Pronin v. Johnson et al
Filing
312
ORDER denying 287 Motion to Dismiss; finding as moot 300 Motion to Un-Freeze Funds Signed by Honorable David C Norton on April 29, 2019.(kwhe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
DMITRY PRONIN,
)
)
Plaintiff,
)
)
vs.
)
)
LIEUTENANT TROY JOHNSON and
)
JAKE BURKETT,
)
)
Defendants.
)
_______________________________________)
No. 5:12-cv-3416-DCN
ORDER
The following matter is before the court on defendants Lieutenant Troy Johnson
(“Johnson”) and Jake Burkett’s (“Burkett”) (collectively, “defendants”) renewed motion
to dismiss, ECF No. 287, and plaintiff Dmitry Pronin’s (“Pronin”) motion to unfreeze
funds, ECF No. 300. For the reasons set forth below, the court denies the renewed
motion to dismiss and finds the motion to unfreeze funds moot.
I. BACKGROUND
This case arises out of defendants’ alleged violation of Pronin’s right of access to
the courts during his incarceration at the Federal Corrections Institute in Edgefield, South
Carolina (“FCI Edgefield”). 1 In June 2011, Pronin pleaded guilty in federal court in
Delaware for armed bank robbery; carrying, using, and brandishing a firearm during a
crime of violence; and possession of a firearm by an illegal alien. In preparation for
Pronin’s sentencing, Pronin’s counsel considered submitting to the court Pronin’s
1
Pronin originally brought other claims as well, but his access-to-courts claim is
now his only surviving claim.
1
medical records related to his mental health but eventually decided not to. Pronin was
subsequently sentenced in September 2011.
While serving his sentence, Pronin contends that on November 5, 2012, he
received a package from his former attorney which contained—among other things—
certain medical records from Russia. Pronin used those records to draft a § 2255 habeas
petition for ineffective assistance of counsel based on his counsel’s failure to submit his
medical records during sentencing. The records allegedly showed that Pronin suffered
from bipolar disorder and borderline personality, and that he had been diagnosed with a
nervous neck tick and epilepsy. Pronin contends that his draft petition and its
attachments, including the medical records, were placed in an envelope by Saturday,
November 10, 2012. However, on Sunday, November 11, 2012, before the envelope
could be mailed, Pronin was involved in an incident with his cellmate and was
subsequently removed from his cell. Crucially, Pronin contends that his legal papers—
including his Russian medical records—were left in the cell with his cellmate. Pronin
further contends that Burkett, who was eventually tasked with retrieving these documents
from the cell, intentionally left a portion of Pronin’s documents in the cell, where they
were destroyed, and that Johnson subsequently threw out another portion of Pronin’s
documents two days later. As a result, Pronin filed his complaint in the instant case in
December 2012. Then in January 2013, Pronin filed his habeas petition in the District of
Delaware with his only remaining medical record, which was related to Pronin’s nervous
neck tick. The petition was ultimately denied, and the U.S. Court of Appeals for the
Third Circuit denied Pronin’s certificate of appealability.
2
This court granted defendants’ first motion for summary judgment as to all of
Pronin’s claims on March 31, 2015. ECF No. 152. Pronin appealed the court’s decision.
The Fourth Circuit affirmed the court’s grant of summary judgment on most of Pronin’s
claims but found that the court erred in its analysis on the issues of intent and injury in
Pronin’s access-to-courts claim. Pronin v. Johnson, 628 F. App’x 160, 163 (4th Cir.
