Pinson v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JEREMY PINSON, :
:
Plaintiff, : Civil Action No.: 12-1872 (RC)
:
v. : Re Document Nos.: 287, 310, 317
:
UNITED STATES DEPARTMENT OF :
JUSTICE, et al., :
:
Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION TO DISMISS;
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
IN THE ALTERNATIVE FOR SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT;
DENYING AS PREMATURE PLAINTIFF’S SUPPLEMENTAL MOTION FOR DISCOVERY;
APPOINTING PRO BONO COUNSEL

I. INTRODUCTION

Plaintiff Jeremy Pinson claims that her1 constitutional rights were violated when Bureau

of Prisons (BOP) officials retaliated against her for exercising her First Amendment rights. The

DOJ—on behalf of the defendant-officials—moves to dismiss, or, in the alternative, for

summary judgment. Because the Court concludes that Pinson has adequately stated a claim, it

denies the motion to dismiss. The Court also denies the DOJ’s motion for summary judgment as

to Pinson’s claims that prison officials refuse to investigate her administrative complaints and

1
Pinson identifies using feminine pronouns, and the government and this Court follow
suit. See Defs.’ Mot. Dismiss or, Alt., Renewed Mot. Summ. J. at 2 n.1, ECF No. 287. The
Court’s use of feminine pronouns does not reflect any substantive or legal characterization.
transferred her to a more restrictive setting, but grants the DOJ’s motion for summary judgment

as to Pinson’s other claims of miscellaneous retaliation.

II. BACKGROUND2

This is not the first time this Court has addressed Pinson’s claims for First Amendment

retaliation. In her Corrected Second Amended Complaint of October 2013, Pinson raised a

variety of constitutional claims against, inter alia, defendants Charles Samuels and John

Dignam. Corr. 2d Am. Compl. at 2, ECF No. 32. Each was sued in both his official and

individual capacity. Corr. 2d Am. Compl. at 2. Samuels was the Director of the BOP, and

Dignam was Chief of the BOP’s Office of Internal Affairs. Corr. 2d Am. Compl. at 2. As relief,

Pinson seeks an injunction against Samuels and Dignam barring them “from further acts of

retaliation,” as well as “[c]ompensatory and punitive damages.” Corr. 2d Am. Compl. at 16. This

Court dismissed several of Pinson’s constitutional claims for failure to exhaust administrative

remedies, and required Pinson to submit a more definite statement of the facts underlying each

surviving claim, see generally Mem. Op. at 52–63, Pinson v. U.S. Dep’t of Justice, No. 12-1872,

2016 WL 29245, at *23–27 (D.D.C. Jan. 4, 2016), ECF No. 259, which Pinson has now filed,

see generally Pl.’s More Def. Statement Bivens Claims (Pl.’s Statement), ECF No. 279.

The Court now considers Pinson’s current claims—first, a claim alleging that Dignam

and Samuels refused to investigate Pinson’s administrative complaints in retaliation for her First

2
The DOJ advances both a motion to dismiss for failure to state a claim and a motion for
summary judgment. “In determining whether a complaint states a claim, the court may consider
the facts alleged in the complaint, documents attached thereto or incorporated therein, and
matters of which it may take judicial notice.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173
(D.C. Cir. 2006). In deciding a motion for summary judgment, however, the Court may also
consider additional materials. The Court thus segregates these additional materials into Part II.D.

2
Amendment activities; second, a claim that Samuels transferred Pinson to ADX Florence3 in

retaliation for her First Amendment activities; and third, Pinson’s claims of other miscellaneous

retaliation for her First Amendment activities directed by Samuels.

All of these claims involve alleged retaliation against Pinson for her First Amendment

activities. These activities include contributing to news articles, posting to a blog, tweeting, filing

lawsuits on her own behalf, and assisting other inmates in filing lawsuits. Corr. 2d Am. Compl.

at 14. Despite the retaliation she describes, Pinson asserts that she “explicitly vowed to never

cease writing lawsuits, blog posts (www.betweenthebars.org) and letters to the media,” and

identifies an example of her continued engagement with the media. Pl.’s Statement ¶ 8; see also

Pl.’s Statement, Ex. 1, Alan Prendergast, Fires, Hangings, Madness: Is Florence SHU the Worst

Cellblock in America?, Westword (Mar. 15, 2016), http://www.westword.com/news/fires-

hangings-madness-is-florence-shu-the-worst-cellblock-in-america-7700845 (news article

discussing Florence ADX with contribution from Pinson).

A. Claim One—Refusal to Investigate

According to Pinson, she has filed “dozens” of complaints alleging misconduct by BOP

employees that were eventually routed to Dignam. Pl.’s Statement ¶¶ 1–3, ECF No. 279. Plaintiff

asserts that she has confirmed that the complaints were referred to Dignam through FOIA

requests. Pl.’s Statement ¶ 4. Pinson claims that Dignam “refused to investigate the complaints

unless Plaintiff agreed to cease news media contacts and litigation against BOP.” Corr. 2d Am.

Compl. at 14.

3
“[T]he United States Penitentiary Administrative Maximum Facility in Florence, Colo.,
known more colloquially as the ADX. . . . is the highest-security prison in the country.” Mark
Binelli, Inside America’s Toughest Federal Prison, N.Y. Times (March 26, 2015), https://
www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-prison.html.

3
 As evidence of this claim, Pinson states that she met with a special agent and unit

manager in 2011 who told her that Dignam would not investigate her complaints because she

was “a gadfly constantly inundating Dignam’s office with complaints” and adverse attention

from the media. Pl.’s Statement ¶ 5. According to Pinson, the special agent and unit manager told

her that Dignam would investigate her complaints if she ceased these activities. Pl.’s Statement

¶ 5. Pinson claims that the special agent and unit manager told her that they met with her on

Samuels’s instruction. Pl.’s Statement ¶ 7. Pinson also claims that she met in-person with

Samuels in August of 2015, and that he “admitted in his own words” to her that he had caused

the 2011 meeting. Pl.’s Statement ¶ 7.

Pinson further claims that in the “summer of 2015” she met with two agents from BOP’s

Office of Internal Affairs who told her that she was “hated all the way to the top”—which they

clarified referred to Dignam and Samuels—and therefore “no one is gonna help you and end up

in the New York Times over something you filed.” Pl.’s Statement ¶ 6. Pinson claims that

“Samuels and Dignam also gave authorization to place plaintiff on mail restrictions limiting

plaintiffs [sic] communications with attorneys and the news media.” Corr. 2d Am. Compl. at 16.

B. Claim Two—Transfer to ADX Florence

Pinson also alleges that she was transferred to ADX Florence in retaliation for her

activities. Pinson claims that when Samuels was Assistant Director of the BOP, he emailed an

employee and had that employee interrogate Pinson and order her to cease contacts with the

news media. Corr. 2d Am. Compl. at 15. When she refused, Pinson alleges that Samuels

“ordered plaintiff moved to ADX Florence using information he knew to be false.” Corr. 2d Am.

Compl. at 15.

4
 As evidence, Pinson asserts that she was told by staff at ADX Florence that Samuels had

told them to stop her from engaging in lawsuits or contacts with the news media. Corr. 2d Am.

Compl. at 15. Pinson also asserts that, during her ADX referral hearing in December of 2015, the

hearing administrator told her that Samuels would “halt her transfer to ADX [Florence] if she

agreed to cease all lawsuits and press contacts, or the reverse if she didnt [sic].” Pl.’s Statement

¶ 8. When Pinson was transferred to ADX Florence, she asserts that it was “personally authorized”

by Samuels, Pl.’s Statement ¶ 9, as evidenced by his signature on the paperwork, ADX General

Population Placement Decision, ECF No. 279, Ex. 2; ECF No. 288-1, Ex. A (same document).

