted” against him in the 1990s. Dkt. 1 at 1 (Compl.). He alleges that he submitted a FOIA request to the FBI to obtain these records but that the Department failed to “repl[y] or compl[y] with” its obligations under FOIA. Id. at 2.

         McFadden did not pay the Court's standard $400.00 filing fee in full at the time he initiated this action; rather, he applied for IFP status, see Dkt. 2, which, under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), would permit him to “pay [a $350.00] filing fee in installments over time, ” Asemani v. USCIS, 797 F.3d 1069, 1072 (D.C. Cir. 2015) (citing 28 U.S.C. § 1915(a)(1), (b)). In support of his IFP application, McFadden attested that he “suffer[ed] from extreme poverty, ” Dkt. 2 at 2, and he attached his prisoner account statement indicating that he carried a balance of only $2.15, Dkt. 3 at 1. On October 28, 2015, the Court granted his application to proceed IFP, excusing him from the payment of any “initial partial filing fee” and ordering that he pay “twenty percent” of his monthly income towards the “balance of the $350.00 filing fee” so long as the “amount in [his] account exceed[ed] $10[.00].” Dkt 5 at 1-2. To date, the Court has not received any partial payments from McFadden.

         The Department answered McFadden's complaint, Dkt. 13, and began searching for records potentially responsive to his FOIA request in early 2016, see Dkt. 20 at 1. After some back-and-forth over the payment of fees associated with document production, see Minute Orders (June 14, 2016; June 21, 2016), the Department processed 322 pages of responsive records, releasing 67 pages in full, releasing 161 pages in part, and withholding 94 pages in full, see Dkt. 26-1 at 2 (Hardy Decl. ¶ 4). The Department mailed its “final release” of responsive records to McFadden in August 2016. Dkt. 25 at 1. It subsequently moved to dismiss or, in the alternative, for summary judgment, arguing that it had “fulfilled its obligations under [FOIA] in all respects.” Dkt. 26 at 3. McFadden filed a timely opposition to that motion. See Dkt. 28.

         Although the Department did not raise the issue in its motion, on April 17, 2017, the Court issued an order directing that McFadden show cause why the Court's earlier order granting him IFP status should not be vacated under 28 U.S.C. § 1915(g)'s “three-strikes rule.” Dkt. 32. The Court explained that the three-strikes rule bars a prisoner from proceeding IFP if he has, “on [three] or more prior occasions, while incarcerated[, ] . . . brought an action . . . that was dismissed on the grounds that it was frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” Id. at 1-2 (quoting § 1915(g)). The Court further noted that the rule does not bar a prisoner with three strikes from accessing the federal courts, but, instead, “requires a prisoner who otherwise qualifies for IFP status to pay the full filing fee at the time of filing suit rather than in installments.” Id. at 2 (quoting Asemani, 797 F.3d at 1072). The Court then identified five orders from other district courts that all classified McFadden as ineligible for IFP status under the three-strikes rule, [1] id. at 2-3; identified “two additional ‘strikes'” from its “own review of the PACER database, ”[2] id. at 3; and ordered that McFadden show cause why “his IFP status should not be rescinded under 28 U.S.C. § 1915(g)” or, alternatively, whether he “should be permitted to proceed with []his action IFP because he ‘is under imminent danger of serious physical injury, '” id. (quoting § 1915(g)).

         McFadden responded to the Court's order on May 1, 2017, with a series of arguments as to why his IFP status should not be revoked, see Dkt. 33 at 1-3 (discussed infra), including the contention that he qualified for the “imminent danger” exception to the three-strikes rule because he was suffering from “denial” of “[H]ep[atitis] C treatment.” Dkt. 33 at 1-2. In light of McFadden's filing, the Court ordered the Department to respond and, specifically, sought briefing on whether “the ‘imminent danger' exception applies even where the complaint does not seek relief related to the imminent danger.'” Minute Order (May 2, 2017). In its response, the Department stated that the “Court ha[d] correctly noted that [McFadden] has had far more tha[n] the requisite three strikes, ” Dkt. 34 at 1; it attached a “compilation of several docket reports generated through PACER” depicting “a fraction of the actions” brought by McFadden that qualified as strikes, id. at 1-2 n.3; and it argued that, because McFadden's “action under FOIA” was “wholly unconnected to the allegations of danger” that he raised in his response to the Court's order, he should not be permitted to assert the “imminent danger exception, ” id. at 4.

         II. ANALYSIS

         A. Three Strikes

         Under 28 U.S.C. § 1915(g), a dismissal constitutes a “strike” if a court concludes that the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” Here, the Department has identified seven federal actions filed by McFadden that it asserts were dismissed on one or more of these grounds, [3] see 34-1, the Court has identified two others, see Dkt. 32 at 3, and McFadden does not dispute that the Western, Northern, and Eastern Districts of New York have all identified at least three of his complaints that meet this standard, see id at 2- 3; see also Dkt. 33. Rather than contest that he has three strikes under the PLRA, McFadden offers three reasons why those strikes should not be considered by the Court. See Dkt. 33.

         First, McFadden asserts that two of the courts that specifically cited his prior strike history as grounds for dismissing his complaints “misunderstood [his] complaint[s'] allegations.” Id. at 1. But whether the Western and Northern Districts of New York “misunderstood” the complaints at issue in those cases has no bearing on the ...

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