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Pinson v. United States Department of Justice

United States District Court, District of Columbia

March 30, 2017

JEREMY PINSON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION Re Document Nos.: 287, 310, 317

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Denying Defendants' Motion to Dismiss; Granting in Part and Denying in Part Defendants' Motion in the Alternative for Summary Judgment; Denying Plaintiff's Motion to Amend the Complaint; Denying as Premature Plaintiff's Supplemental Motion for Discovery; Appointing Pro Bono Counsel

         I. INTRODUCTION

         Plaintiff Jeremy Pinson claims that her[1] constitutional rights were violated when Bureau of Prisons (BOP) officials retaliated against her for exercising her First Amendment rights. The DOJ-on behalf of the defendant-officials-moves to dismiss, or, in the alternative, for summary judgment. Because the Court concludes that Pinson has adequately stated a claim, it denies the motion to dismiss. The Court also denies the DOJ's motion for summary judgment as to Pinson's claims that prison officials refuse to investigate her administrative complaints and transferred her to a more restrictive setting, but grants the DOJ's motion for summary judgment as to Pinson's other claims of miscellaneous retaliation.

         II. BACKGROUND [2]

         This is not the first time this Court has addressed Pinson's claims for First Amendment retaliation. In her Corrected Second Amended Complaint of October 2013, Pinson raised a variety of constitutional claims against, inter alia, defendants Charles Samuels and John Dignam. Corr. 2d Am. Compl. at 2, ECF No. 32. Each was sued in both his official and individual capacity. Corr. 2d Am. Compl. at 2. Samuels was the Director of the BOP, and Dignam was Chief of the BOP's Office of Internal Affairs. Corr. 2d Am. Compl. at 2. As relief, Pinson seeks an injunction against Samuels and Dignam barring them “from further acts of retaliation, ” as well as “[c]ompensatory and punitive damages.” Corr. 2d Am. Compl. at 16. This Court dismissed several of Pinson's constitutional claims for failure to exhaust administrative remedies, and required Pinson to submit a more definite statement of the facts underlying each surviving claim, see generally Mem. Op. at 52-63, Pinson v. U.S. Dep't of Justice, No. 12-1872, 2016 WL 29245, at *23-27 (D.D.C. Jan. 4, 2016), ECF No. 259, which Pinson has now filed, see generally Pl.'s More Def. Statement Bivens Claims (Pl.'s Statement), ECF No. 279.

         The Court now considers Pinson's current claims-first, a claim alleging that Dignam and Samuels refused to investigate Pinson's administrative complaints in retaliation for her First Amendment activities; second, a claim that Samuels transferred Pinson to ADX Florence[3] in retaliation for her First Amendment activities; and third, Pinson's claims of other miscellaneous retaliation for her First Amendment activities directed by Samuels.

         All of these claims involve alleged retaliation against Pinson for her First Amendment activities. These activities include contributing to news articles, posting to a blog, tweeting, filing lawsuits on her own behalf, and assisting other inmates in filing lawsuits. Corr. 2d Am. Compl. at 14. Despite the retaliation she describes, Pinson asserts that she “explicitly vowed to never cease writing lawsuits, blog posts (www.betweenthebars.org) and letters to the media, ” and identifies an example of her continued engagement with the media. Pl.'s Statement ¶ 8; see also Pl.'s Statement, Ex. 1, Alan Prendergast, Fires, Hangings, Madness: Is Florence SHU the Worst Cellblock in America?, Westword (Mar. 15, 2016), http://www.westword.com/news/fires-hangings-madness-is-florence-shu-the-worst-cellblock-in-america-7700845 (news article discussing Florence ADX with contribution from Pinson).

         A. Claim One-Refusal to Investigate

         According to Pinson, she has filed “dozens” of complaints alleging misconduct by BOP employees that were eventually routed to Dignam. Pl.'s Statement ¶¶ 1-3, ECF No. 279. Plaintiff asserts that she has confirmed that the complaints were referred to Dignam through FOIA requests. Pl.'s Statement ¶ 4. Pinson claims that Dignam “refused to investigate the complaints unless Plaintiff agreed to cease news media contacts and litigation against BOP.” Corr. 2d Am. Compl. at 14.