C. Claim Three—Other Allegedly Retaliatory Acts

Pinson also alleges several other miscellaneous acts of retaliation.4 She claims that

Samuels ordered various employees to “convince” her to stop filing lawsuits and contacting the

news media in March of 2013, and that the employees’ persuasive strategies included separating

Pinson from another individual and “cell searches, strip searches, deprivation of meals, and

making threats.” Corr. 2d Am. Compl. at 15.

4
In her more definite statement, Pinson adds an allegation that, during her in-person
meeting with Samuels in 2015, he “threatened” to place her in solitary confinement. Pl.’s
Statement ¶ 9. “Inmates at the ADX spend approximately 23 hours of each day in solitary
confinement.” Mark Binelli, Inside America’s Toughest Federal Prison, N.Y. Times (March 26,
2015), https://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-
prison.html. If being placed at ADX Florence is similar to being placed in solitary confinement,
the Court is uncertain if this claim is distinct from Pinson’s claim that Samuels transferred her to
ADX Florence. To the extent that this claim is incorporated in Pinson’s claim of retaliatory
transfer, the Court need not address it separately. To the extent that it attempts to state a new
claim not laid out in her initial complaint, the Court disregards it for several reasons.
First, Pinson does not specifically allege that this threat was in response to her First
Amendment activity. Moreover, the Court does not identify any claim in Pinson’s corrected
second amended complaint related to this claim (such a connection is highly improbable, given
that the alleged threat occurred in 2015 and the corrected second amended complaint was filed in
2013). As Pinson has not moved to amend the complaint, the Court thus disregards this
allegation.

5
 D. Materials Considered in Relation to the Motion for Summary Judgment

The DOJ submitted a declaration from Samuels which provides additional factual

material. In 2011—prior to his role as the Director of the Bureau of Prisons5—Samuels served as

the Assistant Director for the Correctional Programs Division. 2d Samuels Decl. ¶ 10, ECF No.

288-1. In that capacity Samuels admits that he approved Pinson’s transfer to ADX Florence, as

he was responsible for approving or rejecting all recommended transfers to ADX Florence. 2d

Samuels Decl. ¶¶ 10, 12. Samuels claims that his participation in the transfer came only after a

hearing administrator had reviewed and approved the referral. 2d Samuels Decl. ¶ 12. Samuels

denies telling the hearing administrator that he would stop the transfer if Pinson stopped

litigation and press contacts. 2d Samuels Decl. ¶ 12. The DOJ also provided the report of the

hearing administrator who recommended Pinson’s transfer to ADX Florence. That report shows

that, prior to the transfer, Pinson had accumulated a disciplinary record that included sixteen

reported incidents, including seven for possession of a weapon, four for serious assault, four for

setting fires, and one for taking a hostage. ECF No. 288-1, Ex. A.

Samuels also denies all of Pinson’s other allegations. Samuels denies having any

conversation with the special agent and unit manager about Pinson. 2d Samuels Decl. ¶ 5. Samuels

denies that he interacted with Pinson at all in August of 2015, including denying threatening to

keep Pinson in “restrictive housing.” 2d Samuels Decl. ¶¶ 6, 13. Samuels also denies having any

conversation with the named OIA agents regarding Pinson. 2d Samuels Decl. ¶ 8.

* * *

5
Samuels served as the Director of the BOP from 2011 to 2016. 2d Samuels Decl. ¶ 1,
ECF No. 288-1.

6
 The DOJ has now moved to dismiss, or, in the alternative, to renew its motion for

summary judgment.6 See generally Def.’s Mot. Dismiss or Renewed Mot. Summ. J. (MTD),

ECF No. 287.

III. LEGAL STANDARD

The DOJ raises both a motion to dismiss and a motion for summary judgment. The Court

considers the applicable legal standard for each in turn. In general, it notes that a pro se

complaint is held to “less stringent standards than formal pleadings drafted by lawyers,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)), although it still must comply with the Federal Rules of Civil Procedure, Jarrell v. Tisch,

656 F. Supp. 237, 239 (D.D.C. 1987). As a result, the Court considers Pinson’s complaint “in

light of” all filings, including her more definite statement and second corrected amended

complaint. Cf. Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 151 (D.C. Cir. 2015) (“[A]

district court errs in failing to consider a pro se litigant’s complaint ‘in light of’ all filings,

including filings responsive to a motion to dismiss.”).

6
The DOJ’s briefing focuses entirely on Pinson’s Bivens claims. The Court notes that
Pinson appears to also assert official capacity claims. See Corr. 2d Am. Compl. at 2
(“Defendants Samuels and Dignam are sued in their individual and official capacities.”).
Although it appears that Samuels, at least, is no longer in his official position, under Rule 25(d)
of the Federal Rules of Civil Procedure “[t]he officer’s successor is automatically substituted as a
party” when “a public officer who is a party in an official capacity dies, resigns, or otherwise
ceases to hold office while the action is pending.” These official-capacity claims, of course, are
not cognizable under Bivens, Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011), and may
only extend to prospective relief, see Vann v. U.S. Dep’t of Interior, 701 F.3d 927, 929 (D.C. Cir.
2012). As the DOJ has not briefed any objections to these official-capacity claims, the Court
takes no action at this time.

7
 A. Motion to Dismiss

To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), a complaint must contain factual allegations that, if accepted as true, would

state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice,”

id., instead, plaintiffs must “nudge[] their claims across the line from conceivable to plausible,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court considering a motion to dismiss a

pro se plaintiff’s complaint for failure to state a claim presumes that the factual allegations of the

complaint are true and construes those allegations liberally in the plaintiff’s favor. Hardaway v.

D.C. Hous. Auth., 843 F.3d 973, 976 (D.C. Cir. 2016).

B. Motion for Summary Judgment

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A fact is material if it may affect the substantive outcome of the litigation.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable

jury could, based on the evidence, return a verdict for the nonmovant. Scott v. Harris, 550 U.S.

372, 380 (2007). After the movant has identified the basis for its motion, the burden is on the

nonmovant to identify specific facts in the record that reveal a genuine issue for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986).

A court considering a motion for summary judgment analyzes all underlying facts and

inferences in the light most favorable to the nonmovant, Anderson, 477 U.S. at 255, and

“eschew[s] making credibility determinations or weighing the evidence,” Czekalski v. Peters,

475 F.3d 360, 363 (D.C. Cir. 2007). Nonetheless, “conclusory allegations” and “unsubstantiated

8
speculation,” by the nonmovant “do not create genuine issues of material fact.” Bonieskie v.

Mukasey, 540 F. Supp. 2d 190, 195, 200 n.12 (D.D.C. 2008) (citations omitted). “There is no

issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return

a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

While Pinson’s filings are somewhat eccentric, the Court construes her corrected second

amended complaint and more definite statement as sworn affidavits given her pro se status. Cf.

Gore v. Lockheed Martin IS & GS Def., No. 1:13-1513, 2016 WL 5312844, at *1 (D.D.C. Sept.

22, 2016) (“Plaintiff did not, however, provide any evidence to support her Opposition. Nevertheless,

in recognition of Plaintiff’s pro se status, the court will treat her Opposition as a sworn affidavit

and thus evaluate the merits of Defendant’s Motion [for summary judgment] as if Plaintiff has

attempted to come forward with evidence to show a genuine dispute of material fact.”).

IV. ANALYSIS

As a threshold matter, the DOJ argues that Bivens actions are unavailable for violations

of the First Amendment because the Supreme Court7 has not recognized such a cause of action.

MTD at 10–12, ECF No. 287. Because the D.C. Circuit has recognized Bivens claims for First

Amendment retaliation, this Court disagrees.

