Pinson v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JEREMY PINSON, :
:
Plaintiff, : Civil Action No.: 18-486 (RC)
:
v. : Re Document Nos.: 11, 13, 21
:
U.S. DEPARTMENT OF JUSTICE, et. al, :
:
Defendants. :

MEMORANDUM OPINION

DENYING PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION AND MOTION TO APPOINT
COUNSEL

I. INTRODUCTION

Pro se Plaintiff Jeremy Pinson (“Pinson”), an inmate at the United States Penitentiary in

Tucson, Arizona, began this case by filing a Freedom of Information Act (“FOIA”) complaint in

December 2016. Pinson now files three motions for preliminary injunction, and in the

alternative seeks the appointment of counsel. Pinson asks this Court to enjoin the United States

Department of Justice (“DOJ”) from withholding court filings, denying access to e-mail

communications and the law library, failing to provide stamps, and disseminating information to

other inmates. Pinson separately asks the Court to require the Bureau of Prisons (“BOP”) to

respond to a particular FOIA request in compact disc format. The Court denies the motions for

preliminary injunction because Pinson has not shown that she will be irreparably harmed in the

absence of a preliminary injunction or is likely to succeed on the merits. Pinson has also failed

to show that the appointment of counsel is justified.
 II. FACTUAL AND PROCEDURAL BACKGROUND

Pinson, together with two other individuals now no longer a part of this action, initially

filed a complaint in December 2016 against the DOJ and the Central Intelligence Agency

(“Defendants”). See Pl.’s Compl. at 1, ECF No. 1. After Pinson was denied leave to proceed in

forma pauperis, she petitioned the D.C. Circuit for a writ of mandamus in March 2017. See In

re: Jeremy Pinson, 17-5039, ECF No. 1664975 (D.C. Cir. Mar. 7, 2017). On February 21, 2018,

the D.C. Circuit remanded the matter back to this Court after it granted Pinson’s petition. See

Circuit Court Order, ECF No. 3.

In her complaint, Pinson alleged that Defendants violated FOIA, 5 U.S.C. § 552, after she

submitted a “dozen” FOIA requests to seven entities and did not receive a response within the

time frame provided under the statute. 1 See Pl.’s Compl. at 1–2. Pinson further claimed that the

BOP’s Office of Internal Affairs maintained documents and e-mails containing false conclusions

and information about Pinson that the CIA refused to allow her to contest. See id. at 2. Pinson

requested the release of the records and correction of the false information. Id.

On May 11, 2018, Defendants moved to dismiss Pinson’s complaint. See Defs.’ Mot. to

Dismiss and Mot. for More Definite Statement at 1, ECF No. 9-1. Defendants pointed to

Pinson’s inability to identify the subject matter or dates of the FOIA requests, and to the lack of

any indication as to what information about her was purportedly false. Id. at 2. Pinson filed an

amended complaint on June 22, 2018, which added alleged violations of the Administrative

Procedure Act, 5 U.S.C. § 702, and First and Eighth Amendments. See Pl.’s First Am. Compl. at

1, ECF No. 16.

1
5 U.S.C. § 552(a)(6)(A)(i) provides that each agency upon request for records shall
“determine within 20 days . . . whether to comply with such request.”

2
 Pinson filed her first motion for preliminary injunction on May 29, 2018, alleging that

DOJ employees have not given her any filings in the case; have blocked an e-mail address that

she used to access records and research needed to amend her complaint,

info@helpfromoutside.com; and have been disseminating information to a fellow inmate about a

Prison Rape Elimination Act (“PREA”) investigation involving her, in violation of the Privacy

Act, 5 U.S.C. § 552a. See Pl.’s First Mot. for Preliminary Inj. (“Pl.’s First Mot.”) at 1, ECF No.

11; First Decl. of Jeremy Pinson (“First Pinson Decl.”) ¶ 3, ECF No. 11. Pinson requests that the

Court “enjoin (i) continued withholding of mail relating to [the] litigation[,] (ii) continued

blockage of engaging in legal activities with info@helpfromoutside.com, (iii) disseminating

contents of agency files to Tyreise Swain.” Pl.’s First Mot. at 2.

