PINSON v. U.S. DEPARTMENT OF JUSTICE

Filing 26

MEMORANDUM OPINION denying 6 Motion for Joinder; granting 7 Motion to Dismiss; granting 8 Motion to Strike; granting 9 Motion to Strike; granting 10 Motion to Strike; granting 11 Motion for Leave to File; denying without prejudice [ 12] Motion for Preliminary Injunction; denying without prejudice 13 Motion for Hearing; denying without prejudice 13 Motion for Sanctions; denying without prejudice 15 Motion for Vaughn Index. See document for details. Signed by Judge Rudolph Contreras on 09/30/2013. (lcrc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON, et al.,
Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.

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Civil Action Nos.:

12-1872 (RC)

Re Document Nos.:

2, 5-13, 15

MEMORANDUM OPINION
RESOLVING ALL PENDING MOTIONS
I. INTRODUCTION
This action arises out of the Defendants’ alleged violations of the Freedom of
Information Act and the Privacy Act. On November 15, 2012, the pro se Plaintiff, Mr. Jeremy
Pinson, filed a complaint alleging that Defendants, Department of Justice (“DOJ”) and its
components, failed to respond to the Plaintiff’s requests under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, submitted between 2007 and
2012. Since November 15, 2012, the Plaintiff has amended his complaint twice and filed seven
motions (“Plaintiff’s Motions”).1 On February 27, 2012, the Defendants moved to strike the
Plaintiff’s second amended complaint, and on March 21, 2013, the Defendants filed a response

1

“Amended Complaint” filed on December 3, 2012, ECF No. 2; “Motion to Dismiss
Plaintiff Dennison” filed on January 11, 2013, ECF No. 7; “Motion for Joinder of Plaintiff” filed
on January 11, 2013, ECF No. 6; “Second Amended Complaint” filed on January 11, 2013, ECF
No. 5; “Motion to Strike Second Amended Complaint” filed on March 11, 2013, ECF No. 10;
“Motion For Leave to Re-Amend Complaint to Add Parties” filed on March 11, 2013, ECF No.
11; “Motion for a Preliminary Injunction” filed on March 11, 2013, ECF No. 12; “Motion for
Evidentiary Hearing and Rule 11 Sanctions” filed on March 15, 2013, ECF No. 13; “Motion
under Vaughn v. Rosen to Require Detailed Indexing, Justification, and Itemization” filed on
March 15, 2013, ECF No. 15.

to all of the Plaintiff’s Motions. This Court responds to the Plaintiff’s Motions and the
Defendants’ responses collectively in this Opinion.
Pursuant to Federal Rules of Civil Procedure 8(a), 12(b)(6), 12(e) and FOIA and Privacy
Act filing requirements, the Plaintiff’s complaints lack sufficient background to determine the
grounds for which relief is sought. Accordingly, this Court sua sponte orders the Plaintiff to
provide a more definite statement of his claims and grants the Plaintiff leave to amend his
complaint. Moreover, after examining the Plaintiff’s subsequent motions and the Defendants’
responses, this Court grants the Plaintiff’s Motion to Dismiss Plaintiff Dennison, denies the
Plaintiff’s Motion for Joinder of Plaintiff Stine, denies without prejudice the Plaintiff’s Motion
for a Preliminary Injunction, denies without prejudice the Plaintiff’s Motion for Evidentiary
Hearing and Rule 11 Sanctions, and denies as premature the Plaintiff’s Motion for a Vaughn
Index. Additionally, this Court grants the Plaintiff’s and the Defendants’ Motions to Strike
Plaintiff’s Second Amended Complaint, but denies the Defendants’ request for relief of any
obligation to respond to any further filings by the Plaintiff absent a court order. This Court will
address the Plaintiff and the Defendants’ motions together in the order in which they were filed.

