Schuett v. Wilson et al

Filing 12

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 10/13/2017. Memorandum Opinion was mailed to Plaintiff. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CLERK, U.S. DISTRICT COURT
RICHMOND VA

CLIFFORD J. SCHUETT,
Plaintiff,

v.

Civil Action No. 3:17CV102

MR. WILSON, et al.,
Defendants.
MEMORANDUM OPINION
By Memorandum Opinion and Order entered on June 13,
the

Court

COMPLAINT,"
because

he

directives.
at

*l-3

dismissed

without

filed

by

made

no

prejudice

Clifford J.
attempt

an

Schuett,

to

comply

"IMMINENT
a

federal

with

the

2017,
DANGER

inmate,
Court's

Schuett v. Wilson, No. 3:17CV102, 2017 WL 2569888,

(E.D.

Va.

June

13,

2017).

In

the

June

13,

Memorandum Opinion, the Court explained as follows:
Schuett
labeled
his
action,
"IMMINENT
DANGER
COMPLAINT," flagging to the Court that he likely has
three strikes under 28 u.s.c. § 1915(g}. That statute
provides:
In no event shall a prisoner bring a
civil action [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.

2017

28 U.S.C. § 1915(g). Accordingly, by Memorandum Order
entered on March 9, 2017, the Court directed Schuett
to "identify each prior action or appeal that was
dismissed as frivolous or for failure to state a
claim."
(ECF No. 2, at 2.)
Moreover, the Court noted
that Schuett's "submissions indicate that he has
suffered from these many health conditions for a
lengthy period of time and that he is not 'under
imminent danger of serious physical injury,' 28 u.s.c.
§ 1915(g), from these chronic conditions."
(Id.)
The
Court also directed Schuett "to identify each prior
action that he filed from 2010 to the present
challenging his medical care for the above-listed
medical conditions. Schuett must provide the court in
which each action was filed.
Additionally, Schuett
must also provide a brief summary of the ruling in
each action."
(Id. at 2-3.)
In his Response to the March 9, 2017 Memorandum
Order, Schuett wholly failed to comply with the
Court's directives.
On his
in f orma pauper is
affidavit, Schuett indicated that he had one case that
was dismissed as frivolous or failure to state a
claim.
(ECF No. 3, at 2.)
However, from the most
cursory search, the Court discerns that Schuett has
many cases that have been dismissed as frivolous or
for failure to state a claim that he failed to
identify. See Schuett v. Governor, State of Haw., No.
14-00374, 2014 WL 5781409, at *1-2 (D. Haw. Nov. 6,
2014)
(listing
cases
that
are
strikes
under
§ 1915 (g)) .
Schuett also failed to identify any cases in
which he has challenged his medical care for the
conditions he outlines in his complaint.
Instead, his
in forma pauper is
affidavit was accompanied by
"PLAINTIFF'S ANSWER TO THE COURT'S ORDER," that rants
about his medical conditions and then "apologizes to
the Court about his outbursts."
( ECF No. 4, at 4
(capitalization and punctuation corrected).)
In the interim, failing to receive the result he
desired in the instant action, Schuett filed a new
action and attempted to litigate the new action
instead of complying with the directives of the Court.
See Schuett v. Wilson, 3:17CV174 (E.D. Va.) . 1
1

In that action, by Memorandum Order entered on
April 28, 2017, the Court warned Schuett:
"[T] he
Court will take no action in the instant case until
2