         As evidence of this claim, Pinson states that she met with a special agent and unit manager in 2011 who told her that Dignam would not investigate her complaints because she was “a gadfly constantly inundating Dignam's office with complaints” and adverse attention from the media. Pl.'s Statement ¶ 5. According to Pinson, the special agent and unit manager told her that Dignam would investigate her complaints if she ceased these activities. Pl.'s Statement ¶ 5. Pinson claims that the special agent and unit manager told her that they met with her on Samuels's instruction. Pl.'s Statement ¶ 7. Pinson also claims that she met in-person with Samuels in August of 2015, and that he “admitted in his own words” to her that he had caused the 2011 meeting. Pl.'s Statement ¶ 7.

         Pinson further claims that in the “summer of 2015” she met with two agents from BOP's Office of Internal Affairs who told her that she was “hated all the way to the top”-which they clarified referred to Dignam and Samuels-and therefore “no one is gonna help you and end up in the New York Times over something you filed.” Pl.'s Statement ¶ 6. Pinson claims that “Samuels and Dignam also gave authorization to place plaintiff on mail restrictions limiting plaintiffs [sic] communications with attorneys and the news media.” Corr. 2d Am. Compl. at 16.

         B. Claim Two-Transfer to ADX Florence

         Pinson also alleges that she was transferred to ADX Florence in retaliation for her activities. Pinson claims that when Samuels was Assistant Director of the BOP, he emailed an employee and had that employee interrogate Pinson and order her to cease contacts with the news media. Corr. 2d Am. Compl. at 15. When she refused, Pinson alleges that Samuels “ordered plaintiff moved to ADX Florence using information he knew to be false.” Corr. 2d Am. Compl. at 15.

         As evidence, Pinson asserts that she was told by staff at ADX Florence that Samuels had told them to stop her from engaging in lawsuits or contacts with the news media. Corr. 2d Am. Compl. at 15. Pinson also asserts that, during her ADX referral hearing in December of 2015, the hearing administrator told her that Samuels would “halt her transfer to ADX [Florence] if she agreed to cease all lawsuits and press contacts, or the reverse if she didnt [sic].” Pl.'s Statement ¶ 8. When Pinson was transferred to ADX Florence, she asserts that it was “personally authorized” by Samuels, Pl.'s Statement ¶ 9, as evidenced by his signature on the paperwork, ADX General Population Placement Decision, ECF No. 279, Ex. 2; ECF No. 288-1, Ex. A (same document).

         C. Claim Three-Other Allegedly Retaliatory Acts

         Pinson also alleges several other miscellaneous acts of retaliation.[4] She claims that Samuels ordered various employees to “convince” her to stop filing lawsuits and contacting the news media in March of 2013, and that the employees' persuasive strategies included separating Pinson from another individual and “cell searches, strip searches, deprivation of meals, and making threats.” Corr. 2d Am. Compl. at 15.

         D. Materials Considered in Relation to the Motion for Summary Judgment

         The DOJ submitted a declaration from Samuels which provides additional factual material. In 2011-prior to his role as the Director of the Bureau of Prisons[5]-Samuels served as the Assistant Director for the Correctional Programs Division. 2d Samuels Decl. ¶ 10, ECF No. 288-1. In that capacity Samuels admits that he approved Pinson's transfer to ADX Florence, as he was responsible for approving or rejecting all recommended transfers to ADX Florence. 2d Samuels Decl. ¶¶ 10, 12. Samuels claims that his participation in the transfer came only after a hearing administrator had reviewed and approved the referral. 2d Samuels Decl. ¶ 12. Samuels denies telling the hearing administrator that he would stop the transfer if Pinson stopped litigation and press contacts. 2d Samuels Decl. ¶ 12. The DOJ also provided the report of the hearing administrator who recommended Pinson's transfer to ADX Florence. That report shows that, prior to the transfer, Pinson had accumulated a disciplinary record that included sixteen reported incidents, including seven for possession of a weapon, four for serious assault, four for setting fires, and one for taking a hostage. ECF No. 288-1, Ex. A.

         Samuels also denies all of Pinson's other allegations. Samuels denies having any conversation with the special agent and unit manager about Pinson. 2d Samuels Decl. ¶ 5. Samuels denies that he interacted with Pinson at all in August of 2015, including denying threatening to keep Pinson in “restrictive housing.” 2d Samuels Decl. ¶¶ 6, 13. Samuels also denies having any conversation with the named OIA agents regarding Pinson. 2d Samuels Decl. ¶ 8.

         The DOJ has now moved to dismiss, or, in the alternative, to renew its motion for summary judgment.[6] See generally Def.'s Mot. Dismiss or Renewed Mot. Summ. J. (MTD), ECF No. 287.

