Pinson v. United States et al

Filing 40

MEMORANDUM re Mtns for Exttm 33 , to Appoint Counsel 36 and for Preliminary Injunction 38 . (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 11/7/17. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEREMY V. PINSON,
Plaintiff
vs.
UNITED STATES, et al.,
Defendants

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No. 1:17-CV-00584
(Judge Rambo)

MEMORANDUM
Plaintiff, Jeremy Pinson, an inmate currently confined at the Federal

Medical Center, Rochester, Minnesota (“FMC-Rochester”), filed this current
action pursuant to the Federal Tort Claims Act and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) on April 3, 2017. (Doc.
No. 1.) Plaintiff subsequently filed an amended complaint on May 1, 2017. (Doc.
No. 11.) Plaintiff asserts that she is a male to female transgender inmate and that
Defendants, inter alia, wrongly denied her request for sex reassignment surgery
and were negligent when they left a razor blade with her knowing that her gender
dysphoria led her to cut and self-mutilate herself.
Presently before this Court is Defendants’ motion for summary judgment
(Doc. No. 20), filed on July 18, 2017. In response to Defendants’ motion, Plaintiff
filed a Fed.R.Civ.P 56(d) motion and declaration, requesting a stay of the due date
for Plaintiff’s brief in opposition to Defendants’ motion for summary judgment
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until additional discovery is obtained. (Doc. No. 33.) Plaintiff has also filed a
motion to appoint counsel (Doc. No. 36) and motion for a preliminary injunction.
(Doc. No. 38.) For the following reasons, the Court will grant in part and deny in
part Plaintiff’s request for a stay of the due date for Plaintiff’s opposition brief, and
deny Plaintiff’s motion to appoint counsel and motion for a preliminary injunction.
I.

Standard of Review

Federal Rule of Civil Procedure 56(a) requires the court to render summary
judgment “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “[T]his standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A disputed fact is “material” if proof of its existence or nonexistence would
affect the outcome of the case under applicable substantive law. Anderson, 477
U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
An issue of material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257;
Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America,
927 F.2d 1283, 1287-88 (3d Cir. 1991).
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In determining whether an issue of material fact exists, the court must
consider the evidence in the light most favorable to the nonmoving party. White v.
Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the Court
must accept the nonmovant's allegations as true and resolve any conflicts in his
favor. Id. (citations omitted). However, a party opposing a summary judgment
motion must comply with Local Rule 56.1, which specifically directs the
oppositional party to submit a “statement of the material facts, responding to the
numbered paragraphs set forth in the statement required [to be filed by the
movant], as to which it is contended that there exists a genuine issue to be tried”; if
the nonmovant fails to do so, “[a]ll material facts set forth in the statement required
to be served by the moving party will be deemed to be admitted.” L.R. 56.1. A
party cannot evade these litigation responsibilities in this regard simply by citing
the fact that he is a pro se litigant. These rules apply with equal force to all parties.
See Sanders v. Beard, No. 09-CV-1384, 2010 U.S. Dist. LEXIS, *15 (M.D. Pa.
July 20, 2010) (pro se parties “are not excused from complying with court orders
and the local rules of court”)
If a party believes that a summary judgment motion is premature and
more discovery is necessary, Rule 56(d) allows a nonmovant to file an affidavit
“setting forth why the time is needed.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508,
510-11 (3d Cir. 1994). “The purpose of the affidavit is to ensure that the
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nonmoving party is invoking the protection of [Rule 56(d)] in good faith and to
afford the trial court the showing necessary to assess the merit of a party’s
opposition.” Radich v. Goode, 886 F.2d 1391, 1394 (3d. Cir. 1989) (citation
omitted). If the nonmovant shows by affidavit that he cannot present facts
essential to justify his opposition to summary judgment, the court may, inter
alia, defer considering the summary judgment motion or allow the nonmovant time
to obtain affidavits or take discovery. Fed.R.Civ.P. 56(d).
Fed.R.Civ.P. 56(d) provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations
or to take discovery; or
(3) issue any other appropriate order.

In the declaration, a party must specify: (1) what particular information is sought;
(2) how, if uncovered, it would preclude summary judgment; and (3) why it has
not previously been obtained. Pa. Dep’t of Pub. Welfare v. Sebelius, 674 F.3d 139,
157 (3d Cir. 2012) (citing Dowling v. City of Phila., 855 F.2d 136, 139-40 (3d Cir.
1988)). If a party opposing summary judgment files an affidavit that specifically
addresses these requirements, the United States Court of Appeals for the Third
Circuit has held that “a continuance of a motion for summary judgment for
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purposes of discovery should be granted almost as a matter of course,” especially
when particular information is in the sole possession of the moving party. Malouf
v. Turner, 814 F. Supp. 2d 454, 459-60 (D.N.J 2011) (quoting Sames v. Gable, 732
F.2d 49, 51 (3d Cir. 1984)).
II.