II. FACTUAL BACKGROUND
On November 15, 2012, the Plaintiff, Mr. Jeremy Pinson, incarcerated at a maximum
security facility in Florence, Colorado, filed a complaint alleging that Defendants DOJ and
fifteen of its components improperly responded to 211 of the Plaintiff’s FOIA and Privacy Act
requests filed between 2007 and 2012. See Compl. ¶¶ 5-25, ECF No. 1. The Plaintiff’s
complaint listed the names of the components involved, the number of requests submitted to
each component, and the agency’s action for each request. See id. The Plaintiff requested an
injunction compelling production of the information sought and all damages available under 5
2

U.S.C. § 552. See id. ¶¶ 26-27. The Plaintiff neither included any details about the information
he requested from the Defendants nor any responses received from the Defendants about denials
of such information.
Since his initial complaint, the Plaintiff has amended his complaint twice and has filed
seven motions. On December 3, 2012, the Plaintiff filed his first amended complaint adding two
plaintiffs, Christopher Dennison and Greg Murray, to this action. See 1st Am. Compl., ECF No.
2. On January 11, 2013, the Plaintiff moved to dismiss Plaintiff Dennison. See Mot. Dismiss,
ECF No. 7. On the same day, the Plaintiff moved to join Mikeal Stine as a plaintiff and moved
to dismiss Plaintiff Murray.2 See Mot. Joinder, ECF No. 6.
Additionally, on the same day, the Plaintiff filed a second amended complaint adding
three Bureau of Prisons (BOP) employees as defendants in this action. See 2d Am. Compl., ECF
No. 5. In his second amended complaint, the Plaintiff alleged that the Defendants violated
FOIA, the Privacy Act, and the Plaintiff’s First and Eighth Amendment rights. See id. ¶ 4. The
Plaintiff repeated his Privacy Act claims against Defendants alleging that they refused to delete
false information from the Plaintiff’s file. See id. ¶¶ 25-27. The Plaintiff also claimed that the
Defendants harassed the Plaintiff by seizing his legal documents and filing false disciplinary
reports against him. See id. ¶ 35.
On February 27, 2013, the Defendants moved to strike the Plaintiff’s second amended
complaint and to deny the Plaintiff’s motion for joinder (“Motion to Strike”). See Defs.’ Mot.
Strike, ECF No. 8. In their motion, the Defendants first argue that the Plaintiff failed to seek
leave of court before filing his second amended complaint. See id. at 4. Second, the Defendants

2

Although the Plaintiff requests that Murray’s claims be dismissed from this action, he
also requests that such claims be severed into a separate action. The Court declines to sever such
claims. If Mr. Murray seeks to pursue these claims, he must bring a separate action.
3

argue that the complaint includes an invalid signature that demonstrates bad faith. See id. at 5.
Third, the Defendants argue that the second amended complaint is futile because (1) it fails to
state a claim for relief against the individual defendants, (2) it would not survive a motion to
dismiss under Rule 12(b)(6), (3) it does not invoke or exhaust administrative remedies, and (4) it
fails to state a valid claim for relief under the Privacy Act. See id. at 5-16. Finally, the
Defendants argue that this Court should deny the Plaintiff’s request for joinder because the
Plaintiff fails to meet the conditions for a permissible joinder. See id. at 17.
On March 11, 2013, the Plaintiff moved to strike his second amended complaint and
requested leave to amend his complaint to add parties (“Motion for Leave”). See Mot. Leave,
ECF No. 10. The Plaintiff moved to add four new plaintiffs who allegedly shared similar causes
of action. See id. at 1. Additionally, the Plaintiff acknowledged that he filed his second
amended complaint without seeking leave from this Court and requested this Court grant him
leave to “file a more factually accurate complaint.” See id. On the same day, the Plaintiff filed a
“Motion for a Preliminary Injunction” to enjoin the Defendants from alleged retaliation against
the Plaintiff. See Mot. Prelim. Inj., ECF No. 12. In his Motion, the Plaintiff claims that three
BOP employees and the Assistant Warden of the prison threatened, assaulted, confiscated
documents, and withheld meals from the Plaintiff and his witnesses. See id. at 2-3; Pl.’s Decl. ¶
2-5, ECF No. 12-1.
On March 15, 2013, the Plaintiff filed a motion requesting an evidentiary hearing and
seeking sanctions (“Motion for Hearing”) against Defense Counsel for alleged factual
misrepresentations included in the Defendants’ Motion to Strike filed on February 27, 2013. See
Mot. for Hr’g, ECF No. 13. On the same day, the Plaintiff responded to the Defendants’ Motion
to Strike. In the Plaintiff’s response, he again requested that this Court strike his second

