UNITED STATES DISTRICT COURT                            
                 DISTRICT OF MINNESOTA                               


Tony Lendell Reed,                        Case No. 24-cv-539 (JMB/DTS)    

Plaintiff,                                                           

v.                                  REPORT AND RECOMMENDATION             

United States Attorney Office                                             
District of Minnesota,                                                    

Defendant.                                                           


This matter comes before the Court on Plaintiff Tony Lendell Reed’s (1) Complaint, 
Dkt. No. 1, and (2) Application to Proceed in District Court Without Prepaying Fees or 
Costs, Dkt. No. 4 (IFP Application).  For the following reasons, the Court recommends 
dismissing this action and denying the IFP Application as moot.           
Reed is a federal prisoner incarcerated at the U.S. Penitentiary–Coleman I in 
Sumterville, Florida.  See Docket.  This incarceration followed Reed’s conviction in a 
criminal matter handled in this district: United States v. Reed, No. 18-CR-0015(1) (D. 
Minn.).  In that matter, a jury found Reed guilty of various robbery-related crimes in 
February 2019, and U.S. District Judge Joan N. Ericksen later sentenced Reed to (as 
relevant here) 240 months imprisonment.  See, e.g., Verdict Form 1–2, United States v. 
Reed, No. 18-CR-0015(1) (D. Minn. Feb. 1, 2019); J. in a Criminal Case 2, United States 
v. Reed, No. 18-CR-0015(1) (D. Minn. May 29, 2019).1  Reed filed a direct appeal of his 

1 Citations to materials filed in federal proceedings use the page numbers provided by the 
Court’s CM/ECF electronic-filing system.  Furthermore, this Report and Recommendation 
cites various documents from Reed’s criminal matter, though these do not appear in this 
action’s docket.  Because these materials are public court records, the Court may take 
judicial notice of them.  See, e.g., Stutzka v. McCarville, 

, 760 n.2 (8th Cir. 
conviction and sentence, but the U.S. Court of Appeals for the Eighth Circuit affirmed the 
district-court judgment.  See United States v. Reed, 

 (8th Cir. 2020).  
Since that unsuccessful appeal, Reed has filed numerous motions in his criminal action 
to reduce or vacate his sentence, but these have all been unsuccessful.  See generally 

Docket, United States v. Reed, No. 18-CR-0015(1) (D. Minn.).              
This  action  commenced  on  February 20,  2024,  when  the  Court  received  the 
Complaint.  See Docket.2  The Complaint names one defendant: the U.S. Attorney’s 
Office for the District of Minnesota (USAO).  See Compl. 1.               
Reed purports to bring this action under the Freedom of Information Act (FOIA), 

.  See 

.  Reed states that in September 2019, he submitted to the 
USAO a “written request pursuant to the [FOIA].”  

.  He asserts that the USAO has 
“r[e]fus[ed]”  that  request,  and  that  the  “information”  he  seeks  “cannot  be  compiled 
independently.”  

  For relief, Reed asks for an “injunctive order compelling the [USAO] 
to  disclose  the  information  sought  by  [Reed’s]  request”  as  well  as  a  “declaratory 

judgment . . . declaring that the information request[] be granted.”  

 
Rather than pay this action’s filing fee, Reed submitted the IFP Application.  That 
filing indicates that as a financial matter, Reed likely qualifies for in forma pauperis (IFP) 
status.  But under Rule 12(h)(3) of the Federal Rules of Civil Procedure, if a “court 
determines at any time that it lacks subject-matter jurisdiction [over an action], the court 


2005) (citing United States v. Eagleboy, 

 (8th Cir. 1999)); Clayborne 
v. Minn. Dep’t of Corrs., No. 23-CV-3612 (JMB/TNL), 

, at *1 n.2 (D. 
Minn. June 24, 2024) (citing Stahl v. U.S. Dep’t of Agric., 

, 700 (8th Cir. 
2003)).                                                                   
2 The Complaint bears the case number of Reed’s criminal action, see Compl. 1, but this 
District’s Clerk of Court—presumably because Reed called the document a complaint—
entered it as a new civil action in this District.                        
must dismiss [it].”  Cf. Sac & Fox Tribe of the Miss. in Ia., Election Bd. v. Bureau of Indian 
Affs., 

 (8th Cir. 2006) (“Once the district court became aware that it 
lacked subject matter jurisdiction, it had no choice but to dismiss the claim.” (citing 
Arbaugh v. Y&H Corp., 

 (2006)).                               

