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Date: 10-21-2021
Case Style:
David Meyers v. Commissioner of SSA
Case Number: 19-7138
Judge: Before WILKINSON, THACKER, and RUSHING, Circuit Judges
Court: UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney: Lowell Vernon Sturgill, Jr., UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Martine Elizabeth Cicconi, OFFICE OF THE ATTORNEY GENERAL
Description:
Richmond, Virginia - Criminal defense lawyer represented Plaintiff - Appellant a Virginia state prisoner with seeks to proceed in forma pauperis (“IFP”) without prepayment of fees in two consolidated appeals from: (1) the District of Maryland’s denial of an action to review a social security award; and (2) the Western District of Virginia’s dismissal of Appellant’s petition for mandamus.
The Prison Litigation Reform Act (“PLRA”) provides that a prisoner may not bring
an appeal under IFP status if he has, on three or more occasions, brought an action in federal
court that was dismissed on the grounds that it was frivolous, malicious, or failed to state
a claim (often referred to as “three strikes”). See 28 U.S.C. § 1915(g). There is one
exception noted in the statute: “unless the prisoner is under imminent danger of serious
physical injury.” Id. (the “Imminent Danger Provision”). Because it is undisputed that
three or more of Appellant’s claims have been dismissed on the ground that they were
frivolous, he is ineligible for IFP status unless he satisfies the Imminent Danger Provision.
We conclude that in order for a prisoner to satisfy the Imminent Danger Provision,
there must be a nexus between the IFP application and the underlying complaint. For the
reasons that follow, we deny Appellant’s IFP application as to the social security claim.
We grant his IFP application as to the mandamus petition, but nonetheless affirm dismissal
of the petition.
4
I.
A.
Social Security Claim
On January 12, 2018, Appellant filed a pro se complaint in the District of Maryland
against the Commissioner of the Social Security Administration (“SSA”), alleging an error
in a 2014 Supplemental Security Income backpay award, and a due process violation in his
SSA proceedings. See Notice of Claim at 1–2, Meyers v. Comm’r of Soc. Sec. Admin.,
No. 1:18-cv-129 (D. Md. filed Jan. 12, 2018) (the “SSA Claim”), ECF No. 1; J.A. 6–7.
1
He asked for a 1997 disability claim to be reopened and for monthly deductions from his
SSI benefits “be vacated and back payments be ordered.” J.A. 7. He also filed a motion
to proceed IFP, which the district court granted. However, Appellant lost on the merits, as
the district court granted SSA’s summary judgment motion on October 17, 2018.
Appellant filed a notice of appeal on October 30, 2018.
B.
Petition for Mandamus
On September 24, 2018, while the SSA Claim was still pending, Appellant filed a
petition for writ of mandamus in the Western District of Virginia, asking the court to direct
the Governor of Virginia to “cease and desist [prison] employees[’] racketeering networks”
and instruct the state police to “immediately investigate the racketeering acts and
conspiracy of [those] employees.” See Pet. at 2, Meyers v. Northam, No. 7:18-cv-473
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
5
(W.D. Va. filed Sept. 24, 2018), ECF No. 1 (the “Mandamus Action”); J.A. 22.
Specifically, Appellant alleged that employees at Virginia’s Red Onion State Prison (where
he was being held at the time) “racketeer[ed]” funds from his inmate prison account;
“enforce[d] sexual abuses on [him]”; and “conspired with numerous correctional
employees at [Red Onion]” to “racketeer funds from [his] account” through a “scheme to
enforce sexual abuses, attempted murders[,] death threats[,] and serious injuries on the
disabled [Appellant] to racketeer his funds.” Id. at 21–22.
On November 2, 2018, the district court dismissed the Mandamus Action as
frivolous pursuant to the PLRA because “the court cannot grant the mandamus relief
[Appellant] seeks,” as it “lacks jurisdiction to grant mandamus relief against state officials
or state agencies.” J.A. 23–24 (citing 28 U.S.C. § 1915A(b)(1)). The district court also
declined to construe the petition as a 42 U.S.C. § 1983 action because it “fail[ed] to state a
cognizable federal claim against the Governor.” Id. at 23. Appellant filed a notice of
appeal two weeks later, on November 16, 2018.
C.
The Appeals
On December 3, 2018, with appeals of the SSA Claim and the Mandamus Action
pending in this court, Appellant filed applications pursuant to the PLRA to proceed IFP
without prepayment of fees in both appeals.
