Fleming v. Medicare Freedom Group

• Decision Date: 24 July 2018
• Docket Number: Civil Action No. 1:15-cv-01135 (EGS/GMH)
• Parties: RHONDA FLEMING, Plaintiff, v. MEDICARE FREEDOM OF INFORMATION GROUP, et al. Defendants.
• Court: U.S. District Court — District of Columbia

RHONDA FLEMING, Plaintiff, v. MEDICARE FREEDOM OF INFORMATION GROUP, et al. Defendants.

Civil Action No. 1:15-cv-01135 (EGS/GMH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 24, 2018

MEMORANDUM OPINION AND ORDER

This is a Freedom of Information Act ("FOIA") case in which Plaintiff seeks records related to her criminal conviction for health care fraud in the Southern District of Texas. Though Plaintiff's ultimate goal appears to be to prove that she is actually innocent of these crimes, the single claim before this Court is the adequacy of Defendants' FOIA searches. Because Plaintiff is a prolific filer, in 2016 the Court required her to obtain permission from the Court before making new filings in this case, and reminded her of that obligation most recently on May 25, 2018. Thereafter, in a span of eleven days, Plaintiff filed three Motions for Permission to File Pleadings, in which she requests permission to file a "Motion to Proceed In Forma Pauperis/Appointment of Counsel" and "Motion for Evidentiary Hearing/Discovery" [Dkt. 148-1], a "Motion to Expedite Proceedings" [Dkt. 150-1], and a "Motion to File Status Document" [Dkt. 151-1].¹ Defendants'opposition to all three motions was filed on June 7, 2018.² [Dkt. 154]. For the reasons that follow, all of Plaintiff's Motions for Permission to File Pleadings will be denied.

I. BACKGROUND

In 2010, Plaintiff was convicted in the Southern District of Texas on 67 counts of Medicare-related health care fraud and related offenses in connection with her submission of fraudulent claims to Medicare using supplier numbers purchased from Hi-Tech Medical Supply and First Advantage Nursing. See Judgment, United States v. Fleming, No. 4:07-cr-513 (S.D. Tex. Feb. 8, 2010), ECF No. 626. Plaintiff alleges that she was not provided with Medicare billing records during her criminal trial. [Dkt. 1 at 1-2]. In May 2014, she filed FOIA requests with the Medicare Freedom of Information Group ("MFIG") and the Executive Office of U.S. Attorneys ("EOUSA"). Id. at 2. Dissatisfied with Defendants' response, Plaintiff filed a Complaint in the United States District Court for the District of Minnesota alleging that Defendants failed to release records within the scope of her FOIA requests and seeking a declaratory judgment, damages, and attorney's fees for various alleged violations of her civil rights, including claims asserting that the prosecution fabricated evidence at her criminal trial. Id. at 3-4. All of Plaintiff's Bivens and due process claims were dismissed by the District of Minnesota. See Dkt. 15 at 3-4.

The case was transferred to this Court in July 2015. See Dkt. 56. The single claim before this Court is Plaintiff's FOIA claim. See Dkt. 122 at 2. Plaintiff has been a prolific and duplicative filer, which resulted in an order dated September 1, 2016, requiring her to seek permission from the Court before filing motions in this case (the "September 1, 2016 Order"). Minute Entry dated Sept. 1, 2016. Most recently, she has filed the following submissions relevant to this motion: "Motion for Appointment of Counsel" and "Motion for Video Conference Evidentiary Hearing"[Dkt. 58 (denied at Dkt. 97)]; "Motion for Writ of Ad Testificandum" [Dkt. 67 (denied at Dkt. 97)]; "Motion for Discovery" [Dkt. 68 (denied at Dkt. 97)]; "Motion for Appointment of Counsel" and "Motion to Proceed In Forma Pauperis" [Dkt. 70 (denied at Dkt. 97)]; "Motion to Expedite Recognition" [Dkt. 77 (denied at Dkt. 97)]; "Motion for Evidentiary Hearing" [Dkt. 88 (denied at Dkt. 122)]; "Motion for Partial Summary Judgment" [Dkt. 88 (denied at Dkt. 122)]; "Motion for Appointment of Counsel" [Dkt. 110 (denied at Dkt. 123)]; and "Motion for Leave to File Pleadings," which included a "Motion for Appointment of Counsel" [Dkt. 118]. The Court denied this last motion on the grounds that the Court had previously denied Plaintiff's request for appointment of counsel and because Plaintiff at the time had another motion for appointment of counsel pending before the Court. Minute Entry dated Jan. 23, 2017.

On November 16, 2017, the undersigned issued a Report and Recommendation that recommended granting in part and denying in part Defendants' motion for summary judgment and denying Plaintiff's motion for partial summary judgment (the "November 2017 R&R"). [Dkt. 122 at 27-28]. That Report and Recommendation was adopted by District Judge Emmet G. Sullivan on June 6, 2018. [Dkt. 152]. Also pending before the Court is Plaintiff's "Motion for Relief from Two Judgments Pursuant to Rule 60(d)(3) and the All Writs Act" [Dkt. 136], which will be addressed by the undersigned in a separate report and recommendation³ [Dkt. 162]. Pursuant to the September 1, 2016 Order, the Court now considers Plaintiff's motions for permission to file pleadings.⁴ [Dkt. 148; Dkt. 150; Dkt. 151].