In Bivens, the Supreme Court “established that the victims of a constitutional violation by

a federal agent have a right to recover damages against the official in federal court despite the

absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980); see

also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389

(1971) (recognizing an implied right of action under the Constitution for violation of Fourth

7
As the DOJ notes, lower courts have reached various conclusions about the availability
of a Bivens claim for First Amendment violations. MTD at 12 & n.3.

9
Amendment rights). In the time following Bivens, “the Supreme Court has proceeded cautiously”

in expanding Bivens actions to cover additional constitutional violations. Meshal v. Higgenbotham,

804 F.3d 417, 421 (D.C. Cir. 2015). The Supreme Court has explicitly recognized Bivens claims

for “employment discrimination in violation of the Due Process Clause” and “cruel and unusual

punishment by prison officials in violation of the Eighth Amendment,” but has rejected any

“‘automatic entitlement’” to the remedy. Id. (first citing Davis v. Passman, 442 U.S. 228, 243–45

(1979), then citing Carlson v. Green, 446 U.S. 14, 19–23 (1980)).

Although the Supreme Court has not embraced the application of Bivens to First

Amendment claims, nor has it definitively eliminated the possibility. See Ashcroft v. Iqbal, 556

U.S. 662, 675 (2009) (“Petitioners do not press this argument, however, so we assume, without

deciding, that respondent’s First Amendment claim is actionable under Bivens.”); cf. Reichle v.

Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (“We have never held that Bivens extends to First

Amendment claims.”). Indeed, in Hartman v. Moore, the Supreme Court described a Bivens

claim for First Amendment retaliation:

Official reprisal for protected speech “offends the Constitution [because] it
threatens to inhibit exercise of the protected right,” and the law is settled that as a
general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including criminal prosecutions, for
speaking out. . . . [W]hen nonretaliatory grounds are in fact insufficient to
provoke the adverse consequences, we have held that retaliation is subject to
recovery as the but-for cause of official action offending the Constitution. When
the vengeful officer is federal, he is subject to an action for damages on the
authority of Bivens.

Hartman v. Moore, 547 U.S. 250, 256 (2006) (quoting Crawford–El v. Britton, 523 U.S. 574,

588, n.10 (1998), other citations omitted) (ultimately concluding that the plaintiff could not

recover because the plaintiff did not plead the absence of probable cause supporting his allegedly

retaliatory prosecution).

10
 The D.C. Circuit has gone further than the Supreme Court in identifying a Bivens remedy

for First Amendment retaliation:

We agree that the retaliatory prosecution constitutes an actionable First Amendment
wrong redressable under Bivens . . . . We share the conviction of forerunning
determinations that retaliatory prosecution unconstitutionally impinges on the
right of access to the courts guaranteed by the First Amendment. [Plaintiff’s
claim] partakes from the circumstances enough substance to entitle him to
proceed directly under the First Amendment for damages. This conclusion parallels
our holding in Dellums v. Powell, that a Bivens action can be utilized by complainants
asserting an infringement of their First Amendment right to petition Congress for
redress of grievances. That [the plaintiff] avers interference with his right to
entreat the courts rather than the legislature does not weaken the Dellums rationale.

Haynesworth v. Miller, 820 F.2d 1245, 1255–57 (D.C. Cir. 1987), abrogated in other part by

Hartman v. Moore, 547 U.S. 250 (2006) (requiring a plaintiff asserting a retaliatory prosecution

claim to show the absence of probable cause).

Most recently,8 the D.C. Circuit has assumed the existence of a Bivens action for First

Amendment retaliation in the context of a lawsuit by a prisoner alleging he was kept in more

restrictive conditions in retaliation for his protected speech. In Aref v. Lynch the D.C. Circuit

concluded that damages were not precluded by the PLRA but the defendant was protected by

qualified immunity. See generally Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016). In Aref the

prisoner-plaintiff alleged that he was kept in a more restrictive unit in retaliation for First

Amendment activity. Id. at 258. Although the government defendants argued to the D.C. Circuit

that it “should be especially hesitant to extend [a Bivens remedy]” because “[t]he Supreme Court

8
The D.C. Circuit had previously confronted a plaintiff’s Bivens claims for First
Amendment retaliation in Kimberlin v. Quinlan, where the prisoner-plaintiff claimed that he was
placed in administrative segregation in retaliation for his contacts with journalists. Kimberlin v.
Quinlan, 199 F.3d 496, 498 (D.C. Cir. 1999). Kimberlin’s tortuous path brought it before the
D.C. Circuit on multiple occasions, and on no occasion did the D.C. Circuit object to the premise
of a Bivens action for First Amendment retaliation. See, e.g., id.; Kimberlin v. Quinlan, 6 F.3d
789 (D.C. Cir. 1993) (subsequent history omitted).

11
has emphasized that Bivens is a ‘limited’ remedy, and it has elsewhere ‘declined to extend Bivens

to a claim sounding in the First Amendment,’” Brief for Official-Capacity Appellees and on

Behalf of the United States as Amicus Curiae at 55, 2016 WL 278962, Aref v. Lynch, 833 F.3d

242 (D.C. Cir. 2016) (quoting Iqbal, 556 U.S. 662, 675 (2009)), the D.C. Circuit did not accept

this invitation to limit the availability of Bivens in First Amendment cases.

It its reply, the DOJ appears to argue that, although there may be a Bivens cause of action

for some types of First Amendment retaliation, “there is no Bivens cause of action for a ‘refusal

to investigate’ or ‘retaliatory transfer.’” Defs.’ Reply Supp. Mot. Dismiss (Defs.’ Reply) at 1,

ECF No. 315 at 1. The DOJ does not cite any authority in support of its view that Bivens claims

are defined at such a high level of particularity. Moreover, the D.C. Circuit recently confronted a

nearly identical claim in Aref—where the plaintiff alleged that he had been kept in an overly

restrictive setting instead of, as Pinson alleges, transferred there—and declined to hold that no

remedy was available under Bivens.

This Court is not free to shut a door to the courthouse which the D.C. Circuit has left

open. See Hartley v. Wilfert, 918 F. Supp. 2d 45, 52 (D.D.C. 2013) (permitting a plaintiffs Bivens

claim for First Amendment retaliation to proceed because “[e]ven if Defendants are correct in

predicting the Supreme Court’s response to questions not yet before it, this Court cannot accept

its invitation to depart from this Circuit’s binding precedent” (citing the holding of Critical Mass

Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992) (en banc)

that decisions of D.C. Circuit are binding “unless and until overturned by the court en banc or by

Higher Authority”)). The Court therefore will not dispose of Pinson’s claims for the reason that

Bivens does not offer a cause of action for First Amendment retaliation.

12
 The Court thus turns to the DOJ’s arguments. The DOJ objects to Pinson’s claims

because (1) she fails to allege personal action by defendants, (2) she fails to allege any adverse

consequences, (3) her speech was not chilled, (4) Dignam and Samuels are entitled to qualified

immunity, and (5) the BOP had alternative reasons for her transfer to ADX Florence. As the DOJ

does not divide its arguments between the motion to dismiss stage and the summary judgment

stage, the Court assumes that all arguments relying upon the DOJ’s evidence beyond the

pleadings are aimed at the summary judgment stage, and that all other arguments are aimed at

the motion to dismiss stage.

A. Motion to Dismiss

The DOJ argues that Pinson has failed to state a claim because she (1) insufficiently

alleges personal involvement by Dignam and Samuels, (2) she does not allege any adverse

consequences, (3) her speech was not chilled, and (4) Dignam and Samuels should receive

qualified immunity.

As an initial matter, the Court identifies the elements of a claim for First Amendment

retaliation. To state such a claim, a plaintiff must show that “(1) he [or she] engaged in conduct

protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to

deter a person of ordinary firmness in plaintiff’s position from speaking again; and (3) a causal

link between the exercise of a constitutional right and the adverse action taken against him [or

her].”9 Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016) (quoting Banks v. York, 515 F. Supp.

