PINSON v. U.S. DEPARTMENT OF JUSTICE

Filing 510

MEMORANDUM OPINION denying 503 Plaintiff's Motion to Vacate and for Limited Appointment of Counsel. See document for details. Signed by Judge Rudolph Contreras on 3/3/2024. (lcrc1)

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

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Civil Action No.:

12-1872 (RC)

Re Document No.:

503

MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION TO VACATE AND FOR LIMITED APPOINTED COUNSEL
I. INTRODUCTION
Plaintiff Jeremy (“Grace”) Pinson (“Pinson” or “Plaintiff”), proceeding pro se, brought
the instant suit against the Bureau of Prisons (“BOP”), BOP officials, and other government
defendants (“Defendants”) alleging, among other things, that BOP officials retaliated against
her 1 for exercising her First Amendment rights. Relevant here, Pinson alleged that BOP officials
had retaliated against her by transferring her to a supermax prison. Defendants moved to
dismiss, and the Court granted Defendants’ motion. In doing so, the Court held that Pinson’s
claims for injunctive relief relating to her transfer to the supermax prison were moot. Pinson
now moves to vacate that portion of the Court’s order and opinion. She also moves for limited
appointment of counsel. For the reasons that follow, Pinson’s motions are denied.
II. BACKGROUND
The Court assumes familiarity with its earlier opinions in this matter, which recounted the
factual background of this case. See Pinson v. U.S. Dep’t of Just., 514 F. Supp. 3d 232, 237

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Pinson identifies using feminine pronouns, so the Court follows suit.

(D.D.C. 2021); Pinson v. U.S. Dep’t of Just., 246 F. Supp. 3d 211, 214–16 (D.D.C. 2017);
Pinson v. U.S. Dep’t of Just., No. 12-cv-1872, 2016 WL 29245, at *8–9 (D.D.C. Jan. 4, 2016). It
thus confines its discussion to the facts and procedural background necessary to resolve the
instant motion.
As the Court previously explained:
Pinson has been incarcerated for over a decade. In that time, she has filed over
one thousand administrative grievances, she has regularly contacted and written
for various news outlets, and she has filed or helped other inmates file numerous
lawsuits. She says that these First Amendment-protected activities earned her the
ire of [Charles] Samuels, formerly the BOP’s Director, and [John] Dignam, who
used to be Chief of the BOP’s Office of Internal Affairs (“OIA”). Neither official
still works with the BOP.
Mem. Op. at 3, ECF No. 491 (internal citations omitted). In her complaint, Pinson “allege[d]
that Samuels transferred her to ADX Florence (the BOP’s most secure facility) in retaliation for
her complaints, press contacts, and lawsuits against the BOP.” Id. at 4; see also id. (detailing the
evidentiary support related to this claim). In October 2014, the “BOP transferred Pinson [out of]
ADX Florence . . . and she has not been housed there since.” Id.
On February 5, 2020, Defendants moved to dismiss Pinson’s claims for injunctive relief
related to her transfer to ADX Florence. See Defs.’ Mot. Dismiss at 32–35, ECF No. 477.
Defendants argued that “Pinson’s retaliatory transfer claim against Samuels in his official
capacity [was] moot and should be dismissed for want of jurisdiction.” Mem. Op. at 6. The
Court agreed. In doing so, it explained that “[b]ecause the BOP transferred Pinson away from
ADX Florence,” to the extent Pinson continued to seek injunctive relief, it was only to
“prohibit[] BOP officials from transferring [her] to ADX [Florence] in the future.” Id. at 17
(internal citations and quotation marks omitted). That being so, the Court stated that “for a live
controversy to remain, there must be a ‘more-than-speculative chance’ that BOP officials will
transfer her back to ADX Florence in the future because she exercised her First Amendment
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rights.” Id. (quoting Am. Bar Ass’n v. F.T.C., 636 F.3d 641, 645 (D.C. Cir. 2011)). And after
surveying the parties’ arguments and evidence, the Court held that “[t]here [was] no reasonable,
more-than-speculative chance that BOP officials will again transfer Pinson to ADX Florence in
retaliation for her exercising First Amendment rights.” Id. at 18–22.
The Court based this conclusion on multiple factors. First, the Court explained that,
because “Dignam and Samuels [we]re no longer employed by the BOP,” “the sources of the
retaliatory motive that Pinson asserts [we]re gone.” Id. (internal citations omitted). Second, the
Court explained that “there [was] no ‘reasonable expectation’ that,” with Samuels gone, “his
successors w[ould] again transfer Pinson to ADX Florence in retaliation for her First
Amendment activities.” Id. at 19. On that front, the Court observed that “in the six years since
Pinson was transferred from ADX Florence and the five years since Samuels left the BOP, there
ha[d] been no effort to transfer Pinson back to the supermax prison.” Id. Third, the Court
explained that “[u]pdated BOP guidance on the handling of prisoners who suffer from mental
illness ma[de] a second retaliatory transfer even more speculative.” Id. To be more specific,
“[w]hile Pinson was housed at ADX Florence, the BOP issued policies that require input by
mental health professionals in the designation process for mentally ill inmates.” Id. While these
policies did not outright “prohibit the BOP from transferring Pinson back to ADX Florence, they
certainly ma[de] it harder for officials to do so without a legitimate basis.” Id. at 20. All that
being so, the Court concluded that “there is no evidence that BOP officials will again retaliate
against Pinson by assigning her to ADX Florence” and that “[h]er removal from that facility thus
moots her official-capacity claim for retaliatory transfer.” Id. at 21.
Over two years passed. Then, on March 20, 2023, Pinson filed the instant motion to
vacate the Court’s prior order and opinion to the extent it granted Defendants’ motion to dismiss

