United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge
Meyers, a Virginia inmate proceeding pro se, commenced this
civil action as a "petition for writ of mandamus."
Plaintiff names as defendants: Harold Clarke, the Director of
the Virginia Department of Corrections; "U.S. District
Court Abindgon Division"; "U.S. District Court Big
Stone Gap Division"; "Judicial Council of Fourth
Circuit"; and "Executive Circuit Samuel
Phillips." Plaintiff is dissatisfied that judges of this
court have found his prior lawsuit to be meritless. In
particular, Meyers alleges that his prior "cases were
dismissed due to U.S. Judge James Jones white supremacy
oppression and racist domination he is imposing on and over
plaintiff with U.S. Judge Glen Conrad and U.S. Magistrate
Judge Robert Ballou." Pet. Writ Mand. l. ECF No. 1.
action is dismissed as frivolous and malicious because it was
commenced for the purpose of harassment and not for the
purpose of vindicating a cognizable right with an arguable
basis in law or fact. See, e.g., Neitzke v.
Williams, 490 U.S. 319, 328 f 1989V "Although some
cases that deserve immediate dismissal will not always fit
articulated standards, the trained jurist can many times see
through a screen of technically recognized allegations to
discover a warrantless action." Spencer v.
Rhodes, 656 F.Supp. 458, 462 (E.D.N.G), affd.
826 F.2d 1061 (4th Cir. 1987). "The claim ... asserted
could be one that was legally recognized, but from the face
of that complaint, there [i]s no doubt that the plaintiff
[i]s presenting the judiciary with nothing more than an
opportunity to waste some time." Id.
"[T]he judiciary, should not with precedent, tie our own
hands to the extent that we make ourselves unable to keep pro
se litigation in the federal courts from becoming a form of
recreation for prison inmates." Id. at 463.
court declines to construe the mandamus petition as a civil
rights action under 42 U.S.C. § 1983 or Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), based on the conclusory use of legal
labels, which are not entitled to an assumption of truth.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). To the extent some court could construe the
repetitive labels and conclusions into an actionable
complaint about his protective custody and a threat of harm,
it would, at best, be subject to dismissal without prejudice
as duplicative of the claims raised in this court in
Meyers v. U.S. Postal Service, No.
7:18-cv-00029. See, e.g.. McClary v.
Searles, No. 3:16-cv-640-FDW, 2017 U.S. Dist. LEXIS
187191, at *3, 2017 WL 6756642, at *2 (W.D. N.C. Nov. 13,
2017) (dismissing action without prejudice for being
substantially duplicative of claims in an earlier-filed
§ 1983 case that was still pending in that court),
affd. 717 Fed.Appx. 337 (4th Cir. 2018).
the petition contains no allegations of personal conduct by
defendant Harold Clarke to support a § 1983 claim
against him. Supervisory liability under § 1983 may not
be predicated on the theory of respondeat superior.
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
663 n.7, 691-94 (1978); Baynard v. Malone, 268 F.3d
228, 235 (4th Cir. 2001). Section 1983 requires a showing of
personal fault on the part of a defendant either based on the
defendant's personal conduct or another's conduct in
execution of the defendant's policies or customs. See
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)
(discussing the deliberate indifference standard for a
supervisor's liability under § 1983). As such,
Meyers' allegations fail to state an actionable §
1983 claim against Clarke.
foregoing reasons, the court dismisses the action as
frivolous and malicious.
 The court held a hearing on August 16,
2018, concerning his original allegation of imminent danger
in that case. The magistrate judge has recommended that the
court allow Plaintiff to proceed without prepaying the filing
fee under 28 U.S.C. § 1915(g) based on allegations in
that case about specific ROSP staffs and inmates' conduct
around January 2018. Meyers v. ...