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
D ENYING D EFENDANTS ’ M OTION TO D ISMISS ; G RANTING IN P ART AND D ENYING IN P ART D EFENDANTS ’ M OTION IN THE A LTERNATIVE FOR S UMMARY J UDGMENT ; D ENYING P LAINTIFF ’ S M OTION TO A MEND THE C OMPLAINT ; D ENYING AS P REMATURE P LAINTIFF ’ S S UPPLEMENTAL M OTION FOR D ISCOVERY ; A PPOINTING P RO B ONO C OUNSEL
I. INTRODUCTION Plaintiff Jeremy Pinson claims that her 1 constitutional rights were violated when Bureau of Prisons (BOP) officials retalia ted against her for exercisin g her First Amendment rights. The DOJ—on behalf of the defendant-offi cials—moves to dismiss, or, in the alternative, for summary judgment. Because the Court concludes that Pinson has a dequately stated a claim, it denies the motion to dismiss. The Court also denies the DOJ’s m otion for summary judgment as to Pinson’s claims that prison o fficials refuse to investigate her administrative complaints and

1 Pinson identifies using fem inine 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 substanti ve or legal char acterization.2 transferred her to a more rest rictive setting, bu t grants the D OJ’s motion for summary judgment as to Pinson’s other claims o f miscellaneous retaliation.

II. BACKGROUND 2
This is not the first time this Court has addressed Pinson’s cl aims for First Amendment retaliation. In her Corrected Sec ond Amended Complaint of Octob er 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 Off ice of Internal Affairs. Corr. 2d Am. Compl. at 2. As relief, Pinson seeks an injunction again st Samuels and Dignam barring t hem “from further acts of retaliation,” as well as “[c]o mpensatory and punitive damages.” Corr. 2d Am. Compl. at 16. This Court dismissed several of Pinson’ s constitutional claims for f ailure to exhaust administrative remedies, and required Pinson to s ubmit a more definite stateme nt 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, wh ich 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 investigat e Pinson’s administrative comp laints 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 complai nt, documents attached thereto or incorporated therein, and matters of which it may t ake 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, ho wever, the Court may also consider additional materials. The Court thus segregates these additional materials into Part II.D.3 Amendment activities; second, a claim that Samuels transferred Pinson to ADX Florence 3 in retaliation for her Firs t Amendment activit ies; and third, Pins on’s claims of other miscellaneous retaliation for her Firs t Amendment activit ies directed by Samu els. All of these claims involve all eged retaliation against Pinson for her First Amendment activities. These activities in clude contributing to news artic les, posting to a blog, tweeting, filing lawsuits on her own behalf, and assi sting other inmates in fili ng lawsuits. Corr. 2d Am. Compl. at 14. Despite the retaliation she describes, Pinson asserts th at she “explicitly vowed to never cease writing lawsuits, blog posts ( www.betweenthebars.org) and letters to the media,” and identifies an example of her c ontinued engagement with the medi a. 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/fireshangings-madness-is-florence-shu- the-worst-cellblock-in-america -7700845 (news article discussing Florence ADX with c ontribution from Pinson). A. Claim One—Refusal to Investigate According to Pinson, she has file d “dozens” of complaints alleg ing misconduct by BOP employees that were eventually r outed to Dignam. Pl.’s Statemen t ¶¶ 1–3, ECF No. 279. Plaintiff asserts that she has confirmed tha t the complaints were referre d to Dignam through FOIA requests. Pl.’s Statement ¶ 4. Pin son claims that Dignam “refus ed 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 Facil ity in Florence, Colo., known more colloquially as the ADX. . . . is the highest-securi ty 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-fe deral-prison.html.4 As evidence of this claim, Pins on states that she met with a sp ecial agent and unit manager in 2011 who told her that D ignam would not investigate her complaints because she was “a gadfly constantly inundati ng Dignam’s office with compla ints” and adverse attention from the media. Pl.’s Statement ¶ 5. According to Pinson, the s pecial 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 sp ecial agent and unit manager told her that they met with her on Samuels’s instruction. Pl.’s S tatement ¶ 7. Pinson also claims that she met in-person with Samuels in August of 2015, and that he “admitted in his own wor ds” to her that he had caused the 2011 meeting. Pl.’s Statement ¶ 7. Pinson further claims that in t he “summer of 2015” she met withtwo agents from BOP’s Office of Internal Affairs who t old her that she was “hated all the way to the top”—which they clarified referred to Dignam a nd Samuels—and therefore “no one is gonna help you and end up in the New York Times over so mething you filed.” Pl.’s Statemen t ¶ 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 med ia.” Corr. 2d Am. Compl. at 16.
B. Claim Two—Transfer to ADX Florence Pinson also alleges that she w as transferred to ADX Florence inretaliation for her activities. Pinson claims that w hen Samuels was Assistant Direc tor of the BOP, he emailed an employee and had that employee in terrogate Pinson and order her to cease contacts with the news media. Corr. 2d Am. Compl. a t 15. When she refused, Pinsonalleges that Samuels “ordered plaintiff moved to ADX Florence using information he k new to be false.” Corr. 2d Am. Compl. at 15.5 As evidence, Pinson asserts tha t she was told by staff at ADX F lorence that Samuels had told them to stop her from enga ging in lawsuits or contacts wit h the news media. Corr. 2d Am. Compl. at 15. Pinson also assert s that, during her ADX referral hearing in December of 2015, the hearing administrato r told her that Samuels would “halt her tra nsfer to ADX [Florence] if she agreed to cease all lawsuits a nd press contacts, or the reverse if she didnt [sic].” Pl.’s Statement ¶ 8. When Pinson was transferre d to ADX Florence, she asserts t hat it was “personally authorized” by Samuels, Pl.’s Statement ¶ 9, a s 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 Alle gedly Retaliatory Acts Pinson also alleges several othe r miscellaneous acts of retalia tion. 4 She claims that Samuels ordered various employees to “convince” her to stop fil ing lawsuits and contacting the news media in March of 2013, and tha t the employees’ persuasive strategies included separating Pinson from another individual a nd “cell search es, strip search es, 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 “th reatened” to place her in s olitary 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-ameri cas-toughest-federalprison.html. If being placed at ADX Florence is similar to bein g placed in solitary confinement, the Court is uncertain if this c laim is distinct from Pinson’s claim that Samuels transferred her to ADX Florence. To the extent that t his claim is incorporated in Pinson’s claim of retaliatory transfer, the Court n eed not address it separately. To the exte nt that it attemp ts to state a new claim not laid out in her initial c omplaint, the Court disregar ds it for several reasons. First, Pinson does not specifica lly allege that this threat was in response to her First Amendment activity. Moreover, the Court does not identify any c laim in Pinson’s corrected second amended complaint related to this claim (such a connecti on is highly improbable, given that the alleged threat occurr ed in 2015 and the corrected seco nd amended complaint was filed in 2013). As Pinson has not moved to a mend the complaint, the Court thus disregards this allegation.6 D. Materials Considered in Relation to the Motion for Summary Judgment The DOJ submitted a declaration from Samuels which provides add itional factual material. In 2011—prior to his role as the Director of the Bure au of Prisons 5 —Samuels served as the Assistant Director for the C orrectional Prog rams 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 approvi ng or rejecting all recommended t ransfers to ADX Florence. 2d Samuels Decl. ¶¶ 10, 12. Samuels c laims that his participation in the transfer came only after a hearing administrator had revie wed and approved the referral. 2 d Samuels Decl. ¶ 12. Samuels denies telling the hearing adminis trator that he would stop the transfer if Pinson stopped litigation and press contacts . 2d Samuels Decl. ¶ 12. The DOJ a lso provided the report of the hearing administrator who recomm ended Pinson’s transfer to ADX Florence. That report shows that, prior to the transfer, Pinson had accumulated a disciplin ary record that included sixteen reported incidents, including sev en for possession of a weapon, four for serious a ssault, four for setting fires, and one for tak ing a hostage. ECF No. 288-1, Ex. A. Samuels also denies all of Pins on’s other allegations. Samuels denies having any conversation with the special a gent and unit manager about Pins on. 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 OI A agents regarding Pinson. 2d Sam uels Decl. ¶ 8.
* * *

