UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RHONDA FLEMING, Plaintiff,

v. MEDICARE FREEDOM OF INFORMATION GROUP, et al.

Defendants. Civil Action No. 1:15-cv-01135 (EGS/GMH)

MEMORANDUM OPINION AND ORDER This is a Freedom of Information Act (“FOIA”) case in which Pl aintiff seeks records

related to her criminal convicti on for health car e fraud in the Southern District of Texas. Though Plaintiff’s ultimate goal appears to be to prove that she is ac tually innocent of these crimes, the single claim before this Court is the adequacy of Defendants’ F OIA searches. Because Plaintiff is a prolific filer, in 2016 the Court required her to obtain perm ission from the Court before making new filings in this case, and re minded her of that obligation m ost recently on May 25, 2018. Thereafter, in a span of eleven days, Plaintiff filed three Mot ions 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 Eviden tiary Hearing/Discovery” [Dkt. 1 48-1], a “Motion to Expedite Proceedings” [Dkt. 150-1], and a “Motion to File Status Documen t” [Dkt. 151-1]. 1 Defendants’

1 The docket entries relevant to this memorandum opinion are: ( 1) Plaintiff’s Complaint [Dkt. 1]; (2) the November 2017 Report & Recommendation [Dkt. 122]; (3) Plaintiff’s “Motio n for Relief from Two Judgments Pursuant to Rule 60(d)(3) and the All Writs Act” [Dkt. 136]; (4) Defendants’ Opp osition to Plaintiff’s Motion for Two Judgments [Dkt. 145]; (5) Plaintiff’s Reply to Defendants’ Opposition [Dkt. 149 ]; (6) Plaintiff’s “Motion to Proceed In Forma Pauperis /Appointment of Counsel” and “Motion for Evidentiary Hearing/Di scovery” [Dkt. 148-1]; (7) Plaintiff’s “Motion to Expedite Proceedings” [Dkt. 150-1]; (8) Plaintiff’s “Motion to File Status Document” [Dkt. 151-1]; and (9) Defendants’ Opposition [Dkt. 154]. All citations to page n umbers within a particular document will be to the ECF docket page numbers assigned to the document.2 opposition to all three motions was filed on June 7, 2018. 2 [Dkt. 154]. For the reasons that follow,

all of Plaintiff’s Motions for Permission to File Pleadings wil l be denied.

I. BACKGROUND In 2010, Plaintiff was convicted in the Southern District of Te xas on 67 counts of Medicarerelated health care fraud and related offenses in connection wi th her submission of fraudulent claims to Medicare using supplier numbers purchased from Hi-Tec h 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 provide d 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 Defe ndants’ response, Plaintiff fileda Complaint in the United States District Court for the District of Minnesota alleging that Defe ndants failed to release records within the scope of her FOIA requests and seeking a declaratory judgme nt, damages, and attorney’s fees for various alleged violations of her civil rights, including c laims 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. The 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, requ iring her to seek permission from the Court before filing motions i n this case (the “September 1, 2016 Order”). Minute Entry dated Sept. 1, 2016. Most recently, she has filed the following subm issions relevant to this motion: “Motion for Appointment of Counsel ” and “Motion for Video Confe rence Evidentiary Hearing”

2 As of the date of this memorandum opinion, Plaintiff has not f iled a reply to Defendant s’ opposition [Dkt. 154].3 [Dkt. 58 (denied at Dkt. 97)]; “Motion for Writ of Ad Testifica ndum” [Dkt. 67 (denied at Dkt. 97)]; “Motion for Discovery” [Dkt . 68 (denied at Dkt. 97)]; “Mo tion 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 Evident iary Hearing” [Dkt. 88 (denied at Dkt. 122)]; “Motion for Partial Summary Judgment” [Dkt. 88 (den ied at Dkt. 122)]; “Motion for Appointment of Counsel” [Dkt. 11 0 (denied at Dkt. 123)]; and “M otion 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 d enied Plaintiff’s request for appointment of counsel and because Plaintiff at the time had an other motion for appointment of counsel pending before the Court . Minute Entry dated Jan. 23, 2017. On November 16, 2017, the undersigned issued a Report and Recom mendation that recommended granting in part a nd denying in part Defendants’ mo tion for summary judgment and denying Plaintiff’s motion for partial summary judgment (the “N ovember 2017 R&R”). [Dkt. 122 at 27–28]. That Report and Recommendation was adopted by Distr ict 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 recommend ation 3 [Dkt. 162]. Pursuant to the September 1, 2016 Order, the Court now considers Plaintiff’ s motions for permission to file pleadings. 4 [Dkt. 148; Dkt. 150; Dkt. 151].

