United States District Court, D. Colorado
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Jeremy Pinson, is in the custody of the Federal Bureau of Prisons and at the United States Penitentiary-ADX in Florence, Colorado. On June 13, 2013, Mr. Pinson initiated this action by filing pro se a Prisoner Complaint that alleges a violation of his constitutional rights. He seeks money damages and an injunction against the BOP for discontinuing medications prescribed by non-BOP physicians.
The Court must construe the Prisoner Complaint liberally because Mr. Pinson is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will direct Mr. Pinson to show cause why he should not be denied leave to proceed pursuant to 28 U.S.C. § 1915.
In relevant part, § 1915 provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Mr. Pinson, on three or more prior occasions, has brought an action that was dismissed on the grounds that it was frivolous. Pinson v. Berkebile, et al., No. 12-cv-02118-LTB (D. Colo. Sept. 5, 2012) (dismissed as legally frivolous), appeal dismissed, No. 12-1363 (10th Cir. Oct. 31, 2012); Pinson v. Chipi, et al., No. 09-cv-00283-WTH-GRJ (M.D. Fla. July 30, 2009) (dismissed for abuse of judicial process and counts as a strike under 28 U.S.C. § 1915(g)), appeal dismissed, No. 10-12235-B (11th Cir. Feb. 2, 2011) (dismissed as frivolous), cert. denied, No. 10-11063, 2011 WL 4532284 (Oct. 3, 2011); Pinson v. Pineiro, et al., No. 09-cv-00244-WTH-GRJ (M.D. Fla. July 30, 2009) (dismissed for abuse of judicial process and counts as a strike under 28 U.S.C. § 1915(g)), vol. dismissed, No. 09-14528-C (11th Cir. Oct. 16, 2009); Pinson v. Grimes, et al., No. 09-cv-00238-WTH-GRJ (M.D. Fla. July 30, 2009) (dismissed for abuse of judicial process and counts as a strike under 28 U.S.C. § 1915(g)), aff'd in part, No. 09-14242 , 391 F.Appx. 797 (11th Cir. Aug. 9, 2010) (§ 1915(g) dismissal affirmed regarding strike, but dismissal with prejudice remanded as too harsh), cert. denied, 131 S.Ct. 527 (Nov. 1 , 2010).
The Court's § 1915(g) determination in each of the above-noted cases was consistent with Hafed v. Fed. Bureau of Prisons, et al., 635 F.3d 1172 (10th Cir. 2011). Also, if the Tenth Circuit dismisses "as frivolous the appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes." See Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775 (10th Cir. April 20, 1999).
In response to the question on Page Two of the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 that asks if Mr. Pinson is in imminent danger of serious physical injury, he states "See Complaint at Claim One (In severe pain, am vomiting blood, dizzy, weak and tired)." In the Complaint, Mr. Pinson asserts that on May 3, 2013, he attempted suicide by ingesting aspirin, allergy tablets, and unknown other pills. Then, on June 8, 2013, he again attempted suicide by ingesting over 100 tablets of Tylenol. Mr. Pinson asserts that he was taken to St. Thomas Amore Hospital, given an "emergency drug" to prevent liver failure, and prescribed Oxycodone and other drugs for stomach acid and nausea. When Plaintiff returned to prison on June 10, 2013, Defendant Camacho immediately discontinued the Oxycodone, antacid, and nausea drugs. Plaintiff contends that he continues to experience severe pain, vomits blood, and is tired and weak.
On July 8, 2013, Plaintiff filed an emergency motion for a preliminary injunction and most recently an emergency petition for mandamus in the Tenth Circuit. In the motion for preliminary injunction, Plaintiff asserts that he has experienced excruciating pain and is vomiting blood, and asks that the BOP be directed to allow him access to a GI specialist and to the medications prescribed by the outside hospital.
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 at least 136 cases in various other federal district courts, along with 64 appeals in seven different circuits.
