Schuett v. Wilson et al

Filing 7

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 06/13/2017. Copy mailed to plaintiff. (tjoh, )

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

CLIFFORD J.

SCHUETT,

Plaintiff,

V.
MR.

Civil Action No.
WILSON,

3:17CV102

et al.,

Defendants.
MEMORANDUM OPINION

Clifford J.

action

and

Schuett,

applied

labeled his action,

Court

that

§ 1915(g).

he

to

a

federal inmate,

proceed

m

submitted this civil

forma

pauperis.

"IMMINENT DANGER COMPLAINT,"

likely

has

three

strikes

Schuett

flagging to the

under

28

U.S.C.

That statute provides:

In no event shall a prisoner bring a civil action
if the prisoner has, on 3 or more

[in forma pauperis]

prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of
the United
that i t is

States that was dismissed on the grounds
frivolous, malicious, or fails to state a

claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical
inj ury.

28 U.S.C.

§ 1915(g).

on March 9,

2017,

the

prior action or appeal
failure
Court

to

noted

state
that

a

Accordingly,

by Memorandum Order entered

Court directed Schuett

to

that was dismissed as

claim."
Schuett's

(ECF No.

2,

"submissions

at

''identify each

frivolous

2.)

Moreover,

indicate

suffered from these many health conditions for a

or for

that

he

the
has

lengthy period

of

time

and

physical

that

injury,'

conditions."

identify

present

he

28

each

not

'under

imminent

danger of

U.S.C.

§

1915(g),

from

The

Court

also

directed

(Id.)

prior

challenging

medical

is

action

his

conditions.

that

medical

Schuett

each action was filed.

he

filed

care

must

provide

Additionally,

the

his

Response

to

the

March

chronic

Schuett

2010

the

"to

to

the

above-listed

court

in

which

Schuett must also provide

a brief summary of the ruling in each action."
In

these

from

for

serious

9,

(Id. at 2-3.)

2017

Memorandum

Order,

Schuett wholly failed to comply with the Court's directives.
his

m

forma pauperis affidavit,

Schuett indicated that he had

one case

that was

dismissed as

frivolous

claim.

(ECF

3,

However,

search,

No.

at

2.)

or failure

from

the

to

state a

most

cursory

the Court discerns that Schuett has many cases that have

been dismissed as frivolous or for failure to state a

he failed to identify.
No.

On

14-00374,

See Schuett v.

2014 WL 5781409,

at

*1-2

Governor,
(D.

claim that

State of Haw.,

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.

accompanied by
rants

Instead,

his ^

forma

pauperis

affidavit

"PLAINTIFF'S ANSWER TO THE COURT'S ORDER,"

about his medical

conditions

and then

"apologizes

to

was
that
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.
Even

though

directives,

do so.
2017,

See Schuett v. Wilson, 3:17CV174 (E.D. Va.).^
Schuett

failed

to

comply

the Court provided Schuett a

Accordingly,

in forma pauperis status,

it

the

Court's

second opportunity to

by Memorandum Order entered on April 24,

the Court instructed Schuett that,

directives.

with

in order to be granted

Schuett must comply with the Court's

Accordingly, the Court stated

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
frivolous or for failure to state a claim.^
2.

As previously outlined,

around

the

bar

of

28

as

in an effort to get

U.S.C.

§ 1915(g),

Schuett

suggests that he is a parapalegic in a wheelchair, has
^ 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 Schuett complies with the
directives

of

the

Court

comply with the Order

3:17CV102.

of

3:17CV174

(E.D. Va.),

ECF No.

^ McLean v.

United States,

2009)

action

and

5)

dismissal

Cir.

that

in

(ECF No.

("[N]othing

this

Moreover,

failure

one."

Schuett

v.

Wilson,

18.

566 F.3d 391,

in our analysis

of

399

(4th

dismissals

for failure to state a claim suggests that dismissals
for frivolousness should be exempted from § 1915(g)'s

strike

designation,

even

when

rendered without prejudice.").

to

in 3:17CV102 will result in

the

dismissal

is

a prior shoulder injury from 2 015 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
selfcatheterize

Petersburg
admits

that

transfer,

in

since

in

before

January

he

has

he

was

2017.

received

transferred

{Compl.
medical

2-3.)
care

to

FCI

Schuett

since

his

but nevertheless believes he has been placed

"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 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

U.S.C.
time

§

in

the

1932

credit

on

document

is

correct.

See

also

28

(permitting

revocation

of

earned

good

the

own motion

for

claims

that

Court's

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.

attempt

to

law suits,

medical

Schuett made absolutely no

comply with the directives

Schuett states:

past

However,

records

"Sir,

I

the

Court.

At most,

can not respond to your order of

my memory is not
and will

of

see

I

that good.

.

.

.

You may check my

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."
1, ECF No.

6.)

(Resp.

Instead of making an honest attempt to list any

case he might have remembered filing,^ Schuett simply lists his
medical conditions and injuries.

Under

i.e.,

28

U.S.C.

§

1915(a),

has the discretion to allow,

without prepayment of fees."
612

the

(4th Cir.

2013)

Court

"'may

authorize,'

the commencement of a

Blakely v.

(citing § 1915(a)).

Wards,
Thus,

suit

738 F.3d 607,
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

U.S.

(1989);

J.,

183-84

concurring).

forma

pauperis

see Blakely,

justice."

In re McDonald,

738 F.3d at 619-20

489

(Wilkinson,

The Court cannot allow Schuett to proceed in
in

the

face

of

such willful

failure

to

comply

^ In its previous Memorandum Order, the Court even provided
Schuett with a
three strikes.

citation to a case where he was found
See Schuett v. Governor, State of Haw.,

to have
No. 14-

00374, 2014 WL 5781409, at *1-2 (D. Haw. Nov. 6, 2014) (listing
cases that are strikes under § 1915(g)).
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 ^
forma pauperis.

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

permitted
Schuett

to

proceed

failed

to

in ascertaining whether he should be

without

assist

the

prepayment
Court

in

of

the

that

filing

inquiry.

fee.
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

administration would

be

F.2d

Cir.

93,

96

Accordingly,
prejudice.

{4th

this

without

impossible."

1989)

Court

will

which

effective

Ballard v.

(internal

dismiss

action

If Schuett desires to reassert his claims,

.

.

judicial

Carlson,

citation

the

.

882

omitted.

without
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.
The Clerk of

the Court

is directed to send a

copy of this

Memorandum Opinion to Schuett.
It

is

so ORDERED.

Robert E. Payne
Senior IMited States District Judge
Date:

Richmond, Virginia