In his IFP application regarding the SSA Claim, Appellant claimed he was “being
detained and held under false imprisonment and wrongful conviction due to retaliation by
drug lord Maurice Rives and Commonwealth of Virginia due to my information to Federal
6
Bureau of Investigation on drug lord Maurice Rives crime family,” and explained, “I am
under imminent danger -- drug lord Maurice Rives has a 50,000.00 reward for anyone who
kills me.” App. at 2, Meyers v. Comm’r Soc. Sec. Admin., No. 18-2312 (4th Cir. filed Dec.
3, 2018), ECF No. 6. In response to whether he has had cases dismissed as frivolous,
malicious, or for failure to state a claim, Appellant stated:
I’m going to commit suicide. I’m tired of living and the
organized crime RICO networks and my custodian working
together to kill me. My custodian Jeffrey Kiser and my new
custodian Carl Manis refuse to protect me from the hired gang
members by drug lord Rives and the RICO enterprises to kill
me. My custodians refuse to give me mental health services;
I’m hearing voices telling me to kill myself because drug lord
and DOC going to.
Id. In response to whether he is under imminent danger of serious physical injury,
Appellant stated:
My custodians Jeffrey Kiser, Carl Manis, Harold Clarke refuse
to protect me from crime bosses and hired assassins
perservering [sic] to kill me. I was court ordered to be in
protective custody in 7:16-cv-00573.[2
] Harold Clarke and
above custodians removed me from PC-Unit to a security level
5 general population as retaliation so I be killed. I suffer from
schizophrenia and I haven’t been given my Trilafon for
hallucinations since 2016 and the gang members going to kill
me when I come out cell.
Id. Although the IFP application Appellant filed in the Mandamus Action appeal is worded
slightly differently than the application filed in the SSA Claim appeal, it is the same in all
material respects.
2 This case is currently under seal.
7
We consolidated the appeals on December 20, 2018, appointed counsel, and ordered
briefing with a focus on this question: “Whether allegation of imminent danger of serious
physical injury under 28 U.S.C. § 1915(g) . . . must have a nexus to claims in the
complaint.” Notice at 1, Meyers v. Comm’r Soc. Sec. Admin., No. 18-2312 (4th Cir. filed
Jan. 31, 2019), ECF No. 8; see also Notice at 1, Meyers v. Northam, No. 18-7417 (4th Cir.
filed Jan. 31, 2019), ECF No. 7.
II.
The PLRA 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) (emphasis supplied). Appellant urges us not to read a nexus
requirement into the Imminent Danger Provision, arguing, “The language of § 1915(g) is
clear -- a prisoner with three prior strikes against him must either prepay his filing fee
before a court will docket his claim or appeal or show that he is ‘under imminent danger
of serious physical injury.’” Appellant’s Br. 28 (quoting 28 U.S.C. § 1915(g)) (emphasis
in original). Further, “Congress could well have required a prisoner who seeks to avail
himself of the ‘imminent danger’ provision to show that the danger is related to the conduct
being complained of in the suit,” and “could have easily appended the nexus qualifier” to
the Imminent Danger Provision, but it did not do so. Id. at 28, 29.
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In turn, Virginia Governor Ralph Northam and Commissioner of the SSA
(collectively, “Appellees”) contend that the “unmistakable purpose” of the Imminent
Danger Provision “is to permit an indigent three-strikes prisoner to proceed IFP in order to
obtain a judicial remedy for an imminent danger.” Northam Br. 2 (quoting Pettus v.
Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)); see also SSA Br. 2 (contending the
Imminent Danger Provision “should apply only where the claims in a prisoner’s complaint
include a request for relief for the imminent danger alleged” (citing Pettus, 554 F.3d at
297)). Appellees urge us to follow the Second Circuit’s decision in Pettus v. Morgenthau
and hold that, “to be eligible for treatment under the [Imminent Danger Provision], the
‘danger of serious physical injury must be fairly traceable to a violation of law alleged in
the complaint.’” Northam Br. 2 (quoting Pettus, 554 F.3d at 297 (alteration omitted)); see
also SSA Br. 23 (claiming the Second Circuit’s nexus test is “hardly taxing” on a court).
We first address the necessary relationship between the IFP application and
underlying claim. Then, we address Appellant’s IFP applications.
