Pinson v. Oddo et al

Filing 27

MEMORANDUM re Order Directing Clerk's Office to Send Waiver of Service Forms to Defendants 5 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 1/24/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEREMY PINSON,
Plaintiff
vs.
L.J. ODDO, et al.,
Defendants

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CIVIL NO. 1:16-CV-00565

(Judge Rambo)

-------------------------------------------------------JEREMY PINSON,
Plaintiff
vs.
ELIZABETH SANTOS,
et al.,
Defendants

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CIVIL NO. 1:17-CV-00103

(Judge Rambo)

MEMORANDUM
Background
On April 1, 2016, Plaintiff Jeremy V. Pinson, an
inmate at the United States Penitentiary at Allenwood,
White Deer, Pennsylvania (“USP-Allenwood”)1(Federal
1.

Pinson is presently confined at the Medical Center
(continued...)

Bureau of Prisons inmate number 16267-064) filed a civil
rights action, Civil No. 1:16-CV-00565, pro se pursuant
to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).2 (Doc. 1, Civil No. 16-565.)

Named as

Defendants are L. J. Oddo, Warden at USP-Allenwood; Mr.
Rodarmel, a Unit Manager at USP-Allenwood; Joseph
Norwood, Northeast Regional Director of the Federal
Bureau of Prisons; and the Federal Bureau of
Prisons.(Id.)

Pinson is alleged to be a transgender

woman undergoing hormone therapy who is being retaliated
by the Defendants for refusing to be housed in the
general population.(Id.) Pinson claims that in 2008 she
cooperated with law enforcement who were investigating

1.

(...continued)

for Federal Prisoners, Springfield, Missouri.
28 U.S.C. § 1331 states as follows: “The district
court shall have original jurisdiction of all actions
arising under the Constitution, laws, or treaties of
the United States.”
Bivens stands for the proposition that "a citizen
suffering a compensable injury to a constitutionally
protected interest could invoke the general federal
question jurisdiction of the district court to obtain
an award of monetary damages against the responsible
federal official." Butz v. Economou, 438 U.S. 478, 504
(1978).
2.

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the following gangs: Aryan Brotherhood, Mexican Mafia,
Texas Syndicate and Dirty White Boys.(Id.)

As a result

of her cooperation Pinson claims that the head of each
gang ordered that she be “stabbed on sight.” (Id.) While
confined in a prison in California in 2008, Pinson
claims a prison gang attempted to kill her and that as a
result she sued Defendant Norwood. (Id.) Pinson states
that the case against Norwood arising out of the attempt
by gang members to kill her is still pending and that
Defendant Norwood was deposed in that case in February,
2016.3 (Id.)

She claims that Norwood in concert with

Defendants Oddo and Rodarmel are retaliating against her
by restricting her telephone privileges, limiting the

3. An electronic search on PACER reveals the case was
filed in the United States District Court for the
Central District of California. Pinson v. Prieto, et
al., Civil No. 5:10-CV-00811-SP (C.D. Cal. filed June
2, 2010). The case went to a 7-day jury trial in
October, 2016, and the jury rendered a verdict on
October 25, 2016, in favor of Defendants Palbo Prieto,
Joshua Halstead and Joseph Norwood. Subsequently,
Pinson filed numerous motions and Pinson and Defendants
sign a stipulation which resulted in the Defendants
waiving their right to seek costs, Pinson’s motions
being denied as moot, Pinson waiving her right to
appeal, and the District Court dismissing the case with
prejudice and directing the Clerk of Court to close the
case.
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amount of paper she receives and denying her postage to
send out legal documents. (Id.) She contends that they
have attempted to coerce her into being placed in the
general population knowing that a prison gang has
threatened her life. (Id.)

She alleges that staff have

repeatedly stated that “Norwood wants you boiled in oil
over that California case.” (Id.) Along with the
complaint, Plaintiff filed a motion to proceed in forma
pauperis and an authorization to have funds deducted
from her prison account to pay the filing fee in
installments. (Docs. 2, 3.)
In the motion to proceed in forma pauperis (Doc.
2, Civil No. 16-565) Pinson stated under penalty of
perjury that prior to the filing of the complaint she
did

file 3 or more actions or appeals in a court of the

United States that were dismissed as frivolous,
malicious, or for failure to state a claim upon which
relief may be granted.