Defendants state in their opposition to Pinson’s first motion that they first learned Pinson

had not received a copy of the Defendants’ motion to dismiss on May 31, 2018. See Decl. of

Brian Field (“Field Decl.”) ¶ 5, ECF No. 12-1. Defendants argue that notices from the court or

the United States Attorney’s Office to Pinson are not tracked and therefore that it is impossible to

fully determine whether she receives legal mail. See First Decl. of Clinton Stroble (“First

Stroble Decl.”) ¶ 8, ECF No. 12-2; Defs.’ Opp’n to Pl.’s First Mot. for Preliminary Inj. (Defs.’

First Opp’n) at 4, ECF No. 12. Defendants, however, assert that Pinson was delivered a copy of

all docket entries in the case to “[her] current incarceration location” on June 7, 2018. 2 Field

Decl. ¶ 7; Defs.’ First Opp’n at 2.

Furthermore, Defendants argue that an Administrative Remedy Report produced by the

BOP reflects that Pinson submitted 78 grievance requests at the BOP’s Institutional, Regional, or

2
Pinson admitted to receiving Defendants’ motion to dismiss and “other documents” on
June 13, 2018. Third Decl. of Jeremy Pinson ¶ 1, ECF No. 15.

3
Central Office levels from June 2017 to June 2018, but none expressed a concern about not

receiving filings regarding her FOIA case or access to e-mail services. See First Stroble Decl. ¶¶

4–5; Defs.’ First Opp’n at 6. Defendants also argue that Pinson’s ability to e-mail

info@helpfromoutside.com was terminated after the BOP learned that representatives from

helpfromoutside.com were sending messages to third parties on inmates’ behalf in violation of

BOP monitoring procedures. See First Stroble Decl. ¶ 9; Defs.’ First Opp’n at 6.

On June 11, 2018, Pinson filed her second motion for preliminary injunction, and in the

alternative, sought the appointment of counsel. Pl.’s Second Mot. for Preliminary Inj. and Mot.

to Appoint Counsel (“Pl.’s Second Mot.”), ECF No. 13. Pinson requests that the Court enjoin

DOJ from depriving her of stamps needed to mail items to the court and of the ability to “send

legal mail or [access] a law library terminal during lengthy lockdowns.” Id. at 3. Pinson states

that during a ten-day lockdown period from May 25, 2018 to June 4, 2018, no one provided her

with any postage despite her requests, no one came to pick up her outgoing legal mail, and all

out-of-cell movement was suspended. See Second Decl. of Jeremy Pinson (“Second Pinson

Decl.”) ¶¶ 3–4, ECF No. 13.

Defendants oppose Pinson’s second motion on similar grounds to her first motion. See

Defs.’ Opp’n to Pl.’s Second Mot. for Preliminary Inj. (“Defs.’ Second Opp’n”), ECF No. 17. In

response to Pinson’s alleged inability to access the law library terminal during prison lockdowns,

Defendants argue that although inmates are not allowed to access the law library during

lockdowns, they are permitted to request materials from the library. See Second Decl. of Clinton

Stroble (“Second Stroble Decl.”) ¶¶ 3–4, ECF No. 17-1; Defs.’ Second Opp’n at 4. While

Pinson’s prison is no longer on lockdown status, Defendants insist that a BOP employee had

personally picked up mail from her during the previous lockdown. See Second Stroble Decl. ¶ 4;

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Defs.’ Second Opp’n at 5. Defendants also contend that Pinson was provided ten postage stamps

during the previous lockdown, pursuant to a general policy that inmates are permitted twenty

stamps for legal mail and five stamps for social mail monthly. See Second Stroble Decl. ¶ 4;

Defs.’ Second Opp’n at 5. Defendants assert that Pinson has no pending administrative appeal

regarding her claims for access to legal mail, lack of stamps, or use of the inmate law library.

See Defs.’ Second Opp’n at 5.

On August 27, 2018, Pinson filed her third motion for preliminary injunction. Pl.’s Third

Mot. for Preliminary Inj. (“Pl.’s Third Mot.”), ECF No. 21. Pinson asks that the Court require

the BOP to supply the production of documents in FOIA No. 2017-01605 in compact disc

format. Id. at 1. Defendants incorporate their grounds for opposition to Pinson’s first two

motions in their opposition to her third motion. See Defs.’ Opp’n to Pl.’s Third Mot. for

Preliminary Inj. (“Defs.’ Third Opp’n”), ECF No. 23. Defendants argue that Pinson seeks relief

beyond that available through a preliminary injunction. Id. at 1.