3 When a “pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement” is referred to a magistrate judge, the analysis ta kes the form of a Report and Recommendation. Fed. R. Civ. P 72(b)(1), (3); see also 28 U.S.C. § 636(b).

4 Pursuant to Rule 72 of the Federal Rules of Civil Procedure, a magistrate judge may rule on non-dispositive matters referred to him in an Order; th e referring district judge will set aside any part of the Order to which objections have been filed only if it is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b).4 II. LEGAL STANDARD Although district courts shoul d 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 obligat ion to protect and preserve the sound a nd orderly administration of ju stice,” 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 “e njoin 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 iss ue all writs necessary or appropriate in aid of their resp ective jurisdictions and agreea ble to the usages and principles of law.”). Litigiousness alone does not rise to the level of abus e, 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 docke t [is] burdened and defendants [are] being called upon to answer multiple, impenetrable [pleadings], a district court [may be] j ustified in taking action.” Pavilonis v. King , 626 F.2d 1075, 1079 (1st Cir. 1980).

III. DISCUSSION Presently before the Court are Plaintiff’s motions for permissi on 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 expe dite 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 whi ch were denied by the Court. See Dkt. 3 at 4; Dkt. 97 at 18. Plaintiff has filed five motions for appo intment of counsel [Dkt. 41; Dkt. 58; Dkt. 70; Dkt. 110; Dkt. 118], all of which were denied by the C ourt. See Dkt. 55 at 4; Dkt. 97 at5 18; Dkt. 123 at 3; Minute Entr y 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 file d 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 proceedi ngs are denied because the Court has denied nearly identical moti ons in the past, and Plaintiff asserts no new factual allegations or legal arguments in support of he r motions now. [Dkt. 148-1; Dkt. 150-1]. Furthermore, these motions will be denied because the arguments she presents are not meritorious. Specifically, Pl aintiff is not eligible for in forma pauperis status because she has triggered the “three strikes” p rovision of section 1915(g) of t he Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 to 77 (codified at11 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 woul d be entitled to an exception to

the statute. 5 See 28 U.S.C. § 1915(g); see also Fleming v. Ratliff , 235 F.3d 1341, WL 1672906, at

5 Here, Plaintiff claims that she was “found to be in imminent d anger in accordance with Section 1915(g)” in Fleming v. United States , No. 7:17-cv-0009, (N.D. Tex. filed Feb. 3, 2017), and “remain s under attack from LGBTQ male and female inmates who allege they are transgender persons . . . be cause the defendants in the other case have not removed male inmates from the women’s federal prisons.” [Dkt. 148-1 at 1–2]. However, Plaintiff’s case in Texas is unrelated to her FOIA case before this Court. Moreover, Plaintiff is no longer incarcerated in that Texas prison. See Minute Entry dated Apr. 20, 2018 (as of this date it appears Plaintiff is incarcerated at the Federal Correctional Institute in Hazelton, West Virginia). In a letter filed with the Court on June 21, 2018, Plaintiff asserted that she was being “beaten and tortured” in the West Virginia facility in which sh e is currently incarcerated. [Dkt. 157]. The Court forwarded Plaintiff’s letter to the U.S. Attorney's Office for the Northern District of West Virginia and the Federal Bureau of Investigation Field Office in Pittsburgh, Pennsylvani a, and ordered a response from Defendants. See Minute Entry dated June 22, 2018. In response, Defendants disputed al l of Plaintiff’s claims and a sserted that “Plaintiff later denied that she had been abused and claimed she did not fear fo r her safety at Hazelton.” [Dkt. 160 at 2]. It is now clear that, between the dates of May 31, 2018, and June 25, 201 8, Plaintiff has made those same allegations repeatedly in a case pending in the Northe rn District of West Virginia. See Fleming v. Warden of SFF Hazelton , Case No. 5:18- cv-43 (N.D. W. Va.), ECF Nos.14 (alleging that prison officials have mistreated Plaintiff); 20 (alleging that prison officials have denied Plaintif f access to the courts); 25 (alle ging beating and torture at the hands of prison officials);6 *1 (5th Cir. 2000) ( per curiam ) (unpublished table disposition) (barring Plaintiff from “proc eeding IFP in any civil action or appeal brought in a United States co urt unless she is under imminent danger of serious physical injury”). Similarly, even if Plaint iff were eligible for appointment of counsel under section 1915(e)(1), 6 each of the factors in Local Civil Rule 83.11(b)(3) weigh against appointment of counsel i n 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 faithsuch 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 proceeding s 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 C ourt in the past, permission to f ile them will be denied. Plaintiff also requests permission to file “document[s] on the status of the Defendant’s production of records,” that purportedly “will aid in the admin istration of justice and later reduce