II. LEGAL STANDARD

Although district courts should respond to prolific pro se litigants with "determination and imagination," In re Green, 669 F.2d 779, 786 (D.C. Cir. 1981), "the court has an obligation to protect and preserve the sound and orderly administration of justice," Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985) (quoting In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984)). To serve this obligation, a district court may "enjoin litigants who abuse the court system." Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam). See also 28 U.S.C. § 1651(a) ("[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."). Litigiousness alone does not rise to the level of abuse, however. The court should also take into account both the "number and content of . . . filings, and the effect of those filings on the agencies and the district court." In re Powell, 851 F.2d 427, 433-34 (D.C. Cir. 1988). "Faced with a situation where its docket [is] burdened and defendants [are] being called upon to answer multiple, impenetrable [pleadings], a district court [may be] justified in taking action." Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980).

III. DISCUSSION

Presently before the Court are Plaintiff's motions for permission to file a motion to proceed in forma pauperis [Dkt. 148-1], a motion for appointment of counsel [Dkt. 148-1], a motion for an evidentiary hearing or discovery [Dkt. 148-1], a motion to expedite proceedings [Dkt. 150-1], and a motion to file status documents [Dkt. 151-1]. In this action, Plaintiff has twice filed motions to proceed in forma pauperis [Dkt. 2; Dkt. 70], both of which were denied by the Court. See Dkt. 3 at 4; Dkt. 97 at 18. Plaintiff has filed five motions for appointment of counsel [Dkt. 41; Dkt. 58; Dkt. 70; Dkt. 110; Dkt. 118], all of which were denied by the Court. See Dkt. 55 at 4; Dkt. 97 at18; Dkt. 123 at 3; Minute Entry dated Jan. 23, 2017. Plaintiff has filed six motions for discovery or evidentiary hearings [Dkt. 4; Dkt. 41; Dkt. 58; Dkt. 68; Dkt. 88; Dkt. 119], all of which were denied by the Court. See Dkt. 55 at 4; Dkt. 97 at 18; Dkt. 122 at 28; Minute Entry dated Jan. 23, 2017. Finally, Plaintiff has filed three motions for expedited proceedings [Dkt. 11; Dkt. 26; Dkt. 77], all of which were denied by the Court. See Dkt. 55 at 4; Dkt. 97 at 18. Accordingly, Plaintiff's motions for leave to file motions to proceed in forma pauperis, for appointment of counsel, for discovery or an evidentiary hearing, and for expedited proceedings are denied because the Court has denied nearly identical motions in the past, and Plaintiff asserts no new factual allegations or legal arguments in support of her motions now. [Dkt. 148-1; Dkt. 150-1].

Furthermore, these motions will be denied because the arguments she presents are not meritorious. Specifically, Plaintiff is not eligible for in forma pauperis status because she has triggered the "three strikes" provision of section 1915(g) of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 to 77 (codified at 11 U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915, 1915A, 1932; 42 U.S.C. §§ 1997-1997h), and has not shown "imminent danger of serious physical injury" such that she would be entitled to an exception to the statute.⁵ See 28 U.S.C. § 1915(g); see also Fleming v. Ratliff, 235 F.3d 1341, WL 1672906, at*1 (5th Cir. 2000) (per curiam) (unpublished table disposition) (barring Plaintiff from "proceeding IFP in any civil action or appeal brought in a United States court unless she is under imminent danger of serious physical injury"). Similarly, even if Plaintiff were eligible for appointment of counsel under section 1915(e)(1),⁶ each of the factors in Local Civil Rule 83.11(b)(3) weigh against appointment of counsel in this case. 28 U.S.C. 1915(e)(1); D.D.C. Civ. R. 83.11(b)(3). As for discovery, it is rarely granted in FOIA cases and Plaintiff has not adequately shown that Defendants have acted in bad faith such that granting discovery would be justified here. See Voinche v. FBI, 412 F. Supp. 2d 60, 71-72 (D.D.C. 2006). Finally, Plaintiff has not shown good cause under 28 U.S.C. § 1657(a) such that expediting proceedings in this case would be appropriate. Thus, as all of Plaintiff's proposed motions are both meritless and duplicative of those that have been denied by the Court in the past, permission to file them will be denied.

Plaintiff also requests permission to file "document[s] on the status of the Defendant's production of records," that purportedly "will aid in the administration of justice and later reducethe litigation in the case." [Dkt. 151 at 1]. The documents in question are a FOIA request letter from Plaintiff dated March 17, 2015, which includes an excerpt from the indictment in her criminal case in the Southern District of Texas [Dkt. 151-1 at 4-7]; a letter from Defendant Hugh Gilmore, Director of Freedom of Information Group, dated April 10, 2018, id. at 8-9; a...