A.
The Relationship Between the IFP Application
and the Underlying Claim
Appellant contends that there need not be a nexus between the allegations in the IFP
application and the complaint the applicant seeks to file because the plain language of the
Imminent Danger Provision does not explicitly require such a relationship. Thus,
Appellant would have us read the provision to allow three-strike prisoners to file any type
of claim they wish without prepayment of fees, as long as they allege some related or
9
unrelated imminent danger in the IFP application. We decline to adopt this view of the
Imminent Danger Provision because it “disregards our duty to consider the text and the
context of the statute.” Pettus, 554 F.3d at 297 (emphasis in original).
Appellant’s argument is grounded in a literal, but isolated, reading of the Imminent
Danger Provision. It is true that “we must [start] with the plain language of the statute
because ‘when the statute’s language is plain, the sole function of the courts . . . is to enforce
it according to its terms.’” Lynch v. Jackson, 853 F.3d 116, 121 (4th Cir. 2017) (quoting
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)
(alteration supplied)). However, “language is not read in isolation, rather ‘[i]t is a
fundamental canon of statutory construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme.’” Id. (quoting Davis
v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (alteration in Lynch)); see also
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (We look to “the language itself, the
specific context in which that language is used, and the broader context of the statute as a
whole.”).
“With the [PLRA], Congress sought to reduce the number of frivolous lawsuits
flooding the federal courts.” Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013) (en banc);
see also Pettus, 554 F.3d at 297 (“Congress adopted the [PLRA] with the principal purpose
of deterring frivolous prisoner lawsuits and appeals.” (internal quotation marks omitted)).
According to the PLRA’s statutory scheme, to further this purpose, once a prisoner has
received three “strikes,” he or she must pay a filing fee before filing additional claims.
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The Imminent Danger Provision, read in context, allows a very narrow class of
prisoner claims to bypass the “three strikes” rule. As the Second and Third Circuits have
recognized, the Imminent Danger Provision “is designed to provide a safety valve for the
‘three strikes’ rule.” Pettus, 554 F.3d at 297 (quoting Malik v. McGinnis, 293 F.3d 559,
563 (2d Cir. 2002)) (emphasis omitted); see also Abdul-Akbar v. McKelvie, 239 F.3d 307,
315 (3d Cir. 2001) (“By using the term ‘imminent,’ Congress indicated that it wanted to
include a safety valve for the ‘three strikes’ rule to prevent impending harms, not those
harms that had already occurred.”). And in the case at hand, Appellant’s counsel admitted
that the purpose of the Imminent Danger Provision was to “protect the[] [three-strikes
prisoner] from serious physical injury.” Oral Arg. at 6:12–48, Meyers v. Comm’r Soc. Sec.
Admin., No. 18-2312 (4th Cir. Dec. 10, 2019) (emphasis supplied),
http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. Congress was
clearly concerned that, despite its penchant for curbing frivolous prisoner claims, there are
situations so dire that a three-strikes prisoner should nonetheless be able to ask a court to
come to his aid without prepayment of a fee.
Under Appellant’s reasoning, however, a prisoner could pass through the safety
valve with no intention of asking the courts to protect him. Indeed, “an indigent prisoner
with a history of filing frivolous complaints could, by merely alleging an imminent danger,
file an unlimited number of lawsuits, paying no filing fee, for anything from breach of a
consumer warranty to antitrust conspiracy.” Pettus, 554 F.3d at 297. Considering that the
Imminent Danger Provision is subject to mere notice pleading standards, Appellant’s
reading of the Imminent Danger Provision would sweep so broadly that it would allow a
11
narrow exception to swallow a carefully contoured rule. See Vandiver v. Prison Health
Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) (explaining the Imminent Danger Provision
“is essentially a pleading requirement subject to the ordinary principles of notice pleading,”
and “plaintiff need only to assert allegations of imminent danger; he need not affirmatively
prove those allegations at this stage of litigation.” (alteration and internal quotation marks
omitted)).
Rather, the better reading of the Imminent Danger Provision is that it requires a
relationship between the imminent danger alleged in the IFP application and the facts
alleged and relief sought in the underlying claim. There is no indication in the text of
§ 1915(g) that Congress meant to distinguish between classes of prisoners -- i.e., those
three-strikers who are suffering imminent danger and those who are not. Rather, the text
distinguishes based on a class of claims -- civil actions or appeals that a “prisoner [may or
may not] bring.” 28 U.S.C. § 1915(g).