2015) (per curiam). First, the Fourth Circuit held that the court erred by relying on
defendants’ declarations that they did not destroy Pronin’s documents and on Burkett’s
declaration that he did not intend to destroy such documents when those declarations
were contested. Id. at 162. In other words, there is a question of material fact as to
whether defendants intentionally destroyed Pronin’s documents. Next, the Fourth Circuit
held that Pronin had raised a material question of fact as to whether he was injured by
defendants’ actions. Id. at 163. The court recognized that Pronin’s § 2255 petition raised
a claim for ineffective assistance of counsel based in part on his attorney’s refusal to
submit Pronin’s medical records in connection with his sentencing, and found that
“evidence of serious mental illness, including bipolar and borderline disorders, would
have supported Pronin’s case at sentencing.” Id. at 162–63. Thus, the Fourth Circuit
concluded,
the [d]efendants’ alleged destruction of [Pronin’s] legal materials prevents
him from providing the court with his medical history showing that these
illnesses had been diagnosed prior to his criminal activity. This evidence
could be helpful in showing that his attorney should have investigated his
mental health. Without expressing an opinion as to Pronin’s likelihood of
success in his § 2255 proceeding, we find that Pronin has raised a material
question of fact as to whether he can show a nonfrivolous and arguable
question regarding whether such materials would result in a successful
§ 2255 motion.
Id. at 163. Therefore, the Fourth Circuit vacated the court’s grant of summary judgment
on Pronin’s access-to-courts claim and remanded the case for further proceedings. Id.
3
On December 18, 2018, defendants filed a renewed motion to dismiss. ECF No.
287. Pronin responded to the motion on January 2, 2019 before he was appointed
counsel, ECF No. 292, and then Pronin’s newly appointed counsel filed a response on
January 29, 2019, ECF No. 304. Defendants filed a reply on February 5, 2019. ECF No.
307. In addition, on January 11, 2019, Pronin filed a motion to unfreeze funds, ECF No.
300. Defendants have not responded to the motion. The court held a hearing on the
motions on April 24, 2019.
II. STANDARD
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . .
does not resolve contests surrounding the facts, the merits of a claim, or the applicability
of defenses.”). To be legally sufficient, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the
plaintiff can prove no set of facts that would support his claim and would entitle him to
relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When
considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations
as true and should view the complaint in a light most favorable to the plaintiff.
Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III. DISCUSSION
A. Renewed Motion to Dismiss
Defendants filed a renewed motion to dismiss, arguing that the District of
Delaware and Third Circuit’s decisions on Pronin’s §2255 petition resolve this case
through the doctrine of collateral estoppel. Defendants also argue, in a manner more akin
to a motion to reconsider than a motion to dismiss, that the development of jurisprudence
following Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), a case that the court extensively
considered in a prior order, warrants dismissal of this case. The court is not convinced by
either argument.
a. Collateral Estoppel
“Under collateral estoppel, once a court has decided an issue of fact or law
necessary to its judgment, that decision may preclude relitigation of the issue in a suit on
a different cause of action involving a party to the first case.” Allen v. McCurry, 449
U.S. 90, 94 (1980). For collateral estoppel to apply,
the proponent must demonstrate that (1) the issue or fact is identical to the
one previously litigated; (2) the issue or fact was actually resolved in the
prior proceeding; (3) the issue or fact was critical and necessary to the
judgment in the prior proceeding; (4) the judgment in the prior proceeding
is final and valid; and (5) the party to be foreclosed by the prior resolution
of the issue or fact had a full and fair opportunity to litigate the issue or fact
in the prior proceeding.
In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004). Here,
defendants argue that because Pronin’s §2255 petition was ultimately denied by the Third
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Circuit, the only remaining issue in this case was resolved, and that the Third Circuit’s
decision should apply here through collateral estoppel.
In determining whether collateral estoppel applies, it is useful to first understand
what Pronin must prove to succeed in his access-to-courts claim. The Supreme Court has
clearly established that “prisoners have a constitutional right of access to the courts.”
Bounds v. Smith, 430 U.S. 817, 821 (1977). To prevail on an access-to-courts claim, the
prisoner must show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 351
(1996). Such an injury includes a prisoner’s inability to pursue a “nonfrivolous, arguable
underlying claim.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). The Fourth
Circuit determined that summary judgment on Pronin’s access-to-courts claim was not
warranted in part because Pronin had “raised a material question of fact as to whether he
can show a nonfrivolous and arguable question regarding whether such materials would
result in a successful § 2255 motion.” Pronin, 628 F. App’x at 163. In other words, there
is a material question of fact as to whether Pronin’s § 2255 petition would have been
“nonfrivolous” and “arguable” if he had been able to submit all of his Russian medical
records, which would create an actual injury.