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her retaliatory transfer claim for injunctive relief. See Pl.’s Mot. Vacate and Limited Appointed
Counsel (“Pl.’s Mot.”), ECF No. 503. Pinson’s motion alleges that “[i]n recent days[,] plaintiff
was informed by BOP officials she is pending redesignation to ADX Florence or the ‘Secure
Admin Unit’ by Samuels’ successor[,] Colette S. Peters[,] at the request of Warden Mark
Gutierrez.” Id. at 1–2. She argues that this undermines the Court’s previous finding that “there
is no evidence that BOP officials will again retaliate against Pinson.” Id. at 2. She therefore
moves for “limited appointment of counsel to gather evidence and brief the Court on the
necessity of vacatur as to the official-capacity injunctive relief claim,” and, pursuant to Federal
Rule of Civil Procedure 60, to “vacate [the] [j]udgment as to the official-capacity injunctive
relief claim.” Id. at 2–3. Alternatively, she asks the Court to order the “Clerk to sever this claim
into a new civil action with 30 days to file a Complaint pursuant to Fed. R. Civ. P. 8(a).” Id. at
3. Defendants oppose Pinson’s motion, see Defs.’ Opp’n Pl.’s Mot. Vacate and Limited
Appointed Counsel (“Defs.’ Opp’n”), ECF No. 505, and the motion is ripe for review, see Pl.’s
Reply Opp’n Mot. Vacate and Limited Appointment of Counsel (“Pl.’s Reply”), ECF No. 506.
III. ANALYSIS
A. Legal Standards
Under Federal Rule of Civil Procedure 60(b), parties may seek relief from a final
judgment “within a reasonable time” following the entry of the judgment for any of six
enumerated reasons. Fed. R. Civ. P. 60(b), (c); Oladokun v. Corr. Treatment Facility, 309
F.R.D. 94, 97 (D.D.C. 2015). Those reasons are:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud . . . misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1)-(6). Rule 60(b) therefore “preserve[s] ‘the delicate balance between the
sanctity of final judgments . . . and the incessant command of the court’s conscience that justice
be done in light of all the facts.’” Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006)
(quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). The
Rule “cannot . . . be employed simply to rescue a litigant from strategic choices that later turn out
to be improvident.” Id.
District courts enjoy “a large measure of discretion” in deciding Rule 60(b) motions.
Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987); see also 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2857 (3d ed. 2012). “The party
seeking relief under Rule 60(b) bears the burden of showing that he or she is entitled to relief.”
Oladokun, 309 F.R.D. at 97; see also Green v. AFL-CIO, 287 F.R.D. 107, 109 (D.D.C. 2012);
Jarvis v. Parker, 13 F. Supp. 3d 74, 77 (D.D.C. 2014).
B. Motion to Vacate
Generously construed, Pinson’s motion argues that Rules 60(b)(2), (b)(3), (b)(5), and
(b)(6) justify vacatur of the Court’s prior order. See Pl.’s Reply at 3. The Court addresses each
in turn.
1. Rule 60(b)(2)
Under Rule 60(b)(2), a court may relieve a party of a final judgment on the basis of
“newly discovered evidence that, with reasonable diligence, could not have been discovered in