5 Samuels served as the Dire ctor of the BOP from 2011 to 2016. 2 d Samuels Decl. ¶ 1, ECF No. 288-1.7 The DOJ has now moved to dismiss , or, in the alternative, to re new 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 d ismiss and a motion for summary judgment. The Court considers the applicable legal standard for each in turn. In ge neral, it notes that a pro se complaint is held to “less stri ngent standards than formal plea dings drafted by lawyers,”
Erickson v. Pardus , 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)), although it stil l must comply with the Federal Rules o f Civil Procedure, Jarrell v. Tisch , 656 F. Supp. 237, 239 (D.D.C. 1987). As a result, the Court con siders Pinson’s complaint “in light of” all filings, i ncluding her more definite statement an d 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 i n 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 focus es entirely on Pinson’s Bivens claims. The Court notes that Pinson appears to also assert o fficial capacity claims. See Corr. 2d Am. Compl. at 2 (“Defendants Samuels and Dignam are sued in their individual an d 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 Pr ocedure “[t]he officer’s succes sor is automatically substituted as a party” when “a public officer who i s a party in an official cap acity dies, resigns, or otherwise ceases to hold office while the action is pending.” These offic ial-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 briefe d any objections to these offic ial-capacity claims, the Court takes no action at this time.8 A. Motion to Dismiss To survive a motion to dismiss for failure to state a claim und er Federal Rule of Civil Procedure 12(b)(6), a complaintmust contain factual allegation s 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 conclus ory statements, do not suffice,”
id. , instead, plaintiffs must “nudge [] their claims across the lin e from conceivable to plausible,” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A court considering a motion to dis miss a

pro se plaintiff’s complaint for failu re to state a claim presumes th at 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 w hen “the movant shows that the re is no genuine dispute as to any material fact and the movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it may affect the substant ive outcome of the litigation. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonabl e jury could, based on the eviden ce, return a verdict for the non movant. 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 f acts 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 mos t favorable to the nonmovant, Anderson , 477 U.S. at 255, and “eschew[s] making credibility de terminations or weighing the ev idence,” Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007). Noneth eless, “conclusory al legations” and “unsubstantiated9 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 o mitted). “There is no issue for trial unless there is sufficient evidence favoring th e 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 constr ues her corrected second amended complaint and more defini te statement as sworn affidavi ts 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 di d not, however, provi de any evidence to support her Oppositi on. Nevertheless, in recognition of Plaintiff’s pro se status, the court will treat her Opposition as a sworn affidav it and thus evaluate the merits of D efendant’s Motion [for summary judgment] as if Plaintiff has attempted to come forward with e vidence to show a genuine dispu te 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 Court 7 has not recognized such a cause of action. MTD at 10–12, ECF No. 287. Because the D.C. Circuit has recogni zed Bivens claims for First Amendment retaliation, th is Court disagrees.
In Bivens , the Supreme Court “established that the victims of a constitu tional violation by a federal agent have a right to r ecover damages against the off icial in federal c ourt 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 rig ht of action under the Consti tution for viola tion of Fourth