Discussion
A. Rule 56(d)

In support of Plaintiff’s motion for an extension of time to respond to
Defendants’ motion for summary judgment and declaration pursuant to
Fed.R.Civ.P. 56(d), Plaintiff argues that (1) Defendants have not yet responded to
outstanding discovery requests; (2) Plaintiff needs to obtain an affidavit from a
former cellmate at USP Allenwood that requires approval of prison officials; (3)
Plaintiff needs to obtain an affidavit from an expert witness; and (4) given the
voluminous documents produced by Defendants as well as Plaintiff’s limited
access to the law library and typewriter, Plaintiff needs more time to prepare an
oppositional brief. (Doc. No. 34 at 1-2.) Defendants do not object to Plaintiff’s
request for a reasonable extension of time to respond to their motion for summary
judgment, rather, Defendants oppose Plaintiff’s Rule 56(d) request that their
motion be stayed pending discovery. (Doc. No. 35 at 5.)
As to Plaintiff’s first contention that Defendants have not yet responded to
Plaintiff’s July 24, 2017, discovery requests, the Court notes that Plaintiff’s
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supporting declaration containing this averment was signed on August 26, 2017.
(Doc. No. 34 at 5.) Defendants, in their oppositional brief dated September 19,
2017 (Doc. No. 35), provide that they have timely responded to all of Plaintiff’s
discovery requests on September 1, 2017. (Doc. No. 35 at 3.) Plaintiff has not
filed a reply-brief to refute Defendants’ averment. Therefore, the Court finds this
issue moot. Alternatively, the Court finds that Plaintiff has not sufficiently stated:
(1) what particular information from the discovery requests are sought; and (2)
how, if uncovered, it would preclude summary judgment. See Sebelius, 674 F.3d
at 157. Plaintiff has not made clear to the Court what she hopes to uncover from
her broad discovery request or how it could preclude summary judgment. See
Malour, 814 F. Supp. 2d at 459-60 (vague or general statements of what a party
hopes to gain through a delay of discovery under Rule 56(d) are insufficient).
Therefore, this request is an insufficient basis for a stay of the due date for
Plaintiff’s opposition to Defendants’ motion. Accordingly, the only issues
pertaining to Plaintiff’s current Rule 56(d) declaration before the Court are
Plaintiff’s need for obtaining an affidavit from a former cellmate at USP
Allenwood that requires approval of prison officials and an affidavit from a
psychologist concerning the care Plaintiff received from Defendants with regard to
Plaintiff’s gender dysphoria.

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1. Former USP Allenwood Cellmate Affidavit
Plaintiff provides that on August 26, 2017, she submitted a request to staff
for permission to correspond with a former cellmate to obtain a witness affidavit as
to what this cellmate witnessed “relevant to the claims [Plaintiff] presented to the
Court in the present lawsuit,” and that this former cellmate has “personal
knowledge that the facts asserted by defendants are not true.” (Doc. No. 34 at 2,
5.) In another declaration attached to Plaintiff’s motion to appoint counsel (Doc.
No. 37 at 4), Plaintiff provides that she has “requested to communicate” with her
former cellmate “to obtain his affidavit concerning his eyewitness account of the
underlying events which form the basis of [Plaintiff’s] claims” and that this
“affidavit is necessary to prove the claims of declarant Frei to be false.” (Doc. No.
37 at 4.)
The Court finds that Plaintiff has articulated what particular information is
sought; (2) how, if uncovered, would preclude summary judgment; and (3) why it
has not previously been obtained. See Sebelius, 674 F.3d at 157. Specifically, it is
clear that Plaintiff is seeking an affidavit from her former cellmate that Plaintiff
alleges will contradict Defendants’ claims submitted by Officer Frei in opposition
to Plaintiff’s FTCA negligence claim regarding the razor blade. Moreover,
Plaintiff provides that the affidavit has yet to be obtained because the BOP must