9
This formulation differs from that offered by the DOJ, which was drawn from a district
court’s interpretation of the Ninth Circuit’s § 1983 standard. See MTD at 13 (quoting Anderson-
Bey v. District of Columbia, 466 F. Supp. 2d 51, 65 (D.D.C. 2006) (quoting Rhodes v. Robinson,
408 F.3d 559, 567–68 (9th Cir. 2005))). To the extent these differences are material, the Court
believes the DOJ’s position is unsound, see discussion infra.

13
2d 89, 111 (D.D.C. 2007)). The DOJ does not challenge Pinson’s claim as to the first element.

The Court thus proceeds to the DOJ’s objections.

1. Personal Involvement by Dignam and Samuels

The DOJ argues that Pinson has failed to allege “personal involvement” by Dignam and

Samuels in the retaliatory acts. MTD at 14, 17, 18, ECF No. 287. However, the Court finds that

Pinson has alleged such personal involvement.

As to her first claim—refusal to investigate—Pinson alleges direct action by both

Dignam and Samuels. See Corr. 2d Amend. Compl. at 14 (“Dignam refused to investigate the

complaints unless Plaintiff agreed to cease news media contacts and litigation against BOP.”);

Pl.’s Statement ¶ 7 (“Director Samuels was said to have caused the [2011 meeting in which

Pinson was told that Dignam would not investigate complaints], a fact Samuels admitted in his

own words to plaintiff . . . [in] 2015.”).

As to her second claim—transfer to ADX Florence—Pinson alleges direct action by

Samuels, the only defendant in that claim. See Corr. 2d Amend. Compl. at 15 (“When plaintiff

refused [to stop lawsuits and contact with the media] Samuels ordered plaintiff moved to ADX

Florence using information he knew to be false.”); Pl.’s Statement ¶ 9 (Samuels personally

authorized plaintiff’s transfer to ADX . . .”).

As to her third claim—other retaliatory behavior—Pinson also alleges direct action by

Samuels. See Corr. 2d Amend. Compl. at 15 (“Samuels . . . instructed staff to ‘convince’ plaintiff

to quit filing lawsuits and contacting the news media. As a result staff began to harrass [sic]

Plaintiff . . .”).

The DOJ appears to conflate Pinson’s allegations with potential evidentiary issues,

arguing, for example, that “[h]er only evidence of Samuels’[s] retaliatory intent is a statement by

14
a non-defendant.” MTD at 18. The DOJ’s arguments about the strength of Pinson’s evidence are

more appropriately addressed at the summary judgment stage, and the Court does so. In a 12(b)(6)

motion to dismiss, the Court accepts the nonmovant’s factual allegations as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); see also Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 976

(D.C. Cir. 2016). Because Pinson asserts that each defendant “through the official’s own individual

actions, has violated the Constitution,” Iqbal, 556 U.S. at 676;, the Court will not dismiss her claims

for failure to allege the personal involvement of Samuels or Dignam. See also Meyer v. Reno,

911 F. Supp. 11, 15 (D.D.C. 1996) (holding that defendant-supervisors could be liable under

Bivens if they “personally participated in the events which gave rise to the plaintiff’s claims.”).

The DOJ also argues that Pinson improperly attempts to “impose vicarious liability [on

Dignam and Samuels] for their staff member’s actions (or inactions),” an attempt that fails

because Bivens does not create liability on a respondeat superior theory. MTD at 9–10. Certainly

it is true that Bivens does not hold supervisors vicariously liable absent their personal

involvement. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat superior. Because

vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.” (citations omitted)). However, Pinson seeks to hold Dignam and Samuels liable

only to the extent that they personally retaliated against her for exercising her First Amendment

rights. Pinson’s references to statements made by subordinate employees are used as evidence to

demonstrate the actions and beliefs of Dignam and Samuels. See, e.g., Pl.’s Statement ¶ 7

(“[D]uring the 2011 . . . meeting [with the special investigative agent and unit manager] Director

Samuels was said to have caused the private discussion . . . .”). Although “high-level officials . . .

15
typically are not subject to Bivens liability since they do not routinely participate personally in

decisions about a particular individual at a particular location,” Morris v. United States

Sentencing Comm’n, 62 F. Supp. 3d 67, 75 (D.D.C. 2014), appeal filed No. 14-5204 (D.C. Cir.

Aug. 21, 2014), that personal intervention into her case is precisely what Pinson alleges here.

2. Lack of Adverse Action and Lack of Chilling Effect

The DOJ argues on two fronts that the alleged actions of Samuels and Dignam did not

rise to the level of First Amendment retaliation. First, the DOJ claims there is an “adverse

action” requirement which Pinson cannot meet because she does not allege that any of her

neglected complaints later gave rise to violations of her constitutional rights. Second, the DOJ

argues that Pinson’s subsequent conduct demonstrated that she was not chilled.

The Court first addresses the DOJ’s claim that Pinson “has failed to allege any adverse

action as a result of” Dignam and Samuels’s refusal to investigate her complaints, because she

pleads no “harm . . . such as one of the staff members she allegedly complained about later

violating her constitutional rights.” MTD at 14–15. The Court notes that the correct standard, as

articulated in 2016 by the D.C. Circuit, includes no reference to “adverse action,” but only

requires that “the defendant took some retaliatory action sufficient to deter a person of ordinary

firmness in plaintiff’s position from speaking again.” Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir.

2016) (quoting Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C. 2007)). Moreover, the DOJ

offers no definition of “adverse action” to assist this Court, and nor does the case which they

cite. See generally Anderson-Bey v. District of Columbia, 466 F. Supp. 2d 51, 65 (D.D.C. 2006).

As a question of intuition, the Court notes that being denied access to the designated results for

resolving any complaints—from minor to serious—about the conditions of incarceration would

appear to be an adverse action.

16
 The better view is thus that any adverse action requirement is defined by the type of

retaliatory action which would deter ordinary people from First Amendment activity. This view

is bolstered by the conclusions of other courts in this jurisdiction that actions such as telling a

protester that “if she intended to remain on the sidewalk discussing her concerns, she would have

to give background data including name, date of birth and Social Security number, fill out a card,

and submit to questions” can constitute adverse action. Hartley v. Wilfert, 918 F. Supp. 2d 45, 54

(D.D.C. 2013).

The Court thus turns to the question of whether the alleged actions against Pinson would

have chilled a person of ordinary firmness.10 In Toolasprashad, the D.C. Circuit found that the

BOP’s reclassification of a prisoner as a “special offender”—which prevented him from working

as a tutor—and transfer to a new facility far from his family would have chilled a person of

reasonable firmness and thus met the standard for First Amendment retaliation. Toolasprashad v.

Bureau of Prisons, 286 F.3d 576, 584–85 (D.C. Cir. 2002); see also Crawford-El v. Britton

(Crawford-El I), 93 F.3d 813, 826 (D.C. Cir. 1996) (finding that “the pecuniary losses [the

plaintiff] sustained in the form of the costs of shipping his boxes and replacing clothing, though

small, might well deter a person of ordinary firmness in [the plaintiff’s] position from speaking

again”), vacated on other grounds, Crawford-El II, 523 U.S. 574 (1998); Hartley v. Wilfert, 918

F. Supp. 2d 45, 54 (D.D.C. 2013) (holding that a statement by law enforcement officers that the

10
The DOJ initially argued that “Pinson materially undermines her claim when she
boasts that her exercise of her First Amendment rights was not chilled following the alleged
acts,” MTD at 15, and cites to language purporting to define the standard for First Amendment
retaliation as including a requirement that the “action . . . chilled the inmate’s exercise of his
First Amendment rights,” Anderson-Bey v. District of Columbia, 466 F. Supp. 2d 51, 65 (D.D.C.
2006). However, the DOJ acknowledges in its reply that the correct test is “whether the alleged
violations would have been ‘likely to deter a person of ordinary firmness’ from speaking out”
rather than whether Pinson specifically was chilled. Def.’s Reply at 2, ECF No. 315 (quoting
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 585 (D.C. Cir. 2002)).

