UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) L ESTER J ON RUSTON, ) ) Plaintiff, ) ) v. ) Civil Action Nos. 10-0869 (PL F) ) 10-0799 (PL F) UNI TED STATES SECRET S ERVI CE, ) 10-0872 (PL F) ) 10-1382 (PL F) Def endant. ) 10-1489 (PL F) ____________________________________)

MEMORANDUM OPI

NI ON This matter, broug ht pro se under the Fr eedom of Information Ac t (“F OIA”) , 5 U.S.C. § 552, is before the Court on de fenda nt’s motion to vacate the or der grantingplaintiff leave to proce ed in forma pauperis (“I FP”) on the basis that he is an a busive filer. U

pon consideration of the motion, plainti ff’ s “omnibus oppositi on,” def endant’ s reply

and plaintiff’ s

surre ply , the Court will gr ant def endants’ motion, re voke plaintiff’ s I FP status and allow 30 da y s for plaintiff to pa

y the $350 filingfee applicable to civil actions. In addition, the Court will 1 enjoin plaintiff from pr ocee ding I FP in any future c ivil actions. Plaintiff is a civil detainee at the B urea u of Prisons’ Springf

ield Medica l Center in Springf ield, Missouri, having be en found not guilty by rea son of insanity

for thre atening

to assault and murde r a f

eder al mag istrate judg e. See U nited States v. Ruston , 565 F.3d 892, 894 (5th Cir. 2009). Whether plaintiff is subjec t to the filing fe e re quirements of the Prison L itigation Refor

m Act (“ PL RA”), c odified at 28 U.S.C. § 1915, has not bee n decide d definitively , but at least one judg e of this Court has dete rmined that he is not. See Ruston v. The Court has stayed the pr ocee dings in the r elated c ases listed above pendingthe 1 resolution of plaintiff’s I FP status.Justice D epartment , No. 06-0224 (RMU) (D.D.C. Mar . 24, 2006) [Dkt. No. 6] (orde r g ranting

application to proc eed in forma pauperis ). The PL RA defines a prisoner a s “any

person 2 incar cer ated or

detained in a

ny fac ility who is acc used of, c onvicted of, se ntence d for, or adjudicate d delinquent for, violations of c riminal law or the te rms [of supervised re lease ]. 28 U.S.C. § 1915(h). Be cause plaintiff is not confined f or any of those re asons – he wa s found not g uilty by rea son of insanity

– the Court ag ree s that he is not subject to the PL RA. See R uston v. Church of Jesus Christ of L atter-Day Saints , 304 Fe d. Appx. 666, 668 (10 Cir. 2008) t h (“A lthough we have ne ver squa rely decide d the issue, other c ourts have f ound that mental patients are not ‘prisoners’ within the meaningof the PL RA when they are confine d as a r esult of beingfound not g uilty

by rea son of insanity .”) ( citations omitt ed). Plaintiff never

theless has be en allowe d to file numerous I FP ca ses in this Court and cour ts throughout the c ountry , and most of his case s have be en dismissed as frivolous or f or failure to state a c laim. See R uston v. Church of Jesus Christ of L atter-Day Saints , 304 Fe d. Appx. at 668 (affirmingthe dismissal of plaintiff’s complaint on the alter native g round of frivolousness); Ruston v. Riggs , No. 08-1178, 2008 WL2705194 (D.D.C. Jul . 8, 2008) (c iting Ruston v. Dallas County , No. 07-1076, 2008 WL 958076 (N. D. Te x . Apr. 9, 2008)) (discussing Ruston's “e x tensive and a busive filing history ,” consisting of “82 pr isoner ac tions nationwide 42 of those in Texas fede ral district cour ts alone” a

nd a re sulting bar

ring order ) (c itation and footnote omitted); see also Ruston v. United States , No. 10-0805, 2010 WL 1960848, n.2