Defendants argue that this question was resolved because the District of Delaware
denied Pronin’s § 2255 petition, and the Third Circuit denied Pronin’s certificate of
appealability. The Third Circuit specifically stated that Pronin had “not made a
substantial showing that it is reasonably probable that he would have received a lesser
sentence had the Russian medical report and a formal report prepared by the examining
psychologist been admitted into evidence at sentencing.” ECF No. 60, United States of
America v. Pronin, 11-cr-33 (D. Del. August 3, 2017) (emphasis added). However, this
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argument fails because the issue in Pronin’s § 2255 petition is not identical to the issue
here. The Third Circuit simply held that Pronin did not make a substantial showing that
his sentence would have been lessened had his singular Russian medical report, related to
his nervous neck tick, been submitted at sentencing. This report was the one record that
was not lost during the events alleged here.
The issue here is whether Pronin’s petition would have been successful had he
submitted all of his medical records, not just the singular record about the neck tick.
Indeed, the Fourth Circuit specifically drew attention to Pronin’s records about his
bipolar and borderline disorders when considering whether Pronin has raised a material
question of fact regarding the likelihood of success in his § 2255 petition. See Pronin,
628 F. App’x at 163. Those records were not considered by the District of Delaware or
the Third Circuit because they were allegedly destroyed by defendants. As Pronin
succinctly argues, “[i]f there is any relationship between the two actions, it is only that
the result of the 2255 action illustrates [Pronin]’s injury in this action.” ECF No. 304 at
5. Therefore, the issue decided by the Third Circuit, i.e., the success of Pronin’s § 2255
petition with just his singular medical record about his neck tick, is not the same issue
here, which is the likelihood of the success of Pronin’s § 2255 petition with all of his
medical records.
As support for their argument that the issue here is identical to the issue in
Pronin’s § 2255 petition, defendants note that Pronin mentioned this case in his request
for an issuance of a certificate of appealability of the District of Delaware’s denial of his
§ 2255 petition. In that request, Pronin stated that the instant case “directly pertains to
the § 2255 proceedings here.” ECF No. 55 at 2, United States of America v. Pronin, 11-
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cr-33 (D. Del. Apr. 21, 2017). However, Pronin’s acknowledgment that this case relates
to his § 2255 petition is irrelevant to the collateral estoppel analysis and is not enough to
convince the court that collateral estoppel should apply here.
Pronin also argues that the second requirement of collateral estoppel, that the
issue was actually determined in the prior proceeding, cannot be met here. He contends
that the remaining issues in this case were not determined by the District of Delaware or
the Third Circuit. As discussed above, the issue of whether Pronin’s § 2255 petition
would have been successful had he submitted all of his medical records was not
determined. Moreover, the Fourth Circuit remanded this case for two reasons. One is the
material question of fact regarding Pronin’s injury that is discussed above. The other is
the material question of fact as to whether Burkett intentionally destroyed Pronin’s
documents. Pronin, 628 F. App’x at 163 (remanding Pronin’s access-to-courts claim
because “both the intent and injury issues involved disputed issues of material fact”).
The decisions on Pronin’s § 2255 petition have nothing to do with Burkett’s intent.
Therefore, that issue was also not decided by the prior proceedings.
As a final point, Pronin argues that he did not have a full and fair opportunity to
litigate the issue, the final requirement of collateral estoppel. He explains that he was
denied an evidentiary hearing on his § 2255 petition before the Third Circuit, meaning
that he did not have a full opportunity to present evidence of his claims. It is unclear to
the court what a “full and fair opportunity to litigate” entails in the context of a habeas
petition. However, because collateral estoppel is inapplicable here for other reasons, the
court need not delve into this issue.
