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Meyers v. M. L. Counts

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

October 10, 2018

DAVID MEYERS, Plaintiff,
v.
M. L. COUNTS, et al., Defendants.

          REPORT AND RECOMMENDATION

          Pamela Meade Sargent, United States Magistrate Judge

         David Meyers, (“Meyers”), a Virginia Department of Corrections, (“VDOC”), inmate proceeding pro se, brings this civil rights action against two VDOC employees of Red Onion State Prison, (“Red Onion”), under 42 U.S.C. § 1983. By Opinion And Order entered July 23, 2018, the court allowed Meyers to proceed only on his claim that Defendants W. Swiney and D. C. Stallard have violated his rights under the Eighth Amendment by not protecting him from an excessive risk that fellow Red Onion inmates W. Thomas and J. Runren will carry out threats to rape or kill him.

         Because at least three of Meyers's previous complaints have been dismissed with prejudice for failing to state a claim upon which relief may be granted under 28 U.S.C. § 1915A(b)(1), Meyers may not proceed with this action unless he pays the filing fee or shows that he is under “imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g) (West 2006). This matter is before the undersigned magistrate judge by referral, pursuant to 28 U.S.C. § 636(b)(1)(B), to conduct an evidentiary hearing to determine if Meyers was under imminent danger of serious physical injury at the time he filed this action. See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Evidentiary hearings were conducted on August 16 and 24, 2018. The undersigned now submits the following report recommending that the court find that Meyers was under imminent danger of serious physical injury at the time that he filed this action.

         I. Facts

         By Complaint filed with the court January 1, 2018, [1] Meyers alleged, among other claims, that Defendants Swiney and Stallard were inadequately protecting him from fellow inmates Thomas and Runren, who have threatened to sexually assault and kill Meyers.[2]

         Meyers testified at both evidentiary hearings. At the August 16, 2018, hearing, Meyers testified that he was housed in the Protective Custody Unit in the C6 Pod at Red Onion. Meyers said he was housed in cell 111, a handicapped cell. Meyers said that, prior to January 19, 2018, he was housed in the Protective Custody Unit in the D1 Pod in cell 120, which also was a handicapped cell. Meyers said that he had been shot nine times in his life and had suffered severe back and neck injuries in a motor vehicle accident in 2015. Meyers said that he could no longer stand unassisted and was confined to a wheelchair. He said he had totally lost the use of his legs since he had been housed at Red Onion. Meyers also stated that he was visually impaired because of a previous stab injury to an eye and an optic nerve disease.

         Meyers testified that Defendant Swiney had threatened to transfer him out of the Protective Custody Unit on several occasions. He said that on June 19, 2017, Swiney told him, “If we want you dead, you're dead.” Meyers said that on June 28, 2017, inmate Runren threatened to rape and kill him. He said that Runren was housed on the lower tier of the Protective Custody Unit at that time. He said that inmates housed on the same tier of the Unit participated in indoor and outdoor recreation together. Meyers said that he wrote Red Onion Assistant Warden Kiser and told Swiney about the threat, but that nothing was done to protect him from Runren.

         Meyers said that he was on the D1 Pod recreation yard on August 17, 2017, when Thomas told him, “I am going to put my hand up your ass.” Meyers said that Thomas does not like white people, and he believes that Thomas was mad because Meyers, an African American, was talking at the time to a white inmate. Meyers said that Thomas yelled, “I will kill you. I will kill you. I will kill your ass.” Meyers said that he wrote numerous letters reporting this threat and asking that the surveillance video of the recreation yard on that day be reviewed.

         Meyers said that, since this incident in August, Thomas and Runren had threatened him daily. Meyers stated that he had filed numerous request forms regarding the threats, including a request form to Swiney sent the day of the incident, August 17, 2017. Meyers said that Swiney did talk with him and his personal care assistant after the incident. After that, he said that Thomas was moved to a top tier cell. Meyers said that Thomas was placed on the bottom tier again in September 2017 and that he had been in and out of bottom tier cells after returning to the Unit from segregation.