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approve the correspondence between Plaintiff and her former cellmate. (Doc. No.
34 at 5.)
Moreover, given the procedural posture of this case, specifically,
Defendants’ filing their motion for summary judgment on July 18, 2017, roughly a
month and a half after waiving service on May 26, 2017 (Doc. Nos. 13), and
supplying Plaintiff with responses to her first discovery request on September 1,
2017 (Doc. No. 35 at 3), the Court is concerned that Plaintiff may have needed
additional time in which to secure her affidavits. Cf. Mid-Am Pipeline Co., Civ.
No. 88-4205, 1989 WL 35984, at *1 (D. K.S. Mar. 17, 1989) (granting Rule 56(d)
motion based on the limited time for discovery).
Accordingly, the Court will grant Plaintiff’s motion pursuant to Rule 56(d)
and allow Plaintiff thirty days in which to obtain the affidavit from her former
cellmate, Timothy Beckwith. To the extent that the BOP has not yet approved
Plaintiff’s request to communicate with Timothy Beckwith or has not enabled the
TRULINC System1 in order for Plaintiff to obtain the affidavit, Defendants should
take the appropriate actions so that Plaintiff can obtain this affidavit as
expeditiously as possible, and certainly within the thirty day time period as
prescribed above.

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The Trust Fund Limited Inmate Computer System (“TRULINCS”) is a program employed by
the BOP to provide inmates with limited computer access, including the ability to send and
receive electronic messages. (https://www.bop.gov/policy/progstat/4500_011.pdf).
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2. Psychologist Richard Samuels Affidavit
Plaintiff also seeks stay of the due date for Plaintiff’s opposition to
Defendants’ motion for summary judgment based on the fact that Plaintiff is
waiting for a response from an expert witness, psychologist Richard Samuels.
(Doc. No. 34 at 5.) Specifically, in her declaration, Plaintiff provides that she has
contacted Dr. Samuels regarding “supplying an expert witness affidavit concerning
the care [Plaintiff] received from the defendants while at USP Allenwood for
[Plaintiff’s] gender dysphoria.” (Id.)
Again, the Court finds that Plaintiff’s declaration is adequate for the purpose
of Rule 56(d). Plaintiff provides that she is waiting for an “expert witness affidavit
concerning the care [Plaintiff] received … while at USP Allenwood for [her]
gender dysphoria.” (Doc. No. 34 at 5.) This affidavit would appear to address
Plaintiff’s Eighth Amendment claim of deliberate indifference towards Plaintiff’s
medical needs and is more than a mere bare allegation or vague assertion.
Accordingly, the Court will grant Plaintiff’s motion pursuant to Rule 56(d) and
allow Plaintiff thirty days in which to obtain the affidavit from her expert witness.
B. Motion for Extension of Time
Plaintiff also requests a minimum of a sixty (60) day extension of time in
which to respond to Defendants’ motion for summary judgment. (Doc. No. 34 at
2.) Defendants do not oppose this request. (Doc. No. 35 at 5.) Accordingly, the
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Court will grant Plaintiff a sixty (60) day extension of time, starting from the
expiration of the thirty days in which she has to obtain her aforementioned
affidavits, in which to file a brief in opposition to Defendants’ motion for summary
judgment, together with a counterstatement of material facts pursuant to Local
Rule 56.1.2
C. Motion to Appoint Counsel
Plaintiff has also filed a second motion to appoint counsel. (Doc. No. 36,
37.) Plaintiff contends that counsel should be appointed given that her access to
the court is compromised by a debt encumbrance which makes it difficult for
Plaintiff to purchase materials such as paper in order to litigate this action; her
offer to settle this case has been ignored by Defendants; she has been transferred
away from her only eyewitness needed to supply an affidavit in this case, to which
the BOP is inhibiting access to her former cellmates testimony; and that should this
case proceed to trial, it will be necessary to present a medical expert or to crossexamine medical witnesses. (Doc. No. 37 at 1, 2.)
Although prisoners have no constitutional or statutory right to the
appointment of counsel in civil cases, district courts do have broad discretionary
power to appoint counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1).
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). In Tabron v. Grace,
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In essence, Plaintiff is afforded ninety (90) days from the date of this Memorandum’s
corresponding Order in which to file her oppositional materials.
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the Third Circuit developed a non-exhaustive list of factors to aid district courts in
determining whether to appoint counsel for such litigants. Tabron v. Grace, 6 F.3d
147, 155-57 (3d Cir. 1993). Such factors include the plaintiff’s ability to present
his case, the complexity of the legal and discovery issues in the case, the amount of
factual investigation that will be required, the necessity of expert witnesses, and
