United States District Court, E.D. New York
Ledwin Castro, Pro se, Inez, KY.
Jeremy Pinson, Pro se, Florence, CO.
ARTHUR D. SPATT, United States District Judge.
On June 5, 2014, a petition under 28 U.S.C. § 2255 for writ of habeas corpus was filed on behalf of Ledwin Castro (" Castro" ) in Case No. 14-CV-3678. Castro has been convicted of conspiracy to commit assault with a dangerous weapon, 18 U.S.C. § 1959(a)(6); assault with a dangerous weapon, 18 U.S.C. § 1959(a)(3); and the use of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1), in connection with a number of shootings that occurred on June 18, 2003. He is currently serving a sixty year sentence at a federal prison in Kentucky.
The petition claimed that " Jeremy Pinson and Mikeal Stine were present or involved in the June 18, 2003 shootings of Ricardo Ramirez, Doug Sorto and Carlton Alexander. Pinson, a violent gangster, had cooperated since 2002 on and office [sic] with the FBI and U.S. Attorney. The Dept. of Justice never informed the Petitioner [Castro] these individuals hadnt [sic] been charged in the shooting and withheld exculpatory evidence from Petitioner's counsel." (14-CV-3678, Dkt. No. 1.)
However, while the petition appeared to be signed by Castro, the signature did not match the signature used by Castro in previous filings that he has made in connection with his criminal case. Moreover, the handwriting used in the petition was remarkably similar to the handwriting of Jeremy Pinson (" Pinson" ), who had filed a letter in the underlying criminal action. In his letter, Pinson claimed that he provided evidence to the attorneys for Castro and the other criminal defendants, which the Government allegedly withheld. Lastly, the petition was mailed to Court directly from Jeremy Pinson. Pinson is presently incarcerated at a federal prison in Colorado. As such, because it appeared that Pinson, pro se, may have filed the petition on behalf of Castro and because " a non-attorney cannot represent someone else pro se," New York ex rel. Fox v. Fed. Bureau of Prisons, 08-CV-4816 (SLT), 2008 WL 5191843, at *1 (E.D.N.Y. Dec. 5, 2008) (quoting United States v. Robinson, No. SA-06-MC-781-XR, 2007 WL 649010, at *3 (W.D.Tex. Mar.1, 2007)), on June 20, 2014, the Court dismissed the petition and directed the Clerk of the Court to close this case. See also
Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001) (" [A]n individual may not be represented in court by another person who is not an attorney." ).
Thereafter, on July 7, 2014, Pinson filed a motion for the Court to reconsider its decision to dismiss the petition. In addition, on July 28, 2014, Pinson filed a separate action, Case No. 14-CV-4931, against the United States of America in which he claimed that (1) " members and associates of the Aryan Brotherhood and Mexican Mafia began acquiring contraband in the form of tobacco at the federal supermax prison, by causing a staff member to provide such illegally" and (2) after advising this Court of the purported " illegal relationship between DOJ employees and 2 of the nation's most dangerous gangs," one of his fellow inmates revealed him as a snitch and that, as a result, the Government has been retaliating against him. (Case No. 14-CV_4931, Dkt. No. 1.) In connection with this separate action, Pinson also filed a motion to proceed in forma pauperis.
In considering Pinson's applications, the Court has learned that Pinson is no
stranger to the federal courts. In fact, as another district court observed earlier this year, " Pinson has filed 44 prisoner rights lawsuits and more than 130 civil actions. The U.S. District Court, Northern District of Alabama and Southern District of Texas each previously informed Pinson that he has filed at least three cases which have been dismissed as meritless." Hobbs v. Doe, 5:13-CT-3279-D, 2014 WL 229343, at *2 (E.D.N.C. Jan. 21, 2014), appeal dismissed, 569 F.App'x 163 (4th Cir. 2014) (citing Pinson v. Reynolds, No. 2:13-CV-00428-WTL-WGH, [D.E. 5] 2, (S.D. Ind. Dec. 19, 2013) (unpublished)) (internal ellipse omitted).
" Section 804 of the Prison Litigation Reform Act ('PLRA'), codified at 28 U.S.C. § 1915(g), provides that a prisoner-litigant is ineligible to proceed [in forma pauperis] 'if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.'" Dillon v. City of New York, 14-CV-2733 NGG JMA, 2014 WL 4678087, at *1 (E.D.N.Y. Sept. 19, 2014) (citing PLRA § 804, 28 U.S.C. § 1915(g)). Here, " Pinson has had three of more dismissals for frivolousness, maliciousness, or failure to state a claim on which relief can be granted." Pinson v. Fed. Bureau of Prisons, CIV-12-843-F, 2012 WL 3872015, at *1 and n.1 (W.D. Okla. Aug. 27, 2012), report and recommendation adopted, CIV-12-0843-F, 2012 WL 3872014 (W.D. Okla. Sept. 6, 2012), appeal dismissed (Oct. 29, 2012) (citing Pinson v. Grimes, 391 F.App'x 797, 798-99 (11th Cir. 2010) (upholding the district court's recognition of a " strike" for purposes of 28 U.S.C. § 1915(g)); Pinson v. Pineiro, No. 09--cv--244--WTH--GRJ, (M.D. Fla. July 30, 2009) (unpublished op.) (imposing a " strike" for purposes of 28 U.S.C. § 1915(g)); Pinson v. Chipi, No. 09--cv--00283--WTH--GRJ, (M.D. Fla. July 30, 2009) (unpublished op.) (recognizing a " strike" for purposes of 28 U.S.C. § 1915(g)); Pinson v. Chipi, No. 10-12235--B, (11th Cir. Feb. 2, 2011) (unpublished op.) (dismissing an appeal on grounds that it was frivolous)).
Accordingly, with respect to Case No. 14-CV-4931, Pinson " must allege he . . . is under danger of imminent physical harm at the time the complaint is filed" in order to proceed in forma pauperis. Dillon, 2014 WL 4678087, at *1 (citing Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002)). The Court finds that he has failed to do so. In this regard, Pinson's claims are " merely speculative or hypothetical," so that he would not qualify for the imminent danger exception to § 1915(g). See Partee v. Connolly, 08 CIV. 4007 (NRB), 2009 WL 1788375, at *3 (S.D.N.Y. June 23, 2009) (citing Jackson v. Fischer, No. 07 Civ. 1279(TJM), 2009 ...