As noted above, Reed seeks to bring this action under the FOIA.  Under 

(a)(4)(B), “[o]n complaint, the district court of the United States in the district in which 
the  complainant  resides . . .  or  in  which  the  agency  records  are  situated . . .  has 
jurisdiction  to  enjoin  the  agency  from  withholding agency  records  and to  order  the 
production of any agency records improperly withheld from the complainant.”  Under this 
wording,  “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, 

 (1980); see also, e.g., Hussein v. Barr, No. 19-
CV-0292 (JRT/HB), 

, at *8 (D. Minn. July 31, 2019) (quoting Kissinger), 
report and recommendation adopted, 

 (D. Minn. Sept. 18, 2019), aff’d, 

No. 19-3083, 

 (8th Cir. Jan. 21, 2020).  And it is typically the plaintiff’s 
burden  to  establish  a  court’s  subject-matter  jurisdiction  over  an  action.    See,  e.g., 
Kokkonen v. Guardian Life Ins. Co. of Am., 

 (1994) (citing McNutt v. 
Gen. Motors Acceptance Corp., 

, 182–83 (1936)); Branson Label, Inc. v. 
City of Branson, 

 (8th Cir. 2015) (quoting Kokkonen-reliant caselaw). 
The upshot of this discussion is that here Reed carries the burden of showing that 
the USAO has improperly withheld agency records from him.  The Complaint plainly does 
not do so.  It says almost nothing about Reed’s request, aside from stating that he made 
it in September 2019.  Critically, the Complaint provides no detail on what Reed requested 
or why the USAO is required to honor that request.  See generally Compl.  Reed thus has 
not met his burden of establishing this Court’s jurisdiction over this action.   
The Court therefore recommends dismissing this action without prejudice for lack 
of jurisdiction.  Given this recommendation, the Court further recommends denying the 

IFP Application as moot.                                                  
                   RECOMMENDATION                                    
Based upon the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED that:                                            
1.   This action be DISMISSED WITHOUT PREJUDICE under Federal Rule of 
Civil Procedure 12(h)(3) for lack of subject-matter jurisdiction.         
2.   Plaintiff Tony Lendell Reed’s application to proceed in forma pauperis, Dkt. 
No. 4, be DENIED as moot.                                                 
3.   Reed be ORDERED to pay the unpaid balance of this action’s filing fee—
that balance is presently $295.91—as required by 

(b).     

4.   The  Clerk  of  Court  be  ORDERED  to  send  notice  of  Reed’s  payment 
obligation to authorities where Reed is incarcerated.                     

Dated: August 7, 2024              ___s/David T. Schultz_______           
                              DAVID T. SCHULTZ                       
                              U.S. Magistrate Judge                  
                        NOTICE                                       
Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served a copy” of the Report and Recommendation.  A party may respond to those 
objections within 14 days after being served a copy of the objections.  See Local Rule 
72.2(b)(2).  All objections and responses must comply with the word or line limits set forth 
in Local Rule 72.2(c).                                                    

             UNITED STATES DISTRICT COURT                            
                 DISTRICT OF MINNESOTA                               


Tony Lendell Reed,                        Case No. 24-cv-539 (JMB/DTS)    

Plaintiff,                                                           

v.                                  REPORT AND RECOMMENDATION             

United States Attorney Office                                             
District of Minnesota,                                                    

Defendant.                                                           


This matter comes before the Court on Plaintiff Tony Lendell Reed’s (1) Complaint, 
Dkt. No. 1, and (2) Application to Proceed in District Court Without Prepaying Fees or 
Costs, Dkt. No. 4 (IFP Application).  For the following reasons, the Court recommends 
dismissing this action and denying the IFP Application as moot.           
Reed is a federal prisoner incarcerated at the U.S. Penitentiary–Coleman I in 
Sumterville, Florida.  See Docket.  This incarceration followed Reed’s conviction in a 
criminal matter handled in this district: United States v. Reed, No. 18-CR-0015(1) (D. 
Minn.).  In that matter, a jury found Reed guilty of various robbery-related crimes in 
February 2019, and U.S. District Judge Joan N. Ericksen later sentenced Reed to (as 
relevant here) 240 months imprisonment.  See, e.g., Verdict Form 1–2, United States v. 
Reed, No. 18-CR-0015(1) (D. Minn. Feb. 1, 2019); J. in a Criminal Case 2, United States 
v. Reed, No. 18-CR-0015(1) (D. Minn. May 29, 2019).1  Reed filed a direct appeal of his 

1 Citations to materials filed in federal proceedings use the page numbers provided by the 
Court’s CM/ECF electronic-filing system.  Furthermore, this Report and Recommendation 
cites various documents from Reed’s criminal matter, though these do not appear in this 
action’s docket.  Because these materials are public court records, the Court may take 
judicial notice of them.  See, e.g., Stutzka v. McCarville, 

, 760 n.2 (8th Cir. 
conviction and sentence, but the U.S. Court of Appeals for the Eighth Circuit affirmed the 
district-court judgment.  See United States v. Reed, 

 (8th Cir. 2020).  
Since that unsuccessful appeal, Reed has filed numerous motions in his criminal action 
to reduce or vacate his sentence, but these have all been unsuccessful.  See generally 

Docket, United States v. Reed, No. 18-CR-0015(1) (D. Minn.).              
This  action  commenced  on  February 20,  2024,  when  the  Court  received  the 
Complaint.  See Docket.2  The Complaint names one defendant: the U.S. Attorney’s 
Office for the District of Minnesota (USAO).  See Compl. 1.               
Reed purports to bring this action under the Freedom of Information Act (FOIA), 

.  See 

.  Reed states that in September 2019, he submitted to the 
USAO a “written request pursuant to the [FOIA].”  

