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Meyers v. U.S. Postal Service

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

November 15, 2018

DAVID MEYERS, Plaintiff,
U.S. POSTAL SERVICE, ET AL., Defendants.

          David Meyers, Pro Se Plaintiff

          Richard C. Vorhis and Ann-Marie C. White, Office of the Attorney General, Richmond, Virginia, for Defendants.



         Only one claim remains before me now in this civil rights action under 42 U.S.C. § 1983 - plaintiff David Meyers' claim for injunctive relief, based on his contention that correctional officers Swiney and Stallard in the Protective Custody Unit (“PCU”) at Red Onion State Prison (“Red Onion”) were not protecting Meyers from two inmates. After review of Meyers' many pending motions seeking interlocutory injunctive relief and alleging new factual developments, I conclude that his claim is now moot and, accordingly, this action must be summarily dismissed.

         I. Background.

         In July of 2018, I found that Meyers has three strikes under 28 U.S.C. § 1915(g) and could not proceed without prepayment of the filing fee unless he satisfied the imminent danger exception in § 1915(g). I also held that Meyers could

“invoke the ‘imminent danger' exception only to seek relief from a danger which is ‘imminent' at the time the complaint is filed” or continuing into the present. In other words, the fact that an inmate is in imminent danger from one source does not open the case up to other, nonimminent danger claims or claims for monetary damages.”

Op. & Order 5, July 23, 2018, (ECF No. 48) (internal citation omitted). Accordingly, I dismissed all of Meyers' claims for damages and his nonimminent danger claims for injunctive relief. Id. at 7-8.

         I also held that only one of Meyers' claims for injunctive relief could proceed under § 1915(g) for further factual development, which was his contention that practices allowed by PCU officers Swiney and Stallard created opportunities for PCU inmates Thomas and Runren to carry out their repeated threats to rape or kill Meyers in his cell, given his inability to see or walk. Id. at 9-10. I found that these allegations stated a potential Eighth Amendment claim of deliberate indifference to Meyers' safety. Id. at 9 (citing Makdessi v. Fields, 789 F.3d 126, 132-34 (4th Cir. 2015) (holding that prison officials have duty to respond reasonably to alleviate excessive risks to inmate safety known to them). I then referred this one matter to United State Magistrate Judge Pamela Meade Sargent, who conducted an evidentiary hearing and issued a Report and Recommendation (“Report”). There being no objections, I adopted the Report and its finding that Meyers was in imminent danger at the time he filed the Complaint in January of 2018.[1] That finding, however, was not a ruling in Meyers' favor on the merits of his claims for injunctive relief concerning Swiney and Stallard. That claim is before me now.

         In January of 2018, the PCU was located in D1 Pod. Swiney was the Unit Manager of that pod, and Stallard also worked there as a floor officer. Swiney testified that Meyers had told him multiple times of threats Thomas and Runren had made to rape or kill him, and as a result, Swiney usually (but not always) assigned Meyers to a different tier than either of these inmates.

         The evidence summarized in the Report confirmed that under PCU practices, circumstances had occurred when inmates Thomas and Runren could have entered Meyers' open cell to harm him. Meyers uses a wheelchair and is visually impaired. He and his witnesses testified that Thomas and Runren had threatened, repeatedly, to harm Meyers. PCU inmates are housed in separate cells, but top tier inmates have in-pod recreation together, unrestrained, as do bottom tier inmates at a separate time. During top tier inmates' in-pod recreation, when a nurse comes to the bottom tier to distribute medications, the bottom tier inmates' doors are opened for this purpose. While this distribution occurs, top tier inmates are to line up until the cell doors are closed again. The inmates are not restrained, however, and could enter into one of the open cells.

         Judge Sargent's Report also found that on August 1, 2018, the PCU inmates were moved to C6 Pod. Neither Swiney nor Stallard have worked in C6 Pod. They have remained posted to D1 Pod. After the move to C6 Pod, PCU inmates continued to have in-pod recreation and pill call under the same system utilized in D1 Pod. Thus, at the time of the hearing, the potential risk persisted for Thomas and Runren to enter Meyers' cell and harm him.

         Meyers has filed numerous motions with the court for various sorts of interlocutory relief, including to have the court review officers' alleged misconduct concerning his inmate trust account, to obtain a “keep separate” order, to prevent continued opening of his door during in-pod recreation, to maintain his protective custody status, and to prevent his transfer to a general population housing unit. He has also moved for summary judgment. The allegations in these motions and attached exhibits reflect recent developments in Meyers' housing and security classification. On September 4, 2018, Meyers was moved to “Special Housing RHU Status, ” after receiving a disciplinary charge. Mot. 5, ECF No. 82. Then, on September 14, 2018, the Institutional Classification Authority (“ICA”) conducted a review of Meyers' Security Level. The ICA recommended that Meyers “be changed from level ‘P' to level 5.” Mot. Ex. 1, ECF No. 89-1. As the rationale for this change, the ICA stated:

Offender Meyers is currently listed as medical Code E and had previously been housed in Protective Custody and now refuses to leave segregation. Offender Meyers stated he had enemy's in the housing unit and offender was provided (8) Enemy Summary Forms. Once he completed the forms, an investigation was completed by the Institutional Investigator and there was no evidence to support his claims of any threats. While being housed at ...

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