         Meyers said that Thomas threatened him again on August 8, 2018, by saying, “I'm going to flip you out of your wheelchair.” Meyers said that on August 10, 2018, officers opened his cell door for pill call while Runren was participating in inside recreation. He said that Runren told him, “Come on out of your cell. I'm going to stomp your ass.” He said that his cell door was opened for pill call while the top tier was taking inside recreation every day that Defendant Stallard worked. He said that, on occasion when this is done, there are no correctional officers in the pod to prevent these inmates from coming into his cell.

         Meyers stated that, if the bottom tier cell doors are opened during top tier recreation, the top tier inmates are supposed to line up and remain in line until the bottom tier cell doors are closed. He said, however, that some officers do not require this. Meyers said that on the Friday before the first hearing, his cell door was opened while Runren and Thomas were participating in inside recreation. Meyers said that neither of the inmates entered his cell, but he said that they stood about 12 feet from his cell, yelling at him to come out of his cell.

         Meyers also testified that he was in his cell with the cell door open for pill call on July 31, 2018, while the top tier inmates were returning from outside recreation.

         Meyers testified that the Protective Custody Unit was moved from the D1 Pod to the C6 Pod on July 31, 2018. He said that Swiney worked as Unit Manager of the D Building, but not the C Building. He also said that Defendant Stallard worked in the D1 Pod, but did not work in the C6 Pod.

         At the August 24 hearing, Meyers testified that he wrote numerous letters to Red Onion Assistant Warden Kiser about the threats made to him by Thomas and Runren. He said that he called the PREA, (“Prison Rape Elimination Act'), hotline numerous times to report Runren's threats of sexual assault. Meyers said that he has filed “dozens” of complaints about Runren's and Thomas's threats and that no one associated with Red Onion has investigated his claims. He said that Runren had made threats to rape him since June 28, 2017. He said that these threats continued through the date that he filed his Complaint in this case, and continued. Meyers also testified that Runren was moved back and forth between the bottom and top tiers of the Unit, but was being housed on the bottom tier around the time that Meyers filed his Complaint.

         Meyers also testified that he had been required to travel through the pod to offices for hearings and meetings when the top tier inmates were out of their cells. He said that officers did not always escort him on these occasions. Meyers admitted, however, that he could not recall this occurring on any occasion from August 2017 to January 2018.

         Meyers also submitted into evidence a copy of a Regular Grievance, dated November 22, 2017, that he mailed to the VDOC Regional Office. (Plaintiff's Exhibit No. 9, Docket Item No. 64-9.) This Grievance complained that Meyers had been placed on restriction from filing additional grievances on November 22, 2017. The Grievance also stated that inmate Runren had made several sexually harassing and sexually predatory statements to Meyers and specifically requested to be separated from Runren. This Regular Grievance was returned to Meyers with a notation to file it at Red Onion. Meyers submitted other Grievance forms that he said he had submitted to various VDOC officials. (Plaintiff's Exhibit Nos. 10, 11, Docket Item Nos. 64-10, -11.) These Grievances show that Meyers continued to complain of the threats made to him by Thomas and Runren after he had filed his Complaint with this court.

         Meyers also submitted into evidence a number of letters to and from T. Harvey, Manager of the VDOC Ombudsman Service Unit. (Plaintiff's Exhibit No. 16, Docket Item No. 69-2.) The letters to Harvey, dated between January 9 and 19, 2018, all complained of continuing threats by Thomas and Runren to rape or kill Meyers. It appears that Harvey returned all of these letters to Meyers with instructions to pursue his administrative remedies at Red Onion.

         Meyers submitted a number of other exhibits into evidence at his hearings, including video recording from the prison surveillance system recorded on August 17, 2017, and July 28, 2018. If not specifically referenced in this Report, it is because the undersigned found ...


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