However, Pinson claims that she

is in imminent danger of serious physical injury. In
support of that claim Pinson merely states as follows:
“People who’ve tried to kill me before are actively

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threatening to rape/kill me again and defendants are
deliberately subjecting me to that danger.” (Doc. 2, at
2, Civil No. 16-565.)

The case was inadvertently served

on Defendants without first addressing the issue of
whether Pinson’s complaint should be dismissed without
prejudice under the three-strikes provision, 28 U.S.C. §
1915(g).
On January 18, 2017, Pinson (inmate number
16267-064) filed another civil complaint under Bivens.
Pinson v. Santos, et al., Civil No. 1:17-CV-00103.

In

that complaint Pinson names as Defendants two
individuals

employed at USP-Allenwood, a psychiatrist

employed by the Federal Bureau of Prisons (“BOP”) and
the BOP.

Pinson in the complaint alleged that

Defendants are denying her sex reassignment surgery and
retaliating against her. (Doc. 1, at 6, Civil No. 17103.) As relief Pinson requests injunctive relief and
$1.00 in compensatory damages. (Id. at 9.)

Along with

the complaint, Pinson filed a motion to proceed in forma
pauperis.

(Docs. 2, Civil No. 17-103.)

In the motion to proceed in forma pauperis (Doc.
2, Civil No. 17-103) Pinson stated under penalty of
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perjury that prior to the filing of the complaint she
did file 3 or more actions or appeals in a court of the
United States that were dismissed as frivolous,
malicious, or for failure to state a claim upon which
relief may be granted. However, Pinson claims that she
is in imminent danger of serious physical injury. In
support of that claim Pinson merely states as follows:
“See Complaint.” (Id. at 2.)
Pinson admits that he has three strikes under 28
U.S.C. § 1915(g).

Furthermore, an electronic search on

PACER confirms that prior to filing the above-captioned
cases Pinson did file 3 or more cases that were
dismissed under the Prison Litigation Reform Act Pub. L.
No. 104-134, 110 Stat. 1321 (April 26, 1996)(“PLRA”).4

4.

Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court
determines that (A) the allegation of poverty is
untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune
from such relief.
Section 1915A states in part as follows:
(continued...)
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In fact that review reveals that Pinson has filed at
least 43 prisoner rights lawsuits (denoted by Nature of
Suit number 550) and more than 130 civil actions.5 The
court will now enumerate some of Pinson’s prior cases
which were dismissed under the screening provisions of
the PLRA.
On June 1, 2009, Pinson (inmate number 16267064) filed a civil rights complaint in the United States

4.

(...continued)

(a) Screening. – The court shall review,
before docketing, if feasible or, in any
event, as soon as practicable after
docketing, a complaint in a civil action
in which a prisoner seeks redress from a
governmental entity or officer or employee
of a governmental entity.
(b) Grounds for dismissal. – [same as
under § 1915(e)].

5. Pinson’s litigation history reveals a pattern of
abusive filings as one federal court stated in March,
2014: “Mr. Pinson is no stranger to this Court and to
at least nineteen other federal district courts. Since
November 2007, Mr. Pinson has filed forty-three cases
in this court, and since September 2005, he has filed
136 cases in various other federal district courts
along with 64 appeals in seven different circuits.”
Pinson v. Armijo, 2014 WL 1034992, at *2 (D.Co. Mar.
18, 2014).

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District Court for the Middle District of Florida.
Pinson v. Pineiro, et al., No. 5:09-CV-00244-WTH-GRJ. On
July 29, 2009, an order was issued dismissing the case
with prejudice and it was specifically stated in the
order that “[t]he dismissal of this case counts as a
strike for purposes of 1915(g).”

Pinson v. Pineiro, et

al., No. 5:09-CV-00244-WTH-GRJ, slip op. at 32 (M.D. Fl.
July 29, 2009)(Doc. 10)
On June 24, 2009, Pinson (inmate number 16267064) filed a civil rights complaint in the United States
District Court for the Middle District of Florida.
Pinson v. Chipi, et al., No. 5:09-CV-00283-WTH-GRJ. On
July 29, 2009, an order was issued dismissing the case
with prejudice and it was specifically stated in the
order that “[t]he dismissal of this case counts as a
strike for purposes of 1915(g).”

