United States District Court, W.D. Virginia, Roanoke Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
Meyers, a Virginia inmate proceeding pro se,
commenced this civil action as a “petition for writ of
mandamus.” Meyers names as respondents the
“Roanoke U.S. Attorney, U.S. Attorney [for the Western
District of Virginia] Thomas T. Cullen, FBI Richmond-Roanoke
Field Office, and the Roanoke United States Marshal
Service.” In the factual section of his petition,
Meyers alleges that a nurse at Wallens Ridge State Prison
(“WRSP”) purposefully failed to render aid to an
inmate she observed having a stroke or aneurysm. Meyers
alleges that she instead made callous comments to the inmate
and walked away, and he died shortly thereafter. Meyers also
complains that the emergency intercom system at the jail is
not functioning properly. His petition contains assertions
that a number of prison officials at WRSP and Red Onion State
Prison (“ROSP”) are improperly using corporal
punishment to “murder” inmates in order “to
meet their white nationalist hate crime quotas.” (Pet.
at 2, Dkt. No. 1.)
relief, Meyers asks the court to enter an order compelling
the named respondents to subpoena Meyers and another inmate
to testify about the “killing” of the inmate,
comply with a bill passed by the Virginia General Assembly
that allegedly requires an investigation into the
inmate's death, and to “conduct full
prosecutions” of the nurse for murder or homicide.
(Id.) Although his petition rambles to a degree, it
appears that he also wants an investigation into
“mysterious deaths” generally at WRSP and ROSP
and an injunction prohibiting prison employees or officials
from utilizing corporal punishment.
petition is dismissed as frivolous because mandamus cannot
provide the relief Meyers seeks. As the Fourth Circuit has
explained, “[a] writ of mandamus will not issue to
compel an act involving the exercise of judgment and
discretion.” Cent. S.C. Chapter, Soc. of Prof'l
Journalists, 551 F.2d 559, 562 (4th Cir. 1977). Instead,
mandamus will issue “only where the duty to be
performed is ministerial and the obligation to act peremptory
and plainly defined. The law must not only authorize the
demanded action, but require it; the duty must be clear and
numerous courts have recognized, then, mandamus cannot issue
to order the investigation or prosecution of individuals by
federal authorities-clearly a discretionary function.
E.g., Jarrett v. Ashcroft, 24 Fed.Appx.
503, 504 (6th Cir. 2001) (“[M]andamus cannot be used to
compel the Attorney General or the United States Attorney to
conduct investigations or prosecute alleged civil rights
violators, ” which are discretionary functions);
Misiak v. Freeh, 22 Fed.Appx. 384, 386 (6th Cir.
2001) (“Misiak was not entitled to mandamus relief
because the defendants did not owe him a clear
nondiscretionary duty” to investigate his complaints of
criminal activity); Inmates of Attica Corr. Facility v.
Rockefeller, 477 F.2d 375, 381-82 (2d Cir. 1973)
(denying petition for mandamus to compel the United States
Attorney to investigate and institute prosecutions against
state officers and explaining that the authority to
investigate and initiate criminal complaints is a
discretionary decision and not subject to mandamus);
Banks v. U.S. Postal Inspection Serv., No.
4:18-cv-596, 2018 WL 4184740, at *6-7 (N.D. Ohio Aug. 31,
2018) (dismissing mandamus action seeking order compelling
investigation of criminal matters and explaining that
defendants had no clear duty to investigate the alleged
wrongs); Anderson v. Ky. One Health, Inc., No.