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amended complaint and asked for leave to file a more detailed complaint. See Pl.’s Resp. 1-2,
ECF No. 14. Additionally, on the same day, the Plaintiff filed a motion for a Vaughn index
requesting that this Court require the Defendants to provide a detailed justification for the
documents not released and exempted from production pursuant to the Plaintiff’s FOIA requests.
See Vaughn Mot. 1, ECF No. 15.
On March 21, 2013, the Defendants filed a response3 opposing the Plaintiff’s five
motions filed between March 11, 2013 and March 15, 2013 (“Defendants’ Opposition”). First,
the Defendants argue that this Court should deny the Plaintiff’s request to re-amend his
complaint because further amendments to the complaint would be “futile.” See Defs.’ Opp’n 57, ECF No. 16. Second, the Defendants insist that this Court dismiss all of the Plaintiff’s
motions4 for failure to state valid claims for relief under Fed. R. Civ. P. 12(b)(6). See id. 8-11.
Finally, the Defendants request that this Court relieve the Defendants of any obligation to
respond to any further filings by the Plaintiff absent a court order. See id. 10.

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The Defendants’ comprehensive response is titled: “Defendant Department of Justice’s
Opposition to Plaintiff’s Motion for Leave to Re-Amend Complaint and to Add Parties; Motion
for Preliminary Injunction; Motion for Evidentiary Hearing and Rule 11 Sanctions; Motion under
Vaughn v. Rosen to Require Detailed Indexing, Justification, and Itemization; and Defendants’
Reply to Plaintiff’s Opposition to Motion to Strike Second Amended Complaint and Deny
Joinder of Plaintiff,” ECF No. 16.
4

The Plaintiff filed the following five motions after March 11, 2013: “Motion to Strike
Second Amended Complaint and For Leave to Re-Amend Complaint to Add Parties” filed on
March 11, 2013, ECF Nos. 10-11; “Motion for a Preliminary Injunction” filed on March 11,
2013, ECF No. 12; “Motion for Evidentiary Hearing and Rule 11 Sanctions” filed on March 15,
2013, ECF No. 13; “Motion under Vaughn v. Rosen to Require Detailed Indexing, Justification,
and Itemization” filed on March 15, 2013, ECF No. 15.
5

III. COMPLAINT AND JOINDER
A. Legal Standards
1. Amended Pleadings
a. Federal Rule of Civil Procedure 8(a), 8(d), 12(b)(6), and 12(e)
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” with the relief sought. Fed. R. Civ. P. 8(a). Even though a complaint
need not contain “detailed factual allegations,” a complaint must include “more than labels and
conclusions” that reveal the grounds that may entitle the complainant for relief. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff’s complaint must include more than
inferences or “legal conclusions cast in the form of factual allegations.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Accordingly, a complaint that lacks
“further factual enhancement” or includes bald allegations may not meet Rule 8 pleading
requirements and may not survive a Rule 12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 557).
Additionally, under Rule 12(e), a court can order sua sponte a more definite statement of
a plaintiff’s claims when the complaint is “so vague or ambiguous that [a] party cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e). Courts have found that “mere allegations”
with unclear statements devoid of “factual details” warrant a court order for a more definite
statement. See, e.g., Fraternal Order of Police Library of Cong. Labor Comm. v. Library of
Cong., 692 F. Supp. 2d 9, 20 (D.D.C. 2010); Saad v. Burns Int’l Sec. Servs. Inc., 456 F. Supp.
33, 36 (D.D.C. 1978).
b. Federal Rule of Civil Procedure 15(a)

