Pinson v. United States

Filing 7

MEMORANDUM re pltf's mtn to Proceed ifp 2 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 2/7/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEREMY PINSON,
Plaintiff
vs.
UNITED STATES,
Defendant

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CIVIL NO. 1:17-CV-00178

(Judge Rambo)

MEMORANDUM
Background
On January 31, 2017, Plaintiff Jeremy Pinson, an
inmate at the Medical Center for Federal Prisoners,
Springfield, Missouri(Federal Bureau of Prisons inmate
number 16267-064) filed a complaint against the United
States pursuant to 28 U.S.C. § 1331 and the Federal Tort
Claims Act (“FTCA”).1 (Doc. 1.)

Pinson’s claims are set

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.”
The FTCA provides a remedy in damages for the
simple negligence of employees of the United States to
protect federal inmates. United States v. Muniz, 374
U.S. 150, 150 (1963). In presenting a FTCA claim, a
1.

(continued...)

forth a form civil rights complaint routinely provided
to prison inmates. (Id.) Part IV, Statement of Claim, of
the form complaint states in toto as follows:
While housed at USP Allenwood on 5-25-16 in
SHU an officer employed by the United States
issued and failed to pick up a razor blade and
failed to notify psychology services when Jeremy
Pinson a transgender care level 3 mentally ill
inmate declared intent to castrate herself.
Later that same night Pinson injured herself and
was emergency hospitalized requiring reparative
surgery - The officers post order and FOP policy
left him no discretion on collecting the razor
Or notifying psychology.
(Id. at 2-3.)

As relief, Pinson requested $1,000.000 in

compensatory damages.
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, 6.)

1.

(...continued)

plaintiff must show: (1) that a duty was owed to him by
a defendant; (2) a negligent breach of said duty; and
(3) that the negligent breach was the proximate cause
of the plaintiff's injury/loss. Mahler v. United
States, 196 F. Supp. 362, 364 (W.D. Pa. 1961), aff'd
306 F.2d 713 (3d Cir. 1962), cert. denied, 371 U.S. 923
(1962). As a prerequisite to suit under the FTCA, a
claim must first be presented to the federal agency and
be denied by the agency.
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In the motion to proceed in forma pauperis (Doc.
2, at 1) 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.(Id. at 2.) In support
of that claim Pinson merely states as follows: “See
Complaint.” (Id.)
Pinson admits that she has three strikes under
28 U.S.C. § 1915(g).

Furthermore, an electronic search

on PACER confirms that prior to filing the abovecaptioned case 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”).2 In
2.

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
(continued...)
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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.3 The court
will now enumerate some of Pinson’s prior cases which
were dismissed under the screening provisions of the
PLRA.

2.

(...continued)

monetary relief against a defendant who is immune
from such relief.
Section 1915A states in part as follows:
(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)].

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).
3.

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On June 1, 2009, Pinson (inmate number 16267064) filed a civil rights complaint in the United States
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
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District Court for the Northern District of Alabama.
Pinson v. Elston, No. 1:10-CV-01847-SLB-HGD. On January
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
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frivolous. Pinson v. Chipi, et al., No. 10-12235-B,
order of dismissal, at 5 (11th Cir. Feb 2, 2011).
For the reasons set forth below, the abovecaptioned case filed by Pinson in this district on
January 31, 2017 will be dismissed pursuant to 28 U.S.C.
§ 1915(g).
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.”
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.2002).
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“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 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 motion to
proceed in forma pauperis, the court concludes that
Pinson’s allegations do not satisfy the threshold
criterion of the imminent danger exception of 28 U.S.C.
§ 1915(g).

Clearly, at the time she filed the

complaint she was not in imminent danger of serious
physical injury.

The alleged negligent conduct of an
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employee of the Bureau of Prison occured in May 2016,
and the complaint was filed in January, 2017. A selfinflicted wound sustained six-months prior to the filing
of the complaint cannot be considered “imminent serious
physical injury.” See Abdul-Akbar, supra.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: February 7, 2017

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