In the Arited States Court of Federal Claims

No. 19-1457C

(Filed: December 5, 2019)

(NOT TO BE PUBLISHED)
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DAVID MEYERS, )
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Plaintiff, )
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UNITED STATES, }
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Defendant. )
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David Meyers, pro se, Big Stone Gap, Virginia.

Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Kenneth M. Dintzer, Deputy Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER
LETTOW, Senior Judge.

Pending before the court is plaintiff's motion to proceed in forma pauperis. The United
States (“the government”) opposes this motion. See Def.’s Resp. to Pl.’s in forma pauperis
Appl. and Mot. to Dismiss PI.’s Compl. pursuant to 28 U.S.C. § 1915(g) or, in the Alternative,
RCFC 12(b)(1) & 12(b)(6) (“Def.’s Opp’n”), ECF No. 9. Among other things, the government
contends that Mr. Meyers is incarcerated and has filed more than three cases that were dismissed
as frivolous. Def.’s Opp’n at 1. Mr. Meyers has filed a reply. ECF No, 14.

For the reasons stated, plaintiff's motion for leave to proceed in forma pauperis is
DENIED. In addition, defendant’s motion to dismiss Mr. Meyers’ complaint is GRANTED.

BACKGROUND
Mr. Meyers is currently incarcerated in a state prison in Virginia. He names as

defendants the judges of the United States Court of Appeals for the Fourth Circuit, Treasury
Secretary Steven Mnuchin, and various governmental subdivisions or employees. Compl. at 1-4.

 
He claims “terrorist attacks, sex crimes, hate crimes, and racketeering activities,” as well as
social discrimination against him. Compl. at 1. He seeks $6,700,000 in damages. Compl. at 1.

STANDARDS FOR DECISION

The Prison Litigation Reform Act of 1996 limits the ability of incarcerated persons with a
history of filing frivolous lawsuits from proceeding in forma pauperis. See 28 U.S.C. § 1915(g);
see also Cotner y. United States, No. 13-407C, 2013 WL 6139791, at *1 (Fed. Cl. Nov. 22,
2013). “[C]ommonly referred to as the ‘three strikes’ provision, [the Prison Litigation Reform
Act of 1996] prohibits an incarcerated person from proceeding in forma pauperis when that
individual has filed three or more actions or appeals which were dismissed as ‘frivolous,
malicious, or fail[ing] to state a claim upon which relief may be granted.’” Cotner, 2013 WL
6139791, at *1 (quoting 28 U.S.C. § 1915(g)). There is an exception, however, for “prisoners
under ‘imminent danger of serious physical injury.’” /d. (quoting 28 U.S.C. § 1915(g)). Thus,
for an incarcerated frivolous litigator to be permitted to proceed in forma pauperis, they must
allege sufficient facts in their complaint that demonstrate they are under “imminent danger of
serious physical injury.” /d. (quoting 28 U.S.C. § 1915(g)).

ANALYSIS

Mr. Meyers has a history of filing frivolous actions while incarcerated. See Meyers v.
Roanoke U.S. Attorney, 2019 WL 4247833, at *1 (W.D. Va. Sept. 6, 2019) (stating that Mr.
Meyers has filed at least 35 civil cases in the United States District Court for the Western District
of Virginia and listing numerous matters that were dismissed as frivolous), appeal docketed, No.
19-7363 (4th Cir. Nov. 16, 2019), The district court in September 2019 entered a pre-filing
injunction against Mr. Meyers, see Meyers, 2019 WL 4247833, at *4 (“I find it necessary and
appropriate to issue a pre-filing injunction against [Mr.] Meyers.”); and Mr. Meyers concedes as
much, see Compl. at 3.

In light of these circumstances, Mr. Meyers manifestly is subject to the “three-strikes”
provision of 28 U.S.C. § 1915(g). His frivolous lawsuits while incarcerated exceed the “three
strikes” prescribed by the Prison Litigation Reform Act of 1996. Thus, to proceed in forma
pauperis, Mr. Meyers must have alleged facts that indicate he is in imminent danger of serious
physical harm. Mr. Meyers fails this burden. His complaint vaguely alleges that the person
responsible for his confinement is “trying to murder me[,] stating I have to sign a contract stating
my pleadings [are] not against him and the judges.” Compl. at 2. In its most recent opinion, the
District Court for the Western District of Virginia noted that “in other cases, the court has had
multiple hearings regarding whether [Mr.] Meyers is in imminent danger of serious physical
harm, ... and has dismissed several cases after finding that he is not in imminent danger of
serious physical harm.” Meyers, 2019 WL 4247833, at *2. But, much like in his prior litigation,
Mr. Meyers’ complaint contains no allegations of fact that could plausibly suggest he is in
imminent danger of serious physical harm. Therefore, the court determines Mr. Meyers is
unable to proceed in forma pauperis.!

 

IMr. Meyers also avers that the pre-filing injunction issued against him “prohibit[s] [him]
from arguing [his] claims.” Compl. at 3.

 
Mr. Meyers also asserts claims against parties other than the United States. Those claims
are outside the jurisdiction of this court, which possesses juridical power to entertain only claims
against the United States. See United States y. Sherwood, 312 U.S. 584, 588 (1941) (With
limited exceptions, none of which are applicable here, “jurisdiction is confined to the rendition of
money judgments in suits brought for that relief against the United States, and if the relief sought
is against others than the United States[,] the suit as to them must be ignored as beyond the
jurisdiction of the court.”); see also Anderson vy, United States, 117 Fed. Cl. 330, 331 (2014)
(ruling that the Court of Federal Claims lacks jurisdiction “over any claims alleged against states,
localities, state and local government entities, or state and local government officials and
employees’). As a result, this court cannot exercise jurisdiction over any of Mr. Meyers’ claims
against persons and entities other than the United States.

And, Mr. Meyers does not allege the existence of a contract between him and any agency
of the federal government, and his complaint does not identify money-mandating statutes or
constitutional provisions. The Tucker Act provides this court with jurisdiction over “any claim
against the United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. §
1491{a)(1). No such claims are stated; in fact, the complaint does not appear to allege any cause
of action at all, except perhaps tort claims, over which this court has no jurisdiction. See 28
U.S.C. § 1491(a)(1); Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). Thus, Mr.
Meyers’ complaint is subject to dismissal for lack of subject-matter jurisdiction and failure to

state a claim.
CONCLUSION

For the reasons stated, Mr. Meyers’ motion for leave to proceed in forma pauperis is
DENIED. Additionally, defendant’s motion to dismiss Mr. Meyers’ complaint is GRANTED on
the ground that it is frivolous within the meaning of 28 U.S.C. § 1915A(b)(1), lacks subject-
matter jurisdiction, and fails to state a claim.”

The Clerk shall enter judgment in accord with this disposition.

It is so ORDERED. Mi

Charles F. Lettow
Senior Judge

 

*Mr. Meyers has also filed a Motion for Leave to File Amended Claim, ECF No. 10; a
Motion to Appoint Counsel, ECF No. 11; a second Motion for Leave to file Amended Claim,
ECF No. 13; and a Motion for Review of District Court’s Order of Dismissal, ECF No. 12. Each
of those motions is DENIED in light of the court’s disposition of Mr, Meyers’ motion to proceed
in forma pauperis.

 

 
