Meyers v. Clarke et al
Filing
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OPINION. Signed by Judge James P. Jones on 7/23/2018. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DAVID MEYERS,
Plaintiff,
v.
HAROLD CLARKE, ET AL.,
Defendants.
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Case No. 7:18CV00273
OPINION
By: James P. Jones
United States District Judge
David Meyers, Pro Se Plaintiff.
The plaintiff, David Meyers, a Virginia inmate proceeding pro se, has filed a
civil rights action against state and federal officials. He has also requested to
proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(b), which allows a
prisoner to pay filing costs in installments. Upon review of public court records
and Meyers’ recent submissions, I have concluded that this action must be
summarily dismissed without prejudice, pursuant to 28 U.S.C. § 1915(g).
Under the Prison Litigation Reform Act of 1996, all prisoner litigants filing
federal civil actions must pay filing fees in full, either through prepayment or
through installments. § 1915(b). Section 1915(g) denies the installment payment
method of IFP to prisoners who have “three strikes” –– those prisoners who have
had three or more previous cases or appeals dismissed as frivolous, malicious, or
for failure to state a claim upon which relief may be granted — unless the inmate
shows “imminent danger of serious physical injury.” § 1915(g).
Meyers has brought such actions or appeals on three or more prior
occasions: Meyers v. United States District Court, No. 2:07-cv-00363 (E.D. Va.
Nov. 1, 2007); Meyers v. City of Petersburg, No. 2:03-cv-00248 (E.D. Va. Apr. 11,
2003); Myers v. Bass, No. 2:95-cv-00774 (E.D. Va. Aug. 15, 1995). See also
Meyers v. Virginia State Bar, No. 08-6849 (4th Cir. July 10, 2008) (unpublished)
(finding that the three listed dismissals are strikes under § 1915(g) and denying
Meyers’ motion to proceed without prepayment of appeal fees on that ground).
Accordingly, Meyers may proceed with this case only if (a) he prepays the $400
filing costs for a civil action in this court, or (b) he shows that he is in 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) (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003)). Courts have also held that the “imminent danger” exception to § 1915(g)’s
three strikes rule must be construed narrowly and applied only “for genuine
emergencies,” where “time is pressing” and “a threat . . . is real and proximate” to
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the alleged official misconduct.
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.
2002).
Vague, speculative, or conclusory allegations are insufficient to
invoke the exception of § 1915(g); rather, the inmate must make
“specific fact allegations of ongoing serious physical injury, or of a
pattern of misconduct evidencing the likelihood of imminent serious
physical injury.”
Johnson, 200 F. App’x at 272 (quoting Martin, 319 F.3d at 1050).
Liberally construed, Meyers’ Complaint in this case alleges the following:
1. Virginia Department of Corrections (“VDOC”) Director
Harold Clarke “is sanctioning and allowing sexual abuses, retaliations,
attempted murders by staff/inmates on [Meyers].” Compl. 2, ECF No.
1.
2. Officials at Red Onion State Prison (“Red Onion”) have
been tampering with Meyers’ legal mail.
3. On July 9, 2016, Dr. Wang at Green Rock Correctional
Center “sodomized” Meyers by performing a rectal examination
without his consent, and other prison staff denied that the event
occurred to avoid civil liability. Id.
4. Red Onion staff refused to provide Meyers with financial
paperwork.
5. After Meyers arrived at Pocahontas Correctional Center on
December 9, 2016, and told officials that he had an enemy among the
inmates there, officers dragged him 300 yards, “threw [him] into
concrete head first injuring [his] neck and head,” and then “kept [him]
in a below freezing cell for 14 days.” Id.
6. On May 5, 2017, Officers Stanley, Gwen, and Swiney
“strangled [Meyers] near death” and “burned [his] face.” Id.
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7. In Meyers’ prior civil rights action, No. 7:16CV00573
(dismissed without prejudice in March 2017), the Assistant Attorney
General and others had Meyers transferred to Red Onion, where
prison officials have “colluded” to allow “sexual abuses on [Meyers]
by staff and inmates, made death threats to [him], caused [him]
serious injuries, and racketeer[ed] funds from [his] account.”
Meyers’ § 1983 Complaint in this case is signed and dated May 1, 2018. It
was stamped as received in the prison on June 14, 2018, and was received and
docketed by the court on June 19. I cannot find that Meyers’ factual allegations
are sufficient to demonstrate that at the time he filed his Complaint, he faced any
imminent danger of serious physical harm related to the allegations it contains.
Meyers claims to have been injured as a result of unrelated actions by officers that
occurred months before May and June 2018 in different prison facilities. None of
these incidents suggests any likelihood that the officers would repeat their actions
so as to pose an imminent danger of serious physical harm to Meyers in the future.
Moreover, Meyers’ assertion that multiple administrators and supervisory officials
have “colluded” to allow similar events is merely speculative and conclusory, and
is thus insufficient to support a finding of imminent danger of serious physical
harm under § 1915(g).
Because the records reflect that Meyers 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). As stated, he has not prepaid the
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$350 filing fee and the $50 administrative fee required to bring this civil action.
Therefore, I will dismiss the Complaint without prejudice and close the action. 1
A separate Final Order will be entered herewith.
DATED: July 23, 2018
/s/ James P. Jones
United States District Judge
1
I also note that Meyers’ § 1983 Complaint does not comport with the Federal
Rules of Civil Procedure. He names 27 defendants (federal and state officials, prison
staff and state administrators) and alleges various unrelated wrongs he has suffered over
the last two years at three different prison facilities. As Meyers has been advised in
previous cases, a Complaint cannot properly join into one civil action multiple unrelated
claims against multiple unrelated defendants, merely because all events occurred during
his incarceration. Rule 18(a) only allows a plaintiff to join as many claims in one case as
he has against one opposing party (defendant). Fed. R. Civ. P. 18(a). Rule 20 allows the
joinder of several parties in one case, but only if the claims arose out of the same
transaction or occurrence, or series thereof, and contain at least one question of fact or
law common to all the defendants. Fed. R. Civ. P. 20(a). Thus, claims that arise out of
different transactions against different defendant(s) cannot be properly joined in one
federal civil complaint, as Meyers as attempted to do here.
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