Pursuant to the PL RA, a prisoner may not proce ed in forma pauperis if while 2 incar cer ated he has filed at least three prior ca ses that wer e dismissed as frivolous, malicious, or for f ailure to state a

claim, unless he e stablishes that he is “under imminent dange r of se rious phy sical injury .” 28 U.S.C. § 1915(g ). 2(D.D.C. May 17, 2010) (dismissing c omplaint as frivolous and noting that “this determination is consistent with Ruston's history of delusional thinking.” ); Ruston v. Deitle , No. 09-2039 (D .D.C. Oct. 30, 2009) ( dismiss al on g round of f rivolousness); Ruston v. Riggs , No. 08-1178 (D .D.C. J ul. 8, 2008) (same ); Ruston v. Bush , No. 08-0732 (D .D.C. Apr. 29, 2008), aff’d 298 Fe d. Appx. 16 (D. C. Cir. 2008) (“ The district cour t properly dismiss ed this action as f rivolous pursuant to 28 U.S.C. § 1915(e) (2) (B ), bec ause the alleg ations lack a n arguable ba sis either in law or f act.” ) (citation omitted); Ruston v. Gonzales , No. 06-1160 (D .D.C. J un. 26, 2006) (doc ket entry listi ng “Or der D ismiss ing Ca se With P rejudice as F rivolous”). De fenda nt theref ore a sks this C ourt to exercise its discre tion to revoke plaintiff’ s I FP status on the g round that he ha s abused the privileg e to proc eed IFP. See B utler v. De partment of Justice , 492 F.3d 440, 445 ( D.C. Cir. 2007) (de termining that in manag ing its docke ts, the court’s “ authority to deny I FP status to a prisoner who has abuse d the privileg e is clea r.”) ; Hurt v. Social Sec urity Administrati on , 544 F.3d 308, 310 ( D.C. Cir. 2008) (“I f [the three- strike] rule is appropriate for prisoners, who a re

sever ely limit ed in their a

bility to ear n money to pay filing f ees, sur ely

it is permissibl e for simil arly vexatious non-incarc erated litigants.” ). I n decidingwhether

to revoke plaintiff’s I FP status, the Court considers “ the number, c ontent, fre quency , and disposition of [ his] previous filing s to determine if the re is a pattern of abusing the I FP privileg e in his liti g ation history .” Butler v. De partment of Justice , 492 F.3d at 446. I n doing so, this Court may take judicial notice of, and r ely upon, the ruling s of other c ourts. See M

itchell v. Fe deral Bureau of Prisons , 587 F.3d 415, 418- 19 (D.C. Cir. 2009) (re asoning that “it would make no se nse to disreg ard e vidence that a prisoner who has y et to abuse the privileg e her e has blatantly abused it elsewhere .”). A ccor ding to a PACER print-out,

3plaintiff has filed 178 c ases nationwide since 2001, some on the sa me day and many

within day s of ea ch other

. SeeDef

’s. Mot., Ex . A. B eca

use of his “nume rous frivolous and ve x atious suits, [t he Nor thern District of T exas] barr ed [plaintiff in 2004] from filing any further actions [there] unless he first obtaine d permission to file a civil complaint or pa id the require d filing f ee.” Ruston v. Dallas County , supra , 2008 WL 958076, at *1 (c itation omit ted). When plaintiff filed the lawsuit ag ainst Dallas County in Texas state court, the f eder al def endants re moved the ca se to fede ral c ourt. Id ., at *2. The f eder al cour

t determined that its earlier ba rringorder

did not cover

remove d actions, dismissed the complaint with prejudice as fr ivolous and modified its barring order to prohibit plainti ff “ from proc eedingwith any civil action in this court - whe ther he filed it in this court, he filed it in another c ourt and it was r emoved to this court, or he filed in another fede ral c ourt and it was tra nsfer red to this court - unle ss he obtains from a district judge of this court lea ve to proc eed in this court.” Id ., at *5. I t further direc ted that “[i] f a c ivil action is

remove d or transf

err ed to this court, the ca se will be subject to summary dismiss al unless, within 30 day s of the date of re moval or transf er, Ruston seeks, in wr iting, lea ve fr om a district judge of this court to proce ed in this court.” Id . In addition, the Easter n District of L ouisiana has descr ibed plaintiff as “ a ser ial filer of lawsuits.” Def