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time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). To obtain relief under
Rule 60(b)(2), the moving party must demonstrate that:
(1) the newly discovered evidence is of facts that existed at the time of the trial or
merits proceeding; (2) the party seeking relief was “justifiably ignorant of the
evidence despite due diligence”; (3) the evidence is admissible and is “of such
importance that it probably would have changed the outcome”; and (4) the
evidence is not merely cumulative or impeaching.
Almerfedi v. Obama, 904 F. Supp. 2d 1, 3 (D.D.C. 2012) (quoting Duckworth v. United States,
808 F. Supp. 2d 210, 216 (D.D.C. 2011)). As the moving party, Pinson bears the burden of
proving that “the proffered evidence is ‘of such a material and controlling nature as will probably
change the outcome.’” Epps v. Howes, 573 F. Supp. 2d 180, 185 (D.D.C. 2008) (quoting In re
Korean Air Lines, 156 F.R.D. 18, 22 (D.D.C. 1994)).
The only evidence Pinson cites in support of her motion are two affidavits—her own and
that of another prisoner. Both declarations assert that, on March 6, 2023, Pinson was informed
by “Warden Mark Gutierrez that the BOP [was] going to redesignate [her] to ‘ADX Florence or
the Secure Admin Unit.’” Ex. 1, Decl. of Jeremy Pinson, Pl.’s Mot. (“Pinson Decl.”) at 1, ECF
No. 503-1; see also Ex. 2, Decl. of Ernesto Zaragosa-Solis III (“Zaragosa-Solis III Decl.”) at 1,
ECF No. 503-1 (providing a nearly verbatim retelling of the same facts). Critically, however, the
Court issued its opinion on January 8, 2021. Pinson was not informed that she allegedly may be
transferred to ADX Florence until over two years later. By definition, then, none of the evidence
Pinson cites qualifies as “newly discovered evidence . . . of facts that existed at the time of the”
dispositive proceeding in this case. Almerfedi, 904 F. Supp. 2d at 3 (emphasis added). That
being so, the Court need not consider whether the other requirements for granting relief under
Rule 60(b)(2) have been satisfied, as Pinson has failed to satisfy the first prong of the test
described in Almerfedi.

