Opinion
CASE NO. 1:13-CV-1821 AWI MJS (PC)
12-03-2015
JEREMY PINSON, Plaintiff v. FEDERAL BUREAU OF PRISONS, et al., Defendants
ORDER TO SHOW CAUSE WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE REVOKED
Background
On November 12, 2013, Plaintiff Jeremy Pinson ("Pinson"), along with co-Plaintiffs Mikeal Stine and Jeremy Brown, filed this Bivens action against the Federal Bureau of Prisons and Doe defendants. See Doc. No. 1. At the time of filing this lawsuit, all plaintiffs were housed at the federal penitentiary in Florence, Colorado. See id. On November 21, 2013, the Magistrate Judge severed the plaintiffs, and permitted Jeremy Brown and Mikeal Stine to refile separate lawsuits. See Doc. No. 3.
On March 10, 2014, Pinson was granted in forma pauperis ("IFP") status. See Doc. No. 13.
Stine refiled his claims, and on September 9, 2015, this Court revoked Stine's IFP status, and later dismissed his case for failure to pay the filing fee. See Doc. Nos. 22 and 23 in Case No. 1:13-CV-1883 AWI MJS; see also Stine v. Federal Bureau of Prisons, 2015 U.S. Dist. LEXIS 120153 (E.D. Cal. Sept. 9, 2015). This Court adopted the analysis of Pettus v. Morgenthau, 554 F.3d 293 (2d Cir. 2009), which imposed a "nexus" requirement to the imminent danger exception of 28 U.S.C. § 1915(g). See Stine, 2015 U.S. Dist. LEXIS 120153 at *12. In revoking Stine's IFP status, this Court examined Stine's allegations and found them to be wanting for several reasons. First, the number of times that Stine had alleged being in imminent danger due to various prison guards labeling him a snitch, combined with being housed in one of the most secure federal prisons in the country (Florence, Colorado), made Stine's allegations fanciful. See id. at *17. Second, Stine failed to allege a nexus. Stine alleged that other guards in other prisons had labeled him a snitch, so any imminent danger was not traceable to unknown guards at Atwater. See id. at *18. Also, the imminent danger would be present at the facility in Florence, Colorado, and this Court has no jurisdiction in Colorado. See id. Thus, the Court could not have issued an order that redressed Stine's alleged injury. See id.
Overly speculative or fanciful allegations do not plausibly show imminent danger. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007).
28 U .S.C. § 1915(g)
The "three strikes rule" of 28 U.S.C. § 1915(g) was part of "a variety of reforms designed to filter out the bad claims filed by prisoners and facilitate consideration of the good." Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has three strikes" under § 1915(g), the prisoner will be barred from proceeding IFP unless he meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). The Ninth Circuit has held that the complaint of a "three-strikes prisoner" must plausibly allege that the prisoner was faced with imminent danger of serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2014); Andrews, 493 F.3d at 1055. Further, a three strikes plaintiff must demonstrate a nexus between the alleged imminent danger and a claim asserted in his complaint. Pettus,554 F.3d 293, 298-99 (2d Cir. 2009); Stine, 2015 U.S. Dist. LEXIS 120153 at *8. In determining whether a three strikes plaintiff has alleged a sufficient nexus, courts are to consider: (1) whether the imminent danger of serious physical injury alleged is fairly traceable to unlawful conduct asserted in the complaint; and (2) whether a favorable judicial outcome would redress that injury. Pettus, 554 F.3d at 298-99; Stine, 2015 U.S. Dist. LEXIS 120153 at *8.
28 U.S.C. § 1915(g) reads: 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.
Discussion
In this case, Pinson alleges that: (1) he and Stine are former members of notorious prison gangs; (2) he, Stine, and Matthew Eyre filed a lawsuit in the D.C. Circuit in 2010; (3) personnel at Atwater labeled Stine and Pinson "snitches" in front Eyre; (4) he and Stine have been assaulted by prisoners associated with notorious prison gangs; (5) members of the notorious prison gangs have vowed to kill him and Stine; and (6) the Bureau of Prison refuses to take steps to protect him. See Doc. Nos. 1, 8. These allegations are materially the same as the allegations in Stine. Cf. Doc. Nos. 1, 8 with Stine, 2015 U.S. Dist. LEXIS 120153 at *3-*4. Further, Pinson is subject to the "three strikes" rule of 28 U.S.C. § 1915(g). See Pinson v. Samuels, 761 F.3d 1, 2-3 (D.C. Cir. 2014); Pinson v. Casden, 2013 U.S. Dist. LEXIS 89132 (D. Col. June 25, 2013).
Given the materially similar allegations in Stine and Pinson's complaint, and Pinson being subject to the § 1915(g)'s three strikes rule, it appears to the Court that Pinson's IFP status should be revoked. First, like Stine, Pinson has made prior allegations in numerous other cases of being in imminent danger due to being labeled a snitch by various prison guards, see Pinson v. Frisk, 2015 U.S. Dist. LEXIS 21396, *7-*10 (N.D. Cal. Feb. 20, 2015), and Pinson is in the highly secure federal penitentiary in Florence, Colorado. Thus, Pinson's allegations appear fanciful. See Stine, 2015 U.S. Dist. LEXIS 120153 at *17; Frisk, 2015 U.S. Dist. LEXIS 21396 at *10. Second, like Stine, Pinson's Complaint does not identify a sufficient nexus between any imminent danger and his claims. See Pettus, 554 F.3d at 298-99; Stine, 2015 U.S. Dist. LEXIS 120153 at *12. The danger from being labeled a snitch is not sufficiently traceable to Atwater (given Pinson's previous lawsuits dealing with being labeled a "snitch" by guards at other federal penitentiaries), and this Court has no jurisdiction to effect any relief in Florence, Colorado. See Stine, 2015 U.S. Dist. LEXIS 120153 at *18; Frisk, 2015 U.S. Dist. LEXIS 21396 at *7-*12.
The Court recognizes that, on March 26, 2015, it adopted a Findings and Recommendation that inter alia denied Defendants' motion to revoke Pinson's IFP status. See Doc. No. 52. However, the Court has discretion to reconsider its prior orders. See United States v. Smith, 389 F.3d 944, 949 (9t h Cir. 2004); City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 883 (9t h Cir. 2001). Upon further consideration, the Court is of the firm opinion that its approach in Stine is proper, and that approach appears to apply in this case. --------
Nevertheless, before the Court revokes Pinson's IFP status, it will give Pinson the opportunity to show cause why his IFP status should not be revoked. Pinson may either show cause or pay the $400.00 filing fee. If Pinson pays the filing fee, this order to show cause will be discharged. If Pinson timely responds without paying the fee, but fails to show sufficient cause why his IFP status should not be revoked, Pinson's IFP status will be revoked and he will be given ten days to pay the $400.00 filing fee. If Pinson does not timely reply to this order, the Court will revoke Pinson's IFP status and dismiss this case without further notice for failure to pay a filing fee and obey a court order.
ORDER
Accordingly, IT IS HEREBY ORDERED that Plaintiff shall show cause in writing within fourteen (14) days of service of this order why his IFP status should not be revoked. IT IS SO ORDERED. Dated: December 3, 2015
/s/_________
SENIOR DISTRICT JUDGE