17
plaintiff-protester must either leave or submit to detailed inquiry and registration was sufficient

to chill the speech of a personal of ordinary firmness).

In this case, as the DOJ notes, the BOP’s actions do not appear to have had any

discernable chilling effect on Pinson’s speech. See MTD at 15–16 & n.4, ECF No. 287 (listing

First Amendment activities by Pinson since January 1, 2011, including commencing fifty-one

lawsuits); Pl.’s Statement ¶ 8 (asserting that Pinson “explicitly vowed to never cease writing

lawsuits, blog posts . . . and letters to the media”). However, “a plaintiff’s actual response to a

defendant’s conduct is not dispositive,” even if it may “‘provide[] some evidence of the tendency

of that conduct to chill First Amendment activity.’” Hartley, 918 F. Supp. 2d at 54 (D.D.C.

2013) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500

(4th Cir. 2005)). The possibility that Pinson might be an unusually staunch individual, therefore,

does not doom her claim.

The Court thus considers the alleged retaliatory actions. First, Pinson claims that BOP

employees refused to investigate her complaints and threatened to continue ignoring future

complaints. The BOP’s administrative complaint process is the primary avenue for inmates to

raise concerns about the conditions of their confinement.11 The Court easily concludes that

removing access to that avenue would be at least as chilling as the alleged retaliation in

Crawford-El, where the plaintiff’s personal items and legal materials were delayed in transit and

he had to pay for shipping. See Crawford-El I, 93 F.3d 813 at 826 (finding those actions “might

11
In addition, when an inmate is threatened with exclusion from the complaint process,
she does not know how she will be treated in the future or if the topics of her past complaints
will recur or increase in severity. She might quite reasonably fear that exclusion from the
complaint system would significantly worsen the conditions of her confinement in a variety of
ways. The Court thus rejects the DOJ’s suggestion that Pinson must show that an employee she
complained about did, in fact, violate her rights again because of the alleged failure to investigate
her complaints. See MTD at 14–15.

18
well deter a person of ordinary firmness in [the plaintiff’s] position from speaking again”).

Second, Pinson claims that she was initially threatened with transfer—and later actually

transferred—to the BOP’s highest security facility, ADX Florence. Such a transfer to the BOP’s

most restrictive placement is clearly more chilling than the transfer to a similar facility, which

was found sufficient in Toolasprashad. See Toolasprashad, 286 F.3d at 584–85 (finding that

being transferred to a distant facility and reclassified as a less-favored class of prisoner would

deter a person of ordinary firmness). The Court finds that the retaliation Pinson alleges would

deter a person of ordinary firmness from First Amendment activity, and thus that Pinson’s claim

does not fail for lack of sufficiently severe retaliation.

3. Qualified Immunity

The DOJ asserts, cursorily, that Dignam and Samuels are shielded from liability by

qualified immunity.12 MTD at 8–9. “Qualified immunity shields federal and state officials from

money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)).

12
The defense of qualified immunity may be raised either at the motion to dismiss stage
or the summary judgment stage. See Behrens v. Pelletier, 516 U.S. 299, 306 (1996). Although
the DOJ does not specify which it intends here, the Court first considers qualified immunity at
the motion to dismiss stage, in order to give effect to the intent of qualified immunity to shield
officials from burdensome pretrial procedure. Id. at 306–07. As discussed infra, the Court
concludes at the motion to dismiss phase that qualified immunity is not warranted.
The Court’s conclusion remains the same at the summary judgment phase. As discussed
below, the Count concludes that Pinson had a clearly established right. The qualified immunity
defense thus turns on whether there was a violation of that right. As the Court finds below in its
discussion of summary judgment, the question of whether such a violation occurred turns on
material facts which are genuinely in dispute, and thus the defendants cannot be granted
qualified immunity on summary judgment.

19
 The DOJ recites the standard for qualified immunity without specifying whether it asserts

that Pinson has failed to show a violation of a constitutional right or failed to show that that right

was clearly established at the time, or offering any argument in support of either view.

Nevertheless, the Court briefly considers if either Dignam or Samuels is protected here by

qualified immunity.

First,13 the Court concludes that Pinson had a clearly established right at the time of the

conduct not to be subject to the alleged retaliation for her First Amendment conduct. A right is

clearly established if it would have been “clear to a reasonable officer that his [or her] conduct

was unlawful in the situation he [or she] confronted.” Aref v. Lynch, 833 F.3d 242, 267 (D.C.

Cir. 2016) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Furthermore, “[t]he Supreme

Court has cautioned us not to define the right at too high a level of generality; instead, we must

examine the right in its ‘particularized’ context.” Id. at 267 (citing Reichle v. Howards, 132 S.

Ct. 2088, 2094 (2012)).”

Multiple decisions14 of the Supreme Court and D.C. Circuit have held that a prisoner’s

right not to be retaliated against for First Amendment activity such as contacting the media or

13
Courts may “exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis” to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
14
See also Kimberlin v. Quinlan, 199 F.3d 496, 502 (D.C. Cir. 1999) (holding, with
regard to an inmate alleging retaliation because he had described selling marijuana to Dan
Quayle to reporters that the right “to be free from governmental interference with [a prisoner’s]
contacts with the press if that interference is based on the content of [the] speech or proposed
speech . . . without doubt was clearly established in 1988.” (internal quotation marks and
citations omitted)); Banks v. York, 515 F. Supp. 2d 89, 113 (D.D.C. 2007) (reviewing cases and
concluding that the general right not to be retaliated against for First Amendment conduct was
clearly established, but such a right for informal oral complaints about matters not of public
concern was not clearly established).

20
filing lawsuits was clearly established at the time of the actions here.15 Crawford-El presents an

especially analogous example. In Crawford-El, the plaintiff was a “litigious and outspoken”

prisoner who had “filed several lawsuits and had assisted other prisoners with their cases,” and

“provided interviews to reporters who have written news stories about prison conditions.”

Crawford-El II, 523 U.S. 574, 578 (1998). The D.C. Circuit considered Crawford-El’s claim of

First Amendment retaliation, and the defendant’s claim of qualified immunity. See generally

Crawford-El I, 93 F.3d 813 (D.C. Cir. 1996), vacated on other grounds, 523 U.S. 574 (1998). In

1996, the D.C. Circuit concluded that “withholding Crawford-El’s property in retaliation for

exercise of his First Amendment speech rights would indeed be a violation of clearly established

law.” Id. at 825. Although the Supreme Court disagreed with other portions of the D.C. Circuit’s

opinion in, it did not dispute the conclusion on qualified immunity. See generally Crawford-El

II, 523 U.S. 574. Indeed, the Supreme Court later cited to its Crawford-El decision in rejecting a

qualified immunity claim by prison officials who allegedly retaliated against an inmate for

reporting a sexual assault, because the “pre-existing law was not in controversy.” Ortiz v.

Jordan, 562 U.S. 180, 189–91 (2011) (“[T]he pre-existing law was not in controversy . . . ‘[the]

First Amendment shields prisoners from “retaliation for protected speech.”’” (citing Crawford-El

II, 523 U.S. at 592)).