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2. Rule 60(b)(3)
Rule 60(b)(3) allows a court to set aside or grant relief from a final judgment for fraud,
misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P. 60(b)(3). The burden
falls on the party seeking relief to “prove such fraud or misrepresentation with ‘clear and
convincing evidence.’” People for the Ethical Treatment of Animals v. U.S. Dep’t of Health &
Hum. Servs. (“PETA”), 226 F. Supp. 3d 39, 55 (D.D.C. 2017) (quoting Shepherd v. Am. Broad.
Companies, Inc., 62 F.3d 1469, 1477 (D.C. Cir. 1995)). Furthermore, Rule 60(b)(3) motions will
only be granted if the moving party can “show actual prejudice, that is, [s]he must demonstrate
that the defendant’s conduct prevented [her] from presenting [her] case fully and fairly.”
Ramirez v. Dep’t of Just., 680 F. Supp. 2d 208, 210 (D.D.C. 2010); see also Walsh v. Hagee, 10
F. Supp. 3d 15, 19 (D.D.C. 2013). The moving party needs to do more than simply present
allegations of fraud, it must present evidence of actual fraud that “prevented it from presenting
its own case.” PETA, 226 F. Supp. 3d at 56–57; see also Am. Cetacean Soc. v. Smart, 673 F.
Supp. 1102, 1105 (D.D.C. 1987).
Here, Pinson argues that “[D]efendants misled this Court” by claiming that they would
not “transfer [Pinson] to an ADX or ADX-type unit.” See Pl.’s Reply at 3. She also argues that
Defendants continue to retaliate against her “by returning her to solitary confinement” despite
their prior “promise[]” not to do so. See id. at 4–5. Put simply, Pinson’s allegations are a far cry
from the “clear and convincing evidence” necessary to show fraud or misrepresentation on the
part of Defendants. See PETA, 226 F. Supp. 3d at 55 (quoting Shepherd, 62 F.3d at 1477). The
only purported evidence that Pinson cites are the declarations claiming that Warden Gutierrez
threatened to transfer her to “ADX Florence or the Secure Admin Unit.’” Pinson Decl. at 1;
Zaragosa-Solis III Decl. at 1. Even assuming the veracity of Pinson’s declarations, such a

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statement does not suggest that Defendants previously misrepresented their intentions, especially
in light of the fact that Pinson has not, in fact, been transferred to ADX Florence. 2 Nor is there
any evidence to support Pinson’s claim that Defendants “keep retaliating [against her] by
returning her to solitary confinement.” See Pl,’s Reply at 4. Instead, Pinson’s allegations
amount to the type of “speculative assertions” that are insufficient to demonstrate entitlement to
relief under Rule 60(b)(3). See PETA, 226 F. Supp. 3d at 56.
3. Rule 60(b)(5)
Rule 60(b)(5) provides, in pertinent part, that the Court may relieve a party from a final
judgment or order where “applying it prospectively is no longer equitable.” Fed. R. Civ. P.
60(b)(5). The moving party “bears the burden of establishing that changed circumstances
warrant relief.” Horne v. Flores, 557 U.S. 433, 447 (2009). “Rule 60(b)(5) may not be used to
challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a
means by which a party can ask a court to modify or vacate a judgment or order if ‘a significant
change either in factual conditions or in law’ renders continued enforcement ‘detrimental to the
public interest.’” Id. (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)).
Largely for the reasons described above, Pinson has not demonstrated a significant
change in the factual conditions relating to her incarceration such that the Court’s order should
be vacated. That is because Pinson has not demonstrated any actual changed factual conditions.
Her motion is entirely based on one statement that she alleges shows Defendants intend to
transfer her back to ADX Florence or another similar facility—something that has not happened,
and which Pinson has not convincingly shown is likely to happen. See supra note 2; cf. Jordan

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Indeed, since Pinson filed her motion, she has been transferred to U.S. Penitentiary
Allenwood S.A.U. in White Deer, Pennsylvania. See Notice of Change of Address, ECF No.
508.
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v. U.S. Dep’t of Lab., 331 F.R.D. 444, 453 (D.D.C. 2019) (denying Rule 60(b)(5) motion where
movant “fail[ed] to assert, or provide any evidence for, actually changed circumstances that may
‘warrant revision’ of the prior judgment” (quoting Brown v. Dalton, 312 F.R.D. 239, 243
(D.D.C. 2015))).
4. Rule 60(b)(6)
Finally, Rule 60(b)(6) is a catch-all provision that empowers a court to grant relief from a
final judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Relief may
be granted under Rule 60(b)(6) only if the motion for relief is “not premised on one of the
grounds for relief enumerated in clauses (b)(1) through (b)(5),” Salazar ex rel. Salazar v. District
of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011) (quoting Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863 (1988)), and “should only be granted in ‘extraordinary
circumstances,’” Riley v. BMO Harris Bank, N.A., 115 F. Supp. 3d 87, 94 (D.D.C. 2015)
(quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). Extraordinary circumstances
exist “[w]hen a party timely presents a previously undisclosed fact so central to the litigation that
it shows the initial judgment to have been manifestly unjust.” Salazar, 633 F.3d at 1121 (citing
Good Luck Nursing Home, 636 F.2d at 577). This is a “high bar.” United States v. Philip Morris
USA Inc., 840 F.3d 844, 852 (D.C. Cir. 2016). For the reasons already discussed, Pinson fails to
come close to surmounting that bar.
Moreover, Rule 60(b)(6) motions “must be filed within a reasonable time.” Kapar v.
Islamic Republic of Iran, 105 F. Supp. 3d 99, 105 (D.D.C. 2015). “In this Circuit, courts almost
uniformly deny Rule 60(b)(6) motions as untimely when they are filed more than three months
after judgment.” Carvajal v. Drug Enf’t Admin., 286 F.R.D. 23, 26 (D.D.C. 2012). Pinson filed

