United States District Court, W.D. Virginia, Roanoke Division
ORDER ADOPTING REPORT AND RECOMMENDATION
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
Meyers, a Virginia inmate proceeding pro se, filed
this action pursuant to 42 U.S.C. § 1983, while housed
at Wallens Ridge State Prison (“Wallens Ridge”).
Meyers is a three-striker under 28 U.S.C. §
1915(g). Accordingly, he cannot proceed with this
action unless he prepays the filing fee or demonstrates that
he is under imminent danger of serious physical injury. 28
U.S.C. § 1915(g). Meyers did not prepay the filing fee
and, thus, the court must determine whether he is under
imminent danger of serious physical injury. The court
referred the matter to United States Magistrate Judge Pamela
Meade Sargent for a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B), concerning whether Meyers was
under imminent danger of serious physical injury and, thus,
should be allowed to proceed with this action without
prepayment of the filing fee. Judge Sargent conducted an
evidentiary hearing on February 21-22, 2019, and subsequently
filed a report, finding that Meyers was not in imminent
danger of serious physical injury and that his complaint must
therefore be dismissed. See ECF No. 26. Meyers'
inmate witness Vinnie Chand subsequently submitted letters to
the court, stating that he gave false testimony at the
hearing. See ECF Nos. 40 and 51. In addition, Meyers
has submitted objections to the report and recommendation.
See ECF No. 28. For the reasons stated herein, the
court will overrule Meyers' objections, adopt the report
and recommendation, deny Meyers leave to proceed in forma
pauperis, and dismiss this action.
based on his conflicting statements at the evidentiary
hearing and in his subsequent letters, the court finds Vinnie
Chand's testimony to be not credible. However,
Chand's testimony and submissions are not material to the
court's determination of whether Meyers was under
imminent danger of serious physical injury. At the hearing,
Chand testified that he witnessed other protective custody
inmates threaten Meyers, that he did not witness any
correctional officers drag Meyers from his wheelchair on July
19, 2018, and that he did not hear any Red Onion employees
threaten Meyers. Chand testified about the grievance
procedure at Red Onion and his own experiences with it. Chand
also testified about his experience in and perceptions of the
protective custody unit. Chand testified that he thinks that
Meyers suffers mental illness. And, he testified that Meyers
asked him to provide false information to the court, told
Chand that he would share money with Chand if he won his
case, and told Chand that he wanted to go to a lower security
prison where he could smoke marijuana and obtain a cell
phone. In his subsequent letters to the court, Chand claims
that he lied to the court about Meyers' motives in
pursuing this action and Meyers' requests for Chand to
lie to the court. Regardless of which version, if any, of
Chand's account is accurate, the information provided by
Chand does not demonstrate, or help Meyers demonstrate, that
Meyers was in imminent danger of serious physical injury at
time he filed his complaint. Therefore, the court will not
consider Chand's testimony and submissions in
adjudicating this matter.
report, Judge Sargent aptly grouped Meyers' numerous
claims to assess whether he had demonstrated imminent danger
of serious physical injury. Some claims involve court staff,
some involve Red Onion staff from Civil Action No.
7:18cv00485, some involve Wallens Ridge staff from Civil
Action No. 7:19cv00003, and some involve staff from both Red
Onion and Wallens Ridge. The first group of claims are those
which do not allege that the defendants' actions placed
him in any imminent danger, including his claims that
defendants “racketeered, ” embezzled, and/or
stole money from Meyers' inmate account; that various
court officials, including two district judges, a magistrate
judge, and the clerk, failed to file various documents, did
not allow him to “prosecute” various prison
officials, or did not grant him the relief he requested; that
defendants obstructed and tampered with his outgoing legal
mail to the court by opening and reading it; that defendants
filed “false” disciplinary charges against him to
avoid civil liability; that a defendant over-charged him for
legal mail postage; that a defendant refuses to pay him for
work that he performed; that defendants had unnamed prison
officials file false charges against him to
“stack” fines on him for reporting their sexual
abuses, assaults, and injuries committed against him; that a
defendant refused to process his grievances; that unnamed
prison officials altered or forged postal loans in his name;
that defendants stole his personal property; and that unnamed
prison officials failed to provide him with due process. As
to these claims, Judge Sargent found that Meyers offered no
danger posed by the defendants' alleged actions.
second group of claims alleges that Meyers did not receive
necessary medical or mental health treatment or equipment. As
to these claims, Judge Sargent found that Meyers'
evidence of any danger posed by these claims did not rise
above the type of vague, speculative, or conclusory
allegations that are insufficient to prove imminent danger of
serious physical injury. She also found that Meyers'
testimony regarding these claims was not credible.
third group of claims involved Meyers' ongoing requests
to be kept separate from other inmates who Meyers claims had
threatened to assault or kill him. By the time he filed the
complaint in this action, however, he was at Wallens Ridge,
housed in a segregation cell, where he had no direct contact
with other inmates. Therefore, as to these claims, Judge
Sargent found that Meyers was not in imminent danger of
serious physical injury.
fourth group of claims concerns his conditions of confinement
at Wallens Ridge, including the temperature of and peeling
paint in his cell and being denied food, showers, recreation,
haircuts, and certain personal property. Judge Sargent found
Meyers' testimony not credible and found Unit Manager
Ely's testimony contradicting Meyers' testimony to be
more credible. Accordingly, she determined that Meyers was
not in imminent danger of serious physical injury.
fifth group of claims revolved around various defendants'
actions removing him from protective custody status,
classifying him as a security level 5, and recommending that
he be transferred to general population at Wallens Ridge
State Prison (“Wallens Ridge”). As previously
discussed, by the time he filed the complaint in this action,
was at Wallens Ridge, housed in a segregation cell, where he
had no direct contact with other inmates or staff from Red
Onion. Further, the report notes that Meyers testified that
he had not left his cell for showers or recreation since
August 2018. As to these claims, Judge Sargent found that
Meyers was not in imminent danger of serious physical injury
because, regardless of his security classification, Meyers
was protected from all other inmates and Red Onion employees
at the time he filed his complaint.
objections to the report and recommendation are vague,
non-specific, repetitive of arguments already presented to
the court, and/or contradicted by the record. The Fourth
Circuit has held that an objecting party must do so
“with sufficient specificity so as reasonably to alert
the district court of the true ground for the
objection.” United States v. Midgette, 478
F.3d 616, 622 (4th Cir. 2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any
issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate
judge's report. Either the district court would then have
to review every issue in the magistrate judge's proposed
findings and recommendations or courts of appeals would be
required to review issues that the district court never
considered. In either case, judicial resources would be
wasted and the district court's effectiveness based on
help from magistrate judges would be undermined.
Id. The district court must review de novo
any portion of the magistrate judge's report and
recommendation to which a proper objection has been made.
“The district court may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. §
636(b)(1). “General objections that merely reiterate
arguments presented to the magistrate judge lack the
specificity required under Rule 72, and have the same effect
as a failure to object, or as a waiver of such
objection.” Moon v. BWX Techs., Inc., 742
F.Supp.2d 827, 829 (W.D. Va. 2010) (citing Veney v.
Astrue, 539 F.Supp.2d 841, 845 (W.D. ...