Richard Allen Smith, Sr. v. U.S. Department of Justice, et al.

• Court: District Court, E.D. Michigan
• Decided: February 12, 2026
• Docket: 2:26-cv-10012
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

RICHARD ALLEN SMITH, SR.,

Plaintiff, Case No. 2:26-cv-10012

v. Honorable Susan K. DeClercq United States District Judge U.S. DEPARTMENT OF JUSTICE, et al.,

Defendants. ________________________________/

OPINION AND ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF No. 2), SUMMARILY DISMISSING COMPLAINT (ECF No. 1), AND DISMISSING AS MOOT ALL SUBSEQUENT MOTIONS (ECF Nos. 4, 5, 6, and 11)

Plaintiff Richard Allen Smith, Sr., proceeding pro se, sues the Department of Justice (DOJ), Federal Bureau of Investigation (FBI), the United States Attorney General, and the FBI Director (collectively “Defendants”), asking the Court to compel the FBI to expedite a response to his Touhy request. He also applied to proceed in forma pauperis. ECF No. 2. Smith’s in forma pauperis application supports his claim of poverty, so it will be granted. However, as explained below, his complaint will be dismissed for failure to state a claim, and his subsequent motions will be denied as moot. I. BACKGROUND On December 7, 2025, Smith submitted a Touhy request asking the DOJ or

another appropriate federal agency to provide “expert examination” of a “device in [his] ears” that was “identified” during proceedings in another ongoing civil case, Smith v. Regents of the University of Michigan, 2:25-cv-10568. ECF No. 1–2. In his

submission, Smith asserted that the alleged device requires testing and expert analysis to determine its nature and function. Id. at PageID.6. He further attached an image accompanied by the following caption: “There is a device in my ear and has been this way since July 2021 in both ears after a surgery that Dr Waijee and Dr

Wang had performed on my wrist.” Id. at PageID.8. Less than one month later, Smith filed this action against Defendants for failing to respond to his Touhy request. ECF No. 1. Smith maintains that Defendants’

have failed to act on his request and contends that their delay is unreasonable. Id. at PageID.1. He further alleges that their inaction constitutes arbitrary and capricious conduct. Id. He filed motions for expedited consideration, for service of process by the U.S. Marshal, to compel agency action, and to supplement the complaint with

exhibits. ECF Nos. 4, 5, 6, 11. Smith also filed a supplemental exhibit and two additional applications to proceed in forma pauperis. ECF Nos. 12, 13, 14. II. LEGAL STANDARD Because Smith proceeds in forma pauperis, his claims must be reviewed

under the standards set forth in 28 U.S.C. § 1915(e)(2). See McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007) (recognizing that courts “must still screen” non-

prisoner complaints under § 1915(e)(2)). Specifically, the Court must dismiss any claim that “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

Smith also proceeds pro se, and so his pleadings are held to “less stringent standards than formal pleadings drafted by lawyers” and are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)). Even so, Smith’s pro se status does not exempt him from meeting basic pleading requirements. See Porter v. Genovese, 676 F. App’x 428, 440 (6th Cir. 2017) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). His complaint must still set forth “a short and plain statement of the claim showing that the pleader

is entitled to relief,” FED. R. CIV. P. 8(a)(2), one that would “give the defendant[s] fair notice” of what the claim is and the grounds on which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Further, his complaint must

still “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (holding that the Civil Rule

12(b)(6) standard also applies to dismissals under § 1915(e)(2)(B)(ii)). Courts “must accept as true any well-pleaded factual allegations in the plaintiff’s complaint but . . . need not accept as true legal conclusions or unwarranted factual inferences.” Bouye

v. Bruce, 61 F.4th 485, 489 (6th Cir. 2023) (internal quotation marks and citation omitted). III. ANALYSIS At the core of this case is Smith’s Touhy request allegedly submitted on

December 7, 2025. Twenty-nine days later, Smith filed suit alleging that the FBI’s failure to respond constitutes an unreasonable delay, as well as arbitrary and capricious conduct actionable under the Administrative Procedure Act (“APA”). The

complaint, however, does not allege the legal basis for Smith’s claims against the remaining Defendants. As explained below, Smith’s well-pleaded factual allegations neither establish entitlement to relief nor provide Defendants with fair notice of the claims asserted and the grounds on which they rest. Twombly, 550 U.S. at 555.

A Touhy request is a common tool for obtaining documents from a non-party federal governmental agency during state-court discovery. Rimmer v. Holder, 700 F.3d 246, 262 (6th Cir. 2012). “If the agency refuses to produce the requested

documents, the sole remedy for the state-court litigant is to file a collateral action in federal court under the APA.” Id. (quoting Houston Bus. Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208, 1211-12 (D.C. Cir. 1996).

