Opinion
CIVIL ACTION 01-3664 SECTION "T"(4)
May 14, 2002
Before the Court is a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) filed on behalf of the defendant, Ronald J. Coffrey, Special Agent. The parties waived oral argument and the matter was submitted for the Court's consideration, on the briefs alone, March 27, 2002. The Court, having considered the arguments of defense counsel, the failure of plaintiff to file an opposition, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
Donnie Wicks, a prisoner at the Dixon Correctional Institute (DCI), made a request, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and Privacy Act, 5 U.S.C. § 552(A), for reports and documents to the Drug Enforcement Administration's (DEA) New Orleans, Louisiana Field Division. Wicks directed this request to Special Agent in Charge, Ronald J. Coffrey. The request did not contain a Certificate of Identity as required by 28 C.F.R. § 16.41(d).
Wicks' letter was forwarded to the DEA's Freedom of Information Section, Operations Unit (SARO). Since the request did not contain a notarized Certificate of Identity, it was considered deficient by SARO and returned to Wicks with a Ceritficate of Identity form for his use. By letter dated March 1, 2002, DEA again informed Wicks that it was necessary for him to include a notarized Certificate of Identity in order for his FOIA request to be processed. Further, he was informed that upon receipt of the Certificate, his request would be processed, and all non-exempt information would be released to him. To date, DEA has not received a notarized Certificate of Identity. Wicks filed for a Writ of Mandamus to order defendant to turn over this information, and Coffrey now seeks a dismissal on the grounds that Weeks failed to exhaust all administrative remedies.
II. LAW AND ANALYSIS:
A. Law on Rule 12(b)(6) motions:
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), courts have found that dismissal pursuant to this provision "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957);Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief"Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
B. Law on 12(b)(1) motions:
Party seeking to dismiss for lack of subject matter jurisdiction may argue that complaint fails to allege facts upon which subject matter jurisdiction can be based; in that event, all facts alleged in complaint are assumed to be true and plaintiff, in effect, is afforded same procedural protection as he or she would receive under rule governing motion to dismiss for failure to state a claim. Higgins v. U.S., M.D.N.C. 1995, 894 F. Supp. 232, affirmed 81 F.3d 149.
Similarly, a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citing Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992)). "A case is properly dismissed for lack of subject matter jurisdiction [only] when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
Failure to submit a proper request is a failure to exhaust administrative remedies and deprives the court of jurisdiction. T.C. Kessler v. United States, 899 F. Supp. 644, 645 (D.D.C. 1995). Where no attempt to comply fully with agency procedures has been made, the courts will assert its lack of jurisdiction under the exhaustion doctrine.Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979).
C. The Court's Analysis:
DEA has not processed Wicks' FOIA request because he has failed to comply with the published regulations governing proper FOIA requests. It is "beyond a reasonable doubt" that Wicks cannot prove any set of facts which would entitle him to relief 5 U.S.C. § 552(a)(3)(A) provides that FOIA requests must be made in accordance with published rules stating the procedures to be followed. In the present case, Wicks has not provided the required notarized Certificate of Identity. 28 C.F.R. § 16.41(d). The first step in exhausting administrative remedies under the FOIA is filing a proper FOIA request. In re Steele, 799 F.2d 461, 466 (9th Cir. 1986). Since Wicks has failed to file a proper FOIA request, he has not satisfied the first step of the administrative process. Failure to submit a proper request is a failure to exhaust administrative remedies and deprives the court of jurisdiction. T.C. Kessler v. United States, 899 F. Supp. 644, 645 (D.D.C. 1995). Where no attempt to comply fully with agency procedures has been made, the courts will assert its lack of jurisdiction under the exhaustion doctrine. Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979). Accordingly, he is not entitled to relief, for failure to exhaust all administrative remedies, and thus the Court lacks subject matter jurisdiction.
Accordingly,
IT IS ORDERED that defendant, Ronald J. Coffrey's Motion to Dismiss under FRCP 12(b)(6) and 12(b)(1) is hereby GRANTED.
IT IS FURTHER ORDERED that the claims of the plaintiff against defendant, Donnie Wicks, are hereby DISMISSED WITHOUT PREJUDICE.