PINSON v. U.S. DEPARTMENT OF JUSTICE

Filing 90

MEMORANDUM OPINION denying 30 Motion for Discovery; denying 30 Motion to Appoint Counsel; and denying 30 Motion for Leave to Supplement. See document for details. Signed by Judge Rudolph Contreras on 7/10/2014. (lcrc2)

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.:

30

MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND LEAVE TO SUPPLEMENT AND
FOR APPOINTMENT OF COUNSEL
I. PROCEDURAL BACKGROUND
Two years ago, Jeremy Pinson filed a complaint against the U.S. Department of Justice
(“DOJ”), claiming that various branches of the DOJ improperly withheld records from him in
violation of the Freedom of Information Act and the Privacy Act (“FOIA”). See Compl. ¶ 4, ECF
No. 1. Pinson then amended his complaint twice. See Am. Compl., ECF No. 2; Second Am.
Compl., ECF No. 30. After the DOJ moved to strike Pinson’s Second Amended Complaint, see
Def.’s Mot. Strike, ECF No. 8, the Court ordered Pinson to “provide a more definite statement of
his claims” but granted him leave to amend his complaint. Mem. Op. 17, Sept. 30, 2013, ECF
No. 26. Pinson then filed a fourth version of his complaint. See Corrected Second Am. Compl.,
ECF No. 32. Around the same time, Pinson filed this motion, asking the Court to (1) order “the
defendant to produce copies of all final response letters to all FOIA requests listed in the
Corrected Second Amended Complaint,” (2) “allow [him] to supplement [the complaint] with
the documents once produced,” and (3) appoint an attorney to represent him because of his

mental illness. Pl.’s Mot. 2–3, ECF No. 30. For the reasons detailed below, this motion is
denied.

II. DISCUSSION
A. Plaintiff’s Motion for Limited Discovery
First, Pinson asks the Court to order “the defendant to produce copies of all final response
letters to all FOIA requests listed in the Corrected Second Amended Complaint.” Pl.’s Mot. 3,
ECF No. 30. He cites Federal Rules of Civil Procedure 26 and 34 in support of his request. Rule
26 requires parties in a civil case to voluntarily disclose certain information to the other party
without waiting for a request from the other party. See Fed. R. Civ. P. 26(a)(1). Rule 34, read in
conjunction with Rule 26, allows parties in a civil case to request documents from the other party
that may be relevant to any party’s claim or defense. See Fed. R. Civ. P. 26(b), 34(a).
The local rules of this Court, however, exempt all FOIA actions from the requirements of
initial disclosure under Rule 26(a)(1). See D.D.C. LCvR 26.2(a)(9). In addition, discovery of any
type is generally not allowed in FOIA proceedings. Wolf v. CIA, 569 F. Supp. 2d 1, 9 (D.D.C.
2008) (quoting Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C. 2003)). The one exception to
this rule is when the plaintiff makes something more than a “speculative” assertion that the
agency might not have acted in good faith in responding to his FOIA request. See Accuracy in
Media, Inc. v. Nat’l Park Serv., 194 F.3d 120, 124 (D.C. Cir. 1999) (affirming the district court’s
decision not to allow discovery where the plaintiff argued that the agency’s search must have
been inadequate because the detailed nature of certain typed reports suggested the existence of
handwritten notes). Thus, discovery “should be denied where an agency’s declarations are
reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute
remains.” Wolf, 596 F. Supp. 2d at 9 (quoting Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29,

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35 (D.D.C. 2002)). Furthermore, even if the district court decides to allow discovery in a given
case, it may nevertheless limit the scope of that discovery at its discretion. See SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (noting that a district court has “broad
discretion to manage the scope of discovery”). For example, a court may limit the scope of
available discovery when “the discovery sought is unreasonably cumulative or duplicative.” Fed.
R. Civ. P. 26(b)(2)(C)(i).
At least at this point in time, the Court concludes that this case is not one of those unusual
situations in which FOIA discovery should be allowed. The DOJ has provided Pinson with many
of the final response letters he requested in conjunction with its motions to dismiss various
portions of his complaint. The DOJ also filed numerous declarations detailing its responses to
many of Pinson’s FOIA requests. Thus, at this point, it would be premature and redundant to
allow the parties to engage in extensive discovery. Plaintiff has the burden of pleading sufficient
facts to survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). To the extent that
Plaintiff lacks such information, it is not a defendant’s responsibility to provide it. Therefore, this
case does not warrant an exception to the general rule prohibiting discovery in FOIA cases.
For all of the reasons set forth above, Pinson’s motion for discovery is hereby denied.
B. Plaintiff’s Motion for Leave to Supplement
Pinson also asks the Court for leave to “supplement” his complaint with the information
that he seeks to obtain from the DOJ in discovery. (Pl.’s Mot. 3, ECF No. 30.) Leave to
supplement a complaint may be given when some “transaction, occurrence, or event . . .
happen[s] after” the complaint is filed. Fed. R. Civ. P. 15(d) (emphasis added). In this case,
Pinson seeks to add information to his complaint relating to events that have already happened.
(See Pl.’s Mot. 3, ECF No. 30.) Therefore, Pinson’s motion is actually a request to amend, not