The ordinary meaning of the word “imminent” also supports this interpretation.
“Imminent” means “threatening to occur immediately; dangerously impending” or
“[a]bout to take place.” Black’s Law Dictionary (11th ed. 2019); see Perrin v. United
States, 444 U.S. 37, 42 (1979) (explaining that courts give undefined words in a statute
their “ordinary, contemporary, common meaning”); Nat. Coal. for Students v. Allen, 152
F.3d 283, 289 (4th Cir. 1998) (“We customarily turn to dictionaries for help in determining
whether a word in a statute has a plain or common meaning.”). We have also explained
that “the requisite imminent danger of serious physical injury must exist at the time the
complaint or the risk that the conduct complained of threatens continuing or future injury,
12
not on whether the inmate deserves a remedy for past misconduct.” Chase v. O’Malley,
466 F. App’x 185, 186 (4th Cir. 2012) (per curiam) (citing Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003)). Thus, Congress intended that a three-strikes prisoner have
opportunity to ask the court for its aid in addressing a danger that is close at hand, not a
past infraction.
For all these reasons, we conclude the allegations of imminent danger in the IFP
application must have some nexus or relation to those of the underlying complaint. All our
sister circuits to have addressed this matter are in agreement. See Lomax v. Ortiz-Marquez,
754 F. App’x 756, 759 (10th Cir. 2018), cert. granted on other grounds, No. 18-8369, 2019
WL 5281291 (U.S. Oct. 18, 2019); Ball v. Hummel, 577 F. App’x 96, 98 n.1 (3d Cir. 2014)
(per curiam); Pettus, 554 F.3d at 297; see also Vandiver, 727 F.3d at 588 (declining to
address the issue).
B.
Appellant’s IFP Applications
One Circuit has fashioned a two-part test to flesh out this relationship. In Pettus,
the Second Circuit reasoned, “The law of standing provides the most natural analogy for
giving content to the nexus requirement because the statute identifies a particular injuryin-fact (i.e., the imminent danger of serious physical injury) that Congress singled out for
special protection.” 554 F.3d at 297–98. Thus, the court developed a test based on the
lexicon used in a standing analysis. First, it deemed the alleged imminent danger of serious
physical injury as analogous to an Article III injury-in-fact. Then, it explained, “In
deciding whether . . . a nexus exists, we will consider (1) whether the [alleged] imminent
13
danger of serious physical injury . . . is fairly traceable to unlawful conduct asserted in the
complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at
298–99 (emphasis and footnote omitted). Only one other circuit has adopted this test, in
an unpublished opinion. See, e.g., Lomax, 754 F. App’x at 759.
Based on concessions by Appellant and Northam, we need not pass on the propriety
of the Second Circuit’s test in this matter. First, Appellant himself admits that the SSA
Claim “does not relate to the danger the Appellant complains of.” Appellant’s Br. 43. We
agree. The relief sought in the SSA Claim is a request for backpay and the administrative
reopening of a prior SSA claim. It has no relationship at all to the alleged imminent danger
of prison guards failing to protect Appellant from murder at the hands of a drug lord, and
refusing to offer mental health services such that Appellant is in danger of committing
suicide. Thus, because there is no nexus, the IFP application in 18-2312 must be denied.
We express no opinion about the merits of the SSA Claim.
Second, in the Mandamus Action, Northam concedes that Appellant “has satisfied
th[e] [nexus] requirement” and “should be permitted to proceed in No. 18-7417 without
prepaying the appellate filing fee.” Northam Br. 9. Therefore, we will grant Appellant’s
IFP application on the Mandamus Action, but we nonetheless affirm dismissal of that claim
for the reasons stated by the district court pursuant to 28 U.S.C. § 1915A(b)(1). See J.A.
23–24 (dismissing Mandamus Action because it is frivolous and fails to state a cognizable
§ 1983 claim against Governor Northam).
Outcome: For these reasons, we deny Appellant IFP application in Case No. 18-2312. We
grant Appellant’s IFP application in Case No. 18-7417 but affirm dismissal of that action for the reasons stated by the district court.
18-2312 – APPLICATION DENIED
18-7417 – APPLICATION GRANTED; AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: