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Meyers v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

July 23, 2018

DAVID MEYERS, Plaintiff,
v.
HAROLD CLARKE, ET AL., Defendants.

          David Meyers, Pro Se Plaintiff.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         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 See also Meyers v. Virginia State Bar, No. 08-6849 (4th Cir. July 10, 2008) (unpublished) (finding that the three listed dismissals are strikes under § 1915(g) and denying Meyers' motion to proceed without prepayment of appeal fees on that ground).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 Fed.Appx. 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 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 Fed.Appx. 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 ...

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