3:17-cv-359, 2017 WL 4542227, at *2 (W.D. Ky. Oct. 11, 2017)
(dismissing for lack of jurisdiction a mandamus petition
seeking to compel various defendants “to commence a
criminal investigation” into alleged wrongs and
explaining that because defendants had discretion over
whether to prosecute, “jurisdiction under the Mandamus
Act does not exist”); Freeman v. United
States, Civil Action No. 1:17-02279, 2017 WL 4544628, at
*1-2 (S.D. W.Va. Aug. 10, 2017) (concluding that petitioner
had not met the stringent requirements for invoking a Writ of
Mandamus where he sought, in addition to other relief, to
compel the dismissal of possible criminal charges against
I decline to construe the 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), as it fails to state a cognizable federal claim
against the named defendants. To state a claim for relief
under § 1983 or Bivens, a plaintiff must allege
facts indicating that he has been deprived of rights
guaranteed by the Constitution or laws of the United States
and that this deprivation resulted from conduct committed by
a person acting under color of law. West v. Atkins,
487 U.S. 42 (1988); see Farmer v. Brennan, 511 U.S.
825, 839-41 (1994) (indicating that case law involving §
1983 claims is applicable in Bivens actions and vice
versa). Significantly, Meyers' petition does not allege
any facts against the named defendants or allege that any
conduct committed by them has injured him or otherwise
affected his constitutional rights.Accordingly, Meyers'
allegations fail to state a civil rights claim against the
foregoing reasons, I will dismiss the action as frivolous.
TO SHOW CAUSE
light of that dismissal-yet another in a long line of cases
dismissing Meyers' filings as frivolous-I am going to
require Meyers to show cause as to why a pre-filing
injunction should not issue against him.
of general background, Meyers is a three-striker who has
filed at least thirty-five civil cases in this court, with
approximately two-thirds of those in the past year. Many of
those, including this one, have been dismissed as frivolous
and/or malicious. In addition to filing new cases, Meyers
continues to file motions and other documents in his closed
civil cases; in some cases he continues to file documents
more than two years after the case has closed. See,
e.g., Meyers v. Clarke, No. 7:16cv573; and
Meyers v. U.S. Attorney General, No.
many of his documents contain scandalous, vulgar, obscene,
threatening, or vituperative language or allegations.
See, e.g., Meyers v. Kiser, No. 7:18cv485,
Dkt. Nos. 34, 41, 44, 50, 54, 57, 60, 64, 83, 89, 90, 95,
100, 106, 108, 111, 114, 115, 120, 121, 122, 131, 132, 136,
142, 143, and 148. Many of the documents filed by Meyers
include the case numbers of almost all the cases he has filed
in this court. See, e.g., Meyers v. Clarke,
No. 7:16cv573, Dkt. No. 62; Meyers v. Jones, No.
7:18cv414, Dkt. No. 19; Meyers v. Clarke, No.
7:18cv460, Dkt. No. 10. Also, he frequently includes the same
or overlapping allegations in multiple cases.
mindful that a pre-filing injunction is a drastic remedy to
be used sparingly, I believe that a narrowly tailored
pre-filing injunction against Meyers is likely necessary. I
have authority pursuant to the All Writs Act, 28 U.S.C.
§ 1651(a), to limit access to this court by a vexatious
and repetitive litigant. Cromer v. Kraft Foods N. Am.,
Inc., 390 F.3d 812, 817 (4th Cir. 2004). But before
doing so, the offending party must be provided with notice
that the court is considering a pre-filing injunction as well
as an opportunity to be heard. Id. at 819.
memorandum opinion and order entered November 2, 2018, Chief
Judge Urbanski of this court warned Meyers that he does not
have an absolute and unconditional right of access to courts
to prosecute frivolous, malicious, abusive, or vexatious
motions or actions; advised him that the court intended to
enter a pre-filing injunction against him; and gave him the
opportunity to file any opposing argument. See Meyers v.
Jones, No. 7:18cv 414, Dkt. Nos. 3 and 4. Chief Judge
Urbanski also has previously warned Meyers that he is not to
file documents with obscene language and scandalous
allegations and advised him that documents so filed would
subject Meyers to additional and more severe sanctions, up to
and including potential dismissal of a case in its entirety.
See Meyers v. Kiser, No. 7:18cv485, Dkt. No. 116
(March 29, 2019 Order).
light of that background, and because nearly all of
Meyers' open cases are currently assigned to me, Meyers
is hereby given notice of my intention to enter a pre-filing
injunction against him. The injunction would contain
substantially similar restrictions as those listed below ...