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b. Development of Jurisprudence after Ziglar v. Abbasi
Defendants next argue that give recent decisions interpreting Ziglar, the court
should dismiss this case as an improper Bivens action. In Ziglar, the Supreme Court
limited courts’ ability to extend Bivens, which permits individuals to recover damages for
federal officials’ violations of constitutional rights, to contexts previously unrecognized
by the Court. 137 S. Ct. at 1857–59. The Court provided a framework to be used for
determining whether to permit a Bivens remedy: a court should first determine whether it
would be extending a Bivens remedy to a new context, and if it would be, a court should
then consider whether “there are any special factors counselling hesitation” in extending
Bivens. Id. at 1857–58. As a result of Ziglar’s framework, defendants filed a motion for
reconsideration on July 21, 2017 asking the court to reconsider its order denying
defendants’ motion for summary judgment. ECF No. 212. Defendants argued that Ziglar
was an intervening change in controlling law that supported the conclusion that a Bivens
remedy is inappropriate in this case, meaning that Pronin’s case must be dismissed. After
analyzing this case pursuant to Ziglar and its framework, the court denied defendants’
motion and held that Pronin’s claim could proceed as a Bivens action.
Now, defendants argue that the development of post-Ziglar jurisprudence
warrants the court’s reconsideration of this issue. A court may amend its earlier
judgment: “(1) to accommodate an intervening change in controlling law; (2) to account
for new evidence not available at trial; or (3) to correct a clear error of law or prevent
manifest injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). “A Rule
59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon
which a court has already ruled.” State of N.Y. v. United States, 880 F. Supp. 37, 38
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(D.D.C. 1995). Indeed, “[a] party’s mere disagreement with the court’s ruling does not
warrant a Rule 59(e) motion, and such motion should not be used to ‘rehash’ arguments
previously presented or to submit evidence which should have been previously
submitted.” Consulting Engineers, Inc. v. Geometric Software Sols. & Structure Works
LLC, 2007 WL 2021901, at *2 (E.D. Va. July 6, 2007).
Here, defendants argue that the court should reconsider its previous order “to
correct a clear error of law or prevent manifest injustice.” See ECF No. 287 at 6. In
support of their argument, defendants argue that “post-[Ziglar v.] Abassi jurisprudence
makes clear that First Amendment access to the courts claims, such as [Pronin]’s claim
here, arise in a new context” and cite to various cases that have “found that [access-tocourts] claims present a new context and that the court should decline to allow a Bivens
remedy.” Id. at 5–6. However, the court’s previous order is consistent with that
jurisprudence. Indeed, the court found that Pronin’s access-to-courts claim does present a
new context. See ECF No. 223 at 14 (determining “that [Pronin]’s Bivens claim presents
a new context”). Therefore, defendants are paradoxically asking this court to reconsider
a part of its decision with which defendants seem to agree. The only other issue with
which defendants may be seeking reconsideration is the court’s consideration of the
“special factors counselling hesitation,” which ultimately led the court to determine that
Pronin could seek a Bivens remedy. However, the court has already carefully considered
these factors, see ECF No. 223 at 9–14, and defendants have not articulated how the court
erred in its analysis. Defendants simply cite to various district court cases and one Ninth
Circuit opinion, none of which are binding on this court. Therefore, the court denies
defendants’ renewed motion to dismiss.
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At the hearing on the motions, counsel for Pronin stated that if the court denied
the renewed motion to dismiss and Pronin’s case continued, then Pronin planned to
withdraw his motion to unfreeze his funds. Pursuant to this representation, because the
court denies the renewed motion to dismiss, the court finds moot Pronin’s motion to
unfreeze his funds.
IV. CONCLUSION
For the reasons set forth above, the court denies the renewed motion to dismiss
and finds moot the motion to unfreeze funds.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
April 29, 2019
Charleston, South Carolina
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