McDuffee v. FCC, No. 24-464, 2024 WL 5187605 (W.D. Wis. Dec. 20, 2024) (Conley, J.)
McDuffee v. FCC, No. 24-464, 2024 WL 5187605 (W.D. Wis. Dec. 20, 2024) (Conley, J.)
Re: Plaintiff’s “[allegation] that the FCC is improperly withholding the records he requested or has failed to conduct a search of its records in good faith”
Disposition: Granting defendant’s motion to dismiss without prejudice
- Litigation Considerations, Pleadings & Exhaustion of Administrative Remedies: The court relates that, “[f]irst, defendant argues that the complaint must be dismissed because plaintiff has not alleged that he exhausted administrative remedies as required before filing suit.” “Plaintiff responds that he did appeal ‘some’ of his FOIA requests, but he doesn’t identify which ones or provide the date that any appeal was filed.” The court finds that “[t]he pleadings are, therefore, insufficient to establish exhaustion, which demands strict compliance with agency procedures.” “Moreover, while typically an affirmative defense that a plaintiff would not normally have to address in his initial pleadings, the Seventh Circuit has ruled that a motion under Rule 12(b)(6) is a proper vehicle to dismiss a FOIA complaint for failure to exhaust.”
The court relates that “[i]n addition, defendant contends that dismissal is required because plaintiff does not describe the specific information or identify the agency records he actually requested from defendant under FOIA.” The court finds that, “[a]s noted above, plaintiff has provided numbers for the FOIA requests that he claims have been denied by the defendant.” “However, he offers no details about the specific information being sought in each numbered request.” “Even where plaintiff identifies the FOIA request numbers, without allegations ‘identify[ing] the information he was seeking from the [agency to whom the FOIA requests were directed] . . . it is impossible to tell whether [plaintiff] has a plausible claim’ under FOIA.”
“However, the Seventh Circuit has cautioned against dismissing a pro se plaintiff’s case without giving him a chance to amend the complaint.” “Thus, plaintiff may have one more opportunity to file an amended complaint that cures the deficiencies outlined above.” “Should plaintiff file an amended complaint within 30 days of this order, the court will again screen it . . . .” “If plaintiff does not comply as directed, this case will be dismissed under Federal Rule of Civil Procedure 41(b).”