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Feather-Gorby v. Meyer

United States District Court, N.D. West Virginia, Martinsburg

May 17, 2018

MICHAEL S. OWL FEATHER-GORBEY, Plaintiff,
v.
MEYER, Medical P.A. in SHU, MAJOR McKARDLE, Medical Department, B. FRIEND, Health Services Supervisor, MR. BLUNT, B-2 Unit Counselor, HIXENBOUGH, B-1 Unit Counselor, LANDIN, B House Unit Manager, FRISS, Assistant Warden, KEEYS, Assistant Warden, COAKLY, Warden, FIBBS, Captain, WETSIDE-WETSTONE, SHU Lt., CAMOCHO, SHU Lt., CONNER, Regional Director, MICHAEL J. FRAZIER, Associate General Counsel, ISICSON, Regional Director, MS. L. SMITH, Remedy Coordinator - Unit Manager, UNKNOWN NAME, Remedy Clerk, R. BIRD, Trust Fund Employee, Defendants.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         On October 30, 2017, the pro se Plaintiff, initiated this case by filing an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against 18 individuals, claiming a due process violation, and a violation of his Eighth and Fourteenth Amendment rights. ECF No. 1.[1]

         This matter is pending before this Court for an initial review and Report and Recommendation pursuant to Local Rule of Prisoner Litigation Procedure (“LR PL P”) 2 and 28 U.S.C. § 1915A.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Criminal Conviction in the District of Columbia Superior Court in case number 2008 CF2 001552.

         On January 19, 2008, Petitioner was charged in the District of Columbia Superior Court, case number 2008-CF2-001552, with the felony of unlawful possession of a pistol. The facts were described by the District of Columbia Court of Appeals in Gorbey v. United States, 54 A.3d 668 (D.C. 2012):

On January 18, 2008, at about 1:00 p.m., a woman approached a United States Capitol Police (“USCP”) Officer near the intersection of Delaware and D Streets, N.E., and told the officer that a man with a gun had asked her for directions to the United States Supreme Court. From the USCP command center, an officer watched the video feed from surveillance cameras in the area around the U.S. Capitol and saw images of a man walking with a shotgun. As shown on a recording from those cameras, USCP officers stopped and arrested the man-appellant Michael Gorbey- at the intersection of First and D Streets, N.E. At the time he \was stopped, appellant had a shotgun in his hand and a sword on his back. Twenty-seven shotgun shells were stored in the bulletproof vest he was wearing, and he also was in possession of hunting knives and a .45-caliber round, which officers found in the backpack he was carrying. Appellant claimed that he was en route to a meeting with Chief Justice John Roberts of the United States Supreme Court.
Minutes after appellant was stopped, USCP officers found a truck illegally parked nearby and could see in it “heavy gauge wire coming out of [the] radio ... to the glove compartment ... [a]nd then ... coming out of the back of the vehicle, ” as well as “the stock of a rifle and a homemade bow and arrow.” After canine-unit dogs responded to the truck in a manner that suggested that it contained explosives, officers secured the truck and called for the bomb squad to investigate. Bomb squad officers used a remote-control robot to punch through one of the windows of the truck and a tool to “disrupt” and neutralize any explosive device that might have been inside the passenger compartment. They then conducted a search of the inside of the truck (which was “in some disarray” from the disruptive tool). They found ammunition on the floorboard of the passenger compartment but, during this initial search, they did not find an explosive device. USCP officers found the keys to the truck in appellant's pocket and the certificate of title to the truck in the backpack appellant had been carrying at the time of his arrest.
The USCP officers moved appellant's truck to a secure storage area at 800 North Capitol Street, N.W., and, on February 8, 2008, conducted another search of the passenger compartment, pursuant to a search warrant. After moving the passenger seat forward, officers found an object that one of the officers described as a “home-made bomb.” The object (hereafter referred to as the “device”) consisted of “a metal can spray painted red” and “a clear bottle filled with what looked like lead pellets, ” and “everything was duct taped.” After the bomb squad used a tool to “disrupt” the device, officers completed a search of the passenger compartment and cab of the truck. They recovered a “large amount” of black powder; firecrackers; lighters; primer or percussion caps; shotgun shells and shotgun cartridges; 550 rounds of long rifle ammunition; 200 rounds of other ammunition of various calibers; a rifle scope; and the (disrupted) components of the device (i.e., the metal can, duct tape, black powder, metal pellets, and glass fragments). Appellant was charged and subsequently convicted, on May 16, 2008, of fourteen separate offenses in connection with the events described above: unlawful possession of a firearm by a convicted felon; two counts of carrying a dangerous weapon outside the home or business (shotgun and sword) (“CDW”); possession of an unregistered firearm (“UF”); eight counts of unlawful possession of ammunition (“UA”); manufacture, transfer, use, possession, or transportation of explosives for an unlawful purpose; and attempted manufacture or possession of a weapon of mass destruction (“WMD”).

54 A.3d at 675-76 (notes omitted). At trial, Petitioner acted as his own attorney. He was sentenced to 264 months in prison and five years of supervised release. Id. Following his conviction, Petitioner “became quite an active litigant.” Id. In a consolidated appeal, the District of Columbia Court of Appeals found that, “the trial court had erred at sentencing by failing to inquire into [Petitioner's] decision to waive an insanity defense under Frendak v. United States, 408 A.2d 364 (D.C. 1979). The Court remanded the matter for that inquiry and for resentencing based on the merger of certain convictions.” Id. at 101 - 102. On February 6, 2014, Petitioner's convictions for Counts 2, 5, 6, 9, 10, 11, 12 and 13 were vacated and he was resentenced on Counts 1, 3, 4, 7, 14 and 15. (District of Columbia Superior Court case number 2008-CF2-001552 at https://www.dccourts.gov/superior-court/cases-online). In addition to five years of supervised release following release from incarceration, Petitioner was sentenced to: 72 months for Count 1; 12 months for Count 3; 12 months for Count 4; 60 months for Count 7; 36 months for Count 14; and 120 months for Count 15. The sentences for Counts 14 and 15 were to be served concurrently with one another but consecutively to the sentences for Counts 1, 3, 4 and 7. Id. The Bureau of Prisons' website lists Petitioner's projected release date as May 3, 2027. (https://www.bop.gov/inmateloc/).

