Paul Adams Rush, 

Plaintiff, 

v. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Civil Action No. 

Federal Bureau of Investigation, 

Defendant. 

MEMORANDUM OPINION 

FILED 

MAY 2 f 2009 

Clerk, U.S. District and 

Bankruptcy Courts 

O~ 0955 

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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