Springer v. Messer et al
Filing
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OPINION. Signed by Judge James P. Jones on 7/9/2014. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
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LEVI SPRINGER,
Plaintiff,
v.
C/O MESSER, ET AL.,
Defendants.
Case No. 7:14CV00324
OPINION
By: James P. Jones
United States District Judge
Levi Springer, Pro Se Plaintiff.
The plaintiff, a Virginia inmate proceeding pro se, has filed a civil rights
action under 42 U.S.C. § 1983, alleging that the defendant prison officials used
excessive force against him and falsely charged him with disciplinary infractions,
in violation of his constitutional rights. The plaintiff has also applied to proceed in
forma pauperis. Upon review of the record, I find that this lawsuit must be
summarily dismissed under 28 U.S.C. § 1915(g), because the plaintiff has
previously had at least three federal lawsuits dismissed as frivolous or for failure to
state a claim and has not shown imminent danger of physical harm related to his
present claims.
I
Plaintiff Levi Springer, an inmate at Red Onion State Prison, sues four
officers there: C/O Messer, C/O Taylor, Sgt. Meade, and Lt. Fannin. Springer
alleges that on May 29, 2014, Taylor told Springer that he needed to shave to be in
compliance with the prison’s grooming policy. Then, Taylor allegedly shut off the
water in Springer’s cell and falsely charged him for refusing to shave.
Thereafter, according to Springer, Messer told him that he was going to
long-term segregation because he liked to go to court against “’red necks’ at ‘Red
Onion.’” (Compl. 4.) With Springer in restraints, Messer jabbed him repeatedly in
the back with a hard object, crushed Springer’s eyeglasses with his boot, and wrote
a disciplinary charge against him for a piece of string allegedly found in Springer’s
cell.
While officers were escorting Springer to segregation, Meade allegedly told
Messer and Taylor to slam Springer into the ground two times, which they did.
Meade also allegedly told the officers to stand Springer up by pulling on his
handcuffs, which forced his cuffed arms backward and allegedly dislocated his
right shoulder.
When Springer tried to tell a nurse about his injury, Meade
allegedly told her that Springer had refused medical treatment.
After these incidents, Springer told Lt. Fannin that he was “feeling suicidal”
and asked to see the qualified mental health professional (“QMHP”). (Compl. 13.)
Lt. Fannin refused and ordered officers to take Springer’s property and place him
on suicide watch. Later, Lt. Fannin offered to give Springer’s property back to
him, so he could prepare for a court date. When Springer refused the property
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because he allegedly feared he might hurt himself, Lt. Fannin sprayed him twice
with OC gas (oleoresin capsicum or pepper spray). Lt. Fannin allegedly told
Springer that he could leave the gas-contaminated cell if he would sign papers
pleading guilty to three disciplinary charges. Springer did so, and officers placed
him on suicide watch in a different building. A QMHP evaluated Springer on June
2 and decided he should remain on suicide watch.
Springer had a civil action scheduled for a jury trial in this court on June 3,
2014. That morning, Springer refused to comply with cuffing procedures to be
transported to the courthouse. Lt. Fannin sprayed him twice in the face with OC
gas and ordered an assault team to use a shock shield to forcibly remove Springer
from his cell and had him transported to court without properly decontaminating
him from the OC gas. In court, Springer stated that because of the OC gas and not
having his eye glasses, he could not see. After hearing evidence of these events, I
continued the jury trial. I also advised prison officials that, in the future, they
should inform the Office of the Attorney General or the court when an inmate
scheduled for a court appearance is placed on suicide watch.
Springer now brings claims of excessive force, false disciplinary charges,
and retaliation. He seeks monetary damages.
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II
The Prison Litigation Reform Act of 1995 substantially amended 28 U.S.C.
§ 1915, the in forma pauperis statute. One purpose of the Act was to require all
prisoner litigants suing government entities or officials to pay filing fees in full,
either through prepayment or through installments withheld from the litigant’s
inmate trust account. § 1915(b). Section 1915(g) denies the installment payment
method to prisoners who have “three strikes” –– those prisoners who have had
three previous cases or appeals dismissed as frivolous, malicious, or for failure to
state a claim — unless the three-striker inmate shows “imminent danger of serious
physical injury.” § 1915(g). This imminent danger ‘“exception focuses on the risk
that the conduct complained of threatens continuing or future injury, not whether
the inmate deserves a remedy for past misconduct.’” Johnson v. Warner, 200 F.
App’x 270, 272 (4th Cir. 2006) (unpublished) (quoting Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003)).
Springer has brought such actions or appeals on three or more prior
occasions. Springer v. Clarke, No. 12-6100 (4th Cir. Apr. 11, 2012) (denying
application to proceed in forma pauperis on appeal under § 1915(g), based on three
“strikes”) (citing Springer v. Shaw, No. 1:09-cv-1339 (E.D. Va. Jan. 4, 2010);
Springer v. Reid, No. 1:10-cv-1392 (E.D. Va. Feb. 14, 2011); and Springer v. Reid,
1:10-cv-1445 (E.D. Va. Feb. 14, 2011)). Accordingly, Springer may proceed in
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forma pauperis (without prepayment of the filing fee) only if he can show
imminent danger of serious physical injury. § 1915(g).
Springer does not state any facts indicating that these past actions placed
him in imminent danger of ongoing or future physical harm. He merely seeks
monetary damages for the defendant officers’ alleged past violations of his rights
and the discrete injuries that their alleged misconduct then caused him.
Accordingly, I cannot find that Springer has shown imminent danger of physical
harm as required under § 1915(g) so as to allow him to proceed by paying the
filing fee through installments.
Because the records reflect that Springer has at least three “strikes” under
§ 1915(g) and he has not demonstrated that he is in imminent danger of physical
harm related to his present claims, I must deny his application to proceed in forma
pauperis in this civil action under § 1915(g). Because he has not prepaid the $350
filing fee or the $50 administrative fee required to bring a civil action in this court,
I will dismiss the Complaint without prejudice.
A separate Final Order will be entered herewith. The clerk will send a copy
of that Final Order and this Opinion to the plaintiff.
DATED: July 9, 2014
/s/ James P. Jones
United States District Judge
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