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Pursuant to Rule 15, “[a] party may amend its pleading once as a matter of course within
21 days after serving it . . . . In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a). Rule 15 allows
courts to freely grant leave to amend a complaint “when justice so requires.” See id. District
courts, however, have discretion to deny leave to amend a complaint for reasons such as “undue
delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice on the
opposing party, or futility of amendment.” See Atchinson v. District of Columbia, 73 F.3d 418,
425 (D.C. Cir. 1996) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
2. Freedom of Information Act Requests
Under FOIA, agencies must respond to requests that (1) are timely filed according to
agency rules and procedures, (2) “reasonably describe” the records requested, and (2) do not fall
under FOIA exemptions. 5 U.S.C. § 552(a)(3)(a); see, e.g. Hidalgo v. FBI, 344 F.3d 1256, 1257
(D.C. Cir. 2003); Calhoun v. Dep’t of Justice, 693 F. Supp. 2d 89, 91 (D.D.C. 2010). Although
agencies must “construe . . . FOIA requests[s] liberally,” agencies only need to engage in “[a]
reasonable search to satisfy th[e] request.” See Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388
(D.C. Cir. 1996); Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.
Cir. 1995).
Before a requester can bring a FOIA suit in District Court, a requestor must first exhaust
all available administrative remedies. See Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61
(D.C. Cir. 1990). A requestor must demonstrate that he complied with the agency’s filing
procedures and the agency’s internal appeals process. See Hidalgo, 344 F.3d at 1259.

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3. Joinder
Pursuant to Rule 20(a), parties may join in one action “if they assert any right to relief
jointly, severally, or . . . arising out of the same transaction, occurrence, or series of transactions
or occurrences and any question of law or fact common to all plaintiffs will arise in the action.”
See Fed. R. Civ. P. 20(a). A plaintiff satisfies Rule 20(a) only if both requirements are present in
the plaintiff’s motion. See Spaeth v. Mich. State Univ. Coll. of Law, 845 F. Supp. 2d 48, 53
(D.D.C. 2012). Actions “arising out of the same transaction, occurrence, or series of
transactions” must be logically related claims. See Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 10
(D.D.C. 2004) (citing Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610 (1926)). Courts have
discretion to permit or deny a joinder to “promote convenience and expedite resolution,” but may
not join claims that do not arise from the same transaction or share a common question of law or
fact. See Montgomery v. STG Int’l Inc., 532 F. Supp. 2d 29, 35 (D.D.C. 2008).
B. Plaintiff’s Pleadings
1. Leave to Amend Complaint Sua Sponte
This Court sua sponte orders the Plaintiff to provide a more definite statement of his claims
and grants the Plaintiff leave to amend his complaint because the Plaintiff’s three complaints are
vague and do not include sufficient facts for this Court to determine the relief that can be
granted. Pursuant to Rule 8(a) and Rule 12(b)(6), a plaintiff’s complaint does not need to
include “detailed factual allegations,” but must include “factual enhancement[s]” of the grounds
that entitle the plaintiff for relief. See Twombly, 550 U.S. at 555, 557. Moreover, before seeking
judicial review, a FOIA requestor must demonstrate that he pursued all available administrative
avenues for relief. See Debrew v. Atwood, 847 F. Supp. 2d 95, 103 (D.D.C. 2012).

8

The Plaintiff’s complaints do not include any details about the type of information he
seeks from the Defendants. Despite bringing this suit concerning over 200 FOIA requests to
Defendants, he provides almost no information about the requests. Even though in his
complaints the Plaintiff includes the processing number associated with some of the FOIA and
Privacy Act requests he filed, the Plaintiff does not describe the records requested from each
agency or when he made such requests. See Compl. ¶¶ 2-6; 1st Am. Compl. ¶¶ 2-7; 2d Am.
Compl. ¶¶ 2-6. The Plaintiff must provide more detailed descriptions of the records requested
from the Defendants such as when he made each request, to which component he sent each
request, the agency’s response to each request, and whether he sought an appeal. Otherwise,
without providing this more definite statement of his claims, this Court lacks sufficient details to
determine if the Defendants complied with their FOIA obligations.
Accordingly, this Court orders the Plaintiff to provide a more definite statement of his
claims as set forth above.
2. Motion to Strike Second Amended Complaint
This Court grants the Plaintiff and the Defendants’ motions to strike the Plaintiff’s
second amended complaint because the Plaintiff failed to seek leave from this Court. The
Plaintiff and the Defendants agree that the Plaintiff failed to seek leave before filing his second
amended complaint. Rule 15 states that a plaintiff may amend his or her initial pleading within
21 days of the initial filing or after seeking leave from court. See Fed. R. Civ. P. 15(a)(1); see,
e.g., Stanko v. Fed. Bureau of Prisons, 842 F. Supp. 2d 132, 139 (D.D.C. 2012). The Plaintiff
filed his first amended complaint on December 3, 2012. This complaint was within the 21-day
filing requirement. On January 7, 2013, the Plaintiff filed his second amended complaint. The
Plaintiff was not entitled to submit this second amended complaint without first seeking leave