Since June 13, 2013, when he filed this case, Mr. Pinson has initiated fin this Court five additional prisoner complaints and seven habeas actions. See Pinson v. Andreis, et al., No. 14-cv-00645-BNB (D. Colo. Filed Feb. 28, 2014) (gums and teeth infected); Pinson v. Berkebile, No. 14-cv-00475-BNB (D. Colo. Filed Feb. 24, 2014) (§ 2241 action; no mental evaluation conducted in disciplinary proceeding); Pinson v. Berkebile, No. 14-cv-00423-BNB (D. Colo. Filed Feb. 14, 2014) (§ 2241 action; no mental evaluation conducted in disciplinary proceeding); Pinson v. Berkebile, No. 14-cv-00410-BNB (D. Colo. Filed Feb. 13, 2014) (§ 2241 action; no mental evaluation conducted in five disciplinary proceedings); Pinson v. Balsick, et al., No. 14-cv-00285-BNB (D. Colo. Filed Jan. 30, 2014 (defendants withheld food); Pinson v. Fed. Bureau of Prisons, et al., No. 13-cv-3138-LTB (D. Colo. Dec. 27, 2013) (originally filed in District of Columbia challenging his placement at ADX because BOP policy prohibits epileptics being placed at ADX; dismissed action when this court denied a transfer back to District of Columbia); Pinson v. Berkebile, No. 13-cv-03050-LTB (D. Colo. Dec. 23, 2013) (§ 2241 action; dismissed for failure to cure deficiencies); Pinson v. Berkebile, 13-cv-03252-BNB (D. Colo. Filed Nov. 29, 2013) (§ 2241 action; no mental evaluation conducted in disciplinary proceedings); Pinson v. Berkebile, No. 13-cv-02821-LTB (D. Colo. Nov. 5, 2013) (filed condition of confinement claims under § 2241; dismissed and warned of sanctions if files conditions claim again in § 2241), aff'd, No. 13-1505 (10th Cir. Feb. 4, 2014) (found conditions claims and ordered to pay fee in full), petition for cert. filed, No. 13-8788 (U.S. Feb. 21, 2014); Pinson v. Fed. Bureau of Prisons, et al., No. 13-cv-02681-BNB (D. Colo. Filed Oct. 2, 2013) (denial of proper medical treatment); Pinson v. Berkebile, No. 13-cv-01953-LTB (D. Colo. Sept. 17, 2013) (failure to amend § 2241 action), aff'd, No. 1399 (10th Cir. Dec. 10, 2013); Pinson v. Snider, et al., No. 13-cv-01990-BNB (D. Colo. Filed July 24, 2013) (exposure to chemical agents).
Also since June 13, 2013, Mr. Pinson has initiated twelve actions in several other federal district courts. Pinson v. Reynolds, et al., No. 13-cv-00428-WTL-WGH (S.D. Ind. Dec. 19, 2013) (filed with other inmate, Mikeal Stine; court severed case; dismissed because § 1915(g) and failed to pay full fee; Pinson filed injunctive motion after dismissal claiming mental health issues, which was denied), pending appeal, No. 14-1122 (7th Cir. Filed Jan. 7, 2014); Pinson, et al., v. Unknown Party, et al., No.13-cv-01690-DCB-PSOT (D. Ariz. Dec. 6, 2013) (claims and plaintiffs severed; case dismissed; two new cases opened); Pinson v. Unknown Party, et al., No. 13-cv-02059-DCB-PSOT (D. Ariz. Filed Dec. 6, 2013) (claims inmates at federal prison in Tucson, Arizona, were told Pinson is a snitch; court found no imminent danger and ordered Pinson to show cause why he should not be denied leave to proceed pursuant to § 1915 as Pinson is restricted under § 1915(g); pending review of Pinson's response); Pinson, et al., v. John Does, et al., No. 13-cv-013077-NMG (D. Ma. Filed Nov. 25, 2013) (Mr. Pinson and Mikeal Stine claim defendant John Doe, investigative agent in Maryland, labeled them snitches and placed them on mail restrictions); Pinson, et al., v. Doe #1-2, et al., No. 13-cv-5502-KAW (N.D. Cal. Filed Nov. 27, 2013) (Mr. Pinson, Mikeal Stine, and four other inmates, three of which are located at a prison facility other than ADX Florence, claim that staff at the Pelican Bay State Prison have told inmates at the Pelican Bay Prison that Pinson and Stine are snitches in retaliation for their involvement in the Federal Prisoners Union, coordination of hunger strikes, publication of numerous articles in the San Francisco Bay View and other publications, and coordinating twenty-eight lawsuits against prison officials and contributing to the prosecution of one against the California Department of Corrections and Rehabilitation and threatened inmates at Pelican Bay if they worked with Pinson and Stine they may face brutal retaliation including hanging); Pinson v. John Doe #1, et al., No. 13-cv-00134-ART (E.D. Ky. Filed Nov. 20, 2013) (special investigative agent at USP Inez told inmate that Pinson and Stine are snitches and Jeremy Brown is a "rat" and to not file joint lawsuits with Pinson and Stine; as a result they have been assaulted and threatened; claims and plaintiffs were severed, Pinson only remaining plaintiff); Pinson v. Laird, et al., No. 13-cv-03198-SAC (D. Kan. Filed Nov. 14, 2013) (challenging medical treatment for epilepsy, subject to § 1915(g), found to lack imminent danger, and dismissed for failure to pay full filing fee) appeal pending, No. 14-3007 (10th Cir. Filed Jan. 10, 2014) (found subject to § 1915(g); directed to pay $505 filing fee in full); Pinson v. John Doe # 1 and #2, No. 13-cv-01821-MJS (E.D. Cal. Filed Nov. 12, 2013) (defendants told inmate at USP Atwater that Pinson and Stine are snitches and Brown is a "rat"; as a result the Mexican Mafia has threatened to kill Stine, Pinson, and Brown; plaintiffs and claims were severed, only Pinson remains in case, and mandamus to Ninth Circuit regarding claims denied); Pinson v. Fed. Bureau of Prisons, et al., No. 13-cv-01661-UNA (D. D.C. Oct. 25, 2013) (claiming his epilepsy requires placement in medical facility; transferred to D. Colo. for proper venue); Pinson, et al., v. Laird, et al., No. 13-cv-03033-SAC (D. Kan. July 30, 2013) (claims protective segregation needed at Florence; multi-plaintiff, Stine, Bruce, and Hipps, severed and Bruce voluntarily dismisses; motion for injunctive relief regarding gassing of inmates; in forma pauperis status denied; Pinson filed interlocutory appeal certification denied and denied by Tenth Circuit), appeal dismissed, No. 13-3176 (10th Cir. Aug. 19, 2013) (lack of prosecution); Pinson, et al., v. Bur. of Prisons, et al., No. 13-cv-03079-SAC (D. Kan. July 9, 2013) (claims unsanitary conditions; complaint authored by Mikeal Stine; complaint severed in Case No. 13-cv-03002; Pinson ordered to pay fee in full no imminent danger and subject to § 1915(g); Pinson filed interlocutory appeal, certification denied and denied by Tenth Circuit; district court dismissed for lack of prosecution).
