Smigelski v. Federal Bureau of Investigation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANDREW SMIGELSKI,

Plaintiff, Case No. 2:25-cv-01013

v. Judge Edmund A. Sargus

Magistrate Judge Kimberly A. Jolson

FEDERAL BUREAU OF

INVESTIGATION, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Undersigned for consideration of Plaintiff’s Motion to Proceed in

forma pauperis (Doc. 1), and the initial screen of his Complaint (Doc. 1-2) under 28 U.S.C.

§ 1915(e)(2). Plaintiff’s Motion to Proceed in forma pauperis (Doc. 1) is GRANTED. All judicial

officers who render services in this action shall do so as if the costs had been prepaid. See 28

U.S.C. § 1915(a). After conducting the required initial screen, the Undersigned RECOMMENDS

that Plaintiff’s Complaint (Doc. 1-2) be DISMISSED.

I. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). Complaints by pro se litigants are to be construed liberally and held to less stringent

standards than those prepared by attorneys. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).

But this leniency is not boundless, and “it is not within the purview of the district court to conjure

up claims never presented.” Frengler v. Gen. Motors, 482 F. App’x 975, 977 (6th Cir. 2012). At

bottom, “basic pleading essentials” are still required, regardless of whether an individual proceeds

pro se. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

These essentials are not onerous or overly burdensome. A complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief,” see Fed. R. Civ. P.

8(a)(2), and provide the defendant with “fair notice of what the . . . claim is and the grounds upon

which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation omitted).

In reviewing Plaintiff’s Complaint at this stage, the Court must construe it in his favor, accept all

well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a

claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). Although this standard does not require “detailed factual

allegations, . . . [a] pleading that offers labels and conclusions” is insufficient. Id. at 678 (internal

quotation and quotation marks removed). In the end, the Court must dismiss the Complaint “if it

tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation and

quotation marks omitted).

Courts also “understand § 1915(e)(2) to include screening for lack of subject matter

jurisdiction.” Howard v. Good Samaritan Hosp., No. 1:21-cv-160, 2022 WL 92462, at *2 (S.D.

Ohio Jan. 10, 2022). Indeed, courts are obligated to consider whether they have subject matter

jurisdiction and may raise jurisdictional issues sua sponte. Klepsky v. United Parcel Serv., Inc.,

489 F.3d 264, 268 (6th Cir. 2007). If a court finds that it lacks subject matter jurisdiction, it must

dismiss the case. Fed. R. Civ. P. 12(h)(3).

II. DISCUSSION

Plaintiff brings this action against several entities in connection with a Freedom of

Information Act (“FOIA”) and Privacy Act request. (Doc. 1-2 (naming the Federal Bureau of

Investigation (“FBI”); the United States Department of Justice (“DOJ”); Pam Bondi, and Kash

Patel as Defendants)); 5 U.S.C. §§ 552, 552a. He alleges on June 11, 2025, he submitted a FOIA

and Privacy Act request to the FBI seeking “all records about himself” from fourteen databases.

(Doc. 1-2 at 3; Doc. 1-3 at 2). Five days later, the FBI responded that it could not locate any

responsive records in its central records system and, therefore, Plaintiff’s request was closed.

(Doc. 1-2 at 3; Doc. 1-3 at 4). The agency also forwarded parts of Plaintiff’s request to the FBI’s

Criminal Justice Information Services Division and gave Plaintiff information about how to track

that request. (Doc. 1-3 at 4). The response letter further stated that if Plaintiff was not satisfied

with its response, Plaintiff could pursue several options including filing an administrative appeal.

(Id. at 5).

Plaintiff alleges that the “breadth of the request,” the “databases involved,” and the five-

day response time make “the response patently fraudulent.” (Id.). He accuses Defendant of not

conducting a search and acting in bad faith to “suppress information.” (Id.). He brings claims for

violations of FOIA and the Privacy Act, as well as conspiracy. (Id. at 4). As relief, he seeks,

among other things, an order that Defendants conduct full records searches and damages. (Id. at

4–5). Ultimately, several deficiencies exist on the face of Plaintiff’s Complaint that necessitate

the Court dismissing this action.