whether “witness credibility is a key issue.” Id. Additionally, “[a]s a threshold
matter, a district court must assess whether the claimant’s case has some arguable
merit in fact and law.” Montgomery, 294 F.3d at 498-99 (citing Tabron, 6 F.3d at
155). Finally, “[t]he plaintiff’s ability to present a case is ‘[p]erhaps the most
significant’ consideration and depends on factors such as ‘the plaintiff’s education,
literacy, prior work experience, and prior litigation experience … along with a
plaintiff’s ability to understand English … [and] the restraints placed upon a
prisoner plaintiff by confinement.’ ” Nunuez v. Wetz, Civ. No. 3:CV-14-0727,
2017 WL 4698092, at *1 (M.D. Pa. Oct. 19, 2017) (citing Montgomery, 294 F.3d
at 501).
Here, the Court finds that the Tabron factors do not warrant appointing
counsel at this time. Plaintiff is proceeding on claims of negligence and an Eighth
Amendment claim of deliberate indifference towards Plaintiff’s medical needs.
Thus far, Plaintiff has legibly set forth her arguments in her amended complaint,
has filed two motions for appointment of counsel, has served the complaint on
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Defendants, has filed a successful motion for judicial notice, a motion for
extension of time and a motion pursuant to Rule 56(d). The Court finds that given
Plaintiff’s litigation history, appointment of counsel is not warranted at this time.
Moreover, these successful filings suggest that Plaintiff is not presented with any
current impediment in litigating this matter. However, in the event that future
proceedings demonstrate the need for counsel, the matter may be reconsidered by
the Court sua sponte or upon a motion properly filed by Plaintiff. Accordingly,
Plaintiff’s motion to appoint counsel will be denied without prejudice.
D. Motion for Preliminary Injunction
Plaintiff has also filed a motion for a preliminary injunction, claiming that a
staff member at FMC Rochester told Plaintiff that she needs to “tone … down” the
“legal stuff” and that if Plaintiff “keeps it up[,] the administration could decide to
ship [Plaintiff].” (Doc. No. 39 at 1) (emphasis added). Plaintiff also claims that an
inmate by the name of Dawsey has been harassing Plaintiff and “vow[ed] to get
Plaintiff into segregated housing before [Dawsey is released].” (Id. at 2.)
Preliminary injunctive relief is extraordinary in nature and should issue in
only limited circumstances. See Am. Tel. & Tel. Co. v. Winback & Conserve
Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). Moreover, such relief is at
the discretion of the trial judge. Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001). In determining whether
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to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit
consider the following four factors: “(1) likelihood of success on the merits; (2)
irreparable harm resulting from a denial of the relief; (3) the harm to the nonmoving party if relief is granted; and (4) the public interest.” United States v. Bell,
238 F. Supp. 2d 696, 699 (M.D. Pa. 2003); see also Bieros v. Nicola, 857 F. Supp.
445, 446 (E.D. Pa. 1994) (“The standards for a temporary restraining order are the
same as those for a preliminary injunction.”). It is the moving party who bears the
burden of satisfying these factors. Bell, 238 F. Supp. 2d at 699; Vine St.
Concerned Citizens, Inc. v. Dole, 604 F. Supp. 509, 512 (E.D. Pa. 1985). “Only if
the movant produces evidence sufficient to convince the trial judge that all four
factors favor preliminary relief should the injunction issue.” Opticians Ass’n of
Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
1. Injunction Against Segregated Housing
It appears that Plaintiff seeks an order prohibiting her future placement in
segregated housing. A preliminary injunction “may not be used simply to
eliminate the possibility of a remote future injury.” Holiday Inns of Am., Inc. v.
B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969). “[T]he irreparable harm must be
actual and imminent, not merely speculative.” Angstadt ex rel. Angstadt v. MiddWest Sch., 182 F. Supp. 2d 435, 437 (M.D. Pa 2002). “[M]ore than a risk of
irreparable harm must be demonstrated. The requisite for injunctive relief has been
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characterized as a ‘clear showing of immediate irreparable injury,’ or a ‘presently
existing actual threat ….’ ” Continental Grp. Inc. v. Amoco Chems. Corp., 614
F.2d 351, 359 (3d Cir. 1980) (citations omitted).
Additionally, “[t]he ‘requisite feared injury or harm must be irreparable –
not merely serious or substantial,’ and it ‘must be of a peculiar nature, so that
compensation in money cannot atone for it.” ECRI v. McGraw-Hill, Inc., 809 F.2d
223, 226 (3d Cir. 1987) (quoting Glasco v. Hills, 558 F.2d 179, 181 (3d Cir.
1977)). “The key word in this consideration is irreparable …. The possibility that
adequate compensatory or other corrective relief will be available at a later date, in
the ordinary course of litigation, weighs heavily against a claim of irreparable
harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974) (emphasis in original).
