United States District Court, D. Colorado
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 two distinct Recommendations issued by Magistrate Judge Boland, as well as on the Consolidated Motion to Dismiss filed by Plaintiff (ECF No. 114). The first of Judge Boland's Recommendations ("Recommendation One") (ECF No. 111) recommends that Plaintiff be sanctioned for his abusive litigation conduct and that filing restrictions be imposed. The second ("Recommendation Two") (ECF No. 112) recommends that Defendant's Motion for Summary Judgment Based on Exhaustion (ECF No. 63) be granted. Plaintiff filed a Consolidated Motion to Dismiss (ECF No. 114), which is also addressed herein.
I. LEGAL STANDARD
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 such 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).
II. FACTS AND PROCEDURAL HISTORY
Plaintiff initiated this action by filing a pro se complaint against multiple BOP personnel asserting various claims for constitutional violations and for retaliation (the "Complaint"). (ECF No. 1.) Initially, Plaintiff was proceeding in forma pauperis ("IFP") by Order of Magistrate Judge Boland. (ECF No. 4.) Subsequently, however, Senior U.S. District Court Judge Lewis T. Babcock 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.) Because of this, pursuant to 28 U.S.C. § 1915(g), Plaintiff was precluded from proceeding on an IFP status "unless the prisoner is under imminent danger of serious physical injury." Accordingly, Judge Babcock reviewed Mr. Pinson's claims under the appropriate standard, analyzed the issue of danger to Mr. Pinson and dismissed certain of his claims as "legally frivolous" pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). (ECF No. 5 at 2, 5.)
Judge Babcock 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 filed a series of motions in this Court asking for various forms of injunctive relief; these were denied by Order of this Court upon previous recommendations by Judge Boland dated February 28, 2014. (ECF No. 105.)
A. Recommendation One (ECF No. 111)
As noted above, Recommendation One addresses the issue of whether filing restrictions should be imposed on Mr. Pinson. Recommendation One includes a thorough recitation of Mr. Pinson's filing history both in this Court and others. I will not repeat that history here, except where doing so will assist in explaining the Court's reasoning.
Plaintiff filed a Response to Report and Recommendation (ECF No. 117) (the "Response"), in which he expressly proffered objections both to Judge Boland's account of the facts, and to Judge Boland's recommended filing restrictions. However, Plaintiff ultimately conceded that some filing restrictions are in order, and proposed alternatives to those suggested by Judge Boland. He also stated that he "voluntarily dismiss[es] this case as a sanction upon myself, as a gesture to the defendant." (ECF No. 117.)
The Response consists of three distinct parts. First, Plaintiff puts forward a "Preliminary Statement." Next, he identifies matters deemed a "Factual Dispute." Finally, he proffers "Objections to Sanctions." Because Plaintiff is proceeding pro se, the Court has examined each section for potential objections rather than being guided solely by Plaintiff's section headings.
Plaintiff's Preliminary Statement claims that Judge Boland's recitation of his filing history fails to mention instances in which Plaintiff has prevailed. Arguably, this suggests that the Judge Boland's recitation and characterization of Plaintiff's filing history is substantially inaccurate. The Court disagrees. As noted by Judge Boland, Attachment A to the Complaint in this matter shows more than 100 cases filed by Mr. Pinson in federal district courts. In this computation, the Court differs from Judge Boland by noting only district court matters. Additional appellate matters are also disclosed. Also as noted by Judge Boland, Plaintiff has been assessed three strikes under 28 U.S.C. § 1915(g). Moreover, I agree with Judge Boland's detailed examples of Plaintiff's filing practices and the determination that his overall pattern of conduct is that of an abusive filer.
As for the specifics of Plaintiff's statement, it fails to give the Court pause in classifying Plaintiff as an abusive filer. At the outset, it is hardly the case that Plaintiff's suggestion of five meritorious cases would serve to do damage to the characterization of him as an abusive filer where the quantity of filed cases exceeds one hundred. That aside, Plaintiff tends to exaggerate the significance of matters "where the plaintiff has prevailed." (ECF No. 117 at 2.)
According to Plaintiff, the "Tenth Circuit has repeatedly reversed this Court in plaintiff's cases." ( Id. ) Implicit in this statement is that Plaintiff's filed cases are ...