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supplement, his complaint. Compare Fed. R. Civ. P. 15(d) (describing the purpose of
supplemental pleadings), with Fed. R. Civ. P. 15(a)–(b) (describing the purpose of amended
pleadings).
A plaintiff may amend his complaint more than once “only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend a complaint
should be freely given “when justice so requires,” id., but not when doing so would cause “undue
delay” or when the movant has repeatedly failed to cure deficiencies in his complaint after being
given several opportunities to do so. Foman v. Davis, 371 U.S. 178, 182 (1962).
In this case, the Court has already denied Pinson’s motion for discovery. This makes his
request to “supplement” moot. Accordingly, Pinson’s motion for leave to “supplement” the
complaint is hereby denied.
C. Plaintiff’s Motion for Appointment of Counsel
Finally, Pinson asks the Court to appoint an attorney for him, claiming that he is mentally
ill. (Pl.’s Mot. 2–3, ECF No. 30.) Plaintiffs in civil cases do not have a constitutional or statutory
right to counsel. See Willis v. F.B.I., 274 F.3d 531, 532–33 (D.C. Cir. 2001). A district court may
“request an attorney to represent any person unable to afford counsel” in a civil case, 28 U.S.C. §
1915(e)(1), but this is appropriate only in “exceptional circumstances” when the denial of
counsel would result in fundamental unfairness. Mays v. Meeks, No. 05-2116, 2006 WL 890671,
at *1 (D.D.C. Apr. 5, 2006). For example, a court may appoint an attorney for a pro se litigant
who is involved in a particularly complex or meritorious case or who is otherwise incapable of
adequately representing himself without the help of an attorney. See D.D.C. LCvR 83.11(b)(3)
(listing four factors to consider in determining whether to appoint counsel for a pro se litigant
who has already been granted leave to proceed in forma pauperis). Ultimately, however, the

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district court has the discretion to decide whether to appoint an attorney for a pro se litigant in a
civil case. See Willis, 274 F.3d at 532–33.
In this case, Pinson is bringing a FOIA action, not an intractably complex tax case.
Plaintiff’s pleadings suggest that he is intelligent and articulate and, thus, is capable, at this point,
to adequately represent himself as evidenced by how he has ably represented himself thus far in
bringing and responding to a variety of motions.1 Plaintiff contends that he is unable to represent
himself because he is mentally ill. His pleadings do not suggest as much. Furthermore, Plaintiff
provides no medical evidence to suggest such a claim. Moreover, his submission of Mr. Stine’s
non-medical lay opinion on this point carries no weight. Under these circumstances, the Court
does not find it necessary to appoint an attorney for Pinson.
Pinson’s motion for appointment of counsel is therefore denied.

III. CONCLUSION
For all of the reasons set forth above, Plaintiff’s Motion for Limited Discovery and Leave
to Supplement and for Appointment of Counsel is hereby DENIED in its entirety.

Dated: July 10, 2014

RUDOLPH CONTRERAS
United States District Judge

1

Pinson has previously represented himself in approximately 180 cases before at least 20 federal
district courts and in more than 60 appeals in at least 7 different circuits. Pinson v. Armijo, 2014
WL 1034992, at *2, No. 13-CV-01567-BNB, (D. Colo. Mar. 18, 2014). In addition, Pinson states
that he “has assisted over 50 BOP inmates to file lawsuits against the BOP.” Pl.’s Corrected
Second Am. Compl. 14, ECF No. 32. See also Womack v. Berkebile, No. 13-CV-01866-BNB,
2013 WL 5937974, at *4 (D. Colo. Nov. 6, 2013). On one occasion, Pinson asked a federal
district court to allow him to represent another inmate, asserting that this inmate was
“incompetent and not capable of proceeding in a separate case without [his] help.” Pinson v.
Berkabile, No. 12-CV-02673-BNB, 2013 WL 1127097, at *1 (D. Colo. Mar. 18, 2013).

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