.  He asserts that the USAO has 
“r[e]fus[ed]”  that  request,  and  that  the  “information”  he  seeks  “cannot  be  compiled 
independently.”  

  For relief, Reed asks for an “injunctive order compelling the [USAO] 
to  disclose  the  information  sought  by  [Reed’s]  request”  as  well  as  a  “declaratory 

judgment . . . declaring that the information request[] be granted.”  

 
Rather than pay this action’s filing fee, Reed submitted the IFP Application.  That 
filing indicates that as a financial matter, Reed likely qualifies for in forma pauperis (IFP) 
status.  But under Rule 12(h)(3) of the Federal Rules of Civil Procedure, if a “court 
determines at any time that it lacks subject-matter jurisdiction [over an action], the court 


2005) (citing United States v. Eagleboy, 

 (8th Cir. 1999)); Clayborne 
v. Minn. Dep’t of Corrs., No. 23-CV-3612 (JMB/TNL), 

, at *1 n.2 (D. 
Minn. June 24, 2024) (citing Stahl v. U.S. Dep’t of Agric., 

, 700 (8th Cir. 
2003)).                                                                   
2 The Complaint bears the case number of Reed’s criminal action, see Compl. 1, but this 
District’s Clerk of Court—presumably because Reed called the document a complaint—
entered it as a new civil action in this District.                        
must dismiss [it].”  Cf. Sac & Fox Tribe of the Miss. in Ia., Election Bd. v. Bureau of Indian 
Affs., 

 (8th Cir. 2006) (“Once the district court became aware that it 
lacked subject matter jurisdiction, it had no choice but to dismiss the claim.” (citing 
Arbaugh v. Y&H Corp., 

 (2006)).                               

As noted above, Reed seeks to bring this action under the FOIA.  Under 

(a)(4)(B), “[o]n complaint, the district court of the United States in the district in which 
the  complainant  resides . . .  or  in  which  the  agency  records  are  situated . . .  has 
jurisdiction  to  enjoin  the  agency  from  withholding agency  records  and to  order  the 
production of any agency records improperly withheld from the complainant.”  Under this 
wording,  “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, 

 (1980); see also, e.g., Hussein v. Barr, No. 19-
CV-0292 (JRT/HB), 

, at *8 (D. Minn. July 31, 2019) (quoting Kissinger), 
report and recommendation adopted, 

 (D. Minn. Sept. 18, 2019), aff’d, 

No. 19-3083, 

 (8th Cir. Jan. 21, 2020).  And it is typically the plaintiff’s 
burden  to  establish  a  court’s  subject-matter  jurisdiction  over  an  action.    See,  e.g., 
Kokkonen v. Guardian Life Ins. Co. of Am., 

 (1994) (citing McNutt v. 
Gen. Motors Acceptance Corp., 

, 182–83 (1936)); Branson Label, Inc. v. 
City of Branson, 

 (8th Cir. 2015) (quoting Kokkonen-reliant caselaw). 
The upshot of this discussion is that here Reed carries the burden of showing that 
the USAO has improperly withheld agency records from him.  The Complaint plainly does 
not do so.  It says almost nothing about Reed’s request, aside from stating that he made 
it in September 2019.  Critically, the Complaint provides no detail on what Reed requested 
or why the USAO is required to honor that request.  See generally Compl.  Reed thus has 
not met his burden of establishing this Court’s jurisdiction over this action.   
The Court therefore recommends dismissing this action without prejudice for lack 
of jurisdiction.  Given this recommendation, the Court further recommends denying the 

IFP Application as moot.                                                  
                   RECOMMENDATION                                    
Based upon the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED that:                                            
1.   This action be DISMISSED WITHOUT PREJUDICE under Federal Rule of 
Civil Procedure 12(h)(3) for lack of subject-matter jurisdiction.         
2.   Plaintiff Tony Lendell Reed’s application to proceed in forma pauperis, Dkt. 
No. 4, be DENIED as moot.                                                 
3.   Reed be ORDERED to pay the unpaid balance of this action’s filing fee—
that balance is presently $295.91—as required by 

(b).     

4.   The  Clerk  of  Court  be  ORDERED  to  send  notice  of  Reed’s  payment 
obligation to authorities where Reed is incarcerated.                     

Dated: August 7, 2024              ___s/David T. Schultz_______           
                              DAVID T. SCHULTZ                       
                              U.S. Magistrate Judge                  
                        NOTICE                                       
Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served a copy” of the Report and Recommendation.  A party may respond to those 
objections within 14 days after being served a copy of the objections.  See Local Rule 
72.2(b)(2).  All objections and responses must comply with the word or line limits set forth 
in Local Rule 72.2(c).