The three motions for preliminary injunction, and the motion for appointment of counsel,

are now before this Court.

III. LEGAL STANDARD

A. PRELIMINARY INJUNCTION

“[A] preliminary injunction is an injunction to protect [the] plaintiff from irreparable

injury and to preserve the court’s power to render a meaningful decision after a trial on the

merits.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting

11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures

§ 2947 (2d ed. 1992)). “[T]he decision to grant injunctive relief is a discretionary exercise of the

district court’s equitable powers.” John Doe Co. v. Consumer Fin. Prot. Bureau, 235 F. Supp.

5
3d 194, 201 (D.D.C. 2017) (quoting Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C.

Cir. 1989)). A preliminary injunction is an “extraordinary remedy,” and one is “never awarded

as of right.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

To warrant preliminary injunctive relief, the moving party “must establish that [it] is

likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of the equities tips in [its] favor, and that an injunction is in

the public interest.” Id. at 20. Of these factors, likelihood of success on the merits and

irreparable harm are particularly crucial. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir.

2011) (reading Winter “to suggest if not to hold ‘that a likelihood of success is an independent,

free-standing requirement for a preliminary injunction’”) (quoting Davis v. Pension Benefit

Guar. Corp., 571 F.3d 1288, 1296 (2009) (Kavanaugh, J., concurring)); Chaplaincy of Full

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal citations and

quotation marks omitted) (“[A] movant must demonstrate at least some injury for a preliminary

injunction to issue, for the basis of injunctive relief in federal courts has always been irreparable

harm.”).

B. APPOINTMENT OF COUNSEL

While a civil litigant is not guaranteed counsel, see Gaviria v. Reynolds, 476 F.3d 940,

943 (D.C. Cir. 2007), federal courts are authorized by statute to “request an attorney to represent

any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); accord Willis v. FBI, 74 F.3d 531,

532 (D.C. Cir. 2001). “The district court judge controls the ‘discretionary’ decision of whether

to appoint counsel, and that decision ‘will be set aside only for abuse.’” Pinson v. DOJ, 273 F.

Supp. 3d 1, 4 (D.D.C. 2017) (quoting Willis, 74 F.3d at 532). Local Civil Rule 83.11 applies in

6
determining whether appointment of counsel is appropriate in FOIA cases. Willis, 74 F.3d at

533. The Court must balance several factors:

(i) the nature and complexity of the action; (ii) the potential merit of the
pro se party’s claims; (iii) the demonstrated inability of the pro se party to
retain counsel by other means; and (iv) the degree to which the interests of
justice will be served by appointment of counsel, including the benefit the
Court may derive from the assistance of the appointed counsel.

D.D.C. Civ. R. 83.11 (b)(3). Any one factor may be controlling. Willis, 74 F.3d at 532 (“Given

the magistrate[] [judge’s] conclusion that [the plaintiff] was capable of handling his relatively

straightforward FOIA case unaided, the magistrate did not need to go any further.”).

IV. ANALYSIS

Pinson requests the Court to enjoin DOJ from 1) continuing to withhold mail related to

the litigation; 2) denying her the ability to engage in legal activities with

info@helpfromoustide.com; 3) disseminating contents of agency files to Tyreise Swain; 4)

depriving her of the opportunity to send legal mail or access a law library terminal during

lengthy lockdowns; and 5) depriving her of the stamps necessary to mail items to the court. See

Pl.’s First Mot. at 2; Pl.’s Second Mot. at 3. Pinson also requests that the Court 6) require the

BOP to respond to a particular FOIA request in compact disc format. Pl.’s Third Mot. at 1. In

the alternative, Pinson asks the Court to appoint counsel. Pl.’s Second Mot. at 3.

For each requested preliminary injunction, the Court evaluates whether Pinson has

demonstrated that she is likely to succeed on the merits and that she will suffer an irreparable

harm absent issuance of a preliminary injunction. The Court concludes that she has not.

Because these requirements are mandatory, the Court does not consider the remaining factors.

See Howard v. Evans, 193 F. Supp. 2d. 221, 228 (D.D.C. 2002) (“[T]he court need not determine

the viability of . . . plaintiff’s arguments respecting the remaining . . . prongs of [a] preliminary

7
injunction standard in light of the rule that a preliminary injunction may only issue when the

movant demonstrates a showing that supports all four of preliminary injunction factors”). The

Court denies all requests for preliminary injunction.

