United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
a Freedom of Information Act (“FOIA”) case in
which Plaintiff seeks records related to her criminal
conviction for health care fraud in the Southern District of
Texas. Though Plaintiff's ultimate goal appears to be to
prove that she is actually innocent of these crimes, the
single claim before this Court is the adequacy of
Defendants' FOIA searches. Because Plaintiff is a
prolific filer, in 2016 the Court required her to obtain
permission from the Court before making new filings in this
case, and reminded her of that obligation most recently on
May 25, 2018. Thereafter, in a span of eleven days, Plaintiff
filed three Motions for Permission to File Pleadings, in
which she requests permission to file a “Motion to
Proceed In Forma Pauperis/Appointment of
Counsel” and “Motion for Evidentiary
Hearing/Discovery” [Dkt. 148-1], a “Motion to
Expedite Proceedings” [Dkt. 150-1], and a “Motion
to File Status Document” [Dkt. 151-1]. Defendants'
opposition to all three motions was filed on June 7,
2018. [Dkt. 154]. For the reasons that follow,
all of Plaintiff's Motions for Permission to File
Pleadings will be denied.
2010, Plaintiff was convicted in the Southern District of
Texas on 67 counts of Medicare-related health care fraud and
related offenses in connection with her submission of
fraudulent claims to Medicare using supplier numbers
purchased from Hi-Tech Medical Supply and First Advantage
Nursing. See Judgment, United States v.
Fleming, No. 4:07-cr-513 (S.D. Tex. Feb. 8, 2010), ECF
No. 626. Plaintiff alleges that she was not provided with
Medicare billing records during her criminal trial. [Dkt. 1
at 1-2]. In May 2014, she filed FOIA requests with the
Medicare Freedom of Information Group (“MFIG”)
and the Executive Office of U.S. Attorneys
(“EOUSA”). Id. at 2. Dissatisfied with
Defendants' response, Plaintiff filed a Complaint in the
United States District Court for the District of Minnesota
alleging that Defendants failed to release records within the
scope of her FOIA requests and seeking a declaratory
judgment, damages, and attorney's fees for various
alleged violations of her civil rights, including claims
asserting that the prosecution fabricated evidence at her
criminal trial. Id. at 3-4. All of Plaintiff's
Bivens and due process claims were dismissed by the
District of Minnesota. See Dkt. 15 at 3-4.
case was transferred to this Court in July 2015. See
Dkt. 56. The single claim before this Court is
Plaintiff's FOIA claim. See Dkt. 122 at 2.
Plaintiff has been a prolific and duplicative filer, which
resulted in an order dated September 1, 2016, requiring her
to seek permission from the Court before filing motions in
this case (the “September 1, 2016 Order”). Minute
Entry dated Sept. 1, 2016. Most recently, she has filed the
following submissions relevant to this motion: “Motion
for Appointment of Counsel” and “Motion for Video
Conference Evidentiary Hearing” [Dkt. 58 (denied at
Dkt. 97)]; “Motion for Writ of Ad Testificandum”
[Dkt. 67 (denied at Dkt. 97)]; “Motion for
Discovery” [Dkt. 68 (denied at Dkt. 97)]; “Motion
for Appointment of Counsel” and “Motion to
Proceed In Forma Pauperis” [Dkt. 70 (denied at
Dkt. 97)]; “Motion to Expedite Recognition” [Dkt.
77 (denied at Dkt. 97)]; “Motion for Evidentiary
Hearing” [Dkt. 88 (denied at Dkt. 122)]; “Motion
for Partial Summary Judgment” [Dkt. 88 (denied at Dkt.
122)]; “Motion for Appointment of Counsel” [Dkt.
110 (denied at Dkt. 123)]; and “Motion for Leave to
File Pleadings, ” which included a “Motion for
Appointment of Counsel” [Dkt. 118]. The Court denied
this last motion on the grounds that the Court had previously
denied Plaintiff's request for appointment of counsel and
because Plaintiff at the time had another motion for
appointment of counsel pending before the Court. Minute Entry
dated Jan. 23, 2017.
November 16, 2017, the undersigned issued a Report and
Recommendation that recommended granting in part and denying
in part Defendants' motion for summary judgment and
denying Plaintiff's motion for partial summary judgment
(the “November 2017 R&R”). [Dkt. 122 at
27-28]. That Report and Recommendation was adopted by
District Judge Emmet G. Sullivan on June 6, 2018. [Dkt. 152].
Also pending before the Court is Plaintiff's
“Motion for Relief from Two Judgments Pursuant to Rule
60(d)(3) and the All Writs Act” [Dkt. 136], which will
be addressed by the undersigned in a separate report and
recommendation [Dkt. 162]. Pursuant to the September 1,
2016 Order, the Court now considers Plaintiff's motions
for permission to file pleadings. [Dkt. 148; Dkt. 150; Dkt.
district courts should respond to prolific pro se
litigants with “determination and imagination, ”
In re Green, 669 F.2d 779, 786 (D.C. Cir. 1981),
“the court has an obligation to protect and preserve
the sound and orderly administration of justice, ”
Urban v. United Nations, 768 F.2d 1497, 1500 (D.C.
Cir. 1985) (quoting In re Martin-Trigona, 737 F.2d
1254, 1262 (2d Cir. 1984)). To serve this obligation, a
district court may “enjoin litigants who abuse the
court system.” Tripati v. Beaman, 878 F.2d
351, 352 (10th Cir. 1989) (per curiam). See
also 28 U.S.C. § 1651(a) (“[A]ll courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.”).