30 (alleging beating in retaliation for lawsuit); 31 (alleging sexual assault by prison officials); 33 (same). As the Northern District of West Virginia is both the district in whic h Plaintiff is held and the district in which this alleged conduct occurred, that is a more a ppropriate venue in which to present these claims. See Minute Entry dated June 29, 2018. Plaintiff has also failed to show that the imminent dang er alleged has any connection to her FOIA case before this Court. See McFadden v. U.S. Dep’t of Justice , 270 F. Supp. 3d 82, 87−90 (D.D.C. 2017) (revoking the plainti ff’s in forma pauperis status because he violated section 1915(g)’s three strikes pro vision, and noting that “[m]ultiple decisions from this district . . . as well decisions in every c ircuit to have resolved the issue, agree that § 1915(g) requires some nexus between the imminent danger asserted by the prisoner and the cause of action the prisoner seeks to litigate IFP”); see also Asemani v. U.S. Citizenship & Immigration Servs. , 797 F.3d 1069, 1074 (D.C. Cir. 2015) (quoting Pinson v. Samuels , 761 F.3d 1, 5 (D.C. Cir. 2014)) (“[T]he availability of the i mminent danger exception turns on ‘whether the prisoner is under imminent danger of seri ous physical injury when he bring[s] his action,’ not ‘whether he later in fact suffers’ (or earlier suffered) such a threat.”). Accordingly, since Plaintiff has three strikes and has failed to show that she is in imminent danger of seriou s physical injury related to her FOIA case, she does not qualify for section 1915(g)’s exception, and her motion to proc eed in forma pauperis is denied.

6 Some courts interpret the language in section 1915(g)—“In no e vent shall a prisoner bring a civil action or appeal a judgment in a civil action or p roceeding under this section . . .”—to bar prisoners who trigger its three strikes provision from receiving any benefit under section 1915, in cluding appoin tment of counsel under section 1915(e)(1). See, e.g., Brightwell v. Lehman , 637 F.3d 187, 192 & n.6 (3d Cir. 2011). In the D.C. Circuit, the decision of whether to appoint counsel ultimately lies within the district court’s discretion. See Debrew v. Atwood , 792 F.3d 118, 131 n.*** (D.C. Cir. 2015) (“Some circuit courts have held a prisoner who is in eligible to proceed in form a pauperis under 28 U.S.C. § 1915(g) is therefore also ineligible to obtain appointed coun sel under 28 U.S.C. § 1915(e)(1) . . . We leave to the district court to decide in the first instance whether it may appoint counsel under § 1915(e)(1) or any other authority.”).7 the litigation in the case.” [Dkt. 151 at 1]. The documents i n 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 l etter from Defendant Hugh Gilmore, Director of Freedom of Information Group, dated April 10, 2018, id. at 8−9; additional FOIA findings referenced by Mr. Gilm ore 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 dock et, Plaintiff’s motion for permission to file status documents will be denied. Plaintiff may, of cou rse, 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 searc hes remain inadequate. Finally, in the interest of the “sound and orderly administrati on of justice,” Urban , 768 F.2d at 1500, Plaintiff is warned that filing future motions (i ncluding motions for permission to file motions) that are duplicativ e or repetitive of motions tha t have previously been filed and denied by the Court, or that address claims other than those at issue in this current action, will result in those motions being summarily dismissed. 7 For the foregoing reasons, it is hereby

7 Plaintiff was issued similar warnings in United States v. Fleming by both the district court, Criminal Action H–07– 513–01, 2017 WL 3411920, at *2 (S.D. Tex. June 1, 2017) (“Defen dant is warned that her persistent abuse of the judicial system by raising argum ents or claims that have been r aised and addressed in her prior motions or proceedings before this Court . . . will result in this Court's imposition of sanctions against her, including, but not limited to, monetary penalties and limitations on her ability to file furth er lawsuits, motions, or pleadings. Moreover, Defendant's continued conduct in pursuing frivolous or repetitive filings r egarding the same subject matter will subject her to additional and progressively more severe sanctions.”), and by t he Fifth Circuit, 694 F. App’x 349 (5th Cir. 2017) (“Fleming is WARNED that frivo lous, repetitive, or otherwise ab usive filings will invite the imposition of sanctions, including dismissal, monetary sanctions, and restrictions on he r ability to file pleadings in this court and any court subject to this court's jurisdiction.”).8 ORDERED that Plaintiff’s Motion for Permission to File Pleadings [Dkt. 148], Motion for Leave to File Motion to Expedite Proceedings [Dkt. 150], an d Motion for Leave to File Status Document [Dkt. 151] are DENIED

. SO ORDERED.

Date: July 24, 2018

__________________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE J UDGE