The Court also evaluates whether appointment of counsel is appropriate given the facts

and circumstances of the case. Pinson has failed to demonstrate the complexity and merits of the

action, and her inability to retain counsel by other means. The Court therefore denies the request

for appointment of counsel.

A. MOTIONS FOR PRELIMINARY INJUNCTION

Pinson moves for preliminary injunctive relief on a variety of issues relating to her access

to this Court and ability to litigate her FOIA claims. Defendants assert that Pinson has failed to

exhaust her administrative remedies under the Prison Litigation Reform Act (PLRA) regarding

her access to litigation-related mail, e-mail services, postage stamps, and to the law library

during prison lockdowns, and thus that she is barred from bringing a civil action. See Defs.’

First Opp’n at 5–7; Defs.’ Second Opp’n at 5–6. The Court does not address this argument

because Pinson has not shown that she will suffer irreparable harm absent a preliminary

injunction and is likely to succeed on the merits of any of these claims.

1. Mail Relating to This Litigation

Pinson first alleges that she has not received any filings in this case and requests the

Court to enjoin DOJ from withholding mail related to the litigation. See Pl.’s First Mot. at 1–2.

In order to establish that she will suffer “irreparable harm” absent an injunction, Pinson must

point to an injury that is “both certain and great[,] . . . actual and not theoretical[,]” and so

imminent “that there is a clear and present need for equitable relief.” John Doe Co., 235 F.

Supp. 3d at 202–03 (internal quotation marks omitted) (quoting Chaplaincy of Full Gospel

8
Churches, 454 F.3d at 297). Defendants argue that a copy of all docket entries in this litigation

was sent by certified mail to Pinson on June 7, 2018. See Defs.’ First Opp’n at 2. Pinson admits

to receiving the motion to dismiss and other documents on June 13, 2018. See Third Decl. of

Jeremy Pinson ¶ 1, ECF No. 15. Pinson also received Defendants’ opposition to her second

motion for preliminary injunction, as she filed a reply on July 16, 2018. See Pl.’s Reply to

Opp’n to Second Mot. for Preliminary Inj. (“Pl.’s Reply”), ECF No. 19. Pinson has not shown

that her failure to receive pleadings in this matter was due to anything other than inadvertently

misaddressed mailings, or that such inadvertence is likely to be repeated in the future. Pinson’s

claim that she was not given any filings in this case is thus moot, and she cannot point to an

injury likely to cause the “irreparable harm” needed to obtain the requested preliminary

injunction against continued withholding of mail. See Winter, 555 U.S. at 20. Accordingly,

Pinson’s request to enjoin DOJ from withholding mail related to this litigation is denied.

2. Access to E-mail

Next, Pinson requests the Court to enjoin DOJ from blocking access to the e-mail address

info@helpfromoutside.com. See Pl.’s First Mot. at 2. Pinson asserts that she cannot access

records and research needed to “pay[] FOIA and [c]ourt filing fees, and amend[] the complaint in

this action.” First Pinson Decl. ¶ 2. Defendants argue that the warden of Pinson’s prison

terminated access to the e-mail address after learning that representatives from

helpfromoutside.com were sending messages to third parties on inmates’ behalf in violation of

BOP monitoring procedures. See Defs.’ First Opp’n at 6. Pinson fails to demonstrate that she is

likely to succeed on the merits or that she will suffer irreparable harm absent a preliminary

injunction.

9
 Defendants assert that Pinson’s complaint did not include any challenges to BOP

policies, and that because a preliminary injunction serves a ‘“limited purpose,”’ it is not

warranted here. See Defs.’ First Opp’n at 6–7 (quoting Select Milk Producers, Inc., 400 F.3d at

954). Pinson’s initial complaint does not mention her inability to access the e-mail address, but

her amended complaint does. See Pl.’s First Am. Compl. ¶¶ 15–16. Pinson states in the

Amended Complaint that BOP employees told her access to the e-mail address was blocked in

order to “inhibit [Pinson]’s access to her paralegal” and “deny [her] the ability to pay court filing

fees and access PACER through her assistant.” Id. Pinson further asserts that representatives

from helpfromoutside.com have never passed messages from inmates to third parties, and that

Defendants filed false declarations to “retaliate against [Pinson].” Id. ¶ 17–18.

