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Meyers v. Roanoke U.S. Attorney

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

August 26, 2019

DAVID MEYERS, Petitioner,
v.
ROANOKE U.S. ATTORNEY, et al., Respondents.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         David 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.)

         As 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.

         The petition is dismissed as frivolous because mandamus cannot provide the relief Meyers seeks.[1] 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 indisputable.” Id.

         As 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 him).

         Moreover, 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.[2]Accordingly, Meyers' allegations fail to state a civil rights claim against the named defendants.

         For the foregoing reasons, I will dismiss the action as frivolous.

         ORDER TO SHOW CAUSE

         In 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.

         By way 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. 7:17cv75.[3]

         Further, 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.

         Although 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.

         By 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).

         In 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 ...


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