United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING REPORT AND
RECOMMENDATION AND PLAINTIFF'S THREE PENDING MOTIONS
(Dkt. Nos. 6, 12, 14, 17, and 20)
G. MASTROIANNI UNITED STATES DISTRICT JUDGE
Antonio Lee (“Plaintiff”), while confined to FCI
Butner in North Carolina, filed a complaint and an
application to proceed in district court without prepaying
fees or costs in the United States District Court for the
District for the District of Columbia. See Lee v.
Grondolsky, ., 16-cv -01864 (D.D.C. Sept. 19, 2016).
Plaintiff titles her Complaint as one “for damages
under FTCA [28 USC § 2680(a)] for violations of clearly
established law under P.R.E.A.; and for ongoing retaliation,
discrimination, and deliberate indifference (by Warden Thomas
B. Smith).” (Dkt. No. 1, Complaint). Plaintiff alleges
that she is filing the complaint “as an
addendum to a now dismissed 2241 petition.”
(Id. (emphasis in original).) The factual
allegations in the complaint are interspersed with copies of
administrative forms as well as documents from earlier cases.
(Id.) Plaintiff includes a copy of the denial of
FTCA claim No TRT-NE R-2016-05114 in which she alleged that
she was assaulted by another inmate at FMCD evens on November
21, 2015. (Id.) The certificate of service
accompanying the complaint certifies that Plaintiff mailed
the “FTCA Complaint” to the Clerk of the United
States District Court for the District for the District of
Columbia. (Dkt. No. 1, Compl.).
case was transferred to this district because the complaint
is brought pursuant to the Federal Tort Claims Act
(“FTCA”) concerning injury suffered at the
Federal Medical Center in Devens, Massachusetts. (Dkt. No. 3,
Transfer Order). This action was initially assigned to
Magistrate Judge David H. Hennessey pursuant to the
Court's Program for Random Assignment of Civil Cases to
Magistrate Judges. (Dkt. No. 5, Notice of Case Assignment).
On March 31, 2017, Plaintiff filed a notice for change of
address stating she ha d been transferred to FCI Terre Haute
in Terre Haute, Indiana . (Dkt. No. 15.) And on July 17,
2017, Plaintiff filed another notice for change of address
stating she is now in custody at FMC Fort Worth in Fort Wort
h, Texas. (Dkt. No. 17; see also http:
//www.bop.gov/inmateloc (last visited July 2 6, 2017).)
Reassignment of case to district judge and
report and recommendation
November 15, 2016, Magistrate Judge Hennessy returned this
case to the clerk for reassignment to a district judge, (Dkt.
No. 6), and it was assigned to the undersigned. (Dkt. No. 7).
Magistrate Judge Hennessy issued a Report and Recommendation
(“R&R”) concluding that Plaintiff is not
eligible to proceed without prepayment of the filing fee
because she has incurred three or more “strikes”
and is not “under imminent danger of serious physical
injury” in regards to the allegations in the complaint.
See 28 U.S.C. § 1915(g). Judge Hennessy
recommends denying Plaintiff's Application to Proceed in
District Court Without Prepaying Fees or Costs (Dkt. No. 2)
and dismissing this action without prejudice to Plaintiff
re-filing provided she pays the $400.00 administrative and
filing fees at the time of filing a renewed complaint.
Plaintiff's objections and motions
filed both an objection to the R&R (Dkt. No. 10) and an
addendum to her objection (Dkt. No. 11). Also pending a re
Plaintiff's mot ion to amend specific points of the
complaint (Dkt. No. 12), motion for declaratory judgment as a
supplemental pleading (Dkt. No. 14), motion for leave to file
supplemental pleadings (Dkt. No. 17), and yet another motion
for leave to file supplemental pleadings (Dkt. No. 20).
Plaintiff files these pleadings in an apparent effort to
assert claims of “imminent danger” to avoid the
three-strikes bar of Section 1915(g).
initial objection, (Dkt. No. 10), Plaintiff complains that
Magistrate Judge Hennessy was the judicial officer that
dismissed her 2015 case. See Lee v. Grondolsky, C.A.
No. 15-40063-DHH (Memorandum and Order for Dismissal Mar. 22,
2016). Plaintiff states that “a threat of
‘imminent danger' doesn't go away because one
is transferred, moved, or even placed in WitSec. ”
(See Dkt . No. 10.) Plaintiff avers that she was
transferred from an active yard to a drop-out yard where she
has been viciously preyed upon as a trans gender and subject
to sexual abuse and retaliation. (Id.) Plaintiff
suggests that she can avoid the filing fee issue if the Court
would (1) reopen the 2015 action; (2) order Plaintiff's
transfer to a different prison; (3) grant supplemental
jurisdiction to the federal district court in the district of
Plaintiff's confinement; or (4) collect the filing fee
from a damage award at the conclusion of the case.
addendum, Plaintiff states, among other things, that the
instant complaint must revert back to he r 2015 action. (Dkt.
No. 11.) Plaintiff objects to the identification of Lee v
. BOP, No. 10-0195-E GS (D.D.C. Nov. 9, 2010) and
Lee v. J.P. Young, et al., No. 99-2463-JP Mas cases
that were dismissed as frivolous or for failure to state a
claim upon which relief may be granted. Finally, in an effort
to offset Plaintiff's insolvency issue, Plaintiff seeks
appointment of counsel.
filed a motion to amend specific points of the complaint.
(Dkt. No. 12.) Plaintiff states that she does not want to
change any of the substantive claims already elucidated and
states that relief is sought under the FTCA and
Bivens. (Id.) In addition to allegations
against the FMC Devens defendants, Plaintiff seeks to add
and/or consolidate claims against correctional defendants at
FCI Butner-2 and FCI Butner-1. (Id.)
March 7, 2017, Plaintiff filed a motion for declaratory
judgment as a supplemental pleading to the motion to amend
complaint. (Dkt. No. 14.) Plaintiff provides a chronology of
events in an effort to document her injuries including rape
trauma syndrome (RTS) and post-traumatic stress disorder
(PTSD). Plaintiff contends that her 2015 action opened a
“Pandora's Box” because “the odious
cabal learned of” Plaintiff's application to marry
another inmate. Id. Plaintiff contends that her
psychological injuries “were/still are being triggered
by overzealous retaliations from prospective/respectives
Defendants as Exhibits will make limpid.”
9, 2017, Plaintiff filed a motion for leave to file
supplemental pleadings. (Dkt. No. 17.) Plaintiff avers that
on March 13, 2017, she arrived at FCI Terre Haute “via
a retaliatory transfer [from FCI Butner-II]. ”
Plaintiff's five-page motion consists primarily of a
recounting of events surrounding her unsuccessful efforts to
resolve several grievances and be transferred to the Control
Housing Unit. Id. Plaintiff states that her
“emotional and mental status is in high alert”
and she fears “another staff groping.”
27, 20017, Plaintiff filed another motion for leave to file
supplemental pleadings. (Dkt. No. 20.) Plaintiff asserts that
her original assailant from FMC Devens is also in custody at
FMC Fort Worth. (Id.) Plaintiff contends that she is
therefore under imminent danger of physical harm and requests