Pinson’s motion details that the “[t]he blockage has prevented access to records and

research needed to amend the [c]omplaint in this [c]ase.” Pl.’s First Mot. at 1. While the

Amended Complaint does not indicate what claim Pinson purports to bring in connection with

the termination of her e-mail access, this alleged denial of access to records and research can

essentially be characterized as a denial of Pinson’s constitutional right to access the courts. A

claim based on the denial of such right requires a “very high bar of showing that [Pinson] had

been injured by [her] lack of access.” Pinson, 273 F. Supp. 3d at 10; see also Lopez v. District of

Columbia, 300 F. Supp. 3d 253, 256 (D.D.C. 2018) (internal citations and quotation marks

omitted) (granting defendants’ motion to dismiss because plaintiff’s “path to the court [wa]s not

completely foreclosed” and thus he was not “presently denied an opportunity to litigate” as

required “to make out a forward-looking constitutional-right-of-access [to the courts] claim”);

Isaac v. Samuels, 132 F. Supp. 3d 56, 59–60 (D.D.C. 2015) (citations omitted) (granting

defendants’ motion to dismiss because plaintiff could not show “actual prejudice or injury from

10
BOP’s failure to provide him with state law materials” to challenge his conviction during his

incarceration).

Here, Pinson does not identify any motion or complaint that she has been prevented from

filing, and “is thus far from demonstrating ‘that a nonfrivolous legal claim ha[s] been frustrated

or . . . impeded.’” Pinson, 273 F. Supp. 3d at 10 (quoting Lewis v. Casey, 518 U.S. 343, 353

(1996)). To the contrary, Pinson has amended her complaint and responded to the government’s

pleadings. See Pl.’s Response to Defs.’ Mot. to Dismiss, ECF No. 15; Pl.’s Am. Compl.; Pl.’s

Reply. Accordingly, she has not demonstrated a likelihood of success on the merits on a claim

for lack of access to the courts.

Second, to the extent the Amended Complaint points to any other right of action subject

to a lower standard than the constitutional right of access to the courts, Pinson has also not

demonstrated that she will suffer irreparable harm absent an injunction. Even without access to

her e-mail, Pinson has been able to file a significant number of motions and briefs, including in

response to briefs filed by the Government. Neither has she shown an inability to pay any fees

necessary for the prosecution of this action. Pinson makes no showing as to how the lack of

access to info@helpfromoutside.com has injured, or will injure, her ability to continue

prosecuting this case. Because she has not pointed to an irreparable harm that would result from

failing to grant an injunction and because she is not likely to succeed on the merits, Pinson’s

motion to enjoin DOJ from blocking access to info@helpfromoutside.com is denied.

3. Dissemination of Agency Files

Pinson also requests the Court to enjoin the DOJ from disseminating contents of agency

files to a fellow inmate, Tyreise Swain. See Pl.’s First Mot. at 2. Specifically, Pinson alleges

that Swain was provided information about a PREA investigation involving her. See id. at 1.

11
The Court denies the motion for preliminary injunction because Pinson has not shown she will

suffer irreparable harm absent an injunction.

Defendants point out that a preliminary injunction has a “limited purpose”—to “preserve

the trial court’s power to adjudicate the underlying dispute by maintaining the status quo ante[,]”

Select Milk Producers, 400 F.3d at 954, and note that the PREA investigation was not mentioned

in Pinson’s original complaint. However, Pinson has now raised the issue in her amended

complaint, see Pl.’s Am. Compl. ¶ 20, and the Court accordingly considers whether she has met

the standard for a preliminary injunction.

Again, Pinson has not shown that she will be irreparably harmed by the absence of a

preliminary injunction. In order to demonstrate irreparable harm, Pinson must allege an injury

that is “concrete and corroborated, not merely speculative.” E.g. Toxco, Inc. v. Chu, 724 F.

Supp. 2d 16, 30 (D.D.C. 2010). Here, Pinson does not provide any indication of an ongoing

release of information that continues to damage her.