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the present motion over two years after judgment. Thus, to the extent she seeks relief under Rule
60(b)(6), her motion is also denied on timeliness grounds. 3
C. Motion to Appoint Counsel
Pinson also moves for “limited appointment of counsel to gather evidence and brief the
Court on the necessity of vacatur as to [her] official-capacity injunctive relief claim.” Pl.’s Mot.
at 3. While a civil litigant is not guaranteed counsel, see Gaviria v. Reynolds, 476 F.3d 940, 943
(D.C. Cir. 2007), federal courts are authorized by statute to “request an attorney to represent any
person unable to afford counsel,” 28 U.S.C. § 1915(e)(1); accord Willis v. FBI, 274 F.3d 531,
532 (D.C. Cir. 2001). “[T]he district court judge controls the ‘discretionary’ decision of whether
to appoint counsel, and that decision ‘will be set aside only for abuse.’” Pinson v. U.S. Dep’t of
Just., 273 F. Supp. 3d 1, 4 (D.D.C. 2017) (quoting Willis, 274 F.3d at 532). Local Civil Rule
83.11 applies in determining whether appointment of counsel is appropriate. See Willis, 274
F.3d at 533. The Court must balance several factors: (i) the nature and complexity of the action;
(ii) the potential merit of the pro se party’s claims; (iii) the demonstrated inability of the pro se
party to retain counsel by other means; and (iv) the degree to which the interests of justice will
be served by appointment of counsel, including the benefit the court may derive from the
assistance of the appointed counsel. LCvR 83.11(b)(3). Any one factor may be controlling. See
Willis, 274 F.3d at 532.
None of the four factors listed in Local Civil Rule 83.11 persuade the Court that
appointment of counsel is appropriate here. First, Pinson does not assert that her claims are
likely to raise complex legal or factual issues that will require representation, nor do the claims

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The Court also denies Pinson’s alternative request to “sever [her] claim into a new civil
action.” See Pl.’s Mot. at 3; Pl.’s Reply at 9.
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themselves appear to present complex legal or factual issues. Second, her claim that Defendants
intend to retaliate against her by transferring her back to ADX Florence or a like-facility appear
to be meritless. Third, Pinson has not demonstrated to the Court through any filings that she is
unable to obtain counsel on her own. None of Pinson’s communications with the Court have
indicated her efforts or inability to obtain counsel. Thus, “[t]aking the unusual step of appointing
civil counsel would be particularly inappropriate in light of [Pinson’s] failure to show that [s]he
has previously sought counsel.” See Saunders v. Davis, No. 15-cv-2026, 2016 WL 4921418, at
*15 (D.D.C. Sept. 15, 2016). Finally, Pinson has a history of litigation in federal court,
repeatedly engaging in litigation against federal agencies pro se—demonstrating her ability to
engage in litigation without the assistance of counsel. The degree to which the interests of
justice will be served by the assistance of appointed counsel thus does not seem to outweigh the
burden placed on, and limited resources of, the Civil Pro Bono Panel.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Vacate and for Limited Appointed
Counsel (ECF No. 503) is DENIED. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: March 3, 2024

RUDOLPH CONTRERAS
United States District Judge

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