### PaulAdams Rush, Plaintiff, 

### v. UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Civil Action No. FederalBureau ofInvestigation, Defendant.
MEMORANDUM OPINION 

# FILED MAY 2f 

## 2009 Clerk, U.S. District and Bankruptcy Courts

## O~ 

# 0955

The plaintiffis a prisonerwho has filed apro se complaint and an application to proceed informapauperis. The application will be granted and the complaint dismissed for failure to state a claim upon which reliefmay be granted. 28 U.S.C. 

### § 1915A(b)(1). The complaint and the documents attached thereto establish that plaintifffiled a request withthe Federal Bureau ofInvestigation ("FBI") in Washington, D.C., for information under the Freedom ofInformationAct ("FOIA"), 5 U.S.C. 

### § 552. The agency responded, saying a search ofcentral files had produced no responsive documents, and advising the plaintiffthat 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 plaintiffthat he could file an appeal and where to do so. On March 19, 2009 plaintiffmailed his request to the HFO, and mailed a second request on April 6, 2009. Thispro se complaint was signed by plaintiffon 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 ofany such request whether to comply with such request and shall immediately notify the person making such request ofsuch determination and the reasons therefor, and ofthe right ofsuchperson to appeal to the head ofthe agency any adverse determination." 5 U.S.C. 

### § 552(a)(6)(A)(i). The lawprovides thatthree 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 whenthe HFO received the request, itis a virtual certainty that it received the request on Friday, March 20,2009, at the very earliest. (It is more likelythatthe HFO did not receive the request until Monday, March 23 or later.) Even assuming thatthe request was received by the HFO on March 20, the HFO had through Friday, April 17, 2009 to make its determination, after which itwas required to "immediately" notify the plaintiffofits determination, and then communicate its determination by mail, including a notification to plaintiffofhis right to an administrative appeal from the HFO's determination. "Exhaustion ofadministrative remedies is generally required before seekingjudicial review" in a FOIA case. Wilbur v. C.IA., 355 F.3d 675,677 (D.C. Cir. 2004) (quoting Oglesby
v. 

### Dep't a/theArmy, 920 F.2d 57,61 (D.C. Cir. 1990». "Although exhaustion ofaFOIA request is notjurisdictional
... , still 'as ajurisprudential doctrine, failure to exhaustprecludes judicial review ifthe purposes ofexhaustion 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 ofthe complaint and the documents attached thereto, that the plaintiffdid not exhaust his administrative remedies

- 2 -before filing this action, the complaintwill be dismissed withoutprejudice pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which reliefmay be granted. A separate order accompanies this memorandum opinion.

Date: 

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