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from this Court. See Fed. R. Civ. P. 15(a)(1). Therefore, this Court grants the Defendants’ and
the Plaintiff’s motions to strike the Plaintiff’s second amended complaint from the record.
3. Mikeal Stine’s Signature on the Plaintiff’s Second Amended Complaint
The Defendants argue that this Court should strike the Plaintiff’s second amended
complaint because Mikeal Stine did not personally sign the complaint and because Mr. Stine’s
alleged false signature shows bad faith. Defs.’ Mot. Strike at 4, ECF No. 8. This Court will not
make factual determinations on Defendants’ allegations regarding these matters. Moreover,
these issues are moot because that complaint has been stricken, this Court is granting the Plaintiff
leave to amend his complaint, and this Court is denying the Plaintiff’s motion for joinder on
separate grounds.
4. Claim for Relief Against Individual Defendants
The Plaintiff’s second amended complaint adds BOP employees Charles Samuels, Jr.,
Blake Davis, John Dignam as defendants in his claim. The Plaintiff asserts that the BOP
employees included false information in the Plaintiff and Mr. Stine’s files and that the BOP
employees failed to separate the Plaintiff and Mr. Stine from prison gangs the employees knew
would harm the Plaintiff and Mr. Stine. See 2d Am. Compl. ¶ 25, 27, 32, ECF No. 5. The
Plaintiff also asserts that the three defendants seized his legal documents and opened his legal
mail. See id. ¶ 35. The Plaintiff, however, cannot claim relief against individual defendants
under FOIA or the Privacy Act.
The Plaintiff’s suit against the three defendants is impermissible under FOIA and the
Privacy Act. 5 U.S. C. § 552(a)(4)(B); see, e.g., Martinez v. Bureau of Prisons, 444 F.3d 620,
624 (D.C. Cir. 2006); Cunningham v. U.S. Dep’t of Justice, 2013 WL 4446795 (D.D.C. Aug. 21,
2013). The Plaintiff would not be entitled to relief under FOIA or the Privacy Act because the

10

statutes only authorize a cause of action against agencies, not individuals. See Martinez, 444
F.3d at 624.
To the extent that the Plaintiff seeks to pursue monetary damages against these individual
defendants for all alleged constitutional torts pursuant to Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, he has not demonstrated that this Court maintains personal
jurisdiction over these defendants who appear to be located in Colorado. See 403 U.S. 388
(1971); Ibrahim v. District of Columbia, 357 F. Supp. 2d 187, 193 (D.D.C. 2004) (holding that
this Court lacks personal jurisdiction over suits against out-of-state defendants in their personal
capacity); 2d Am. Compl. ¶¶ 25-35. Additionally, the docket does not reflect that service has
been effected on these individual defendants in their personal capacity. See Pollack v. Meese,
737 F. Supp. 663, 666 (D.D.C. 1990) (stating that a failure to effect personal service “is fatal to a
Bivens action”); 2d Am. Compl. ¶¶ 25-35. Accordingly, if these claims were to be pursued in a
new amended complaint, they would be subject to dismissal.
5. Plaintiff’s Claims Under the Privacy Act
The Plaintiff fails to state claims under the Privacy Act. A plaintiff is entitled to civil
remedies against a federal agency when a plaintiff can demonstrate that the federal agency
refuses or fails to comply with the plaintiff’s requests under any provision of the Privacy Act. 5
U.S.C. § 552a(g)(1). In order to obtain monetary damages, a plaintiff must also demonstrate that
the federal agency has acted intentionally or willfully in refraining from granting a plaintiff’s
requests and that the agency’s actions had an “adverse determination” on a plaintiff. See Earle v.
Holder, 815 F. Supp. 2d 176, 181, 183 (D.D.C. 2011), aff’d, No. 11-5280, 2012 WL 1450574
(D.C. Cir. Apr. 20, 2012).