Even though Schuett failed to comply with the
Court's directives,
the Court provided Schuett a
second opportunity
to do
so.
Accordingly,
by
Memorandum Order entered on April 24, 2017, the Court
instructed Schuett that, in order to be granted in
forma pauperis status, Schuett must comply with the
Court's directives. Accordingly, the Court stated
it is ORDERED that Schuett is directed to
submit
one
document
that
contains
the
following information:
1.
In the first section, Schuett must
identify each prior action or appeal that
was dismissed as frivolous or for failure to
state a claim. 2
2.
As
previously outlined,
in an
effort to get around the bar of 28 U.S.C.
§ 1915(g},
Schuett suggests that he is a
parapalegic in a wheelchair, has a prior
shoulder injury from 2015 which causes him
trouble
propelling
his
wheelchair,
but
Defendants are forcing him to push his own
chair, has cataracts causing him to be blind
in one eye, and has had a urinary tract
infection and has had to self-catheterize
since before he was transferred to FCI
Petersburg in January 2017.
(Compl. 2-3.}
Schuett admits that he has received medical
care since his transfer, but nevertheless
believes he has been placed in "imminent
danger" by the actions of Defendants.
(Id.}
Schuett' s submissions indicate that he
has
suffered
from
these
many
health
conditions for a lengthy period of time and
that he is not "under imminent danger of
Schuett complies with the directives of the Court in
3:17CV102.
Moreover, failure to comply with the Order
(ECF No. 5} in 3: l 7CV102 will result in dismissal of
that action and this one."
Schuett v. Wilson,
3:17CV174 (E.D. Va.}, ECF No. 18.
2

McLean v. United States, 566 F.3d 391, 399 (4th
Cir. 2009) (" [N] othing in our analysis of dismissals
for failure to state a claim suggests that dismissals
for frivolousness should be exempted from § 1915 (g) 's
strike
designation,
even
when
the
dismissal
is
rendered without prejudice."}.
3

serious
physical
injury,"
28
U.S.C.
§ 1915(g), from these chronic conditions.
In the second section of the document
Schuett submits, he is also directed to
identify each prior action that he filed
from 2010 to the present challenging his
medical care for the above-listed medical
conditions.
Schuett must provide the court
in
which
each
action
was
filed.
Additionally, Schuett must also provide a
brief summary of the ruling in each action.
3.
At
the
end of
the
document,
Schuett must
certify under
penalty of
perjury that the information contained in
the document is correct. See also 28 u.s.c.
- - --§ 1932 (permitting revocation of earned good
time credit on the Court's own motion for
claims that are malicious, are filed for the
purpose of harassing the defendants, or if
the "claimant testifies falsely otherwise
knowingly
presents
false
evidence
or
information to the court").
4.
Failure to comply with the above
directives within the fifteen (15) day time
limit will result in dismissal of the
action.
(ECF No. 5, at 3-4.)
Schuett has responded.
However, Schuett made
absolutely no attempt to comply with the directives of
the Court. At most, Schuett states:
"Sir, I can not
respond to your order of
past law suits, my
memory is not that good.
You may check my medical
records and will see I do have memory problems.
I do
not have the money to hire a researcher or paralegal
to get all the information you are demanding in your
court order."
(Resp. 1, ECF No. 6.)
Instead of
making an honest attempt to list any case he might
have remembered filing, 3 Schuett simply lists his
medical conditions and injuries.

3

In its previous Memorandum Order, the Court even
provided Schuett with a citation to a case where he
was found to have three strikes.
See Schuett v.
Governor,
State of Haw.,
No.
14-00374,
2014 WL
5781409, at *1-2 (D. Haw. Nov. 6, 2014) (listing cases
that are strikes under§ 1915(g)).
4

Under 28 U.S.C. § 1915 {a},
the Court '"may
authorize,' i.e., has the discretion to allow, the
commencement of a suit without prepayment of fees."
Blakely v. Wards, 738 F.3d 607, 612 {4th Cir. 2013}
{citing§ 1915(a}}. Thus, it follows that the Court's
"authority to deny IFP status to a prisoner who has
abused the privilege is clear."
Id.
The Court is
under no obligation to award IFP status and may deny
IFP status if doing so promotes "the interests of
justice." In re McDonald, 489 U.S. 183-84 {1989}; see
Blakely,
738
F.3d
at
619-20
(Wilkinson,
J.,
concurring).
The Court cannot allow Schuett to
proceed in f orma pauperis in the face of such willful
failure to comply with the Court's directives and in
light of his litigious past.
The Court twice
instructed Schuett to provide information to the Court
to assist the Court in ascertaining whether he should
be permitted to proceed without prepayment of the
filing fee.
Schuett failed to assist the Court in
that inquiry.
While "[p] ro se litigants are entitled
to some deference from courts .
. they as well as
other litigants are subject to the .
. respect for
court
orders
without
which
effective
judicial
administration would be impossible."
Ballard v.
Carlson, 882 F.2d 93, 96 (4th Cir. l.989) (internal
citation omitted.
Accordingly,
this Court will
dismiss the action without prejudice.
If Schuett
desires to reassert his claims, he may file a new
action accompanied by the full $400.00 filing fee.
In the alternative, Schuett may file a new action
with a separate document that complies with the
directives in April 24, 2017 Memorandum Order as
quoted above.