The APA allows plaintiffs to challenge agencies’ actions, including an agency’s “failure to act.” 5 U.S.C. § 551(13); see Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 441 (6th Cir. 2022); see also 5 U.S.C. § 701 et seq.

“Failures to act are sometimes remediable under the APA, but not always.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004). One such remediable basis is a claim of unreasonable delay. See 5 U.S.C. § 706(1) (“A reviewing court shall . . . compel agency action . . . unreasonably delayed.”).

“‘Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstance before the court.’” Byrd v. Haas, 17 F.4th 692, 699 (6th Cir. 2021) (quoting Mashpee

Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100, (D.C. Cir. 2003)). Accordingly, the courts have “discretion to decide whether agency delay is unreasonable.” Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir. 2001) (internal quotation marks and citation omitted). “[C]ourts are reluctant to upset existing

agency priorities, unless the delay is ‘egregious.’” Id. “[T]he Supreme Court has cautioned that the passage of time alone cannot establish unreasonable delay under the APA.” Ahmed v. Blinken, No. 23-11860,

2024 WL 4172525, at *4 (E.D. Mich. Sept. 12, 2024) (citing INS v. Miranda, 459 U.S. 14, 19 (1982)). Thus, to determine whether an agency action has been unreasonably delayed, courts consider the following six factors:

(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. Barrios Garcia, 25 F.4th at 451–52 (citing Telecomms. Rsch. & Action Ctr. (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)). In this case, Plaintiff’s sole allegation regarding unreasonable delay is the date he submitted the Touhy request, and that the FBI has yet to respond. See generally ECF No. 1. And besides the FBI’s failure to respond, Smith offers no explanation regarding the involvement of Defendants DOJ, U.S. Attorney General, or Director of the FBI. Id. Even if the Court were to apply the TRAC factors, Smith has not stated a plausible claim for relief. Smith’s complaint fails to allege any facts relating to factors one and two: (1) whether the response time is governed by a rule of reason, as informed by (2) any congressional timetable. He does not allege facts to suggest

whether the FBI’s twenty-nine-day delay is unreasonable or whether the FBI’s response time fails to comply with an existing specified schedule. In comparison, in the context of FBI name checks for immigration purposes, delays between three to

four and a half years have been found reasonable. Muminov v. Sessions, No. 1:18CV1034, 2018 U.S. Dist. LEXIS 183479, at *14 (N.D. Ohio Oct. 24, 2018) (collecting cases). The third and fifth factors also favor dismissal because the nature of Smith’s

Touhy request is to supplement his discovery production in a different case. Simply put, a Touhy request is not an avenue to have the federal government create an expert witness’ report. Moreover, the fourth factor favors dismissal because the complaint

does not include sufficient factual allegations for the Court to consider the effect of expediting delayed action on agency activities of a higher or competing priority. The last factor has no role in this case because there are no factual allegations of bad faith. Thus, Smith’s complaint fails to state a claim for unreasonable delay.

For the same reasons, Smith’s arbitrary and capricious claim is insufficiently pled because he simply concludes, without factual elaboration, that “[a] complete failure to respond[] violates DOJ’s own regulations, provides no explanation, ignores

relevant factors, and prevents judicial review . . . constitut[ing] arbitrary and capricious conduct.” ECF No. 1 at PageID.2. Again, Smith does not offer any details regarding his Touhy request other than the date he submitted it. The complaint is

silent as to which office within the DOJ or the FBI he sent the request, in which state or city that office was located, the address or what channel he used, via email or postal mail, through a web platform or a mobile application, or whether he followed

up with the agency after not receiving a response. He does not explain how he followed the agency’s procedure to obtain a Touhy response. See 28 C.F.R. §§ 16.24- 16.29. For all this Court and any Defendant could know, Smith could have sent the Touhy request to the wrong address. Thus, Smith’s argument for arbitrary and

capricious conduct also fails to state a claim. IV. CONCLUSION For these reasons, the complaint does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Hill, 630 F.3d

at 470–71 (quoting Iqbal, 556 U.S. at 678). Accordingly, it is ORDERED that: 1. Plaintiff’s Application to Proceed Without Prepaying Fees or Costs, ECF No. 2, is GRANTED;

2. Plaintiff’s Complaint, ECF No. 1, is DISMISSED WITH PREJUDICE; and

3. Plaintiff’s Motions for expedited consideration, for service of process by the U.S. Marshal, to compel agency action, and to supplement the complaint with exhibits, ECF Nos. 4, 5, 6, and 11, are DENIED AS MOOT; and 4. Plaintiff is DENIED permission to appeal in forma pauperis because an appeal cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3).

IT IS SO ORDERED. This is a final order and closes the above-captioned case. /s/Susan K. DeClercq SUSAN K. DeCLERCQ United States District Judge Dated: February 12, 2026