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Pinson v. Kasdon

United States District Court, D. Colorado

February 28, 2014

KASDON, Defendant.


RAYMOND P. MOORE, District Judge.

Plaintiff Jeremy Pinson ("Plaintiff") is a federal inmate currently incarcerated by the Federal Bureau of Prisons ("BOP") at the United States Penitentiary-Administrative Maximum in Florence, Colorado ("ADX"). This matter is before the Court on several motions filed by Plaintiff, as well as on three distinct Recommendations issued by Magistrate Judge Boland. The first ("Recommendation One") (ECF No. 44) recommends that Plaintiff's Motions for a Protective Order and for a Preliminary Injunction respectively be denied (ECF Nos. 22 and 27). The second ("Recommendation Two") (ECF No. 82) recommends that Plaintiff's Motion for an Emergency Hearing (ECF No. 63) be denied. The third ("Recommendation Three") (ECF No. 99) recommends that Plaintiff's Verified Emergency Motion (ECF No. 34) be denied. As explained further below, the Court ADOPTS each of the recommendations issued by Judge Boland, and OVERRULES all objections from Plaintiff. Plaintiff filed a Motion for Reconsideration and Leave to Amend (ECF No. 16) which is also DENIED as explained herein.


When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the Magistrate Judge's recommendations and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

Plaintiff is proceeding pro se ; thus, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Conclusory allegations of constitutional violations, unsupported by allegations of fact, do not state a claim on which relief can be granted. Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).

To obtain a preliminary injunction under Rule 65(a), Plaintiff must normally show that there is a "(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest." Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980).

However, certain types of preliminary injunctions are disfavored: (1) those that disturb the status quo; (2) those that are mandatory as opposed to prohibitory; and (3) those that afford the movant substantially all the relief he may recover at the conclusion of a full trial on the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991). These "must be more closely scrutinized to assure that the exigencies of the case supporting the granting of a remedy that is extraordinary even in the normal course." O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004).


The Court adopts and incorporates the factual and procedural history included within the Recommendations as if set forth herein. To the extent any additional facts are necessary for the Court's resolution of this matter, such facts are set forth below.

Plaintiff initiated this action by filing a pro se complaint against various BOP employees and representatives asserting various claims for constitutional violations and for retaliation (the "Complaint"). (ECF No. 1.) Initially, Plaintiff was granted leave to proceed in forma pauperis ("IFP") by Order of Magistrate Judge Boland. (ECF No. 4.) In a subsequent Order, however, Judge Boland noted that "Mr. Pinson, on three or more prior occasions, has brought an action that was dismissed on the grounds that it was frivolous." (ECF No. 5 at 2.) Attachment A to the Complaint, which constitutes a list of approximately 125 previous cases filed by Plaintiff, demonstrates Plaintiff's filing history. Because of this, pursuant to 28 U.S.C. § 1915(g), Plaintiff was precluded from IFP status "unless the prisoner is under imminent danger of serious physical injury." Accordingly, Judge Boland clarified that "Mr. Pinson, on three or more prior occasions, has brought an action that was dismissed on the grounds that it was frivolous" and dismissed certain of Plaintiff's claims as "legally frivolous." (ECF No. 5 at 2, 5.) Judge Boland only allowed claims permitted by § 1915(g) to go forward-specifically, claims against BOP psychologist Dr. Bethany Kasdon "regarding (1) the disconnection of the sink and toilet for at least four days; (2) the confiscation of Mr. Pinson's asthma inhalers causing breathing difficulties for four days and inability to eat; and (3) the sexual assault." ( Id. at 5.)

Plaintiff attempted to amend his Complaint at that point, but his Amended Complaint was stricken by Order of Judge Boland on July 29, 2013, for failing to seek leave of court as required by Fed.R.Civ.P. 15(a)(2). (ECF No. 12.) This was of particular importance given the limitations on the types of claims Plaintiff could pursue given his "three strikes" status under 28 U.S.C. § 1915. In response to that ruling, rather than complying with the directions in Judge Boland's Order, Plaintiff filed a Motion for Reconsideration and Leave to Amend (ECF No. 16), which essentially argued that his Amended Complaint should have been allowed. That motion is addressed further herein.

Thereafter, Plaintiff filed the various motions for injunctive and emergency relief which are the subject of the Recommendations. On October 22, 2013, Judge Boland filed Recommendation One, (ECF No. 44) recommending that Plaintiff's Motion for a Protective Order (ECF No. 22) and Motion for Preliminary Injunction (ECF No. 27) be denied. The Motion for Protective Order, despite its caption, sought injunctive relief prohibiting Defendant from threatening Plaintiff. The Motion for Preliminary Injunction sought a preliminary injunction-not against Defendant, but rather against her employer-prohibiting the BOP from interfering with his mail. Judge Boland denied these motions on the basis that Plaintiff's motions failed to address the Lundgrin factors, 619 F.2d at 63. Plaintiff filed an Objection to this Recommendation on November 4, 2013. (ECF No. 50.) The purported objection did not disagree with the failure to address the Lundgrin factors; instead, it argued that Plaintiff should be permitted to orally address the factors at a hearing scheduled on a different motion.

On December 20, 2013, Judge Boland filed Recommendation Two, recommending that Plaintiff's Motion for Emergency Hearing (ECF No. 63) be denied. Judge Boland denied the motion, again based on Plaintiff's failure to meaningfully address the relevant factors warranting a preliminary injunction. (ECF No. 82.) On January 14, 2014, Plaintiff filed a Motion to Supplement (ECF No. 90) his motion for preliminary injunction, which was denied (ECF No. 98). To date, Plaintiff has filed nothing that could properly be considered objections to Magistrate Judge Boland's Recommendation Two.

On February 7, 2014, Judge Boland filed Recommendation Three, addressing Plaintiff's Verified Emergency Motion for Temporary Restraining Order (ECF No. 24), filed October 17, 2013. This motion, unlike the earlier ones, did address the Lundgrin factors directly. It alleged denial of medical treatment and threats of physical injury by Dr. Kasdon. Judge Boland held a hearing on this motion and heard testimony. Thereafter, Judge Boland ...

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