MA 1:2011cv11588 opinion

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

WILLIAM J. JOLLY,

Plaintiff,

CA. No. 11-11588-DJC

TOWN OF RANDOLPH POLICE
DEPARTMENT, et al.,

Defendants.

CASPER, J. November 9, 201 1

Memorandum and Order

In this action, Plaintiff William J. Jolly ("Jolly"), a resident of the town of Groton, New
Hampshire, filed a complaint against Defendants Randolph Police Department and the Norfolk
District Attorney ' s Office (collectively, the "Defendants") for the release of certain records pursuant
to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Complaint ("Compl."), f 5-6. Jolly
filed the complaint along with an Application to Proceed without Prepayment of Fees. For the
reasons set forth below, the Court DENIES without prejudice Jolly's application to proceed informa
pauperis. The Court also ORDERS Jolly to demonstrate good cause why this action should not be
dismissed for lack of subject matter jurisdiction. Finally, Jolly's request for an expedited hearing
on his claim is DENIED.
I. Background

According to the allegations in the complaint, Jolly made a public records request to the
Defendants for release of records relating to an individual arrested and charged by the Defendants
in 2004. Compl. 5-7. The Defendants denied that request on the grounds that the Massachusetts
General Laws prohibited the release of the records. Id. at 5-6. Jolly now seeks an order for the
release of the records, arguing that FOIA is the proper governing statute. Id. at K 2. Jolly has also

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requested an expedited hearing, on the merits, since he claims that the instant case is related to
another matter pending in New Hampshire state court. See D. 4 (Jolly's 9/20/1 1 Letter).

II. Standard of Review

When a plaintiff seeks to bring a claim in forma pauperis, the Court has the authority to
screen the claim before issuing summons to determine if the claim is "is frivolous or malicious; fails
to state a claim on which relief may be granted; or seeks monetary relief." 28 U.S.C. §
1915(e)(2)(B). If the Court finds that the claim is insufficient, it may dismiss the claim sua sponte.
Id. Under this authority, the Court has reviewed this case and has determined that it should be
dismissed for a lack of subject matter jurisdiction.

III. Discussion

A. Subject Matter Jurisdiction
Federal courts have subject matter jurisdiction over "all civil actions arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Jurisdiction may also exist
between parties of diverse citizenship when the matter in controversy is greater than $75,000. 28
U.S.C. § 1332(a). Subject matter jurisdiction "is never presumed" and plaintiff "[carries] the burden
of demonstrating the existence of federal jurisdiction." Viqueira v. First Bank, 140 F.3d 12, 16 (1 st
Cir. 1998). Plaintiff asserts that the court can grant relief pursuant to the Freedom of Information
Act ("FOIA") and claims that subject matter jurisdiction exists on that basis. Compl., 1-2. 1 The
facts, as alleged, do not establish the applicability of FOIA to this claim and, therefore, the Court
is not convinced that Jolly has met his burden of demonstrating the existence of federal jurisdiction.

1 Jolly does not allege that the basis of subject matter jurisdiction in this case is diversity
jurisdiction under 28 U.S.C. § 1332(a). Compl. <j[ 3 (stating explicitly that "the basis for
jurisdiction is not Diversity of Citizenship").

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FOIA governs the release of public information, records, and records of proceedings,
opinion, and orders that are under the control of a governmental "agency." 5U.S.C. § 552. By its'
own terms, "agency" under FOIA means "each authority of the Government of the United States,
whether or not it is within or subject to review by another agency." Id. at § 551 (1); Philip Morris,
Inc. v. Harshbarger . 122 F.3d 58, 83 (1 st Cir. 1997) (noting that "FOIA, however, by its own terms,
applies only to federal executive branch agencies."). That is, FOIA applies to release of public
information or records of federal agencies (with some exceptions not applicable here). See e.g. ,
Grieco v. Dep't of Treasury of Puerto Rico , 685 F. Supp. 2d 309, 310-11 (D.P.R., 2010). "[I]t is
beyond question that FOIA applies only to federal and not to state agencies." Grand Cent. P'ship,
Inc. v. Cuomo , 166 F.3d 473, 484 (2d Cir. 1999) (citing Harshbarger , 122 F.3d at 83 ("FOIA ...
applies only to federal executive branch agencies"); Day v. Shalala , 23 F.3d 1052, 1064 (6th Cir.
1994) (APA "pertains to federal agencies"); Brown v. Kelly , No. 93-5222, 1994 WL 36144, at *1
(D.C. Cir. January 27, 1994) (per curiam) (FOIA does not apply to state agencies); St. Michael's
Convalescent Hosp. v. State of California , 643 F.2d 1369, 1373 (9th Cir. 1981) (definition of
"agency" under FOIA "does not encompass state agencies or bodies"); Johnson v. Wells , 566 F.2d
1016, 1018 (5th Cir. 1978) (state board of parole not agency within meaning of FOIA)).