Even with this prompting, Schuett made no effort
to attempt to list any prior cases he may have filed.
The Court believes that Schuett has accumulated three
qualifying strikes.
Section 1915 (g)
"creates a
mandatory-denial baseline for IFP applications:
if a
prisoner has three strikes,
he is categorically
precluded from proceeding IFP
(absent showing of
imminent danger of serious physical injury)." Blakely
v.
Wards,
738
F.3d 607,
619
(4th Cir.
2013}
(Wilkinson, J., concurring) .
For this reason alone,
the Court can deny Schuett's application for in forma
pauperis.
5

Schuett, 2017 WL 2569888, at *l-3.
Since

the

dismissal

of

this

action

without

prejudice,

Schuett has made no attempt to comply with the directives of the
Court.

Instead,

on September 19,

documents from Schuett,

a

2017,

the Court received two

"PETITION AND MOTION THAT THIS CIVIL

ACTION BE REOPENED BECAUSE THE PRESIDING JUDGE WAS PREJUDICED IN
THIS CIVIL COMPLAINT"

("Motion To Reopen, "

ECF No.

and a

9) ,

"MOTON AND PETITION FOR A HEARING SHOWING THAT THE PLAINTIFF HAS
BEEN

INJURED BY THE DEFENDANTS

IN ABUSE AND ASSAULTS

BY THE

DEFENDANTS" ("Motion for Hearing," ECF No. 10).
In his Motion to Reopen,

Schuett states:

"This Complaint

should have never been dismissed by the presiding judge.

The

judge was prejudiced against the Plaintiff in this case."

(Id.

at

l.) 4

Schuett apparently believes that the undersigned was

prejudiced because he "never looked at the Plaintiff's case" and
"denied

[Schuett]

defense."

the

(Id. at 2.)

right

to

submit

evidence

in

[his]

Schuett identifies no prejudice by the

Court simply based on the

fact

prior to a review of the merits.

that

the action was dismissed

As detailed above in the text

of the June 13, 2017 Memorandum Opinion, Schuett made no effort
to follow the Court's instructions despite the Court's provision
of

several

opportunities

for

Schuett

4

to

do

as

instructed.

The Court corrects the capitalization in the quotations to
Schuett's submissions.
6

Schuett' s

refusal

to comply with the Court's directives alone

resulted in the dismissal of the action.

Schuett identifies no

prejudice of the undersigned, and the Motion to Reopen {ECF No.
9) will be denied.
In his

Motion

for

Hearing,

Schuett

fails

to

identify

a

procedural vehicle that would allow this Court to have a hearing
in a closed action where Schuett has yet to comply with any of
the directives of the Court.

To the extent that Schuett wishes

his claims to be before the Court for review, Schuett must file
a

new complaint

Schuett's
filing

that will be

complaint

fee

or

he

must
must

be
file

treated as a
accompanied
the

new

by

action

new civil action.
the

full

with

a

$400.00
separate

document that complies with the directives in the April 24, 2017
Memorandum Order as quoted above.

Schuett's Motion for Hearing

(ECF No. 10) will be denied.
The Clerk is directed to send a

copy of this Memorandum

Opinion to Schuett.
It is so ORDERED.
1
Robert E. Payne
Senior United States District Judge

Date:
"1-c. I~ 1c17
Richmond, Virginia

tA:f

7