         III. LEGAL STANDARD

         The DOJ raises both a motion to dismiss and a motion for summary judgment. The Court considers the applicable legal standard for each in turn. In general, it notes that a pro se complaint is held to “less stringent standards than formal pleadings drafted by lawyers, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), although it still must comply with the Federal Rules of Civil Procedure, Jarrell v. Tisch, 656 F.Supp. 237, 239 (D.D.C. 1987). As a result, the Court considers Pinson's complaint “in light of” all filings, including her more definite statement and second corrected amended complaint. Cf. Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 151 (D.C. Cir. 2015) (“[A] district court errs in failing to consider a pro se litigant's complaint ‘in light of' all filings, including filings responsive to a motion to dismiss.”).

         A. Motion to Dismiss

         To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain factual allegations that, if accepted as true, would state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” id., instead, plaintiffs must “nudge[] their claims across the line from conceivable to plausible, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court considering a motion to dismiss a pro se plaintiff's complaint for failure to state a claim presumes that the factual allegations of the complaint are true and construes those allegations liberally in the plaintiff's favor. Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 976 (D.C. Cir. 2016).

         B. Motion for Summary Judgment

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it may affect the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could, based on the evidence, return a verdict for the nonmovant. Scott v. Harris, 550 U.S. 372, 380 (2007). After the movant has identified the basis for its motion, the burden is on the nonmovant to identify specific facts in the record that reveal a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         A court considering a motion for summary judgment analyzes all underlying facts and inferences in the light most favorable to the nonmovant, Anderson, 477 U.S. at 255, and “eschew[s] making credibility determinations or weighing the evidence, ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). Nonetheless, “conclusory allegations” and “unsubstantiated speculation, ” by the nonmovant “do not create genuine issues of material fact.” Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195, 200 n.12 (D.D.C. 2008) (citations omitted). “There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         While Pinson's filings are somewhat eccentric, the Court construes her corrected second amended complaint and more definite statement as sworn affidavits given her pro se status. Cf. Gore v. Lockheed Martin IS & GS Def., No. 1:13-1513, 2016 WL 5312844, at *1 (D.D.C. Sept. 22, 2016) (“Plaintiff did not, however, provide any evidence to support her Opposition. Nevertheless, in recognition of Plaintiff's pro se status, the court will treat her Opposition as a sworn affidavit and thus evaluate the merits of Defendant's Motion [for summary judgment] as if Plaintiff has attempted to come forward with evidence to show a genuine dispute of material fact.”).

         IV. ANALYSIS

         As a threshold matter, the DOJ argues that Bivens actions are unavailable for violations of the First Amendment because the Supreme Court[7] has not recognized such a cause of action. MTD at 10-12, ECF No. 287. Because the D.C. Circuit has recognized Bivens claims for First Amendment retaliation, this Court disagrees.

         In Bivens, the Supreme Court “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980); see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971) (recognizing an implied right of action under the Constitution for violation of Fourth Amendment rights). In the time following Bivens, “the Supreme Court has proceeded cautiously” in expanding Bivens actions to cover additional constitutional violations. Meshal v. Higgenbotham, 804 F.3d 417, 421 (D.C. Cir. 2015). The Supreme Court has explicitly recognized Bivens claims for “employment discrimination in violation of the Due Process Clause” and “cruel and unusual punishment by prison officials in violation of the Eighth Amendment, ” but has rejected any “‘automatic entitlement'” to the remedy. Id. (first citing Davis v. Passman, 442 U.S. 228, 243-45 (1979), then citing Carlson v. Green, 446 U.S. 14, 19-23 (1980)).

         Although the Supreme Court has not embraced the application of Bivens to First Amendment claims, nor has it definitively eliminated the possibility. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“Petitioners do not press this argument, however, so we assume, without deciding, that respondent's First Amendment claim is actionable under Bivens.”); cf. Reichle v. Howards, 132 S.Ct. 2088, 2093 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”). Indeed, in Hartman v. Moore, the Supreme Court described a Bivens claim for First Amendment retaliation:

Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right, ” and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out. . . . [W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution. When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens.

Hartman v. Moore, 547 U.S. 250, 256 (2006) (quoting Crawford-El v. Britton, 523 U.S. 574, 588, n.10 (1998), other citations omitted) (ultimately concluding that the plaintiff could not recover because the plaintiff did not plead the absence of probable cause supporting his allegedly retaliatory prosecution).

         The D.C. Circuit has gone further than the Supreme Court in identifying a Bivens remedy ...


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