7 As the DOJ notes, lower courts have reached various conclusion s about the availability of a Bivens claim for First Amendme nt violations. MTD at 12 & n.3.10 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 S upreme Court has expli citly recognized Bivens claims for “employment discrimination i n violation of the Due Process Clause” and “cruel and unusual punishment by prison officials in vi olation of the Eighth Amend ment,” 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 no t embraced the application of Bivens to First Amendment claims, nor has it definitively eliminated the possib ility. See Ashcroft v. Iqbal , 556 U.S. 662, 675 (2009) (“Petitioners do not press this argument, however, so we assume, without deciding, that responden t’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 Constitutio n [because] it threatens to inhibit exercise of the protected right,” and the law is settled that as a general matter the First Amendm ent prohibits government officia ls from subjecting an individual to retal iatory actions, including crim inal prosecutions, for speaking out. . . . [W]hen nonreta liatory grounds are in fact i nsufficient to provoke the adverse consequences, we have held that retaliationis subject to recovery as the but-for cause of official action offending the Constitution. When the vengeful officer is federa l, 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 concludi ng that the plaintiff could not recover because the plaintiff did not plead the absence of prob able cause supporting his allegedly retaliatory prosecution).11 The D.C. Circuit has gone furth er than the Supreme Court in ide ntifying a Bivens remedy for First Amendment retaliation: We agree that the retaliatory prosecution constitutes an action able First Amendment wrong redressable under Bivens . . . . We share the convi ction 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 enti tle him to proceed directly under the First Amendment for damages. This co nclusion parallels our holding in Dellums v. Powell , that a Bivens action can be utili zed by complainants asserting an infringement of the ir First Amendment right to pet ition 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 plai ntiff asserting a retali atory 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 c ontext 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 d efendant 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 restricti ve unit in retaliation for First Amendment activity. Id. at 258. Although the government defe ndants argued to the D.C. Circuit that it “should be especia lly hesitant to extend [a Bivens remedy]” because “[ t]he Supreme Court

8 The D.C. Circuit had previous ly confronted a plaintiff’s Bivens claims for First Amendment retaliation in Kimberlin v. Quinlan , where the prisoner-plaint iff claimed that he was placed in administrative segregation in retaliation for his con tacts with journalists. Kimberlin v. Quinlan , 199 F.3d 496, 498 (D.C. Cir. 1999). Kimberlin ’s tortuous path br ought 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 Ame ndment retaliation. See, e.g. , id. ; Kimberlin v. Quinlan , 6 F.3d 789 (D.C. Cir. 1993) (subsequent history omitted).12 has emphasized that Bivens is a ‘limited’ remedy, and it ha s elsewhere ‘declined to exten d Bivens to a claim sounding in the First Ame ndment,’” Brief for Officia l-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 maybe a Bivens cause of action for some types of First Amend ment 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, th e D.C. Circuit recently confronted a nearly identical claim in Aref —where the plaintiff a lleged 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 t he 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]ve n if Defendants are correct in predicting the Suprem e Court’s response to questions not yet be fore 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. Circui t are binding “unless and until ov erturned by the court en banc or by Higher Authority”)). The Court th erefore will not dispose of Pi nson’s claims for the reason that
Bivens does not offer a cause of action f or First Amendment retaliati on.13 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 Sa muels are entitled to qualified immunity, and (5) the BOP had alternative reasons for her trans fer to ADX Florence. As the DOJ does not divide its arguments be tween the motion to dismiss sta ge and the summary judgment stage, the Court assumes that all arguments relying upon the DO J’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 doe s not allege any adverse consequences, (3) her speech was not chilled, and (4) Dignam an d Samuels should receive qualified immunity. As an initial matter, the Court id entifies the elements of a cl aim for First Amendment retaliation. To state such a cla im, a plaintiff must show that “(1) he [or she] engaged in conduct protected under the Fi rst Amendment; (2) the defendant took som e retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position fro m speaking again; and (3) a causal link between the exercis e of a constitutional right and the adv erse 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 fro m that offered by the DOJ, which w as drawn from a district court’s interpretation of the N inth Circuit’s § 1983 standard. See MTD at 13 (quoting AndersonBey 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 dif ferences are material, the Court believes the DOJ’s position is unsound, see discussion infra

