Meyers v. Wright et al, No. 3:2016cv00005 - Document 21 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 06/30/2016. Copy mailed to Meyers as directed.(ccol, )
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Meyers v. Wright et al Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division | 1 DAVID MEYERS, -I | Petitioner, V. Civil Action No. EDWARD WRIGHT, ^ 3:16CV05 al., Respondents. MEMORANDUM OPINION David Meyers, proceeding pro se, submitted a petition for a writ of habeas Memorandum Order corpus pursuant to entered on March 4, 28 U.S.C. 2016, the § 2254. Court By directed Meyers, within eleven (11) days of the date of entry thereof, to pay the $5.00 that would filing fee or explain any special circumstances warrant excusing payment of the filing fee. The Court warned Meyers that it would dismiss the action if Meyers did not pay the filing fee or proffer any special circumstances excusing the payment of the same. on March Extension 22, of 2016, Time the and Court directed By Memorandum Order entered granted Meyers Meyer's to pay Motion the for filing an fee within thirty (30) days of the date of entry thereof. More than thirty March 22, 2016 filing fee. his failure (30) days elapsed since the entry of the Memorandum Order and Meyers failed to pay the Further, Meyers failed to offer any explanation for to pay the filing fee in a timely manner. Dockets.Justia.com Accordingly, by Memorandum Opinion and Order entered on May 18, 2016, the Court dismissed the action without prejudice. On June 25, for 2016, Reconsideration under Motion,'" ECF No. 13); No. 14) ; danger and, the Court received from Meyers: a Fed. Civ. P. 59(e) ("Rule 59{e} a Motion for Appointment of Counsel {ECF Motion ("Imminent R. a Motion Danger complaining Motion," that he ECF No. is in 15). imminent The United States Court of Appeals for the Fourth Circuit recognizes three grounds for relief under Rule intervening change 59(e): in controlling law; evidence not available at trial; of 994 V. law or prevent manifest F.2d 1076, "(1) 1081 or (3) (2) 1993) to account to correct a injustice." (4th Cir. to accommodate an for new clear error Hutchinson v. Staton, (citing Weyerhaeuser Corp. Koppers Co., 771 F. Supp. 1406, 1419 (D. Md. 1991); Atkins V. Marathon LeTourneau Co., 130 F.R.D. 625, Meyers asserts that the Court 626 (S.D. Miss. 1990)). committed a clear error of law and that vacating the dismissal order is necessary in order to prevent a manifest injustice. Specifically, with respect the clear error of law, he suggests that the Court acted prematurely because above, time, he the had moved Court for granted an extension of Meyers request time. for an As explained extension of but then Meyers failed to pay within the time set by the Court. Alternatively, Meyers contends that vacating the dismissal order is necessary because he is "in imminent danger due to the Respondent's sexual harassment and sexual abuse acts on Petitioner and Petitioner not being treated by prisoner medical department for coughing up blood and continual bloody diarrhea." {Rule 59(e) "[T]he Mot. settled 2 (spelling rules and [provide] capitalization that habeas corrected).) corpus relief is appropriate only when a prisoner attacks the fact or duration of confinement, whereas, see Preiser v. Rodriguez, 411 U.S. 475 (1973); challenges to the conditions of confinement that would not result in a definite reduction in the length of confinement are properly brought" by some other procedural vehicle. V. B.I.C.E., 402 F. Supp. 2d 688, 695 (E.D. Va. 2005) omitted) omitted) V. Troy, to (internal parallel 571 P.2d 1263, pursue a citations 1269 challenge to condition of (emphasis (citing Strader (4th Cir. 1978)). his Olajide If Meyers wishes confinement, remedy lies in filing an action under 42 U.S.C. § 1983, the not in habeas. Neither Meyers's mental state nor his lack of counsel excuses Meyers failure to comply with a simple, straightforward directive from the Court. Moreover, since the § 2254 Petition was dismissed without prejudice, Meyers can simply refile it and the Court will once again process his failed to demonstrate any basis the appointment Reconsideration of counsel (ECF No. 13), is request. for Rule 59 (e) necessary, As Meyers has relief or that the Motion for Motion for Appointment of Counsel (ECF No. 14), and his Imminent Danger Motion (ECF No. 15) will be denied. The The Court will deny a certificate of appealability. Clerk is directed to send a copy of the Memorandum Opinion to Meyers. /s/ Robert E. Payne Senior Uhited States District Judge Date: June_^, 2016 Richmond, Virginia
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