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Lee v. Grodolsky

United States District Court, D. Massachusetts

July 28, 2017

WARREN ANTONIO LEE, Plaintiff,
v.
JEFFREY GRONDOLSKY, et al., Defendants.

          MEMORANDUM AND ORDER REGARDING REPORT AND RECOMMENDATION AND PLAINTIFF'S THREE PENDING MOTIONS (Dkt. Nos. 6, 12, 14, 17, and 20)

          MARK G. MASTROIANNI UNITED STATES DISTRICT JUDGE

         I. Introduction

         Warren 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[1] 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.).

         The 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).)

         II. Reassignment of case to district judge and report and recommendation

         On 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.

         III. Plaintiff's objections and motions

         Plaintiff 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).

         In her 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. (Id.)

         In her 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.

         Plaintiff 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.)

         On 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.” (Id.)

         On June 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.” (Id.)

         On July 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 a ...


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