.14 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 fa iled to allege “personal invol vement” by Dignam and Samuels in the retaliator y 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 t o investigate—Pinson alleges dir ect action by both Dignam and Samuels. See Corr. 2d Amend. Compl. at 14 (“Di gnam refused to investigate the complaints unless Plaintiff agreed to cease news media contacts and litigation against BOP.”); Pl.’s Statement ¶ 7 (“Director S amuels was said to have caused the [2011 meeting in which Pinson was told that Dignam woul d not investigate complaints], a fact Samuels admitted in his own words to plainti ff . . . [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. a t 15 (“When plaintiff refused [to stop lawsuits and cont act with the media] Samuels o rdered plaintiff moved to ADX Florence using information he knew to be false.”); Pl.’s Statem ent ¶ 9 (Samuels personally authorized plaintiff’s transfer to ADX . . .”). As to her third claim—other reta liatory behavior—Pinson also al leges 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 res ult staff began to harrass [sic] Plaintiff . . .”). The DOJ appears to conflate Pins on’s allegati ons with potential evidentiary issues, arguing, for example, that “[h]er only evidence of Samuels’[s] retaliatory intent is a statement by15 a non-defendant.” MTD at 18. The DOJ’s arguments about the stre ngth 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 accep ts the nonmovant’s factual al legations 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 Pinsonasserts that each defendant “t hrough the official’s own individual actions, has violate d the Constitution,” Iqbal , 556 U.S. at 676;, th e Court will not d ismiss her claims for failure to allege the persona l involvement of Samuels or Di gnam. See also Meyer v. Reno , 911 F. Supp. 11, 15 (D.D.C. 1996) (holdi ng that defendant-supervisors could be liable under
Bivens if they “personally participate d in the events which gave rise to the plaintiff’ s claims.”). The DOJ also argues that Pinson i mproperly attempts to “impose vicarious liability [on Dignam and Samuels] for their sta ff member’s actions (or inacti ons),” 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 vicarious ly liable absent their pers onal involvement. See Iqbal , 556 U.S. at 676 (“Government offi cials may not be held liable for the unconstitutional conduct of their s ubordinates under a theory o f respondeat superior . Because vicarious liability i s inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own indiv idual actions, has violated the Constitution.” (citations omitte d)). However, Pinson seeks to h old Dignam and Samuels liable only to the extent that they pers onally retaliate d against her for exercising her First Amendment rights. Pinson’s references t o statements made by subordinate e mployees 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 investigati ve agent and unit manager] Director Samuels was said to have cau sed the private discussion . . . .” ). Although “high-level officials . . .16 typically are not subject to Bivens liability since th ey do not routinely participate personally i n decisions about a particular indi vidual at a particular locatio n,” 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 interven tion into her case is pre cisely what Pinson alleges here. 2. Lack of Adverse Action and Lack of Chilling Effect The DOJ argues on two fronts thatthe alleged actions of Samuel s and Dignam did not rise to the level of First Amend ment retaliation. First, the DO J claims there is an “adverse action” requirement which Pinson cannot meet because she does n ot allege that any of her neglected complaints later gave rise to violations of her const itutional rights. Second, the DOJ argues that Pinson’s subsequent c onduct demonstrated that she w as not chilled. The Court first addresses the DOJ’s claim that Pinson “has fail ed to allege any adverse action as a result of” Dignam a nd Samuels’s refusal to investig ate her complaints, because she pleads no “harm . . . such as one of the staff members she alle gedly complained about later violating her constitutional r ights.” MTD at 14–15. The Court n otes that the correct standard, as articulated in 2016 by the D.C. Cir cuit, includes no reference to “adverse action,” but only requires that “the defendant t ook some retaliatory action suffi cient to deter a pe rson 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 ac tion” 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 C ourt notes that being denied a ccess to the designated results for resolving any complaints—from m inor to serious—about the condit ions of incarceration would appear to be an adverse action.17 The better view is thus that a ny adverse action requirement is defined by the type of retaliatory action which would dete r ordinary people from First Amendment activity. This view is bolstered by the conclusions of other courts in this jurisdi ction that actions such as telling a protester that “if she inte nded to remain on the sidewalk discu ssing her concerns, she would have to give background data including name, date of birth and Socia l 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 quest ion of whether the alleged act ions 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 pris oner as a “special offender”—wh ich prevented him from working as a tutor—and transfer to a new facility far from his family w ould have chilled a person of reasonable firmness and thus met the standard for First Amendme nt 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) (fi nding that “the pecunia ry losses [the plaintiff] sustained in the for m of the costs of shipping his b oxes and replaci ng clothing, though small, might well deter a pers on of ordinary firmness in [the p laintiff’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 l aw enforcement officers that the