First, Pinson fails to make clear that the agency has released anything to Swain. Instead,

she implies that Swain took advantage of the trust the BOP placed in him to obtain unauthorized

access to the alleged information. See First Pinson Decl. ¶ 3 (supporting claim of dissemination

of documents by noting that Swain “has access to . . . inmate records which are unsecured by

virtue of his extended employment in a staff office area”). Therefore, at most, Pinson seems to

complain about the security of the documents, rather than about an agency release. But Pinson

fails to provide sufficient factual information indicating what information is stored, and where,

that Swain is allowed to access. Nor has Pinson explained how she has first-hand knowledge to

make these assertions. This makes Pinson’s allegations highly speculative.

12
 Second, Pinson fails to allege that further release of agency files and dissemination of

their contents will injure her in the future, and instead only argues that the dissemination of

documents injured her in the past by “labeling [her] as an informant.” Pl.’s Am. Compl. ¶ 22.

Pinson has alleged that information was made available to Swain, which had the effect of

causing damage, but nothing more. See Pl.’s Am. Compl ¶ 22 (“The release of the PREA details

to Swain had the net effect of labeling [Pinson] as an informant because it was disseminated by

Swain to numerous other inmates.”) (emphasis added). Pinson requests in her motion for

preliminary injunction that “agency files” no longer be released, but not agency files that concern

her specifically. See Pl.’s First Mot. at 2. Because Pinson only alleges a speculative future

injury resulting from a generalized claim of dissemination of agency files to Swain, she cannot

show that she will be irreparably harmed without a preliminary injunction and her request to

enjoin DOJ from disseminating contents of agency files is denied.

4. Access to Legal Mail and the Law Library During Lockdowns

Next, Pinson requests the Court to enjoin DOJ from depriving her of the “opportunity to

send legal mail or [access] a law library terminal during lengthy lockdowns.” Pl.’s Second Mot.

at 3. The Court denies the motion for preliminary injunction because Pinson has not shown that

she is likely to succeed on the merits or that she would suffer irreparable harm absent a

preliminary injunction.

Pinson is unable to show a likelihood of success on the merits. Pinson again appears to

characterize her claims for lack of access to legal mail and to the law library as claims for

interference with her right to access the courts, and to argue that lack of access during lockdowns

is in itself a constitutional violation. See Pl.’s Second Mot. at 2 (arguing that denial of stamps to

mail legal documents violates the First Amendment and pointing to Bounds v. Smith, 430 U.S.

13
817, 824–25 (1977)). However, as noted in part IV.A.2, a constitutional right of access claim

requires a very high showing of injury. Pinson contends that her prison was “in a state of

lockdown” when she submitted her second motion for preliminary injunction on June 11, 2018.

Pl.’s Second Mot. at 1. But thereafter, Pinson filed an amended complaint, responded to

Defendants’ motion to dismiss and Defendants’ opposition to her second motion for preliminary

injunction, and filed a third motion for preliminary injunction. Clearly, Pinson has not

demonstrated “that a nonfrivolous legal claim ha[s] been frustrated or . . . impeded[,]” Pinson,

273 F. Supp. 3d at 10 (quoting Lewis, 518 U.S. at 349), and she is unable to establish a

likelihood of success on the merits of a claim for access to the courts.

Moreover, Pinson is also unable to show that she will suffer irreparable harm absent an

injunction. Pinson’s prison is no longer on lockdown. See Second Stroble Decl. ¶ 4. Because

she now appears to have the ability to access the law library and send legal mail, this issue is thus

moot and she cannot point to the irreparable harm required for a preliminary injunction. See,

e.g., John Doe Co., 235 F. Supp. at 202 (noting that demonstrating irreparable harm requires

pointing to an injury “both certain and great[,] . . . actual and not theoretical[,]” and so imminent

“that there is a clear and present need for equitable relief” (internal quotation marks omitted)

(quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297)). Accordingly, Pinson’s request

to enjoin DOJ from depriving her of the ability to send legal mail and access the law library

during prison lockdowns is denied.

5. Access to Stamps

Pinson next requests the Court to enjoin DOJ from depriving her of stamps necessary to

mail items to the court. Pl.’s Second Mot. at 3. Pinson and the Defendants dispute whether

Pinson had access to postage stamps in the past. Compare Second Pinson Decl. ¶ 3, with Second

14
Stroble Decl. ¶ 4. The Court denies the motion for preliminary injunction because Pinson has

failed to show likelihood of success on the merits or irreparable harm.