The right asserted by the prisoner in Crawford-El is congruent with the right asserted by

Pinson here. Both were outspoken and litigious prisoners who had repeatedly filed lawsuits

against the prison system and spoken to reporters. Both alleged retaliation by prison officials in

15
Based on the corrected second amended complaint, the Court understands the actions
to have taken place beginning sometime after 2007. Corr. 2d Am. Compl. at 14–15.

21
response. Therefore, the Court finds that, after at least 1996, it was clearly established that an

inmate had the right not to be retaliated against for such conduct.

Next, the Court considers if Pinson has shown a violation of this right. As discussed

above, Pinson has stated a claim for First Amendment retaliation that is robust enough to survive

the DOJ’s motion to dismiss. Thus, she has also established that her rights were violated,

sufficient to pass the low bar at the motion to dismiss stage, and the Court will not grant the

motion to dismiss on qualified immunity grounds.

B. Renewed Motion for Summary Judgment

In addition to its motion to dismiss for failure to state a claim, the DOJ moves in the

alternative for summary judgment. As a preliminary matter, the Court briefly addresses the

relationship between discovery and summary judgment.

A court may grant summary judgment prior to the completion of discovery by both

parties, subject to the right of the nonmovant to file a motion for discovery under Rule 56(d) of

the Federal Rules of Civil Procedure. See generally U.S. ex rel. Folliard v. Gov’t Acquisitions,

Inc., 764 F.3d 19, 27 (D.C. Cir. 2014). Rule 56(d) requires a nonmovant seeking either delay or

additional discovery prior to summary judgment to “show[] by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d);

See also Vasser v. McDonald, No. 14-0185, 2016 WL 7480263, at *6 n.9 (D.D.C. Dec. 29, 2016)

(“It is appropriate for the Court to rule on the merits of a converted motion for summary

judgment when ‘(1) the evidence submitted is sufficiently comprehensive to conclude that

further discovery would be unnecessary; and (2) the non-moving party has not been unfairly

disadvantaged by being unable to access the sources of proof necessary to create a genuine issue

of material fact.’” (quoting Ryan-White v. Blank, 922 F. Supp. 2d 19, 24 (D.D.C. 2013)).

22
 Here, Pinson has not yet conducted discovery on her Bivens claims. Most recently, this

Court denied Pinson’s motion to conduct discovery pending its resolution of the DOJ’s initial

summary judgment motion on Pinson’s Bivens claims and instructed Pinson to “raise . . .

arguments pursuant to Fed. R. Civ. P. 56(d) in response to the Defendants’ motion [for summary

judgment]” “to the extent that [she] claims that discovery is necessary to respond.” Mem. &

Order at 2 (June 5, 2015), ECF No. 209.

In regard to this renewed motion for summary judgment, Pinson has made only one

request for discovery. That request seeks “the file maintained on Plaintiff in [the] Office of

Internal Affairs.” Supp. Mot. Disc., ECF No. 317. Pinson does not directly explain why she

believes that access to this file will assist her in opposing the motion for summary judgment,

although she suggests that it will “prove or rule out Dignam’s involvement.” Supp. Mot. Disc.

Because the Court concludes that summary judgment for the DOJ is not appropriate as to any

claims involving Dignam or Pinson’s history of administrative complaints, it does not resolve

this motion prior to considering the DOJ’s motion for summary judgment. See Acosta v. Nelson,

561 F. App’x 4, 6 (D.C. Cir. 2014) (“[T]he district court afforded [the plaintiff] all of the notice

required to be given to pro se plaintiffs, specifically alerting [the plaintiff] to the effect of a

motion for summary judgment and the consequences of his failure to respond. Because [the

plaintiff] nevertheless did not make any showing that could even be liberally construed as a

request for additional discovery, he cannot now complain that more discovery was needed.”

(citations omitted)).

23
 1. Claim One—Refusal to Investigate

The DOJ argues that it is entitled to summary judgment on Pinson’s first claim because

Pinson lacks evidence on which a jury could conclude that Dignam and Samuels were personally

involved in any failure to investigate her complaints. MTD at 14, ECF No. 287.

As to Dignam, the DOJ does not present any evidence disputing Pinson’s assertions that

Dignam retaliated against her. Instead, the DOJ claims to have identified an absence of necessary

evidence. MTD at 7; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986) (“[A] party

seeking summary judgment always bears the initial responsibility of informing the district court

of the basis for its motion . . . . But . . . we find no express or implied requirement in Rule 56 that

the moving party support its motion with affidavits or other similar materials negating the

opponent’s claim. . . . [T]he motion may, and should, be granted so long as whatever is before

the district court demonstrates that the standard for the entry of summary judgment, as set forth

in Rule 56(c), is satisfied.”).

The Court reviews Pinson’s evidence to determine if it is sufficient for a reasonable jury

to find in her favor. The scant evidence Pinson identifies is as follows.16 Pinson claims that “[i]n

2011 plaintiff met with [a] Special Agent . . . and [a] Unit Manager . . . who each stated that

16
The DOJ does not explicitly challenge the admissibility of any of these statements. Cf.
Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)
(holding that, at summary judgment, “a nonmovant is not required to produce evidence in a form
that would be admissible at trial, [but] the evidence still must be capable of being converted into
admissible evidence.” (citing Fed. R. Civ. P 56(e)).
The Court notes that, were it to consider their admissibility, the statements may be
admissible, and not hearsay, because of the definitions provided in Rule 801(d)(2)(A)
(statements of a party-opponent) and Rule 801(d)(2)(D) (statements of an employee or agent of a
party-opponent) of the Federal Rules of Evidence. See also Geleta v. Gray, 645 F.3d 408, 414–
15 (D.C. Cir. 2011) (considering statements at summary judgment because the plaintiff “filed
suit against the mayor of D.C. in his official capacity, [thus] the District is a party to the suit and
statements by District employees concerning matters within the scope of their employment are
admissible against the District. . . . The statements therefore fall within Rule 801(d)(2)(D).”).

24
Dignam was not going to investigate staff for plaintiff because plaintiff was ‘a gadfly constantly

inundating Dignam’s office with complaints,’ adverse press attention, lawsuits and if these

activities were stopped Dignam would assist plaintiff.” Pl.’s Statement ¶ 5. As to both Dignam

and Samuels, Pinson claims that she had a separate meeting with two OIA employees in 2015

who told her “dude youre [sic] hated all the way to the top, no one is gonna help you . . .” and

said that they meant Samuels and Dignam would not help her. Pl.’s Statement ¶ 6.

This evidence, if converted to a form admissible at trial, suffices to permit a reasonable

jury to find for Pinson. Pinson presents evidence tending to show that Dignam retaliated against

her for her First Amendment conduct. The Court notes that—at summary judgment—it must not

draw credibility determinations. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(“[The summary judgment standard] by no means authorizes trial on affidavits. Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge, whether he [or she] is ruling on a motion for

summary judgment or for a directed verdict. The evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his [or her] favor.” (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144, 158–59 (1970))). The Court thus concludes that summary judgment on

Pinson’s claim for refusal to investigate must be denied.17

As to Samuels’s involvement in the alleged refusal to investigate her complaints, Pinson

advances similar evidence. Pinson claims that the special agent and unit manager told her that

Samuels had sent them to talk to her. Pl.’s Statement ¶ 7. Pinson also claims that she met with

17
Pinson appears to argue that Dignam has “conceded his role in this case” by not
offering an affidavit denying her accusations with the government’s summary judgment briefing.
Pl.’s Opp’n at 1. In its current posture—considering the DOJ’s motion to dismiss or for summary
judgment—this argument cannot succeed because it is not the DOJ’s burden to establish the
evidentiary sufficiency of its contentions.

