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 IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PETER HERNANDEZ, 

 Petitioner,

vs. 3:10cv109/WS/MD

UNITED STATES DEPARTMENT

OF JUSTICE, BUREAU OF JUSTICE

PROGRAMS, JUSTICE STATISTICS

DIVISION, 

 Respondent.

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a petition for writ of mandamus directed

to the United States Department of Justice. The government responded by filing a

motion to strike and dismiss, or, in the alternative, motion for summary judgment

(doc. 13). Petitioner has filed a “motion to strike defense as insufficient and for

summary judgment.” (Doc. 18).

In his petition for writ of mandamus, petitioner states that he seeks an order

directing that the Justice Department provide him with information he requested

regarding the relative success rates of Hispanic pro se indigent litigants vis-a-vis the

success rates of white litigants. The defendant has moved to dismiss, claiming that

this court does not have jurisdiction over this matter, and that the complaint fails to

state a claim upon which relief can be granted because the requested materials do

not exist.
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Venue/Jurisdiction

Defendant first argues that jurisdiction is not proper, because at the time

petitioner filed his petition, he was incarcerated at Florida State Prison in Raiford

Florida. Thus, respondent argues, the petition should have been filed in the Middle

District, where Raiford is located.

Venue for civil actions alleging a Freedom of Information Act (“FOIA”)

violation is governed by 5 U.S.C. § 552(a)(4)(B). This section provides:

On complaint, the district court of the United States in the district in

which the complainant resides, or has his principle place of business,

or in which the agency records are situated, or in the District of

Columbia, has jurisdiction to enjoin the agency from withholding

agency records and to order the production of any agency records

improperly withheld from the complainant.

5 U.S.C. § 552(a)(4)(B). Petitioner makes the novel argument that he does not reside

in Raiford, but rather that he resides in the “Florida Department of Corrections,”

which has its principle place of business in Tallahassee, Florida. Therefore, he

concludes, because Tallahassee is within the Northern District of Florida,

jurisdiction is proper in this court.1

 

Actually neither position appears to be correct, as the prisoner petitioner’s

current physical location is not necessarily determinative for purposes of venue. In

Ellingbur v. Connet, 457 F.2d 240, 241 (5th Cir. 1972)2

 the former Fifth Circuit noted

that for purposes of venue, a prisoner does not change his residence to the prison

by virtue of being incarcerated. Similarly, in Urban Indus., Inc. of Ky., v. Thevis, 670

F.2d 981, 986 (11th Cir. 1982), the court concluded that the prisoner retained his

1

Petitioner does not explain why, if he believes his place of residence to be

Tallahassee, he did not file his petition in the Tallahassee Division of this court. 

2

The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), adopted as binding precedent the decisions of the former Fifth

Circuit rendered prior to October 1, 1981.

Case No: 3:10cv109/WS/MD
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Georgia residence despite his incarceration in Indiana. 670 F.2d at 986 (citing

Ellinburg; Brimer v. Levi, 555 F.2d 656, 657-58 (8th Cir. 1977); Kahane v. Carlson, 527

F.2d 492, 494 (2nd Cir. 1975); Cohen v. United States, 297 F.2d 760, 774 (9th Cir.), cert.

denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962)); see also Gutierrez v.

Ornelas, 54 Fed.Appx. 413 (5th Cir. 2002); Simbaqeuba v. U.S. Dept. Of Defense, 2010

WL 2990042 (S.D. Ga. 2010) (report and recommendation citing Ellinbur and Thevis);

Bontkowski v. United States, 2005 WL 2756029 (M.D. Fla. 2005); cf. Roman-Salgado

v. Holder, 730 F.Supp.2d 126 (D.D.C. 2010) (quoting In re Pope, 580 F.2d 620, 622

(D.C. Cir. 1978) (“a prisoner has his residence at his place of confinement”)). 

Although petitioner is currently incarcerated at the Florida State Prison in Raiford,

DOC records indicate that his offenses of conviction occurred in Miami-Dade

county.3

 Thus, petitioner’s residence for venue purposes may actually be in the

Southern District of Florida. Even if dismissal (or transfer) for improper venue is not

warranted, the case should still be dismissed.

Petitioner’s FOIA request 

The crux of petitioner’s claim is that his requests for information on the race

of pro se litigants and the relative “success rate” each group has in pursuing such

litigation have been ignored. The defendant argues that when petitioner requested

the information through the Bureau of Justice Statistics in 2009, that office

responded in writing promptly through its clearinghouse,4

 within seven days, of his

request. The July 27, 2009 letter suggested the title of a publication that might be

of interest to petitioner and advised of the applicable shipping and copying rates

3

http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=1&From=list&SessionID=1068716613.

4

The National Criminal Justice Reference Service (“NCJRS”) is the clearinghouse

for the Bureau, and when the Bureau receives FOIA requests, it forwards them to the

NCJRS to respond. (Doc. 13, att. 1, ¶¶6-8).