Pinson v. Chipi, et

al., No. 5:09-CV-00283-WTH-GRJ, slip op. at 32 (M.D. Fl.
July 29, 2009)(Doc. 7)
On July 12, 2010, Pinson (inmate number 16267064) filed a civil rights complaint in the United States
District Court for the Northern District of Alabama.
Pinson v. Elston, No. 1:10-CV-01847-SLB-HGD. On January
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6, 2012, a memorandum and order were issued dismissing
the case pursuant to 28 U.S.C. § 1915A(b)(1) and it was
specifically stated in the order that “[t]he dismissal
of this action is a dismissal countable for purposes of
28 U.S.C. § 1915(g).”

Pinson v. Elston, No. 1:10-CV-

01847-SLB-HGD, final judgment (N.D. Ala. Jan. 6,
2012)(Doc. 14).
On September 13, 2010, Pinson (inmate number
16267-064) filed a civil rights complaint in the United
States District Court for the Northern District of
Alabama. Pinson v. Rathman, et al., No. 1:10-CV-02469AKK-HGD. On June 30, 2011, a memorandum and order were
issued dismissing the case pursuant to 28 U.S.C. §
1915A(b) and it was specifically stated in the order
that “[t]he dismissal of this action is a dismissal
countable for purposes of 28 U.S.C. § 1915(g).”

Pinson

v. Rathman, et al., No. 1:10-CV-02469-AKK-HGD, final
judgment (N.D. Ala. June 30, 2011)(Doc. 24).
Pinson has also had an appeal dismissed by the
Court of Appeals for the Eleventh Circuit dismissed as
frivolous. Pinson v. Chipi, et al., No. 10-12235-B,
order of dismissal, at 5 (11th Cir. Feb 2, 2011).
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For the reasons set forth below, the abovecaptioned cases filed by Pinson in this district on
August 1, 2016, and January 18, 2017, will be dismissed
pursuant to 28 U.S.C. § 1915(g).

Furthermore, the

pending motion to dismiss and/or for summary judgment
(Doc. 14) filed in Civil No. 16-565 will be denied as
moot.
Discussion
The PLRA in an effort to halt the filing of
meritless inmate litigation, enacted what is commonly
referred to as the "three strikes" provision.

Codified

at 28 U.S.C. § 1915(g), the “three strikes” rule
provides that an inmate who has had three prior actions
or appeals dismissed as frivolous, malicious, or for
failing to state a viable claim may not proceed in a
civil action in forma pauperis “unless the prisoner is
in imminent danger of serious physical injury.”

See 28

U.S.C. § 1915(g), and Abdul-Akbar v. McKelvie, 239 F.3d
307, 312 (3d Cir 2001)(en banc).

The “imminent danger”

exception to § 1915(g)’s “three strikes” rule is
available “for genuine emergencies,” where “time is
pressing” and “a threat ... is real and proximate.”
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Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.2002).
“Imminent danger” is assessed not at the time of the
alleged incident, but rather at the time the complaint
is filed. Abdul-Akbar, 239 F.3d at 312.

Furthermore,

the Court of Appeals for the Third Circuit explained
that
“[i]mminent” dangers are those dangers which are
about to occur at any moment or are impending.
By using the term “imminent,” Congress indicated
that it wanted to include a safety valve for the
“three strikes” rule to prevent impending harms,
not those harms that had already occurred. The
imminent danger exception allows the district
court to permit an otherwise barred prisoner to
file a complaint I.F.P. if the prisoner could be
subject to serious physical injury and does not
then have the requisite filing fee.
Abdul-Akbar, 239 F.3d at 315.
As stated above in both cases Pinson claims that
she is in “imminent” danger of serious physical injury.
After reviewing Pinson’s complaints and the assertions
regarding “imminent” danger set forth in her motions to
proceed in forma pauperis, the court concludes that
Pinson’s allegations do not satisfy the threshold

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criterion of the imminent danger exception of 28 U.S.C.
§ 1915(g).6
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: January 24, 2017

Other courts have also found that allegations
similar to those made by Pinson in the present actions
were too speculative and insubstantial to satisfy the
imminent danger exception. See Pinson v. Frisk, 2015 WL
738253, at *3-4 (N.D.Cal. Feb. 20, 2015) and the cases
cited therein.
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