Here, Plaintiff does not allege that she has been placed in segregated housing
or that any staff member threatened her with such confinement. Regardless,
Plaintiff has failed to adduce any evidence that she faces a presently existing actual
threat of confinement in some type of restrictive custody for a substantial period
that might cause her to suffer irreparable injury. See Grivvin v. Vaughn, 112 F.3d
703, 708 (3d Cir. 1997) (15 months in administrative custody did not violate
inmate’s due process rights); Yunik v. McVey, Civ. No. 08-1706, 2009 WL
1683286, at *2 (W.D. Pa. June 15, 2009) (the mere possibility of a future
placement in restrictive housing does not constitute immediate, irreparable harm).
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2. Transfer to Another Institution
Plaintiff also seeks an order prohibiting any future transfer from FMC
Rochester. However, Plaintiff has not articulated any presently existing actual
threat of transfer to another institution. Regardless, the mere threat to transfer a
prisoner to another facility, at some unspecified point in the future, does not
constitute immediate, irreparable injury necessary to justify preliminary injunctive
relief. See Yunik, 2009 WL 1683286, at *2 (the mere possibility of a future
placement in restrictive housing does not constitute immediate, irreparable harm).
Plaintiff has failed to demonstrate the requisite irreparable injury if she is not
granted a broad injunction against a possible future transfer to another institution.
Moreover, injunctive relief concerning “a transfer to another prison would
effectively have the court making an ad hoc, individual decision concerning the
treatment of a single prisoner, and such a decision could harm the defendants’ and
the public’s interests. In this prison context, the interest in penological order could
be adversely affected if the Court began dictating the place of incarceration for
[Plaintiff], one inmate out of [many] in the prison system....” Gass v. Smith, Civ.
No. 3:14-1056, 2014 WL 5242137, at *6 (M.D. Pa. Oct. 15, 2014).
3. Harassment By Inmate Dawsey
Finally, it appears that Plaintiff seeks a preliminary injunction to prevent
inmate Dawsey from harassing her. The Court finds that this matter is unrelated to
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Plaintiff’s allegations in this lawsuit, i.e., claims of negligence and an Eighth
Amendment claim of deliberate indifference towards Plaintiff’s medical needs.
While “[a] preliminary injunction is always appropriate to grant intermediate relief
of the same character as that which may be granted finally,” an injunction should
not issue when “it deals with a matter lying wholly outside the issues in the
suit.” De Beers Consolidated Mines v. United States, 325 U.S. 212, 220 (1945).
See, e.g., Ball v. Famiglio, 396 F. App’x 836, 837 (3d Cir. 2010) (plaintiff not
entitled to preliminary injunction on claims not pending in complaint); Kaimowitz
v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (where a plaintiff brought a qui
tam action against the city and others for knowingly and improperly obtaining
funds from several federal agencies for development or improvement of properties
in minority-concentrated areas of city, the plaintiff’s request for a preliminary
injunction against city ordinance allowing members of public to speak for only five
minutes each at conclusion of city council meetings was properly denied because it
was of a different character from relief sought and wholly unrelated to issues
raised); Thomas v. DeBoer, Civ. No. 1:08-cv-744, 2009 WL 4068438 (W.D. Mich.
Nov. 23, 2009) (prisoner’s motion for preliminary injunction denied where it
sought to enjoin three non-parties who allegedly engaged in recent retaliatory acts
that were unrelated to the retaliatory acts at issue in the lawsuit); Atakpu v.
Lawson, Civ. No. 1:05-cv-524, 2006 WL 3803193 at *1-2 (S.D. Ohio Nov. 28,
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2006) (the plaintiff prisoner’s motion seeking injunctive relief for harassment and
retaliation was denied as unrelated to the prisoner’s complaint, which alleged
denial of his constitutional rights for inadequate medical care, noting that a “court
may not grant a preliminary injunction when the issues raised in the motion are
entirely different from those raised in the complaint”). Accordingly, Plaintiff’s
motion for a preliminary injunction will be denied.
III.

Conclusion

For the foregoing reasons, Plaintiff’s motion pursuant to Fed.R.Civ.P 56(d),
requesting a stay of the due date for Plaintiff’s brief in opposition to Defendants’
motion for summary (Doc. No. 33), will be granted in part and denied in part.
Plaintiff will be afforded thirty days in which to obtain her affidavits. Plaintiff’s
unopposed motion for an extension of time in which to file a brief in opposition to
Defendants’ motion for summary judgment (Doc. No. 33), will be granted.
Plaintiff’s motion to appoint counsel (Doc. No. 36) will be denied without
prejudice. Finally, Plaintiff’s motion for a preliminary injunction (Doc. No. 38),
will be denied. An appropriate Order follows.

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