United States District Court, District of Columbia
MEMORANDUM OPINION Re Document Nos.: 287, 310,
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
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
Jeremy Pinson claims that her 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
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.
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 in retaliation for her First
Amendment activities; and third, Pinson's claims of other
miscellaneous retaliation for her First Amendment activities
directed by Samuels.
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),
(news article discussing Florence ADX with contribution from
Claim One-Refusal to Investigate
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.
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.
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.
Claim Two-Transfer to ADX Florence
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.
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).
Claim Three-Other Allegedly Retaliatory Acts
also alleges several other miscellaneous acts of
retaliation. 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.
Materials Considered in Relation to the Motion for Summary
submitted a declaration from Samuels which provides
additional factual material. In 2011-prior to his role as the
Director of the Bureau of Prisons-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.
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.
has now moved to dismiss, or, in the alternative, to renew
its motion for summary judgment. See generally
Def.'s Mot. Dismiss or Renewed Mot. Summ. J. (MTD), ECF
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.”).
Motion to Dismiss
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).
Motion for Summary Judgment
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).
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).
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.”).
threshold matter, the DOJ argues that Bivens actions
are unavailable for violations of the First Amendment because
the Supreme Court 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.
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)).
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
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
D.C. Circuit has gone further than the Supreme Court in
identifying a Bivens remedy ...