Since Jolly seeks the release of records from state entities (a local police department and
county prosecutor's office), the Court finds that FOIA does not govern Plaintiff's request. Rather
the Court finds that Plaintiff's request for records and any appeal regarding the denial of those
records is governed by Massachusetts law. See M.G.L. c. 4, § 7 (defining "public records"); M.G.L.
c. 66 § 10 (regarding inspection and production of public record requests).

Accordingly, the Court finds it has no subject matter jurisdiction over this claim. For that

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reason, the Court also denies Jolly's request for an expedited hearing since it would be improper to
grant any hearing on the merits of this case until Jolly establishes that this Court has jurisdiction to
adjudicate his claim.

Because the Court finds that it lacks jurisdiction in this matter, Jolly must show good cause
why his action should not be dismissed for lack of subject matter jurisdiction. He may do so by
filing an amended complaint that establishes the Court's subject matter jurisdiction or other filing
that establishes good cause why this action should not be dismissed within 35 days of this Order.

B. A pplication to Proceed without Prepayment of Filing Fees

If Jolly wishes to continue this action without prepayment of filing fees, he must also submit
a new Application to Proceed without Prepayment of Filing Fee. Litigants filing a complaint in
federal court must either 1) pay the required filing fee for their action or 2) file an application to
proceed in forma pauperis. 28 U.S.C. § 1914; 28 U.S.C. § 1915. In forma pauperis status is only to
be granted when the prepayment of filing fees would prevent plaintiff from providing the
"necessities of life" for "himself and [his] dependents." Adkin v. E.I. Du pont de Nemours & Co. ,
335 U.S. 331, 339, 69 S. Ct. 85, 93 L.Ed. 43 (1948).

Jolly has not provided sufficient data to allow the Court to assess accurately the burden that
payment of the filing fee would place on him. In his application, Jolly has identified that he receives
money from self-employment. He, however, provided neither the amount he has received in the last
twelve months nor the amount of money he expects to receive from such employment. Application
<j[ 3. Similarly, Plaintiff indicates that he owns a home, but does not state the amount of equity he
owns in it. Id. at K 5. Because the Court lacks the information to assess properly Plaintiff s financial
position, his Application to Proceed without Prepayment of Filing Fees is denied without prejudice.

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Jolly may submit a new Application to Proceed without Prepayment of Filing Fees and shall
include in that application a more detailed financial statement. A new application shall include
detailed information about the money received from his business over the last twelve months, any
income expected from current or anticipated work projects and the amount of equity plaintiff owns
in his home.
V. Conclusion

For the foregoing reasons, it is ordered that Jolly's Application to Proceed without
Prepayment of Filing Fees is DENIED without prejudice. If Jolly wishes to proceed in this action
he shall, within thirty-five (35) days of the issuance of this Order, (1) submit a new, detailed
application to proceed without prepayment of fees, consistent with the discussion above and (2)
demonstrate good cause as to why this action should not be dismissed for the reasons stated above.
If Jolly fails to submit a new application or demonstrate good cause, within the allotted time, this
claim shall be dismissed without prejudice. Further, JOLLY' s request for an expedited hearing is
DENIED and no summons shall be issued at this time, pending compliance with this Order.
SO ORDERED.

November 9, 2011 /s/ Denise J. Casper

DATE DENISE J. CASPER

UNITED STATES DISTRICT JUDGE

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