10 The DOJ initially argued that “Pinson materially undermines he r claim when she boasts that her exerc ise of her First Amendment rights was not chilled following the alleged acts,” MTD at 15, and cites to language purporting to define th e standard for First Amendment retaliation as including a re quirement that the “action . . . c hilled 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 acknowledge s in its reply that the corr ect test is “whether the alleged violations would have been ‘likelyto deter a person of ordinar y firmness’ from speaking out” rather than whether Pinson speci fically was chilled. Def.’s Rep ly at 2, ECF No. 315 (quoting Toolasprashad v. Bureau of Prisons , 286 F.3d 576, 585 (D.C. Cir. 2002)).18 plaintiff-protester must either leave or submit to detailed inq uiry and registration was sufficient to chill the speech of a persona l 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, inc luding commencing fifty-one lawsuits); Pl.’s Statement ¶ 8 ( asserting that Pinson “explicit ly 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 dispos itive,” even if it may “‘provi de[] 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 possibili ty that Pinson might be an unusu ally staunch individual, therefore, does not doom her claim. The Court thus considers the al leged 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 p rimary avenue for inmates to raise concerns about the condi tions 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 t hreatened with exclusion from the complaint process, she does not know how she will be tr eated 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 signifi cantly worsen the conditions of h er confinement in a variety of ways. The Court thus rejects th e DOJ’s suggestion that Pinson m ust 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 14–15.19 well deter a person of ordinary fir mness in [the plaintiff’s] p osition from speaking again”). Second, Pinson claims that she was initially threatened with tr ansfer—and later actually transferred—to the BOP’s highe st security facility, ADX Florenc e. Such a transfer to the BOP’s most restrictive placement is c learly more chilling than the tr ansfer 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 fa cility and recla ssified as a l ess-favored class of prisoner would deter a person of ordinary firmn ess). The Court finds that the retaliation Pinson alleges would deter a person of ordinary firmn ess from First Amendment activi ty, and thus that Pinson’s claim does not fail for lack of suffi ciently severe retaliation. 3. Qualified Immunity The DOJ asserts, cursorily, that Dignam and Samuels are shielde d from liability by qualified immunity. 12 MTD at 8–9. “Qualified immunity s hields federal and state offi cials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) th at the right was ‘clearly estab lished’ 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 immun ity 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 firstconsiders qualified immunity at the motion to dismiss stage, in or der to give effect to the int ent of qualified immunity to shield officials from burdensom e pretrial procedure. Id. at 306–07. As discussed infra , the Court concludes at the motion to dismi ss phase that qualified immunit y is not warranted. The Court’s conclusion remains the same at the summary judgment phase. As discussed below, the Count concludes thatPinson had a clearly establishe d right. The qualified immunity defense thus turns on whether the re was a violation of that rig ht. As the Court finds below in its discussion of summary j udgment, the question of whether such a violation occurred turns on material facts which are genuine ly in dispute, and thus the def endants cannot be granted qualified immunity on summary judgment.20 The DOJ recites the standard f or qualified immunity without spe cifying 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 i n support of either view. Nevertheless, the Court briefly c onsiders if either Dignam or S amuels is protected here by qualified immunity. First, 13 the Court concludes that Pinso n had a clearly e stablished righ t at the time of the conduct not to be subject to the a lleged retaliation for her Fi rst Amendment conduct. A right is clearly established if it would ha ve been “clear to a reasonabl e officer that his [or her] conduct was unlawful in the situati on 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 de fine the right at too high a le vel 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 decisions 14 of the Supreme Court and D.C. C ircuit have held that a prisone r’s right not to be retaliated againstfor First Amendment activitysuch as contacting the media or

13 Courts may “exercise their s ound discretion in deciding which of the two prongs of the qualified immunity analysi s” 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 describ ed selling marijuana to Dan Quayle to reporters that the ri ght “to be free from governmenta l interference with [a prisoner’s] contacts with the press if tha t interference is based on the co ntent of [the] speech or proposed speech . . . without doubt was cle arly established in 1988.” (i nternal 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 ri ght 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).21 filing lawsuits was clearly estab lished at the time of the acti ons here. 15 Crawford-Elpresents an especially analogous example. In Crawford-El , the plaintiff was a “l itigious 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 Crawfor d-El’s claim of First Amendment retaliation, and the defendant’s claim of quali fied 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 tha t “withholding Crawford-El’ s property in retaliation for exercise of his First Amendment speech rights would indeed be aviolation of clearly established law.” Id. at 825. Although the Supreme Courtdisagreed with other portio ns of the D.C. Circuit’s opinion in, it did not dispute th e conclusion on qualified immu nity. See generally Crawford-El
II , 523 U.S. 574. Indeed, the Supreme C ourt later cited to its Crawford-El decision in rejecting a qualified immunity claim by pris on officials who allegedly reta liated against an inmate for reporting a sexual assault, becau se the “pre-existing law was n ot in controversy.” Ortiz v. Jordan , 562 U.S. 180, 189–91 (2011) (“[T]he pr e-existing law was not in controversy . . . ‘[the] First Amendment shields prisone rs from “retaliation for protect ed 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 outspoke n and litigious prisoners who ha d repeatedly filed lawsuits against the prison system and spoke n to reporters. Both alleged retaliation by prison officials in