Litigiousness alone does not rise to the level of abuse,
however. The court should also take into account both the
“number and content of . . . filings, and the effect of
those filings on the agencies and the district court.”
In re Powell, 851 F.2d 427, 433-34 (D.C. Cir. 1988).
“Faced with a situation where its docket [is] burdened
and defendants [are] being called upon to answer multiple,
impenetrable [pleadings], a district court [may be] justified
in taking action.” Pavilonis v. King, 626 F.2d
1075, 1079 (1st Cir. 1980).
before the Court are Plaintiff's motions for permission
to file a motion to proceed in forma pauperis [Dkt.
148-1], a motion for appointment of counsel [Dkt. 148-1], a
motion for an evidentiary hearing or discovery [Dkt. 148-1],
a motion to expedite proceedings [Dkt. 150-1], and a motion
to file status documents [Dkt. 151-1]. In this action,
Plaintiff has twice filed motions to proceed in forma
pauperis [Dkt. 2; Dkt. 70], both of which were denied by
the Court. See Dkt. 3 at 4; Dkt. 97 at 18. Plaintiff
has filed five motions for appointment of counsel [Dkt. 41;
Dkt. 58; Dkt. 70; Dkt. 110; Dkt. 118], all of which were
denied by the Court. See Dkt. 55 at 4; Dkt. 97 at
18; Dkt. 123 at 3; Minute Entry dated Jan. 23, 2017.
Plaintiff has filed six motions for discovery or evidentiary
hearings [Dkt. 4; Dkt. 41; Dkt. 58; Dkt. 68; Dkt. 88; Dkt.
119], all of which were denied by the Court. See
Dkt. 55 at 4; Dkt. 97 at 18; Dkt. 122 at 28; Minute Entry
dated Jan. 23, 2017. Finally, Plaintiff has filed three
motions for expedited proceedings [Dkt. 11; Dkt. 26; Dkt.
77], all of which were denied by the Court. See Dkt.
55 at 4; Dkt. 97 at 18. Accordingly, Plaintiff's motions
for leave to file motions to proceed in forma
pauperis, for appointment of counsel, for discovery or
an evidentiary hearing, and for expedited proceedings are
denied because the Court has denied nearly identical motions
in the past, and Plaintiff asserts no new factual allegations
or legal arguments in support of her motions now. [Dkt.
148-1; Dkt. 150-1].
these motions will be denied because the arguments she
presents are not meritorious. Specifically, Plaintiff is not
eligible for in forma pauperis status because she
has triggered the “three strikes” provision of
section 1915(g) of the Prison Litigation Reform Act of 1995,
Pub. L. No. 104-134, 110 Stat. 1321-66 to 77 (codified at 11
U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28
U.S.C. §§ 1346, 1915, 1915A, 1932; 42 U.S.C.
§§ 1997-1997h), and has not shown “imminent
danger of serious physical injury” such that she would
be entitled to an exception to the statute. See 28
U.S.C. § 1915(g); see also Fleming v. Ratliff,
235 F.3d 1341, WL 1672906, at *1 (5th Cir. 2000) (per
curiam) (unpublished table disposition) (barring
Plaintiff from “proceeding IFP in any civil action or
appeal brought in a United States court unless she is under
imminent danger of serious physical injury”).
Similarly, even if Plaintiff were eligible for appointment of
counsel under section 1915(e)(1),  each of the factors in Local
Civil Rule 83.11(b)(3) weigh against appointment of counsel
in this case. 28 U.S.C. 1915(e)(1); D.D.C. Civ. R.
83.11(b)(3). As for discovery, it is rarely granted in FOIA
cases and Plaintiff has not adequately shown that Defendants
have acted in bad faith such that granting discovery would be
justified here. See Voinche v. FBI, 412 F.Supp.2d
60, 71-72 (D.D.C. 2006). Finally, Plaintiff has not shown
good cause under 28 U.S.C. § 1657(a) such that
expediting proceedings in this case would be appropriate.
Thus, as all of Plaintiff's proposed motions are both
meritless and duplicative of those that have been denied by
the Court in the past, permission to file them will be
also requests permission to file “document[s] on the
status of the Defendant's production of records, ”
that purportedly “will aid in the administration of
justice and later reduce the litigation in the case.”
[Dkt. 151 at 1]. The documents in question are a FOIA request
letter from Plaintiff dated March 17, 2015, which includes an
excerpt from the indictment in her criminal case in the
Southern District of Texas [Dkt. 151-1 at 4-7]; a letter from
Defendant Hugh Gilmore, Director of Freedom of Information
Group, dated April 10, 2018, id. at 8-9; additional
FOIA findings referenced by Mr. Gilmore in his April 10
letter, id. at 10; and previous records released to
Plaintiff in response to her prior FOIA requests,
id. at 11-21. Because filing these documents on
their own is unnecessary and serves only to clutter the
docket, Plaintiff's motion for permission to file status
documents will be denied. Plaintiff may, of course, attach
newly obtained documents related to her FOIA request as
exhibits to a future opposition or cross-motion for summary
judgment in support of her argument that Defendants' FOIA
searches remain inadequate.
in the interest of the “sound and orderly
administration of justice, ” Urban, 768 F.2d
at 1500, Plaintiff is warned that filing future motions
(including motions for permission to file motions) that are
duplicative or repetitive of motions that have previously
been filed and denied by the Court, or that address claims