25
Samuels in 2015 and he admitted that he had sent the special agent and unit manager. Pl.’s

Statement ¶ 7. In response, the DOJ offers rebuttal evidence in the form of a declaration by

Samuels. Samuels directly disputes each of Pinson’s three pieces of evidence. See 2d Samuels

Decl. ¶ 5 (“I deny that I advised [the named employees from the 2011 meeting] to tell Plaintiff to

stop [her] complaints, adverse press attention, or lawsuits. In fact, I deny that I had any

conversation with [the named employees] regarding Plaintiff.”); 2d Samuels Decl. ¶ 6 (“I deny

that I had a personal conversation or interacted with Plaintiff at any time during an official visit

to the Federal Correctional Complex in Florence, Colorado (‘FCC Florence’) in August 2015.”);

2d Samuels Decl. ¶ 8. (“I deny having any conversation with [one of the named OIA officers

from the 2015 meeting] regarding Plaintiff.”).

However, presenting contrary evidence does not suffice to show that summary judgment

for the DOJ is warranted. Pinson and Samuels directly contradict each other, and deciding

between the two statements would require credibility determinations that this Court may not

make at summary judgment. See Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). Nor

may the Court weigh the persuasive power of Pinson’s evidence against that of the DOJ. See id.

Pinson’s evidence here, although not strong, rises past the level of a conclusory allegation or

unsubstantiated speculation and creates a genuine issue of material fact that, at least at this stage

of the litigation, entitles her to take discovery. The Court thus denies the DOJ summary

judgment on claim one.

2. Claim Two—Transfer to ADX Florence

The DOJ argues, first, that Pinson has likewise failed to present sufficient evidence to

show Samuels’s personal involvement in her transfer. Pinson’s evidence consists of her

statement that the hearing officer told her “that Samuels was offering to halt her transfer to ADX

26
[Florence] if she agreed to cease all lawsuits and press contacts, or the reverse if she didnt [sic].”

Pl.’s Statement ¶ 8. The DOJ opposes this evidence with a declaration from Samuels. See

generally 2d Samuels Decl., ECF No. 288-1. Samuels denies that Pinson’s transfer to ADX

Florence hinged or whether she continued her lawsuits and press contacts. See 2d Samuels Decl.

¶ 12 (“I did ultimately approve Plaintiff’s transfer to ADX Florence on January 14, 2011. . . .

However, my involvement came only after the [BOP department] received the [hearing officer’s]

recommendation. I deny telling the [hearing officer] that I would halt Plaintiff’s transfer to ADX

Florence if [she] agreed to cease [her] litigation and press contacts.”). However, as with claim

one, the Court may not weigh the evidence or make a credibility determination. Based on the

limited record before the Court prior to discovery, Pinson has sufficiently disputed a genuine

issue of material fact such that a reasonable jury could find for her if it found her more credible

than Samuels.

Second, the DOJ argues that its showing of a non-retaliatory reason for Pinson’s

placement in ADX Florence rules out the possibility of retaliation. MTD at 18–20. The DOJ

submits the report of the hearing administrator who recommended that Pinson be placed in ADX

Florence. See generally ADX General Population Hearing Administrator’s Report (ADX

Hearing Report), ECF No. 288-1, Ex. A. According to the report, the BOP concluded that Pinson

presented problems in a less restrictive placement, as evidenced by her accumulation of sixteen

disciplinary offenses classified in the “Greatest” category and twenty-eight “High” offenses.

MTD at 18; see generally ADX Hearing Report. This laundry list of wrongdoing includes

assaults, setting fires, possessing weapons, threats, and taking a hostage. ADX Hearing Report.

In light of these factors, the hearing administrator concluded that “a more restrictive environment

27
should be explored” and recommended placement in ADX Florence because Pinson presented “a

risk to institution security, staff, [and] inmates.” MTD at 19.

However, it is not sufficient for the DOJ to merely point to a non-retaliatory reason for

the transfer—“even if [defendants] provide an objectively valid reason for their actions in this

case, the District Court must still inquire into whether there is a disputed issue of fact as to

whether appellants were actually motivated by an illegitimate purpose. The opinion for the

[Supreme] Court in Crawford-El specifically rejected the dissent’s proposal to ‘immunize all

officials whose conduct is “objectively valid,” regardless of improper intent.’” Kimberlin v.

Quinlan, 199 F.3d 496, 502–03 (D.C. Cir. 1999) (emphasis added) (quoting Crawford-El II, 523

U.S. at 593–94).

Therefore, the fact that the DOJ has here provided an objectively valid reason does not

end the inquiry. The Court must still consider the possibility that the objectively valid reason was

a sham and that the true motivation was retaliation. Pinson’s account of Samuels’s explanation to

the hearing officer—if credited by the jury—would be highly probative as evidence that Samuels

actually intended to retaliate against Pinson.18 Pinson has thus shown a disputed issue of material

fact as to the reason that Samuels transferred Pinson to ADX Florence. The issue is not proper

for summary judgment, at this stage of the litigation with a limited record prior to discovery,

because it would require a credibility determination by this Court, and therefore the Court denies

summary judgment.19

18
Furthermore, Pinson disputes the DOJ’s alleged non-retaliatory reasons for the transfer
by asserting that Samuels “ordered plaintiff moved to ADX Florence using information
[Samuels] knew to be false.” Corr. 2d Am. Compl. at 15.
19
This jurisdiction’s treatment of First Amendment retaliation claims in the employment
context suggests another possibility for the DOJ. In a so-called “mixed-motive” case, where both
retaliatory and non-retaliatory reasons for the adverse action are present, the employer may
prevail at summary judgment by showing that the adverse action would have occurred even

28
 3. Claim Three—Other Allegedly Retaliatory Acts

The Court notes that, as discussed above, Pinson has advanced several miscellaneous

claims of retaliation based on the alleged “cell searches, strip searches, deprivation of meals, and

making threats” that unnamed staff inflicted on Pinson at Samuels’s behest. Corr. 2d Am.

Compl. at 15. Pinson has failed to describe any evidence linking Samuels to the adverse actions.

Unlike her other claims, Pinson does not assert that she was told by anyone that the reason for

the acts was retaliation, or point to any other evidence that could establish a retaliatory motive.

Because no reasonable jury could conclude from Pinson’s evidence that Samuels was personally

responsible for the acts Pinson describes, the Court grants the DOJ summary judgment to the

extent that Pinson alleges miscellaneous acts of retaliation other than a refusal to investigate her

complaints and her transfer to ADX Florence.20 The Court notes that it has not yet provided

absent the protected behavior. See Berry v. Coastal Int’l Sec., Inc., No. 12-1420, 2016 WL
1060196, at *13 (D.D.C. Mar. 15, 2016), aff’d, No. 16-7043, 2016 WL 4434664 (D.C. Cir. Aug.
22, 2016) (holding that a plaintiff in an employment retaliation case “must establish that
retaliation was the ‘but-for cause’ of the adverse action in order to survive summary judgment.
‘This requires proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.’” (quoting Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2533 (2013)); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977) (“[T]he District Court should have gone on to determine whether the
[defendant] had shown by a preponderance of the evidence that it would have reached the same
decision as to respondent’s reemployment even in the absence of the protected conduct.”);
Hampton v. Vilsack, 760 F. Supp. 2d 38, 53 (D.D.C. 2011) (“Even . . . direct evidence of
retaliation . . . [can] be negated at the summary judgment stage if defendant [is] able to
demonstrate that it would have reached the same decision absent the prohibited discrimination.”),
aff’d, 685 F.3d 1096 (D.C. Cir. 2012). At summary judgment, subsequent to discovery, the
parties may explore whether the DOJ could prevail here by showing, at a preponderance of the
evidence standard, that it would, for example, have transferred Pinson to ADX Florence even
absent any prohibited retaliation.
20
The Court understands a challenge to these claims to be included in the DOJ’s motion
for summary judgment. Even if it were not, “district courts possess the authority to enter
summary judgment against a party sua sponte, . . . ‘so long as the losing party was on notice that
she had to come forward with all her evidence.’” Athridge v. Rivas, 141 F.3d 357, 361 (D.C. Cir.
1998) (quoting McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1212 (D.C. Cir. 1986)).