Case No: 3:10cv109/WS/MD
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along with the requirement that any order be pre-paid. (Doc. 1 at 32).5 The record

does not suggest that petitioner ever ordered the suggested publication, but also it

does not appear from the title of the document, “Civil Rights Complaints in U.S.

District Courts, 1990-2006,” that it would have contained the information he

requested. It is clear, however, that he received at least some response to his

request. 

Of greater significance is the declaration of the United States Department of

Justice, Bureau of Justice Statistics statistician Thomas Cohen. Mr. Cohen’s

declaration, which was prepared in response to this litigation, sheds light on the

substance of the petitioner’s request. Mr. Cohen states in relevant part:

4. No statistics are kept nor [sic] any report generated by the Bureau

of Justice Statistics regarding the race of parties, pro se or otherwise,

filing civil complaints or petitions.

5. Specifically, the Bureau of Justice Statistics does not keep statistics

or collect information on the number of civil prisoner petitions that are

successfully or unsuccessfully filed in the nation’s federal courts.

(Doc. 13, exh. 1, Declaration of Proof of Thomas Cohen). 

To establish a viable FOIA claim, the petitioning party must show that an

agency “(1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’“ Kissinger v. Reporters

Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d

267 (1980). A FOIA request for documents that do not exist does not create a right

to the information or a responsibility on the part of the agency receiving the request

to create documents responsive to the request. Id. at 152, 100 S.Ct. at 969. Instead

the request only obligates agencies to provide access to those which it has already

created and retained. Id.; see also Goldgar v. Office of Amin., Executive Office of the

President, 26 F.3d 32, 35 (5th Cir. 1994); DelVecchio v. I.R.S., 360 Fed. Appx. 104, 2010

5

Page references will be to pagination reflected on the court’s electronic

docketing system, as petitioner has not independently paginated or otherwise labeled

his attachments. 

Case No: 3:10cv109/WS/MD
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WL 104657 (11th Cir. 2010) (quoting Ray v. U.S. Dept. Of Justice, 908 F.2d 1549, 1558

(11th Cir. 1990), rev’d on other grounds sub nom. U.S. Dept. Of State v. Ray, 502 U.S.

164, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)).

Petitioner’s unsupported, conclusory allegations that the NCJRS did not

properly respond to his requests will not afford him relief. See DelVecchio v. I.R.S.,

360 Fed. Appx. 104, 2010 WL 104657 (11th Cir. 2010). He claims to have received

correspondence from law firms or governmental agencies stating that the Bureau

of Justice Statistics did compile the information he sought. In fact, the letters to

which he refers at best can be read as offering the suggestion that petitioner might

be able to find helpful information with the Bureau of Justice Statistics, not as a

guarantee that such information was readily available. (See doc. 1 at 27, 30). Even

if petitioner correctly interpreted the correspondence as stating that such reports

existed, the belief of an agency or individual outside the Bureau of Justice Statistics

about what that entity did or did not compile does not contravene the sworn

declaration of the Bureau of Justice statistician to the contrary. (Doc. 18, ¶¶ 51-52). 

Additionally, this court may take judicial notice of its own records and the

procedures used in this court. There is no system in place in this court that requires

reporting of a pro se litigant’s race from which the statistics sought by the petitioner

could be distilled. Petitioner’s bald assertion that the names of the litigants would

reveal whether the litigant is black, white or Hispanic is likely to be correct in the

case of some Hispanic litigants, but certainly not all. (Doc. 18 at ¶ 35). Similarly, this

court has no system in place that tracks the outcome of different kinds of litigation. 

Keeping statistics on “success rates” would be inordinately complex as “success”

in a civil case is not a readily definable concept; it is not precisely parallel to the

conviction/acquittal dichotomy that characterizes criminal cases. Finally, pro se

litigation is affected by many factors including the frequently poor quality of the

pleadings, the unschooled litigants’ misinterpretations of what is necessary to show

a constitutional violation, and the fact that individuals with meritorious cases are

more likely to secure counsel, and hence do not proceed pro se. 

Case No: 3:10cv109/WS/MD
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The petitioner’s belief that his efforts to litigate fourteen separate cases have

been hampered merely because he has a Hispanic surname, even if held in good

faith, does not create records that do not exist and does not obligate the defendant

or any of its agencies to create such records for him. He has failed to establish an

actionable FOIA violation, and summary judgment should be granted for the

defendant. 

Based on the foregoing, it is respectfully RECOMMENDED:

The respondent’s motion to strike and dismiss or in the alternative for

summary judgment (doc. 13) be GRANTED and summary judgment be granted in

favor of the respondent. 

The petitioner’s motion to strike defense as insufficient and for summary

judgment (doc. 18) be DENIED.

At Pensacola, Florida, this 2nd day of February, 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen (14) days after being served a copy thereof. Any different

deadline that may appear on the electronic docket is for the court’s internal use only,

and does not control. A copy of objections shall be served upon all other parties. 

Failure to object may limit the scope of appellate review of factual findings. See 28

U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No: 3:10cv109/WS/MD