Pinson v. Armijo et al

Filing 19

ORDER Of Dismissal. All pending motions are denied. The Complaint and the action are dismissed with prejudice. Leave to proceed in forma pauperis on appeal is denied. By Judge Lewis T. Babcock on 5/14/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01567-BNB
JEREMY PINSON,
Plaintiff,
v.
LIEUTENANT ARMIJO,
LIEUTENANT SHATTO,
OFFICER SUTTON,
M. ANDREIS,
FEDERAL BUREAU OF PRISONS, and
R. CAMACHO,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Jeremy Pinson, is in the custody of the Federal Bureau of Prisons (BOP)
at the United States Penitentiary-ADX in Florence, Colorado. On June 13, 2013,
Plaintiff initiated this action by filing pro se a Prisoner Complaint that alleges a violation
of his constitutional rights. He seeks money damages and an injunction against
Defendants from automatically discontinuing his prescribed medications without
performing a physical examination and evaluation. Plaintiff also seeks an injunction
against Defendants from banning opiate pain medications for non-medical reasons.
The Court must construe the Prisoner Complaint liberally because Plaintiff is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se
litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the

Court will dismiss this action with prejudice for failure to exhaust administrative
remedies.
On March 18, 2014, the Court found that the Plaintiff is precluded from bringing
any of the claims asserted in this action without payment of the $400 filing fee because
he is subject to filing restrictions under 28 U.S.C. § 1915(g) and is not under imminent
danger of serious physical injury with respect to the claims asserted.
The Court also discussed in the March 18 Order Plaintiff’s history of abusive
litigation, including his propensity to (1) voluntarily dismiss actions and delay the
processing of cases even after he has asserted imminent danger; (2) present
unbelievable claims; and (3) submit fraudulent documents to the Court. In this case,
Plaintiff represents that he has exhausted all of the claims. The Court took notice of the
Administrative Remedy Generalized Retrieval Report that Warden Berkebile submitted
in Pinson v. Berkebile, No. 14-cv-00423-BNB (D. Colo. Filed Feb. 14, 2014), and
determined that the Report showed no entries confirming Plaintiff’s exhaustion of the
claims he raises in this action, even though he was able to submit seventy-eight remedy
requests or appeals since November 29, 2012. The Court then requested that
Defendants submit a report stating whether Plaintiff has exhausted the issues he
presents in this action and what formal or informal complaints he submitted to BOP
prison staff regarding any of the issues.
Within approximately one week of the March 18 Order, Plaintiff filed a Motion to
Dismiss. Plaintiff asserts in the Motion that he seeks to dismiss this lawsuit “pursuant to
an informal agreement with Executive Staff at ADX Florence with who plaintiff agreed to
voluntarily dismiss” this case and other pending cases “during a discussion with ADX
Warden David Berkebile on March 12, 2014.” Mot., ECF No. 14. Counsel, on Warden
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David Berkebile’s behalf, filed a Response to the Motion to Dismiss, ECF No. 17. In a
Declaration attached to the Response, Warden Berkebile asserts that he talked with
Plaintiff during the week of March 10, 2014, about opportunities for him to transition to
less secure housing as long as he demonstrates a commitment to participating in
recommended programs. Resp., ECF No. 17-1, Berkebile Decl., at 2. Warden
Berkebile further asserts that he did not offer any agreement for dismissal of Plaintiff’s
cases and did not discuss with Plaintiff any informal agreement with ADX executive
staff, regarding a voluntary dismissal of his cases, or authorized anyone else to offer
any agreement. Id. Plaintiff’s Motion is another example of his dishonesty.
On April 8, 2014, the United States Attorney, on behalf of Defendants, responded
to the Court’s March 18 Order and confirmed that Plaintiff had not exhausted the claims
he raises in this Complaint. Plaintiff did not reply to the April 8 Response and has not
otherwise denied Defendants’ statements.
Based on the above findings, the Court will deny the Motion to Dismiss and
dismiss the action with prejudice because the Plaintiff has not paid the filing fee within
the time allowed and the claims are subject to dismissal for failure to exhausted
administrative remedies.
Ordinarily dismissal of an unexhausted claim is without prejudice. See Kikumura
v. Osagie, 461 F.3d 1269, 1290 (10th Cir. 2006), overruled in part on other grounds as
recognized in Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008). Because Plaintiff
did not exhaust his administrative remedies prior to filing this action, but asserts he did
in the Complaint, the Court finds Plaintiff again is engaging in abusive litigation in this
Court. This is not the first time that Plaintiff has filed an action only to have it dismissed

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at a later date because he has failed to exhaust his administrative remedies.1
A dismissal of this action with prejudice is justified. See Ehrenhaus v. Reynolds,
965 F.2d 916, 921 (10th Cir. 1992). Plaintiff’s continual filing of unexhausted claims
prejudices defendants because they must address the claims even though they are
improperly filed, and it interferes with the efficient use of the Court’s limited resources.
Plaintiff is aware of the need to exhaust his remedies before initiating a prisoner
complaint in this Court and, based on his disregard of this requirement, dismissal with
prejudice is a proper sanction. Id.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). Plaintiff must pay the full $505 appellate filing fee or file a motion to proceed in
forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24. Accordingly, it is

1

See Pinson v. St. John, et al., No. 10-cv-01832-RBP-HGD (N.D Ala. Feb. 25, 2013)
(claims legal mail opened outside his presence in complaint and injunctive motion; injunctive
motion denied; dismissed for failure to pay initial partial filing fee; motion to vacate dismissal,
which was granted; court ordered special report about claims; Pinson filed motion for default
judgment regarding special report that was not signed and was stricken; Circuit withdrew order
to allow partial payments because Pinson conceded he is subject to § 1915(g) restrictions;
special report treated as motion for summary judgment, recommendation entered for dismissal
with prejudice finding Pinson failed to exhaust and the remedy no. he claims is associated with
the exhaustion was not submitted during the time period at issue, ECF No. 44 at 10, Pinson now
is time barred from pursuing an administrative remedy); Pinson v. Fed. Bureau of Prisons, et al.,
No. 07-cv-00346-RC-KFG (E.D. Tex. Aug. 2, 2007) (recommendation to dismiss for failure to
exhaust remedies; Pinson then filed notice of voluntary dismissal that was granted); Pinson v.
Watkins, et al., No. 06-cv-00323-F (W.D. Okla. May 9, 2007) (claims failure to protect and
identified as snitch; Pinson was appointed counsel; action was dismissed in part without
prejudice for failure to exhaust claim and in part with prejudice as procedurally barred due to
untimely grievance).

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ORDERED that all pending motions are denied. It is
FURTHER ORDERED that the Complaint and the action are dismissed with
prejudice based on the above findings. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 14th

day of

May

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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