Summary
denying motion to reconsider denial of imminent-danger IFP status based on Plaintiff's "snitch" allegation where Plaintiff was housed and recreated alone, and set forth no specific allegations of ongoing serious injury
Summary of this case from Pinson v. PledgerOpinion
Civil Action No. 11-cv-02112-BNB
12-08-2011
JEREMY PINSON, Plaintiff, v. FEDERAL BUREAU OF PRISONS, and UNITED STATES ATTORNEY Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
Plaintiff, Jeremy Pinson, is a prisoner in the custody of the United States Bureau of Prisons. He currently is incarcerated at ADX in Florence, Colorado. Mr. Pinson filed a "Motion for Reconsideration of Order Denying IFP Status" on November 25, 2011. In the Motion, Mr. Pinson requests that the Court reconsider the Order of November 15, 2011, based on clear error and new evidence. The Court must construe the Motion 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).
The three major grounds that justify reconsideration are: (1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Upon consideration of the Motion for Reconsideration and the entire file, the Court concludes that the Motion should be denied.
Mr. Pinson, acting pro se, initiated this action by filing a "Petition Pursuant to Crime Victims Rights Act " on August 12, 2011. Magistrate Judge Craig B. Shaffer instructed Mr. Pinson to file his claims on a Court-approved form used in filing prisoner complaints and either to pay the $350.00 filing fee in full or to file a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Subsequent to filing an objection to Magistrate Judge Shaffer's order, which was overruled, and to filing a writ of mandamus in the Tenth Circuit, Mr. Pinson filed his claims on a proper Court-approved form used in filing prisoner complaints and submitted a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Magistrate Judge Boyd N. Boland, after review of the Amended Complaint, entered an order on October 17, 2011, instructing Mr. Pinson to show cause why he should not be denied leave to proceed under § 1915 because he is subject to filing restrictions under § 1915(g).
In response to the October 17 Order, Mr. Pinson filed a motion for a preliminary injunction, motion to supplement and seal the motion for a preliminary injunction, and response to the Order to Show Cause. The Court reviewed each of these filings, along with the Amended Complaint, and determined that Mr. Pinson failed to state that he is in imminent danger of serious physical injury.
In the Motion for Reconsideration, Mr. Pinson claims the inmate who is housed next to him, along with another inmate housed in close proximity, continue to tamper with their cell doors to gain access to him. Mr. Pinson contends that if they are successful only a "glass window" will separate them from Mr. Pinson. He also claims that eight to sixteen inmates recreate together in J Unit, which is where he could be placed if he is determined to be eligible for placement in the Step-Down Program at his next review in January 2012. Finally, Mr. Pinson contends that he is not an aggressor against other inmates and he is labeled an informant.
Based on Mr. Pinson's current housing in a single-cell, the security measures taken when he is transported to and from his cell, and the fact that he recreates alone, nothing he asserts in the Motion sets forth specific allegations of ongoing serious physical injury, even if he is not an aggressor and has been labeled an informant.
Mr. Pinson, therefore, fails to demonstrate that new evidence or clear error justifies reconsideration in his case. The Motion for Reconsideration will be denied. Mr. Pinson must pay the full $350.00 filing fee pursuant to 28 U.S.C. § 1914(a) if he wishes to pursue his claims in this action. The Court will provide Mr. Pinson additional time to submit the $350.00 filing fee, but he is warned that his failure to pay the fee within the time provided will result in the dismissal of this action without further notice. Accordingly, it is
ORDERED that the Motion for Reconsideration, Doc. No. 20, is DENIED. It is
FURTHER ORDERED that Mr. Pinson shall have twenty-one days from the date of this Order to pay the entire $350.00 filing fee if he wishes to pursue his claims in this action. It is
FURTHER ORDERED that if Mr. Pinson fails to pay the entire $350.00 filing fee within the time allowed, the Complaint and the action will be dismissed without further notice. It is
FURTHER ORDERED that the only proper filing at this time is the payment of the $350.00 filing fee.
DATED at Denver, Colorado, this 8th day of December, 2011.
BY THE COURT:
LEWIS T. BABCOCK, Senior Judge
United States District Court