United States District Court, N.D. Mississippi, Aberdeen Division
ORDER AND ADVISORY TO PLAINTIFF
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
matter is before the Court sua sponte. Having
reviewed the filings of Plaintiff Richard Moore and as noted
below in the above-captioned cases, the Court is of the
opinion that Plaintiff's Complaints in Cause Nos.
3:16cv279 an 3:16cv280 fail to state a claim upon which
relief may be granted. Accordingly, the Court will order
Plaintiff to show cause within fourteen (14) days of the date
of this Order why those actions should not be dismissed.
Additionally, the Court is of the opinion that many of the
claims stated in this lead action, No. 1:16cv148, do not
state a claim upon which relief may be granted, and, thus,
will order Plaintiff to show cause within fourteen (14) days
why those claims should not also be dismissed. Finally, the
Court will cancel the Spears hearing currently set
for March 7, 2017, as discussed herein, and will reschedule
that hearing at a later date should the Court deem it
necessary to do so.
No. 3:16cv279 against the Pontotoc County Sheriff's
Department and Leo Mask
Cause No. 3:16cv279, Plaintiff seeks injunctive relief
against the Pontotoc County Sheriff's Department and
Sheriff Leo Mask for the production of records pursuant to a
Freedom of Information Act (FOIA) request. However, the
Sheriff's Department “is not subject to the
provisions of FOIA.” See Barouch v. U.S. Dep't
of Justice, 962 F.Supp.2d 30, 46 (D.D.C. 2013); see
also, e.g., Zaldivar v. U.S. Dep't of Veterans
Affairs, No. CV-14-1493-PHX-DGC (MEA), 2014 WL 7359107,
at *5 (D. Ariz. Dec. 24, 2014) (“To the extent that
Plaintiff asserts a FOIA claim against Pima County, he fails
to state a claim. FOIA applies to federal agencies and does
not apply to Pima County or other state agencies or
departments.”). Sheriff Mask is not a subject to the
provisions of FOIA, either. See, e.g., Batton v.
Evers, 598 F.3d 169, 173 n.1 (5th Cir. 2010) (“A
FOIA plaintiff may not assert a claim against an individual .
. . .”); Benavides v. U.S. Marshals Serv., 990
F.2d 625, *3 (5th Cir. 1993) (“[T]he dismissal of [a
plaintiff]'s claims against [the individual defendants]
was proper because suit cannot be brought under the FOIA
against an individual.”); Drake v. Obama, 664
F.3d 774, 785-86 (9th Cir. 2011) (“We agree with the
District Court that FOIA does not apply to any of the
Defendants because they are all individuals . . . .”)
extent Plaintiff alleges violations of the Administrative
Procedure Act (APA), FOIA is a part of the APA. See U.S.
Dep't of Justice v. Reporters Comm. For Freedom of
Press, 489 U.S. 749, 754 (1989). Because Plaintiff does
not have a valid FOIA claim against these defendants, he does
not have an APA claim against them, either.
the Court orders Plaintiff to show cause in writing within
fourteen days (14) days of this Order why his claims in Cause
No. 3:16cv279 should not be dismissed or to otherwise notify
the Court if he wants to voluntarily dismiss Cause No.
3:16cv279. PLAINTIFF IS CAUTIONED THAT FAILURE TO DO SO OR TO
OTHERWISE TIMELY RESPOND TO THIS ORDER COULD RESULT IN
DISMISSAL OF CAUSE NO. 3:16CV279 WITHOUT FURTHER NOTICE.
No. 3:16cv280 against the United States Probation Office, the
Department of Justice, and Loretta Lynch
Cause No. 3:16cv280, Plaintiff seeks injunctive relief
against the United States Probation Office, the Department of
Justice (DOJ), and Loretta Lynch under FOIA and the APA for a
FOIA request he made to the Probation Office. Once again,
Plaintiff cannot sustain a FOIA claim against the defendants.
“The United States Probation Office is an arm of the
federal courts. As such, it is not subject to FOIA . . . and
[P]laintiff's claims against it cannot be
maintained.” Banks v. Dep't of Justice,
538 F.Supp.2d 228, 231-32 (D.D.C. 2008); see also,
e.g., DeMartino v. F.B.I., 511 F.Supp.2d 146,
148 (D.D.C. 2007) (“As a court unit, the Probation
Office is not subject to the requirements of the FOIA . . .
.”) (dismissing complaint); United States v.
Chandler, 220 F.Supp.2d 165, 167-68 (E.D.N.Y. 2002)
(“the Probation Department is exempt from the
disclosure requirements of the FOIA”); Pena v. U.S.
Dep't of Probation, No. 06 CV 2481 NG LB, 2006 WL
2806383, at *1 (E.D.N.Y. Sept. 28, 2006) (“The
Probation Department, an administrative unit of the
judiciary, is not subject to the disclosure obligations of
FOIA.”). Furthermore, Ms. Lynch is not subject to the
provisions of FOIA for the same reasons discussed above
related to FOIA claims against individuals. See,
e.g., Batton, 598 F.3d at 173 n.1;
Benavides, 990 F.2d at *3.
only basis for suing the DOJ is his assertion that
“United States Probation is a component of the”
DOJ. (See Compl. 1-2, ECF No. 1 in Cause No.
3:16cv280). There is no indication that Plaintiff sent a
separate FOIA request to the DOJ, which likely would not have
access to the documents at issue anyway. Because Plaintiff
cannot sustain a claim against the Probation Office, his
claim against the DOJ necessarily fails. Even so, there is no
allegation that Plaintiff exhausted his administrative
remedies even if he had sent a request to the DOJ. See
Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir.
1979 (FOIA requires “that a party must present proof of
exhaustion of administrative remedies prior to seeking
judicial review”); Banks, 538 F.Supp.2d 232-33
(discussing administrative exhaustion under FOIA); see
also Wells v. U.S. Dep't of Educ., No.
09-456-JJB-CN, 2009 WL 2475434, at *2 (M.D. La. Aug. 12,
2009) (“Finally, it has been held that, where a
plaintiff fails to allege that he has exhausted his
administrative remedies prior to filing suit under the FOIA,
the plaintiff has failed to state a
also cannot sustain any APA claim for the same reasons
discussed above with respect to Cause No. 3:16cv279.
Accordingly, the Court orders Plaintiff to show cause in
writing within fourteen days (14) days of this Order why his
claims in Cause No. 3:16cv280 should not be dismissed or to
otherwise notify the Court if he wants to voluntarily dismiss
Cause No. 3:16cv280. PLAINTIFF IS CAUTIONED THAT FAILURE TO
DO SO OR TO OTHERWISE TIMELY RESPOND TO THIS ORDER COULD
RESULT IN DISMISSAL OF CAUSE
3:16CV280 WITHOUT FURTHER NOTICE.
No. 1:16cv148 against United States Probation, United States
Department of Justice, United State Probation Officer Valrie
Peters, Sheriff Leo Mask, and Deputy Patterson
also filed a “Complaint for Violation of Civil Rights
Under 42 U.S.C. § 1983” against United States
Probation, United States Department of Justice, and United
States Probation Officer Valrie Peters. He later amended his
Complaint to include Sheriff Leo Mask and Deputy Patterson of
the Pontotoc County Sheriff's Office.
Defendants United States Probation, the ...