A. Freedom of Information Act

To begin, “[u]nder the FOIA, each ‘agency’ upon ‘any request’ for records shall make the

records ‘promptly available to any person,’ 5 U.S.C. § 552(a)(3)(A), unless one of nine specific

exemptions applies, 5 U.S.C. § 552(b)(1)–(9).” ACLU v. FBI, 734 F.3d 460, 465 (6th Cir. 2013).

“FOIA confers jurisdiction on district courts ‘to enjoin [an] agency from withholding agency

records and to order the production of any agency records improperly withheld.’” Savoca v.

Wilson, No. 1:19 CV 14, 2019 WL 2359201 (N.D. Ohio June 4, 2019) (citing 5 U.S.C.

§ 552(a)(4)(B)). “Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing

that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Kissinger v. Reps.

Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). “Unless each of these criteria is met,

a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s

disclosure requirements.” United States Dept. of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989).

Additionally, the Court must determine whether a plaintiff exhausted his administrative remedies.

Iskander v. F.B.I., No. 4:12CV02653, 2013 WL 1572439 (N.D. Ohio Apr. 12, 2013). Exhaustion

is a “threshold inquiry to a FOIA claim and a condition precedent to the exercise of federal court

jurisdiction.” Id. at *5.

Plaintiff’s claims are puzzling. He filed his records request on June 11 and included a

request that the FBI expedite its response. (See Doc. 1-3 at 1–3 (FOIA request)). The FBI

responded via letter five days later, informing Plaintiff that it “conducted a main and reference

entity research search” but was “unable to identify records . . . that are responsive to your request.”

(Doc. 1-3 at 4). Plaintiff seems to base his suspicions that the FBI withheld responsive documents

on the very expediency that he requested. (Doc. 1-2 at 3 (“The breadth of the request, the databases

involved, and the 5-day turnaround make the response patently fraudulent.”)). And his claims of

“bad faith” appear premised on nothing more than his factually unsupported accusations that the

FBI has unknown documents in its possession that it failed to locate. (Id.).

Nonetheless, Plaintiff has not alleged any facts to suggest that he exhausted his

administrative remedies prior to filing this action. Auto All. Int’l, Inc. v. U.S. Customs Serv., 155

F. App’x 226, 228 (6th Cir. 2005) (“Exhaustion of administrative remedies is a threshold

requirement to a FOIA claim.”). Concerning exhaustion, “[t]he exhaustion requirement is satisfied

when either: (1) the individual submits a FOIA request and administratively appeals any adverse

determinations, or (2) the agency fails to respond to a FOIA request within the time limits

articulated in the Act.” Kinman v. U.S., No. 1:16-CV-00329, 2016 WL 7165986, at *3 (S.D. Ohio

Dec. 7, 2016); see also Stewart v. U.S. Dept. of Veterans Affs., No. 1:13 CV 494, 2013 WL

4758034 (N.D. Ohio Sept. 4, 2013). Constructive exhaustion does not appear to apply here

because the FBI responded to Plaintiff’s request within five days. (See Doc. 1-3). And Plaintiff

has not alleged any facts of actual exhaustion. (See also id. at 5 (providing information about

filing an administrative appeal)). Therefore, Plaintiff cannot proceed with his FOIA claim at this

juncture.

B. The Privacy Act

Next, Plaintiff alleges that Defendants violated the Privacy Act in two ways: (1) by denying

him access to his own records and stating they do not exist; and (2) by improperly maintaining

their own records. (Doc. 1-2 at 4); see also Davydov v. U.S. Dept. of Homeland Sec., No. 3:25-

CV-0970-RSH-SBC, 2025 WL 2381792, at *4–5 (S.D. Cal. Aug. 15, 2025) (labeling the first an

“access” claim and the second an “accuracy” claim).