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The Plaintiff’s complaints lack sufficient detail to state valid claims against Defendants
under the Privacy Act because the complaints do not include any details about the information
that was allegedly falsely entered into the Plaintiff’s files. See 2nd Am. Compl. ¶ 7. Moreover,
the Plaintiff’s complaints neither demonstrate that the BOP employees acted intentionally or
willfully nor demonstrate that there was an adverse determination that resulted from the
employees’ actions. See id. ¶ 7-8. Because this Court is requiring the Plaintiff to provide more
information concerning his FOIA claims, he must also provide more factual detail concerning his
Privacy Act claims. When the Plaintiff files his amended complaint, he must provide more
factual details concerning which records he requested be amended or corrected, when he made
such requests, when the agency denied the requests, why he believes the information in the
record is inaccurate, what adverse determinations were made as a result of inaccurate
information in those records, and why he believes the agency’s actions were intentional or
willful. The Plaintiff’s future complaint should include more details, rather than bald allegations,
as to how the Defendants violated the Privacy Act.
C. Plaintiff’s Motions for Joinder of Plaintiff and Dismissal of Plaintiff
1. Plaintiff’s Motion to Dismiss Christopher Dennison
On November 15, 2012, the Plaintiff filed his initial complaint as the sole Plaintiff in this
action. On December 3, 2012, the Plaintiff timely filed an amended complaint and added Mr.
Dennison and Mr. Murray as plaintiffs. On January 11, 2013, Mr. Dennison moved to dismiss
himself pursuant to Fed. R. Civ. P. 41(a), which states that “the plaintiff may dismiss an action
without a court order by filing a notice of dismissal before the opposing party serves . . . an
answer.” This Court will dismiss Plaintiff Dennison.

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2. Plaintiff’s Motion for Joinder
This Court denies the Plaintiff’s Motion for Joinder of Mr. Stine. The Plaintiff and Mr.
Stine’s FOIA requests do not “aris[e] out of the same transaction, occurrence, or series of
occurrences.” See Fed. R. Civ. P. 20(a). The Plaintiff’s motion alleges that he and Mr. Stine
made “identical claims” against the Defendants. See Mot. Joinder, ECF No. 6. Even though the
Plaintiff and Mr. Stine may have made similar types of FOIA requests to the Defendants, the
Plaintiff does not include any facts in any of his complaints that reveal that the Plaintiff and Mr.
Stine’s FOIA requests arise out of the same incident or that the requests are in any way
“logically related” to each other. See Compl., 1st Am. Compl.; 2d Am. Compl. In the Plaintiff’s
second amended complaint, which this Court has stricken from the record, he only adds
paragraph 9(a) that states that the “BOP refused to respond to any of Stine’s FOIA requests.”
See 2d Am. Compl. ¶ 9.
The facts included in the three complaints are insufficient to reveal if the information the
Plaintiff and Mr. Stine requested from the Defendants is “logically related” or simply related
because both Plaintiffs made FOIA requests to the Defendants. Similar actions without a logical
relation do not satisfy the “arising out of the same transaction” prong of Rule 20(a). See
Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 10 (D.D.C. 2004) (citing Moore v. N.Y. Cotton Exch.,
270 U.S. 593, 610 (1926)).
Moreover, the Defendants point out that the Plaintiff’s motion for joinder should be
denied because Mr. Stine has a substantial litigation history of filing frivolous or unmeritorious
claims. See Defs.’ Mot. Strike at 20. The Prison Litigation Reform Act’s (“PLRA”) three strike
rule prohibits prisoners from filing more than three civil actions in forma pauperis if the claims
have been dismissed because they are “frivolous, malicious or fail to state a claim upon which