15 Based on the corrected second ame nded complaint, the Court und erstands the actions to have taken place beginning sometime after 2007. Corr. 2d Am. Compl. at 14–15.22 response. Therefore, the Court finds that, after at least 1996, it was clearly es tablished that an inmate had the right not to be ret aliated against for such cond uct. Next, the Court considers if P inson has shown a violation of th is right. As discussed above, Pinson has stated a claim f or First Amendment retaliatio n that is robust enough to survive the DOJ’s motion to dismiss. Thus, she has also established tha t 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 qualif ied immunity grounds. B. Renewed Motion for Summary Judgment In addition to its motion to dismiss for failure to state a cla im, the DOJ moves in the alternative for summary judgment. As a preliminary matter, the Court briefly addresses the relationship between discove ry and summary judgment. A court may grant summary judgmen t prior to the completion of d iscovery by both parties, subject to the right of the nonmovant to file a motionfor 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 nonmo vant seeking either delay or additional discovery prior to sum mary judgment to “show[] by af fidavit or declaration that, for specified reasons, it cannot pres ent facts essential to justifyits 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 C ourt to rule on the merits of a co nverted motion for summary judgment when ‘(1) the evidence submitted is sufficiently compr ehensive 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 ne cessary to create a genuine issue of material fact.’” (quoting Ryan-White v. Blank , 922 F. Supp. 2d 19, 24 (D.D.C. 2013)).23 Here, Pinson has not yet c onducted discovery on her Bivens claims. Most recently, this Court denied Pinson’s motion t o conduct discovery pending its r esolution of the D OJ’s initial summary judgment motion on Pinson’s Bivens claims and instructed Pinson to “raise . . . arguments pursuant to Fed. R. Ci v. P. 56(d) in response to the Defendants’ motion [for summary judgment]” “to the extent that [ she] claims that discovery is n ecessary to respond.” Mem. & Order at 2 (June 5, 2015), ECF No. 209. In regard to this renewed moti on for summary judgment, Pinson h as made only one request for discovery. That reques t seeks “the file maintained on Plaintiff in [the] Office of Internal Affairs.” Supp. Mot. D isc., ECF No. 317. Pinson does n ot 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 i s not appropriate as to any claims involving Dignam or Pinson’ s history of administrative c omplaints, it does not resolve this motion prior to considering t he DOJ’s motion for summary j udgment. See Acosta v. Nelson , 561 F. App’x 4, 6 (D.C. Cir. 2014) (“[T] he district court affor ded [the plaintiff] all of the notice required to be given to pro se plaintiffs, specifically alerti ng [the plaintiff] to the effec t of a motion for summary judgment and t he consequences of his failure to respond. Because [the plaintiff] nevertheless did not m ake any showing that could eve n be liberally construed as a request for additional discover y, he cannot now complain that m ore discovery was needed.” (citations omitted)).24 1. Claim One—Refusal to Investigate The DOJ argues that it is enti tled to summary judgment on Pinso n’s first claim because Pinson lacks evidence on which ajury could conclude that Digna m and Samuels were personally involved in any failure to investig ate her complaints. MTD at 1 4, ECF No. 287. As to Dignam, the DOJ does not pr esent any evidence disputing P inson’s assertions that Dignam retaliated against her. Ins tead, 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 initi al responsibility of informing the district court of the basis for its motion . . . . But . . . we find no expres s or implied requirement in Rule 56 that the moving party support its moti on with affidavits or other si milar materials negating the opponent’s claim. . . . [T]he motion may, and should, be grante d so long as whatever is before the district court demonstrates t hat the standard for the entryof summary judgment, as set forth in Rule 56(c), is satisfied.”). The Court reviews Pinson’s evidence to determine if it is suffi cient for a reasonable jury to find in her favor. The scant ev idence Pinson identifies is a s follows. 16 Pinson claims that “[i]n 2011 plaintiff met with [a] Sp ecial Agent . . . and [a] Unit Ma nager . . . who each stated that

16 The DOJ does not explicitly cha llenge 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 judgmen t, “a nonmovant is not require d to produce evidence in a form that would be admissible at trial, [but] the evidence still mus t be capable of being converted into admissible evidence.” (ci ting 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 provide d in Rule 801(d)(2)(A) (statements of a party-opponent) and Rule 801(d)(2)(D) (stateme nts 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 sta tements at summary judgment because the plaintiff “filed suit against the mayor of D.C. i n his official capacity, [thus] the District is a pa rty to the suit and statements by District employees concerning matters within the scope of their employment are admissible against the Distri ct. . . . The statements therefore fall within Rule 801(d)(2)(D).”).25 Dignam was not going to investigat e staff for plaintiff because plaintiff was ‘a gadfly constantly inundating Dignam’s office with complaints,’ adverse press atte ntion, lawsuits and if these activities were stopped Dignam w ould assist plaintiff.” Pl.’s S tatement ¶ 5. As to both Dignam and Samuels, Pinson claims that she had a separate meeting withtwo OIA employees in 2015 who told her “dude youre [sic] hate d 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, suff ices to permit a reasonable jury to find for Pinson. Pinson presents evidence tending to sh ow that Dignam retaliated against her for her First Amendment c onduct. The Court notes that—at su mmary 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 o f 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 in ferences 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 investiga te her complaints, Pinson advances similar evidence. Pins on claims that the special agent and unit manager told her that Samuels had sent them to talk to her. Pl.’s Statement ¶ 7. Pins on also claims that she met with