“The Privacy Act is similar to FOIA, but it provides a right of access allowing individuals

to request records about themselves.” Whipple v. Jolley, No. 3:21-CV-378-KAC-DCP, 2022 WL

2733391, at *3 (E.D. Tenn. June 10, 2022) (citing 5 U.S.C. § 552a(d)), report and recommendation

adopted, No. 3:21-CV-378-KAC-DCP, 2022 WL 2317264 (E.D. Tenn. June 28, 2022). “The

individual can file a civil action to compel an agency to comply with § 552a(d)(1) if the agency

refuses the individual access to his own records.” Kinman, 2016 WL 7165986, at *3. And like

FOIA, the Privacy Act has an exhaustion requirement. See id. (“Courts have . . . required

individuals who seek access to records under the [Privacy] Act to exhaust administrative remedies

consistent with the ‘jurisprudential exhaustion’ doctrine.” (citation omitted)); see also Compton v.

Barrett, No. 1:19CV973, 2021 WL 4891304, at *3 (S.D. Ohio Oct. 20, 2021); Mikhashov v. Dept.

of Def., No. CV 22-3485 (BAH), 2024 WL 4332601, at *9 (D.D.C. Sept. 26, 2024) (collecting

cases); Foulke v. Potter, No. 10-CV-4061 SJF ETB, 2011 WL 127119, at *3 n.4 (E.D.N.Y. Jan.

10, 2011). Because the Undersigned observed that the Complaint does not allege any facts as to

exhaustion, Plaintiff’s Privacy Act claims must be dismissed for failure to state a claim.

C. The Individual Defendants

Regardless of whether Plaintiff could successfully demonstrate exhaustion as to the claims

discussed above, “neither FOIA nor the Privacy Act allows actions against individuals. Such

actions must be against the agency withholding the records.” Whipple, 2022 WL 2733391, at *3

(citations omitted); see also Bright v. Bartlett, No. 4:19-CV-33, 2019 WL 5295190, at *2 (E.D.

Tenn. Oct. 18, 2019) (“[R]egardless of whether Bright is suing Bartlett in her official or individual

capacity, the FOIA does not provide a cause of action against private persons.”). Therefore, even

if Plaintiff’s claims could proceed, Plaintiff’s FOIA and Privacy Act claims against Bondi and

Patel should be dismissed.

D. Conspiracy

Finally, Plaintiff alleges Defendants engaged in a conspiracy to violate FOIA. Specifically,

he says “Defendants engaged in a pattern and practice of denying FOIA rights. The 5-day ‘no

records’ response across 14 databases shows premeditated obstruction.” (Doc. 1-2 at 4).

“A civil conspiracy is an agreement between two or more persons to injure another by

unlawful action.” Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985). “To prevail on a civil

conspiracy claim, Plaintiff must show that (1) a ‘single plan’ existed, (2) Defendants ‘shared in

the general conspiratorial objective’ to deprive [him] of [his] constitutional (or federal statutory)

rights, and (3) ‘an overt act was committed in furtherance of the conspiracy that caused injury’ to

[him].” Norman v. City of Cincinnati, No. 1:24-CV-309, 2025 WL 815724, at *6 (S.D. Ohio Mar.

13, 2025) (citing Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011)). Plaintiff’s

conclusory assertion that Defendants “engaged in a pattern and practice of denying FOIA rights”

fails to allege with the requisite specificity any of these elements. (Doc. 1-2). For this reason,

Plaintiff’s conspiracy claim should likewise be dismissed for failure to state a claim.

III. CONCLUSION

For the foregoing reasons, the Undersigned GRANTS Plaintiff’s Motion for Leave to

Proceed in forma pauperis (Doc. 1). After conducting an initial screen of the Complaint under 28

U.S.C. § 1915(e)(2), the Undersigned RECOMMENDS that it be DISMISSED.

Date: September 16, 2025 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence, or may

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo and operates as a waiver of the right to appeal the decision of the

District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).