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Meyers v. Berryhill

United States District Court, D. Maryland

November 14, 2018

DAVID MEYERS,
v.
ACTING COMMISSIONER NANCY BERRYHILL, SECRETARY OF HEALTH and HUMAN SERVICES, U.S. MAGISTRATE JUDGE STEPHANIE GALLAGHER, U.S. DISTRICT JUDGE ELLEN HOLLANDER, CLERK OF COURT FELICIA CANNON, DEPUTY CLERKS

          MEMORANDUM OPINION

          Catherine C. Blake United States District Judge

         This is self-represented litigant David Meyers's third action in this court challenging the denial of his Social Security Benefits. See Meyers v. Commissioner, Social Security Administration, Civil No. ELH-18-00129 (D. Md. 2018); Meyers v. U.S. District Court, Baltimore Division, et al., ELH-18-2918 (D. Md. 2018). Meyers, who is an inmate at Red Onion State Prison in Virginia, filed this case on October 22, 2018 on a preprinted form on which he indicates the case is filed pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). He later filed a "Motion to Amend Error" indicating his intention to file this action pursuant to 42 U.S.C. §1983.[1](ECF Nos. 1, 5.) Recognizing that Meyers is a self-represented plaintiff, the court will grant the motion as a request to construe his claims under Bivens v. Six Unknown Fed Agents, 403 U.S. 388 (1971) (establishing a cause of action against federal officials for the violation of federal constitutional rights).[2] Additionally, Meyers has filed a Motion for Appointment of Counsel (ECF No. 3) and a Motion for Injunctive Relief (ECF No. 4).

         Meyers filed this Complaint with a Motion for Leave to Proceed in Forma Pauperis. (ECF No. 2.) The in forma pauperis statute limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). The statute contains a "three strikes" rule, codified at 28 U.S.C. § 1915(g), which provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). Thus, "[w]hen a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the Act's 'three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees" McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)).

         The court takes notice that Meyers has received three or more strikes. See Meyers v. United States District Court, No. 2:07-cv-00363 (E.D. Va. Nov. 1, 2007); Meyers v. City of Petersburg, No. 2:03-cv-00248 (E.D. Va. Apr. 11, 2003); Meyers v. Bass, No. 2:95-cv-00774 (E.D. Va. Aug. 15, 1995). See also Meyers v. Virginia State Bar, No. 08-6849 (4th Cir. July 10, 2008) (unpublished) (finding that the three listed dismissals are strikes under § 1915(g) and denying Meyers's motion to proceed without prepayment of appeal fees on that ground). Meyers may proceed in this case only if he pays the $400 civil filing fee or shows he is in imminent danger of serious physical injury.[3] Permitting Meyers to pay the filing fee or otherwise amend his filings, however, would only delay resolution of this case. For reasons below, this case will be dismissed with prejudice for failure to state a claim.

         BACKGROUND

         On January 12, 2018, Meyers, who is incarcerated at Red Onion State Prison in Virginia, filed an action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g); § 1383(c)(3), for review of a final decision of the Commissioner of the Social Security Administration ("the Commissioner") which denied his application for Supplemental Security Income ("SSI") payments. Judge Ellen L. Hollander referred the matter to Magistrate Judge Stephanie Gallagher for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b). Magistrate Judge Gallagher issued a Report and Recommendations on September 11, 2018, to which Meyers filed objections. See Meyers v. Commissioner, Social Security Administration, Civil No. ELH-18-00129 (D. Md. 2018).

         On October 17, 2018, Judge Hollander adopted Magistrate Judge Stephanie Gallagher's Report and Recommendations and affirmed the Social Security Administration's (SSA) denial of Meyers's claim for benefits, after conducting a de novo review of those portions of the Report and Recommendations to which objections had been made. Judge Hollander concluded that the objections lacked merit and concurred with Judge Gallagher's assessment that this court lacked jurisdiction to consider Meyers's claims. Id. at 1.

         On October 30, 2018, Meyers appealed this decision to the United States Court of Appeals for the Fourth Circuit. Meyers v. Commissioner of Social Security Administration, CA4 No. 18-2312.

         In his second related case, Meyers v. U.S. District Court, Baltimore Division, et al., ELH-18-2918 (D. Md. 2018), Meyers sought mandamus relief to compel the SSA to recalculate the back payments he alleged were owed to him and requested a hearing on his "appeal" from determinations by Acting Commissioner Nancy Berryhill and Magistrate Judge Gallagher denying him SSA benefits he alleges were owed to him for a period before his incarceration. Judge Hollander denied the petition for mandamus relief on October 9, 2018. On October 30, 2018, Meyers appealed this decision to the United States Court of Appeals for the Fourth Circuit. Meyers v. U.S. District Court, Baltimore Division, et al., ELH-18-2918 (D. Md. 2018), ECF No. 5.

         DISCUSSION

         Meyers claims: 1) the Commissioner discriminated against him and denied him due process by denying him benefits in January 1997 without providing him a disability hearing or mental health examination; 2) the Commissioner and Secretary of the Department of Health and Human Services improperly denied his benefits for the period between 1997 and 2011; and 3) Felicia Cannon, the Clerk of Court, filed his complaint as a writ of mandamus; "which Judge Ellen Hollander and Judge Stephanie Gallagher dismissed with fraud upon the court." (ECF No. 1 at 1.) As relief he requests back payments of his benefits, $500, 000 damages for mental anguish and denial of mental health services, $2, 000, 000 for compensatory damages, and for the court to compel a mental health evaluation, (Id.)

         Meyers's first two claims reprise those he presented in Meyers v. Commissioner, Social Security Administration, Civil No. ELH-18-0129. In that case, Meyers alleged that his constitutional right to due process was violated when the Administrative Law Judge failed to reopen the prior Title XVI[4] application he filed on January 3, 1997. Meyers had alleged a violation of his "federal constitutional privilege right to subpoena duces tecum of records ...


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