17 Pinson appears to argue that Di gnam has “conceded his role in this case” by not offering an affidavit denying he r accusations with the governme nt’s summary judgment briefing. Pl.’s Opp’n at 1. In its cu rrent 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.26 Samuels in 2015 and he admitted that he had sent the special ag ent and unit manager. Pl.’s Statement ¶ 7. In response, the DOJ offers rebuttal evidence in the form of a declaration by Samuels. Samuels directly disput es each of Pinson’s three piece s 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. Infact, I deny that I had any conversation with [the named emp loyees] regarding Plaintiff.”); 2d Samuels Decl. ¶ 6 (“I deny that I had a personal conversa tion or interacted with Plaintiff at any time during an official visit to the Federal Correctional Co mplex in Florence, Colorado (‘FCC Florence’) in August 2015.”); 2d Samuels Decl. ¶ 8. (“I deny havi ng any conversation with [on e of the named OIA officers from the 2015 meeting] r egarding Plaintiff.”). However, presenting contrary ev idence does not suffice to show that summary judgment for the DOJ is warranted. Pinson a nd Samuels directly contradic t each other, and deciding between the two statements woul d require credibility determinat ions 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 persuasi ve power of Pinson’s evidence a gainst that of the DOJ. See id. Pinson’s evidence here, although not strong, rises past the lev el of a conclusory allegation or unsubstantiated speculation and cre ates a genuine issue of mate rial fact that, at least at this stage of the litigation, entitles her t o 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 Pin son has likewise failed to prese nt sufficient evidence to show Samuels’s personal involveme nt in her transfer. Pinson’s e vidence consists of her statement that the hearing officer told her “that Samuels was o ffering to halt her transfer to ADX27 [Florence] if she agreed to cease all lawsuits and press contac ts, or the reverse if she didnt [sic].” Pl.’s Statement ¶ 8. The DOJ oppos es this evidence with a decla ration from Samuels. See generally 2d Samuels Decl., ECF No. 288-1. S amuels 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 Pla intiff’s transfer to ADX Flo rence on January 14, 2011. . . . However, my involvement came only a fter the [BOP department] re ceived the [hearing officer’s] recommendation. I deny telling t he [hearing officer] that I wou ld halt Plaintiff’s transfer to ADX Florence if [she] agreed to ceas e [her] litigation and press co ntacts.”). However, as with claim one, the Court may not weigh the e vidence or make a credibilitydetermination. Based on the limited record before the Court pr ior to discover y, Pinson has sufficiently disputed a genuine issue of material fact such tha t a reasonable jury could find f or her if it found her more credible than Samuels. Second, the DOJ argues that its showing of a non-retaliatory re ason for Pinson’s placement in ADX Florence rules ou t the possibility of retaliat ion. MTD at 18–20. The DOJ submits the report of the heari ng administrator who recommended that Pinson be placed in ADX Florence. See generally ADX General Population Hearing A dministrator’s Report (ADX Hearing Report), ECF No. 288-1, E x. A. According to the report, the BOP concluded that Pinson presented problems in a less restrictive placement, as evidence d by her accumulation of sixteen disciplinary offenses classifie d in the “Greatest” category and twenty-eight “High” offenses. MTD at 18; see generally ADX Hearing Report. This laund ry list of wro ngdoing includes assaults, setting fires, posse ssing weapons, threats, and takin g a hostage. ADX Hearing Report. In light of these factors, the h earing administrator concluded that “a more restrictive environment28 should be explored” and recommended placement in ADX Florence b ecause Pinson presented “a risk to institution security, sta ff, [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 [defenda nts] provide an objectively valid reason for their actions in this case, the District Court must s till inquire into whether there is a disputed issue of fact as to whether appellants were actually motivated by an illegitimat e purpose. The opinion for the [Supreme] Court in Crawford-Elspecifically rejected the dissen t’s proposal to ‘immunize all officials whose conduct is “obj ectively valid,” regardless of i mproper intent.’” Kimberlin v. Quinlan , 199 F.3d 496, 502–03 (D.C. Cir. 1999) (emphasis added) (quoti ng Crawford-El II, 523 U.S. at 593–94). Therefore, the fact that the DOJ has here provided an objective ly valid reason does not end the inquiry. The Court must s till consider the possibility that the objectively valid reason was a sham and that the true motiva tion was retaliation. Pinson’s a ccount of Samuels’s explanation to the hearing officer—if credit ed by the jury—would be highly pro bative as evidence that Samuels actually intended to retal iate against Pinson. 18 Pinson has thus shown a dis puted issue of material fact as to the reason that Samu els transferred Pinson to ADX Fl orence. The issue is not proper for summary judgment, at this stage of the litigation with a li mited record prior to discovery, because it would require a credibility determination by this Co urt, 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 “orde red plaintiff moved to ADX Flore nce using information [Samuels] knew to be false.” Corr. 2d Am. Compl. at 15.
19 This jurisdiction’s treatment of First Amendment retaliation c laims in the employment context suggests anoth er possibility for t he DOJ. In a so-calle d “mixed-motive” case, where both retaliatory and non-retaliatory rea sons for the adverse action are present, the employer may prevail at summary judgment by s howing that the adverse action would have occurred even29 3. Claim Three—Other Allegedly Retaliatory Acts The Court notes that, as discu ssed above, Pinson has advanced s everal miscellaneous claims of retaliation based on the a lleged “cell searches, stri p searches, deprivation of meals, and making threats” that unnamed staff inflicted on Pinson at Samue ls’s behest. Corr. 2d Am. Compl. at 15. Pinson has failed to d escribe any ev idence linkin g Samuels to the adverse actions. Unlike her other claims, Pins on does not assert that she was to ld by anyone that the reason for the acts was retaliation, or poi nt to any other evidence that c ould establish a ret aliatory motive. Because no reasonable jury could conclude from Pinson’s evidenc e that Samuels was personally responsible for the acts Pinson de scribes, the C ourt grants the DOJ summary judgment to the extent that Pinson alleges miscellaneous acts of retaliation ot her 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), a ff’d , No. 16-7043, 2016 WL 4434664 (D.C. Cir. Aug. 22, 2016) (holding that a plaintiff in an employment retaliatio n case “must establish that retaliation was the ‘but-for cau se’ of the adve rse action in or der to survive s ummary judgment. ‘This requires proof that the unlawful retaliation would not ha ve occurred in the absence of the alleged wrongful action or acti ons 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 Distr ict Court should have gone onto determine whether the [defendant] had shown by a preponder ance of the evidence that i t 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 evid ence of retaliation . . . [can] be negated a t the summary judgment stag e if defendant [is] able to demonstrate that it would have r eached the same decision absent the prohibited discrimination.”), aff’d , 685 F.3d 1096 (D.C. Cir. 2012). At summary judgment, subseque nt to discovery, the parties may explore whether th e DOJ could prevail here by showi ng, at a preponderance of the evidence standard, that it woul d, for example, have transferred Pinson to ADX Florence even absent any prohibi ted retaliation.
20 The Court understands a challe nge to these claims to be includ ed in the DOJ’s motion for summary judgment. Even if it were not, “district courts pos sess the authority to enter summary judgment against a party sua sponte , . . . ‘so long as the losing p arty was on notice that she had to come forward w ith 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)).30 Pinson the discovery she sought of “the file maintained on Plai ntiff in [the] Office of Internal Affairs.” Supp. Mot. Disc., ECF No. 317. However, Pinson’s expl anation of the need for access to this file is that it will “ prove or rule out Dignam’s involv ement,” Supp. Mot. Disc., which is irrelevant to these claims, whi ch are asserted only against Sam uels. 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 di scover 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] Responseto ECF No. 307,” itself docketed at ECF No. 310, “seeks to add defenda nts to the BIVENS claim in this case pursuan t to Fed.R.Civ.P. 15(d).” The Court constr ues this statement a s a motion to amend the complaint, and d enies it because the proposed amendment bears no mo re than a tangential relationto Pinson’s existing claims. Rule 15 of the Federal Rules of C ivil Procedure requires either “the opposing party’s written consent or the court’s l eave” to amend a complaint in t hese conditions. Here, the DOJ has not consented, and the decision of w hether to grant leave is th erefore 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 wh en 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, r epeated failure to cure defi ciencies by amendments previously

