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Meyers v. Clarke

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

October 18, 2019

DAVID MEYERS, Plaintiff,
v.
HAROLD CLARKE, ET AL., Defendants.

          David Meyers, Pro Se Plaintiff.

          OPINION

          James P. Jones United States District Judge.

         Portions of this civil rights action under 42 U.S.C. § 1983, filed pro se by state inmate David Meyers, were remanded by the court of appeals for further proceedings. After review of the record, I conclude that the remaining portions of the case must be summarily dismissed.

         In August of 2018, I dismissed the case without prejudice because I found that many claims were duplicative of issues Meyers was litigating in another pending case and that as to recent events, he had not yet had time to exhaust available administrative remedies as required under 42 U.S.C. § 1997e(a) before filing his lawsuit. Meyers appealed. The court of appeals consolidated for appeal three of Meyers's cases. Ultimately, the Court rejected Meyers' appeal issues in all three cases with the exception of one set of issues in this case, namely, claims concerning alleged events that occurred on July 19 and 20, 2018. Meyers signed and dated his § 1983 Complaint on July 28, 2018. The court of appeals noted:

There is nothing in the record concerning the inner workings of the Virginia Department of Corrections' grievance procedure or in Meyers' complaint that shows with certainty that Meyers could not have exhausted administrative remedies in eight days. Because it is not apparent on the face of the complaint that Meyers did not exhaust administrative remedies, we must vacate that portion of the district court's order and remand for further proceedings.

Meyers v. Clarke, 767 Fed.Appx. 437, 440 (4th Cir. 2019) (unpublished). The case is now reinstated to the docket in this court and is ready for review of the claims concerning events on July 19 and 20, 2018. See 28 U.S.C. §§ 1915(e)(2) (requiring court to dismiss complaint upon finding that it is frivolous or malicious, or that it fails to state a claim upon which relief can be granted.

         At that time Meyers signed his Complaint on July 28, 2018, he was confined in the protective custody unit (“PCU”) at Red Onion State Prison (“Red Onion”), a prison facility operated by the Virginia Department of Corrections (“VDOC”). The caption of the Complaint names the following VDOC officials as defendants: Director Harold Clarke, Deputy Director A. Robinson, Chief of DOC-SIU Paul Haymes, Walter Swiney, Henry Ponton, Regional Administrator Marcus Elam, A. Galihar, Investigator J. Fannin, Investigator J.D. Bentley, J. King, J. Kiser, J. Artrip, and Keith Dawkins.

         According to Meyers, [1] on the evening of July 19, 2018, Sergeants Deel and Sotherby, Officers Stanley and Rose, and a third officer “that looked like Officer Duncan” (“Officer D”) removed Meyers from his cell. Compl. 9, ECF No. 1. They told him that he “had to get up out [of his] wheelchair and walk and climb up on the anal scan machine.” Id. Meyers told them that because of many past injuries, he was unable to stand and walk. Officer D stated, “Yeah I sexual [sic] assaulted you, and when I take you to D3-Lock up, I'm going to strap you down and make you suck my dick.” Id. In D3, the officers placed Meyers in a cell. Lieutenant Messer began yelling at him, getting spit in Meyers' face and mouth.

         The officers then took Meyers to D1 Pod. Rose refused his request to make a phone call to the sexual abuse hotline about Officer D's threat. Messer and the other officers pushed Meyers in his wheelchair to within two feet of the anal scan machine and ordered him to get up and walk to it. Sotherby and a blonde officer “barely assisted holding [Meyers] up from falling” and his knees “struck the cement shattering [his] knee caps.” Id. at 10. As the officers dragged Meyers to the machine, his boxers “slid down [his] thighs exposing [his] naked buttocks and anus to the dangerous sex offenders standing in the pod and in their cell door windows.” Id. Meyers felt officers' fingers pressing the sides of his buttocks. The officers “scraped [his] legs badly on the metal” of the machine's bottom step, and they “thrusted [him] into the seat rim fracturing [his] right ribs and injuring [his] shoulders.” Id. After the scan, Messer refused Meyers' request to be taken to the medical unit.

         On July 20, 2018, M. Counts conducted a hearing on a disciplinary charge placed against Meyers.[2] Counts told Counselor B. Stallard not to report to the medical unit that Meyers's “ribs were fractured” and not to allow [him] to report to the hotline about Officer D's threat of sexual assault. Id. at 10-11. One of these officers “taunted [Meyers] about all the witnesses that she obstructed from giving statements.” Id. at 11. As relief in this action, Meyers seeks compensatory and punitive damages.

         After review of the complaint, I conclude that Meyers has failed to state any actionable claim against the defendants he has named. Defendants Clarke and Ponton are mentioned only in the caption of the Complaint, which does not allege any action either of them undertook in violation of Meyers' rights. “Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given pro se complaints.” Lewis-Bey v. Wilson, No. 3:17CV763, 2019 WL 4889261, at *3 (E.D. Va. Oct. 3, 2019) (quoting Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)).

         Meyers' Complaint mentions the other named defendants in the text of his Complaint, primarily in connection with other past incidents it describes that are not before me now. Meyers alleges that several defendants “were enforcing the sexual abuses, attempted murders on me.” Compl. 6, ECF No. 1. He asserts that Swiney, Galihar, Kiser and Artrip “had the officers placed in the D1 Pod, to make sexual harassment toward” Meyers and that they and unnamed others “have been enforcing the sexual abuses attempted murders, death threats, racketeering [his] funds from [his] account thru PREA revenge and retaliation disciplinary hearings.” Id. at 7. Meyers does not state facts showing that any of the named defendants personally ordered or participated in the events of July 19 and 20, 2018, however.

         Under 42 U.S.C. § 1983, government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id. Meyers fails to plead specific actions by the named defendants related to the alleged violations that remain before me. Therefore, I will summarily dismiss this case without prejudice under § 1915(e)(2)(b) for failure to state a claim upon which relief could be granted.

         Because Meyers is proceeding pro se, I could allow him to amend his Complaint to name as defendants the individuals mentioned in his description of events on July 19 and 20, 2018. See Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978) (finding court should allow inmate plaintiff to amend his potentially meritorious claim to identify proper defendant). I find no justification for ...


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