13

relief may be granted.” 28 U.S.C. § 1915(g). Mr. Stine’s record reveals that he has over three
strikes. See Stine v. Lappin, No. CIV.A. 07-CV-01839WY, 2009 WL 2848849, at *3 (D. Colo.
Sept. 1, 2009) (finding that Plaintiff Stine, because he had over three strikes, had requested help
from other inmates to continue submitting his claims). Mr. Stine cannot file his claims
independently without prepayment of filing fees because he has been barred from doing so under
the PLRA. This Court will not allow Mr. Stine to circumvent the three-strike rule by attempting
to join the Plaintiff’s complaint through joinder. Considering Mr. Stine’s history and the lack of
a logically related relation between the Plaintiff and Mr. Stine’s requests, this Court denies the
Plaintiff’s motion for joinder of Mr. Stine.
III. MOTION FOR PRELIMINARY INJUNCTION; MOTION FOR EVIDENTIARY
HEARING AND RULE 11 SANCTIONS; MOTION FOR VAUGHN INDEX
The Defendants argue that the Plaintiff’s retaliation claims in the Plaintiff’s Motion for a
Preliminary Injunction and Motion for Evidentiary Hearing must be dismissed pursuant to the
PLRA because the Plaintiff has failed to demonstrate that he exhausted his administrative
remedies before bringing any action regarding prison conditions. See Defs.’ Mot. Strike at 13,
ECF No. 8. But, the Defendants incorrectly assert that the Plaintiff must plead exhaustion. In
Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court held that a Plaintiff does not need to
plead exhaustion in his complaint. See id. at 213. Rather, a failure to exhaust administrative
remedies is regarded as an affirmative defense under Rule 8(c). See Fed. R. Civ. P. 8(c); Jones,
549 U.S. at 219. Accordingly, the Plaintiff need not allege that he exhausted his remedies when
filing claims regarding prison conditions.5 Because the Defendants provide no evidence that the
Plaintiff did not exhaust his administrative remedies on these claims, the Court declines to
5

Although the Plaintiff does not need to demonstrate that he has exhausted his
administrative remedies regarding his retaliation claims, the Plaintiff must include more facts
regarding these claims when amending his complaint.
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dismiss the claims on exhaustion grounds. This Court, however, denies the Plaintiff’s motions
on other grounds.
1. This Court Denies Without Prejudice6 Plaintiff’s Motion for a Preliminary
Injunction
When considering a motion for a preliminary injunction, federal district courts should
consider “(1) the [movant’s likelihood] of success on the merits; (2) the threat of irreparable
injury in the absence of an injunction; (3) the possibility of substantial harm to other interested
parties from the issuance of an injunction; and (4) the interests of the public.” See Fed. R. Civ.
P. 65; see, e.g. Nat’l Min. Ass’n v. Jackson, 768 F. Supp. 2d. 34, 48 (D.D.C. 2011) (citing
Wagner v. Taylor, 836 F.2d 566, 575 (D.C.Cir.1987)). On March 11, 2013, the Plaintiff filed a
motion for a preliminary injunction seeking to enjoin the Defendants from acts of retaliation
against the Plaintiff. In his Motion, the Plaintiff argues that the Defendants harassed the Plaintiff
through threats, assault, withholding meals, and confiscation of legal documents. See Mot.
Prelim. Inj. at 2-3, ECF No. 12. Because Colorado is a more proper forum for the dispute, see
supra note 6, this Court will not address the Plaintiff’s retaliation claims and thus denies without
prejudice the Plaintiff’s motion for a preliminary injunction.7 If the Plaintiff repeats these
retaliation claims in the new amended complaint, this Court will likely sever them and transfer
them to Colorado.