Between October 22, 2012, and June 13, 2013, Mr. Pinson filed in this Court eight prisoner complaints, including this action. See John Doe, et al., v. Fed. Bureau of Prisons, et al., No. 13-cv-00104-RBJ-BNB (D. Colo. Feb. 18, 2014) (Pinson dismissed from action for submitting and signing pleadings without the knowledge of coplaintiffs); Bruce v. Wilson, No. 13-cv-00491-WJM-CBS (D. Colo. Nov. 4, 2013) (Pinson original plaintiff with Antoine Bruce; claims and plaintiffs severed and a new action was opened on Pinson's behalf in Case No. 13-cv-00749-RM); Pinson v. Berkebile, et al., No. 12-cv-02802-LTB (D. Colo. June 25, 2013) (case dismissed for failure to make monthly payment or in alternative to show cause why not able to; noted two month delay in processing case caused by Mr. Pinson even though he claimed imminent danger); Pinson v. Kasdon, No. 13-cv-01384-RM-BNB (D. Colo. Filed May 28, 2013) (conclusory claims of threats and retaliation against Defendants Snider and Berkebile dismissed as legally frivolous; claims against Kasdon, including disconnect of sink and toilet, confiscation of asthma inhaler, and sexual assault, pending review based on imminent danger and § 1915(g) waived); Pinson, et al., v. No Named Defendants, No. 13-cv-00651-LTB (D. Colo. Apr. 23, 2013) (claims filed pursuant to crime victims act for BOP's failure to protect them; dismissed in part for failure to cure and in part voluntary dismissal), appeal dismissed, No. 13-1206 (10th Cir. May 24, 2013) ( in forma pauperis status on appeal denied; dismissed for failure to pay fee in full and to prosecute); Hipps, et al., v. Fed. Bureau of Prisons, et al., No. 13-cv-00604-LTB (D. Colo. Apr. 18, 2013) (multi-plaintiff, Hipps, Bruce, Bacote, Pinson, and Stine claiming exposure to biohazard materials; Stine dismissed due to sanctions and others dismissed for failure to cure deficiencies), appeal dismissed, No. 13-1192 (10th Cir. June 6, 2013) (denied in forma pauperis status on appeal; dismissed for failure to pay filing fee in full and for lack of prosecution); Pinson v. Fed. Bureau of Prisons, et al., No. 13-cv-00749-RM (D. Colo. Filed Feb. 25, 2013) (pending motion to dismiss by defendants; Pinson has filed injunctive motions, motion to amend to add eight defendants, motion for ADR; recommendation pending to deny motion for injunctive relief); Pinson v. Madison, et al., No. 13-cv-00157-LTB (D. Colo. Mar. 29, 2013) (originally Pinson and Mr. Villatoro were plaintiffs to the action; Villatoro filed a notice of voluntary dismissal; when Pinson was directed to file an amended complaint that stated how he was in imminent danger of serious physical injury Pinson filed a notice of voluntary dismissal; four months later both plaintiffs filed a motion to reinstate, which was denied).
In two of the eight complaints, after asserting imminent danger and filing an emergency motion for preliminary injunction, Mr. Pinson either voluntarily dismissed the action, see No. 13-cv-00157-LTB at ECF Nos. 1, 9 and 14, or caused over a two-month delay in processing the action, which raised questions regarding the veracity of Mr. Pinson's claims, see No. 12-cv-02802-LTB at ECF No. 42. Three of Mr. Pinson's complaints were drawn to a ...