29
Pinson the discovery she sought of “the file maintained on Plaintiff in [the] Office of Internal

Affairs.” Supp. Mot. Disc., ECF No. 317. However, Pinson’s explanation of the need for access

to this file is that it will “prove or rule out Dignam’s involvement,” Supp. Mot. Disc., which is

irrelevant to these claims, which are asserted only against Samuels. As the D.C. Circuit has

noted, a nonmovant seeking to delay summary judgment under Rule 56(d) must “among other

things, ‘outline the particular facts he [or she] intends to discover and describe why those facts

are necessary to the litigation,’” Smith v. United States, 843 F.3d 509, 513 (D.C. Cir. 2016)

(quoting Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99–100 (D.C. Cir. 2012)).

Furthermore, the delay permitted by Rule 56(d) is not mandatory. Fed. R. Civ. P. 56(d).

C. Pinson’s Motion to Amend the Complaint and Sever Bivens Claims

The Court notes that Pinson’s filing “Plaintiffs [sic] Response to ECF No. 307,” itself docketed

at ECF No. 310, “seeks to add defendants to the BIVENS claim in this case pursuant to Fed.R.Civ.P.

15(d).” The Court construes this statement as a motion to amend the complaint, and denies it because

the proposed amendment bears no more than a tangential relation to Pinson’s existing claims.

Rule 15 of the Federal Rules of Civil Procedure requires either “the opposing party’s

written consent or the court’s leave” to amend a complaint in these conditions. Here, the DOJ has

not consented, and the decision of whether to grant leave is therefore at the discretion of the

district court. Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996). Courts are

directed to “freely give leave when justice so requires.” Fed. R. Civ. Pro. 15(a)(2).

Considerations militating against granting leave include “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

The DOJ’s motion, or this Court’s Fox/Neal order of June 1, 2016, ECF No. 289, sufficiently put
Pinson on notice.

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allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility

of amendment, etc.,” Atchinson, 73 F.3d at 425–26 (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)), and the necessity of additional discovery, id. at 426 (collecting cases). Moreover,

“[w]here . . . the complaint, as amended, would radically alter the scope and nature of the case

and bears no more than a tangential relationship to the original action, leave to amend should be

denied.” De Sousa v. Dep’t of State, 840 F. Supp. 2d 92, 113 (D.D.C. 2012) (quoting Miss. Ass’n

of Coops. v. Farmers Home Admin., 139 F.R.D. 542, 544 (D.D.C. 1991) and citing Nat’l

Treasury Emps. Union v. Helfer, 53 F.3d 1289, 1295 (D.C. Cir. 1995)).

Even reading Pinson’s filing generously, the exact contours of Pinson’s proposed

amendment are unclear, but Pinson apparently seeks to add claims against one or more named

employees at USP Terre Haute, who Pinson alleges have recently limited her access to postage

stamps. See generally Plaintiffs [sic] Resp. to ECF No. 307, ECF No. 310.

These proposed amendments bear—at most—a tangential relationship to Pinson’s

original claims. The proposed and existing claims are unconnected in time, the identity of the

alleged perpetrator, the BOP facility involved, and the type of alleged retaliation. The interests of

justice would not be served by allowing Pinson to assert her proposed claims here, because the

new claims do not involve the same evidence or substantially the same legal issues as the

existing claims, and the new claims would likely require expanding the scope of discovery.21

21
Moreover, Pinson faces an additional challenge because her proposed amendment
would require joining one or more new defendants to this action. Rule 20(a)(2) of the Federal
Rules of Civil Procedure permits the joinder of claims against multiple parties in one action only
if there is a claim “asserted against them jointly, severally, or in the alternative . . . that aris[es]
out of the same transaction, occurrence, or series of transactions or occurrences” and presents
common questions of law and fact. If Pinson could not meet that standard here—as appears
likely because the alleged postal issues do not relate to either the alleged refusal to investigate
complaints or Pinson’s transfer to ADX Florence—then any amended complaint would be
susceptible to a motion to dismiss for misjoinder under Rule 21. “Noncompliance with

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Pinson has not stated any reason that she could not pursue these claims in a separate action, and

thus it does not appear that she will be prejudiced by denial of the motion to amend. Given the

advanced nature of this case, and that Pinson has accumulated three strikes under the PLRA, the

Court declines to extend the complaint beyond the original claims. If Pinson wishes to pursue

these new claims, she must bring a new case.

Pinson also seeks for her Bivens claims to “be severed into a seperate [sic] civil action

within this Court from the FOIA claims since FOIA matters are resolved on summary judgment

and the BIVENS [sic] claims will be tried to a jury.” Plaintiffs [sic] Resp. to ECF No. 307 at 3,

ECF No. 310. Pinson accurately states the typical resolution of FOIA claims, however, severing

the Bivens claims into a separate civil action is not necessary. This Court has already proceeded

separately and appropriately as to all claims, and retains the discretion to, if necessary, “order a

separate trial” of the Bivens claims while retaining all of Pinson’s claims in the same action. See

Fed. R. Civ. P. 42(b).

D. Pinson’s Supplemental Motion for Discovery

Pinson requests that the Court order the DOJ to “produce the file maintained on Plaintiff

in [the] Office of Internal Affairs.” Supp. Mot. Disc., ECF No. 317. According to Pinson, this

document will “prove or rule out Dignam’s involvement.” Supp. Mot. Disc. Pinson’s briefing

and the email chain she attaches suggest that the OIA file likely contains some information about

administrative complaints filed by Pinson. See Supp. Mot. Disc. & Ex. 1. The DOJ primarily

objects to this request on the grounds that it is premature. Because the Court has denied the

DOJ’s instant motion to dismiss or for summary judgment, these objections have now evaporated.

party-joinder rules renders the proposed amendment futile and provides adequate justification
for denying the Rule 15(a) motion.” Wilson v. ABN Amro Mortg. Grp., No. 05-0108, 2005 WL
3508658, at *3 (D.D.C. Dec. 21, 2005).

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 However, sensitive to the concerns of permitting unfettered discovery in this context, see

generally Crawford-El II, 523 U.S. 574, 597–98 (1998), this Court will review together all of

Pinson’s discovery requests and consider responsive briefing from the DOJ. As discussed in the

accompanying order, the Court expands its prior appointment of pro bono counsel,22 see

generally Order of Appointment of Pro Bono Counsel (May 15, 2015), ECF No. 204, by

appointing Pinson counsel for the limited purpose of pursuing her claims against Dignam and

Samuels in their official and individual capacities. The Court thus denies Pinson’s current motion

as premature and will consider the appropriateness of this request for discovery along with all

other discovery issues to be raised in the context of a scheduling order created with the input of

DOJ and appointed counsel.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 287) is DENIED,

Defendants’ Motion for Summary Judgment (ECF No. 287) is GRANTED IN PART and

DENIED IN PART, Plaintiff’s request to amend the complaint (ECF No. 310) is DENIED, and

Plaintiff’s Supplemental Motion for Discovery (ECF No. 317) is DENIED AS PREMATURE.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: March 30, 2017 RUDOLPH CONTRERAS
United States District Judge

22
The Court’s appointment will be subject to the objection of assigned counsel. Given
that Pinson’s motion seeking to expand the appointment is currently pending before the Court,
the Court does not anticipate an objection from Pinson. See generally Mot. to Modify
Appointment of Counsel (Oct. 6, 2016), ECF No. 335.

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