6

Although this Court is the correct venue for FOIA appeals, it does not appear to have
jurisdiction over the Plaintiff’s retaliation and constitutional claims to the extent he seeks
monetary damages. Jurisdiction over these claims likely exists in Colorado’s District Court
where the Plaintiff is currently detained and which would have personal jurisdiction over the
individual defendants located in that state.
7
This Court finds the Defendants’ response to this Motion to be lacking in factual detail
or appropriate analysis. Defendants’ only argument is that this motion should be dismissed as
“frivolous” because the Plaintiff must exhaust administrative remedies to resolve his claims. See
Defs.’ Opp’n at 8-10. This skeletal response fails to adequately consider the Plaintiff’s serious
allegations.
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2. This Court Denies Without Prejudice Plaintiff’s Motion for an Evidentiary Hearing
On March 15, 2013, the Plaintiff filed a motion for an evidentiary hearing and for Rule
11 sanctions against defense counsel. The Plaintiff alleges that defense counsel intentionally
misrepresented documents and facts regarding the Plaintiff’s complaints, and thus should be
sanctioned under Rule 11. See Mot. Hr’g. at 3, ECF No. 13. The Plaintiff provides insufficient
evidence to support this claim and the Court denies the motion. In the same motion, the Plaintiff
urges the Court to hold an evidentiary hearing with the Plaintiff and security facility staff to
substantiate the Plaintiff’s claims that the prison staff have been harassing and threatening the
Plaintiff. Id. Because the requested hearing focuses on the retaliation claims, and because
Colorado is a more proper forum for the dispute, see supra note 6, this Court denies without
prejudice the Plaintiff’s motion in this respect as well.8
3. This Court Denies Without Prejudice Plaintiff’s Motion for a Vaughn Index
When a federal district court reviews agency decisions to withhold information requested
through FOIA, a court can request that an agency produce a detailed “index” of the information
withheld. See Campaign for Responsible Transplantation v. FDA, 180 F. Supp. 2d 29, 33
(D.D.C. 2001) (citing Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)). A requester can
move a federal district court for a Vaughn index to compel the withholding agency to detail the
redacted documents and to justify the elements in the record that have been exempted from
disclosure. See id. at 32. However, a Vaughn index is not typically required until the
Defendants must factually support a motion for summary judgment. See Schoenman v. F.B.I.,

8

This Court finds the Defendants’ response to the Plaintiff’s Motion lacking on this issue
as well. The Defendants’ only argument against this motion is that the Plaintiff’s request is
frivolous and that “any failure to provide evidentiary support” is a result of the Plaintiff’s
inaction. See Defs.’ Opp’n at 12. This sort of conclusory sentiment does not assist the Court in
assessing the Plaintiff’s claims.
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604 F. Supp. 2d 174, 178 (D.D.C. 2009). Because this case is not yet in a posture for dispositive
briefing, the Plaintiff’s motion is premature. Thus, this Court will deny the Plaintiff’s request for
a Vaughn index.

IV. DEFENDANTS’ OBLIGATION TO RESPOND
In the Defendants’ response to the Plaintiff’s Motions, they request relief from any
obligation to respond to any further filings by the Plaintiff absent an order form this Court. See
Defs.’ Opp’n at 10-11. Despite the Defendants’ protestation, the record does not reflect that the
Plaintiff’s motions have become overly burdensome, particularly because the Plaintiff has not
filed any motions during the past five months. Accordingly, as the requested relief does not
appear necessary or appropriate, this Court denies the Defendants’ request.

V. CONCLUSION
For the foregoing reasons, this Court orders the Plaintiff to provide a more definite
statement of his claims and grants the Plaintiff leave to amend his complaint sua sponte, grants
the Plaintiff’s Motion to Dismiss Plaintiff Dennison, denies the Plaintiff’s Motion for Joinder of
Plaintiff Stine, denies without prejudice the Plaintiff’s Motion for a Preliminary Injunction,
denies without prejudice the Plaintiff’s Motion for Evidentiary Hearing and Rule 11 Sanctions,
and denies as premature the Plaintiff’s Motion for a Vaughn Index. Additionally, this Court
grants the Plaintiff’s and the Defendants’ Motions to Strike Plaintiff’s Second Amended
Complaint, but denies the Defendant relief from responding to the Plaintiff’s pleadings.
An order consistent with this Memorandum Opinion is separately and contemporaneously
issued.

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Dated: September 30, 2013

RUDOLPH CONTRERAS
United States District Judge

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