.’s’ Mot., Ex. B (Orde r and Rea sons at 1). A sea rch of this Court’s dockets reve als that plaintiff has f iled 21 civil actions here since 2005, the ma

jority of which w ere either tra

nsfer red unde r 28 U.S.C. § 1406(a) or dismiss ed pursua

nt to 28 U.S.C . § 1915(e) prior to assig nment to a district judge . Plaintiff’s

case s that survived the Court’s scr eeningproce ss and, thus were assig ned to a judg e we re f iled under the FOIA. SeeCivil Action Nos. 05-2314 ( RMU), 06-0224 (RMU), 06- 0782 (RMU), 10-0799 (PL F) , 10-0869 (PL F) , 10-0872 (PL F) , 10-1382 (PL F) , 10-1489 (PL F) . More r ece ntly ,
4howeve r, the Court dismissed in scree ning pla intiff’s FO I A complaint ag ainst the Bur eau of

Prisons (“B OP”) be cause it was clea r fr om the complaint that plaintiff had state d no claim. Ruston v. Fede ral Bureau of Prisons , No. 10-0917 (E SH) (D.D.C. June 4, 2010) (Mem. Op. at 2). Plaintiff alleg ed that B OP had not responde d to his request made in 2007, but the complaint attachme nt established the opposite. In dismiss ing the action for failure to state a c laim, J udg e Huvelle made the following observation:

Plaintiff attache s to this complaint a “Certificate of I dentity ” date d April 17, 2010, but he does not state that he completed suc h a for m and returne d it to the ag ency

in response to the le tter of Nove mber 23, 2007. I nstead, plaintiff makes wild, unsubstantiated alleg ations of a c onspiracy involving United States District Judge Rica rdo Urbina

of this Court and other individuals not named in this action. Id . True to f

orm, plaintiff make s simil ar outlandish conspira cy alleg ations in eac h of the pe nding FOIA complaints and, a s discussed below, in his opposition to t he pendingmotion.

Simi lar to the imminent dang er e x ception under Section 1915(g ) of the PL RA, the District of Columbia Circuit recog nizes “an enda ng erme nt exception” in abusive filer case s. Mitchell v. Fe deral Bureau of Prisons , 587 F.3d at 420. But “[a]s with the PL RA,” the da ng er is assessed by

looking at the complaint’s alleg ations. Id . (citing Ibrahim v. District of Columbia , 463 F.3d 3, 6 ( D.C. Cir. 2006)). Plaintiff claims that he is fa cingimminent dange r “due to Calvert and his c o-conspirators soliciting cr ime of violence and ac ts of fra ud ag ainst Plainti ff, including multiple death threats . . . to pre vent his leavingthe United States.” Pl.’s Opp’n at 3. Plaintiff further

claims that he “ has petitioned the United K ingdom f or political asylum, due to multipl e attempts to murder [hi m] , all cover ed up by

Rick Calvert and the district court in Dallas.” Id . Plaintiff identifies Calvert as a n Assistant United States Attorney in Dallas, Texas.

5Id . at 2. Not only are plaintiff’s bizarre acc usations unbelievable, but they have nothing

to do with the defe ndant-a g ency ’s disclosure oblig ations under the F OIA. They there fore provide no basis for a llowing plaintiff to pr ocee d I FP in this FOIA ca se under the enda ng erme nt exception. Ba sed upon plaintiff’s litig ation history , the Court finds that he has a bused the privileg e to proc eed IFP. Acc ording ly , it will (1) gr ant def endant’ s motion t o vaca

te the orde r g rantingleave to proce ed I FP, (2) r evoke pla intiff’s I FP status in all of his pending civil actions, and (3) enjoin plaintiff from pr ocee ding I FP in this Court i n any future c ivil actions. A separ ate Orde r ac companies this Memora ndum Opinion.

/s/_______________________ PAULL . FRI EDMAN DATE: Nove mber 4, 2010 United States District J udg e

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