170 F. Supp. 3d 1
D.D.C.2016Background
- Justin Credico, a pro se prisoner, filed a FOIA suit against DHS alleging DHS failed to respond to his FOIA request and sought leave to proceed in forma pauperis (IFP).
- DHS moved to dismiss (or for summary judgment) arguing it never received Credico’s FOIA request and that Credico had not exhausted administrative remedies.
- The Court discovered Credico had prior federal dismissals and ordered supplemental briefing on whether Credico had three "strikes" under 28 U.S.C. § 1915(g).
- Defendant submitted authorities showing Credico had at least three prior dismissals as frivolous; Credico did not dispute the strikes but contended § 1915(g) is unconstitutional as applied because it denies access to courts.
- The Court held the PLRA three‑strikes rule applies, found no imminent danger exception, rejected Credico’s constitutional challenge as applied to a FOIA claim, and dismissed the case without prejudice for failure to pay the full filing fee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Credico may proceed IFP despite three prior strikes under § 1915(g) | Credico argued § 1915(g) is unconstitutional as applied because it restricts his access to courts | DHS argued Credico has three strikes and thus cannot proceed IFP unless he pays the full fee or shows imminent danger | Court held Credico has three strikes; absent imminent danger he must pay full fee and cannot proceed IFP |
| Whether FOIA claim implicates a fundamental right requiring fee waiver | Credico contended denial to proceed IFP impedes access to courts for his FOIA claim | DHS argued FOIA is a statutory right, not a fundamental interest warranting fee waiver | Court held FOIA does not implicate a fundamental interest that requires waiving fees |
| Whether Credico showed imminent danger of serious physical injury (exception to § 1915(g)) | Credico did not show imminent physical danger in his filings | DHS noted no imminent danger allegations or evidence | Court held Credico did not meet the imminent danger exception |
| Whether Court must reach FOIA merits or consider evidentiary motions | Credico sought subpoena and moved for summary judgment on merits | DHS moved to dismiss on exhaustion/nonreceipt grounds | Court dismissed without prejudice for failure to satisfy fee requirement and denied pending motions as moot |
Key Cases Cited
- M.L.B. v. S.L.J., 519 U.S. 102 (Sup. Ct.) (narrow category of civil cases requires fee waiver only for fundamental interests)
- Asemani v. U.S. Citizenship & Immigration Servs., 797 F.3d 1069 (D.C. Cir.) (PLRA three‑strikes rule constitutional as‑applied to naturalization challenge)
- United States v. Kras, 409 U.S. 434 (Sup. Ct.) (no constitutional right to fee waiver for bankruptcy discharge)
- Ortwein v. Schwab, 410 U.S. 656 (Sup. Ct.) (no constitutional right to fee waiver for welfare benefit challenges)
- Blair‑Bey v. Quick, 151 F.3d 1036 (D.C. Cir.) (habeas petitions treated differently for PLRA; some habeas actions not civil actions under PLRA)
- Credico v. Milligan, [citation="544 F. App'x 46"] (3d Cir.) (prior dismissal as frivolous supporting a strike)