Pinson again appears to characterize her claim as one for interference with her right of

access to the courts, because she argues that the government is intentionally denying her stamps

to prevent her from communicating with the Court. See Pl.’s Second Mot. at 1–2 (noting that the

DOJ is “willfully denying [her] postage to obstruct her access to this court and others” and

quoting Bounds, 430 U.S. at 824–25). As explained in part IV.A.2, a claim based on the denial

of such right requires a “very high bar of showing that [Pinson] had been injured by [her] lack of

access.” Pinson, 273 F. Supp. 3d at 10. Following the filing of her second motion for

preliminary injunction, Pinson filed an amended complaint, responded to Defendants’ motion to

dismiss and Defendants’ opposition to her second motion, and filed a third motion for

preliminary injunction, all after alleging she was deprived of the stamps necessary to mail items

to the court. Once again, there is no suggestion that Pinson’s ability to assert her legal claims has

been significantly frustrated or impeded, and therefore she is unable to demonstrate a likelihood

of success on the merits of a claim for access to the courts.

Pinson has also failed to show that she will suffer irreparable harm absent an injunction.

As noted above, Pinson has been able to file numerous motions with the Court despite her

alleged lack of access to stamps. It does not appear that Pinson has been detrimentally impacted

by the alleged lack of stamps, and there is therefore no indication that she will suffer any harm

absent an injunction. And Pinson’s prison is no longer on lockdown, see Second Stroble Decl. ¶

4, thus any issue with stamp delivery during the lockdown is moot. Accordingly, Pinson’s

request that the Court enjoin DOJ from depriving her of stamps necessary to mail items to the

court is denied.

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 6. Production of Documents in Compact Disc Format

Finally, Pinson asks the Court to “require[] defendants to supply the production of

documents in Bureau of Prisons FOIA No. 2017-01605, in Compact Disc format.” Pl.’s Third

Mot. at 1. The Court denies the motion for preliminary injunction because Pinson has not shown

that she will be irreparably harmed absent a preliminary injunction.

Pinson argues that “the BOP refuses to provide the information in CD format” as required

by 5 U.S.C. § 552(a)(3)(B) for her FOIA request No. 2017-01605, and is now “trying to evade

such a production because it is trying to force [her] to accept the material in paper-format for the

duplication cost of $100.00.” Pl.’s Third Mot. at 1. The underlying FOIA request is part of the

Amended Complaint, see Am. Compl. at 5, and this request for a preliminary injunction thus

asks the Court to order a specific type of relief on Pinson’s claim in the Amended Complaint for

release of all requested information under FOIA, see id. at 4. Whether, and how, any production

of documents to Pinson should be made pursuant to her claims in the Amended Complaint is an

issue that will be addressed if raised by the parties during summary judgment briefing of the

underlying FOIA claims. Pinson has not indicated why she will be harmed if the issue is not

addressed now, and there is therefore no showing of irreparable injury that could support a

preliminary injunction. Pinson’s request for a preliminary injunction to require compact disc

production is denied.

B. MOTION FOR APPOINTMENT OF COUNSEL

In the alternative to an injunction, Pinson asks the Court to appoint counsel in order to

“ameliorate all such problems” for which she seeks preliminary injunctive relief. See Pl.’s

Second Mot. at 2–3. Federal courts can provide for the appointment of counsel when a person is

unable to afford an attorney. 28 U.S.C. § 1915(e)(1); accord Willis, 74 F.3d at 532. The Court

16
must consider the nature, complexity, and potential merits of the action, along with the Plaintiff’s

inability to retain counsel by other means, and the interests of justice that are served through

such appointment. D.D.C. Civ. R. 83.11 (b)(3). “Because Plaintiff is proceeding pro se, the

Court will construe her filings more liberally than it would the formal pleadings or legal briefs

drafted by lawyers.” Ojelade v. Unity Health Care, Inc., 962 F. Supp. 2d 258, 261 (D.D.C.

2013) (citing Thompson v. HSBC Bank USA, N.A., 850 F. Supp. 2d 269, 273 (D.D.C. 2012)).

Because three of the factors the Court considers point away from appointing counsel, the Court

denies the motion.

First, Pinson does not assert that her claims are likely to raise complex legal or factual

issues that will require representation, nor do the claims themselves appear to present complex

legal or factual issues at this stage. Pinson states that she seeks appointment of counsel in order

to help prevent multiple alleged acts by Defendants directed at her ability to litigate her FOIA

claims. And in her Amended Complaint, she alleges a straightforward set of facts involving the

multiple Defendants’ failure to respond to FOIA requests and alleged retaliation against her.