         B. Other Litigation in the Federal Courts

         A review of Petitioner's files on PACER demonstrates that he has indeed become quite an active litigant, with more than 160 results returned from the following jurisdictions: U.S. Court of Appeals, Second Circuit[2]; U.S. Court of Appeals, Third Circuit[3]; U.S. Court of Appeals, Fourth Circuit[4]; U.S. Court of Appeals, Seventh Circuit[5]; U.S. Court of Appeals, Tenth Circuit[6]; U.S. Court of Appeals, Eleventh Circuit[7]; U.S. Court of Appeals, D.C. Circuit[8]; Alabama Northern District Court[9]; Colorado District Court[10]; District of Columbia District Court[11]; Florida Middle District Court[12]; Indiana Southern District Court[13]; Kansas District Court[14]; Kentucky Eastern District Court[15]; Maryland District Court[16]; New York Southern District Court[17]; Oklahoma Western District Court[18]; Pennsylvania Middle District[19]; Pennsylvania Western District[20]; South Carolina District Court[21]; Virginia Eastern District Court[22]; Virginia Western District Court[23]; West Virginia Northern District Court[24]; West Virginia Northern Bankruptcy Court[25]; West Virginia Southern District Court[26].

         Previously, on March 14, 2012, in another Bivens action filed the Northern District of West Virginia, Petitioner was found to have previously filed at least eleven actions which were dismissed as frivolous or for failure to state a claim upon which relief can be granted, including: (1) D. Md. 1:08-CV-332, dismissed for failure to state a claim upon which relief can be granted; (2) D. Md. 1:08-CV-334, dismissed as frivolous and for failure to state a claim upon which relief can be granted; (3) D. Md. 1:08-CV-339, dismissed as frivolous and for failure to state a claim upon which relief can be granted; (4) D. D.C. 1:08-CV-649, dismissed without prejudice for failure to state a claim upon which relief can be granted; (5) D. D.C. 1:08-CV-650, dismissed without prejudice for failure to state a claim upon which relief can be granted; (6) N.D.W.Va. 2:08-CV-121, dismissed for failure to state a claim upon which relief can be granted; (7) D. D.C. 1:09- CV-261, dismissed without prejudice for failure to state a claim upon which relief can be granted; (8) D. D.C. 1:09-CV-262, dismissed with prejudice for failure to state a claim upon which relief can be granted; (9) S.D.W.Va. 2:09-CV-313, dismissed with prejudice as frivolous and for failure to state a claim upon which relief can be granted; (10) D. D.C. 1:10-CV-175, dismissed with prejudice as frivolous and for failure to state a claim upon which relief can be granted; and (11) E.D.Va. 2;11-CV-164, dismissed for failure to state a claim upon which relief can be granted. N.D.W.Va. 5:11-CV-126, ECF No. 26 at 5 - 10. On June 1, 2012, Judge John Preston Bailey adopted the Report and Recommendation including the finding that at least eleven actions filed in federal court by Plaintiff had been dismissed as frivolous or for failure to state a claim upon which relief can be granted. N.D.W.Va. 5:11-CV-126, ECF Nos. 26 at 5 - 10, 33 at 4.

         A. The Instant Complaint in 3:17-CV-134.

         Plaintiff's instant Bivens complaint asserts that while he was incarcerated at FCI Hazelton, he was subjected to cruel and unusual punishment by being denied medical treatment for various injuries including: a broken nose, head injuries which cause constant headaches, dizziness and sleepiness, with possible concussion; a flu-like illness and lung infection; a rash on his face and damage to his eyes; weight loss; and loss of stability in his joints. ECF No. 1 at 12. Plaintiff submitted a seven-page document that he styled as “Cont[i]nuance to Complaint” [ECF No. 1-1], which asserts various wrongdoing against each named defendant. Plaintiff also alleges that after placement in the Special Housing Unit, he was denied paper, pens, and claim or grievance forms, and further that staff refused to accept or act upon grievances which Plaintiff attempted to file. Id. at 11. Plaintiff also claims that he was denied mail and access to the law library. Id. at 11 - 12.

         Plaintiff seeks $250, 000.00 cash in damages. Id. at 12. He also seeks sanctions to be imposed upon the named defendants and that three injunctions be issued: (1) “an injunction directing USP Hazelton to provide SHU inmates” with pens, paper, envelopes and postage; (2) “an injunction directing USP Hazelton staff to afford SHU inmates administrative remedy access and court access”; and (3) “an injunction direction USP Hazelton staff to provide SHU inmates adequate medical treatment.” Id. The complaint named 18 people as defendants. ECF No. 1.

         On May 14, 2018, Defendants filed their objections to granting of Plaintiff's motion to proceed in forma pauperis and motion to dismiss. ECF No. 30. The objection noted Plaintiff's active litigation history, and referred to an earlier case he filed in this district. In that case he was initially granted leave to proceed in forma pauperis before the Court became aware that he was precluded from such status based on identification as an inmate with “three strikes” under the Prison Litigation Reform Act, and the Court then vacated its order [N.D.W.Va. 5:11-CV-125, ECF No. 25] granting in forma pauperis status. ECF No. 30 at 5, n.1.

         III. Standard of Review

         A. ...


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