The DOJ’s motion, or this Court’s Fox/Nealorder of June 1, 2016, ECF No. 289, sufficiently put Pinson on notice.31 allowed, undue prejudice to the opposing party by virtue of all owance 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 c ases). Moreover, “[w]here . . . the complaint, as amended, would radically alter the scope and nature of the case and bears no more than a tangent ial relationship to the origina l 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 gene rously, the exact contours of Pinson’s proposed amendment are unclear, but Pin son apparently seeks to add claim s against one or more named employees at USP Terre Haute, w ho Pinson alleges have recently limited her access to postage stamps. See generally Plaintiffs [sic] Res p. to ECF No. 307, ECF No. 310. These proposed amendments bear—a t most—a tangential relationshi p to Pinson’s original claims. The proposed a nd existing claims are unconnect ed in time, the identity of the alleged perpetrator, the BOP f acility involved, and the type of alleged retaliation. The interests of justice would not be served by a llowing Pinson to assert her pr oposed claims here, because the new claims do not involve the same evidence or substantially th e same legal issues as the existing claims, and the new clai ms would likely require expand ing the scope of discovery. 21

21 Moreover, Pinson faces an additional challenge because her pro posed 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 a gainst them jointly, severally, or in the alternativ e . . . that aris[es] out of the same transaction, occu rrence, or serie s of transacti ons or occurrences” and presents common questions of law and fact . If Pinson could not meet thatstandard here—as appears likely because the alleged postal issues do not relate to eithe r the alleged refusal to investigate complaints or Pinson’s transfer to ADX Florence—then any amende d complaint would be susceptible to a motion to dism iss for misjoinder under Rule 21 . “Noncompliance with32 Pinson has not stated any reason t hat she could not pursue thes e claims in a separate action, and thus it does not appear that she will be prejudiced by denial o f 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 co mplaint beyond the original clai ms. 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 aseperate [sic] civil action within this Court from the FOIA claims since FOIA matters are r esolved on summary judgment and the BIVENS [sic] claims will be tried to a jury.” Plaintiff s [sic] Resp. to ECF No. 307 at 3, ECF No. 310. Pinson accurately sta tes 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 Pin son’s claims in the same acti on. 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 fi le maintained on Plaintiff in [the] Office of Internal A ffairs.” Supp. Mot. Disc., ECF No. 317. According to Pinson, this document will “prove or rule out Dignam’s involvement.” Supp. M ot. Disc. Pinson’s briefing and the email chain she attaches suggest that the OIA file like ly contains some information about administrative complaints filed by Pinson. See Supp. Mot. Disc. & Ex. 1. The DOJ primarily objects to this request on the gr ounds that it is premature. Be cause the Court has denied the DOJ’s instant motion to dismiss or for summary judgment, these objections have now evaporated.

party-joinder rules renders th e proposed amendment futile and p rovides 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).33 However, sensitive to the concerns of permitting unfettered dis covery 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 c onsider responsi ve briefing fr om 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 Pr o Bono Counsel (May 15, 2015), ECF N o. 204, by appointing Pinson counsel for t he limited purpose of pursuing h er claims against Dignam and Samuels in their official and indi vidual capacities. The Court thus denies Pinson’s current motion as premature and will consider the appropriateness of this requ est for discovery along with all other discovery issues to be rai sed in the context of a schedul ing order created with the input of DOJ and appointed counsel.

V. CONCLUSION For the foregoing reasons, Defenda nts’ Motion to Dismiss (ECF N o. 287) is DENIED , Defendants’ Motion for Summary Judgment (ECF No. 287) is GRANTED IN PART and
DENIED IN PART , Plaintiff’s request to amen d the complaint (ECF No. 310) is DENIED , and Plaintiff’s Supplemental Motion f or Discovery (ECF No. 317) is DENIED AS PREMATURE

. An order consistent with this Me morandum 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 as signed counsel. Given that Pinson’s motion seeking t o expand the appointment is curre ntly pending before the Court, the Court does not anticipat e an objection from Pinson. See generally Mot. to Modify Appointment of Counsel ( Oct. 6, 2016), ECF No. 335.