Pl.’s Am. Compl. at 3. The mere fact that “many requests” are involved does not “increase the

complexity [of her case] by very much.” Pinson, 273 F. Supp. 3d at 5. There are no “complex

questions of fact” immediately discernable at this stage. Saunders v. Davis, 2016 WL 4921418,

at * 15 (D.D.C. Sept. 15, 2016). And Pinson has very capably pursued her FOIA claims without

the assistance of appointed counsel in her previously filed case also before this court. See

generally Pinson v. U.S. DOJ, No. 12-cv-1872-RC (D.D.C.). This factor weighs against the

appointment of counsel.

Pinson has also not demonstrated to the Court through any filings that she is unable to

obtain counsel on her own. None of Pinson’s communications with the Court have indicated her

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efforts or inability to obtain counsel. Without more information, “[t]aking the unusual step of

appointing civil counsel would be particularly inappropriate in light of [Pinson’s] failure to show

that [s]he has previously sought counsel . . . .” Saunders, 2016 WL 4921418 at *15.

Furthermore, Pinson has proven that she is able to communicate with the Court through

the motions she has filed in this case without the aid of counsel. See Willis, 274 F.3d at 532

(affirming denial of appointment of counsel when the plaintiff demonstrated he was capable of

representing himself by making logical presentations to the court through his “numerous

coherent filings”). Pinson has a history of litigation in federal court, repeatedly engaging in

litigation against the DOJ pro se—demonstrating her ability to communicate with the court

without the assistance of counsel. The degree to which the interests of justice will be served by

the assistance of appointed counsel thus does not seem to outweigh the burden placed on, and

limited resources of, the Civil Pro Bono Panel, particularly given that this case “does not appear

to involve any complex testimony, difficult legal issues, or unsettled law to such a degree that

lawyering skills would be required at this juncture.” Ojelade, 962 F. Supp. 2d at 262.

Finally, it is at best uncertain whether Pinson’s claims have merit. At this stage in the

litigation, it is unclear whether Pinson will succeed on the claims presented in her amended

complaint. “[T]he district court has a ‘plain duty . . . to appoint counsel to assist’ the plaintiff

‘[w]hen necessary to insure that an indigent prisoner's allegations receive fair consideration.’”

Gaviria, 476 F.3d at 944 (quoting Hudson v. Hardy, 412 F.2d 1091, 1095 (D.C. Cir. 1968)). But

if the claims are “unsupported” or do not have a “preliminary showing of [being] meritorious,”

appointment of counsel is not required. Id. Here, it is far too early for the Court to assess

whether Pinson’s claims have any merit.

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 While specifically not addressed in this order, Defendants argue that Pinson’s inability to

exhaust her administrative remedies bars a number of the claims discussed in her motions for

preliminary injunction. See Defs’ First Opp’n at 5–7; Defs.’ Second Opp’n at 5–6. If Pinson did

not exhaust all of her administrative remedies before filing suit, the Court could very well find

that she is barred from bringing a civil action on some or all of her non-FOIA claims, regardless

of the merits of the action. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to

prison conditions under . . . [f]ederal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are exhausted.”); Jones v.

Bock, 549 U.S. 199, 212 (2007) (“There is no question that exhaustion is mandatory under the

PLRA and that unexhausted claims cannot be brought in court.”). With respect to Pinson’s other

claims, Defendants have not yet responded to the Amended Complaint. Thus, it is too early to

determine if Pinson is entitled to any relief on those claims.

Ultimately, despite the uncertainty as to the merits of Pinson’s claims, because the three

other factors taken into consideration strongly suggest that the appointment of counsel is not

warranted at this stage, the Court denies Pinson’s motion for the appointment of counsel.

V. CONCLUSION

For the foregoing reasons, Plaintiff’s First Motion for Preliminary Injunction (ECF No.

11), Plaintiff’s Second Motion for Preliminary Injunction and Motion to Appoint Counsel (ECF

No. 13), and Plaintiff’s Third Motion for Preliminary Injunction (ECF No. 21) are DENIED. An

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

Dated: October 29, 2018 RUDOLPH CONTRERAS
United States District Judge

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