Feather-Gorbey v. Williams

• Decision Date: 19 May 2022
• Docket Number: 5:21-cv-00673
• Parties: (CHIEF) COL. MICHAEL S. OWL FEATHER-GORBEY, Plaintiff, v. WILLIAMS, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

(CHIEF) COL. MICHAEL S. OWL FEATHER-GORBEY, Plaintiff,
v.
WILLIAMS, et al., Defendants.

No. 5:21-cv-00673

United States District Court, S.D. West Virginia, Beckley Division

May 19, 2022

PROPOSED FINDINGS AND RECOMMENDATIONS

Cheryl A. Eifert United States Magistrate Judge

Plaintiff, (Chief) Col. Michael S. Owl Feather-Gorbey (“Feather-Gorbey”), while incarcerated in Federal Correction Institution Beckley (“FCI Beckley”), filed a pro se civil rights complaint against the above-named defendants pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), (ECF No. 2), as well as an application to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. This matter is assigned to the Honorable Joseph R. Goodwin, United States District Judge, and is referred to the undersigned United States Magistrate Judge for total pretrial management and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends that Feather-Gorbey's application to proceed IFP, (ECF No. 1), be DENIED; that his complaint, (ECF No. 2), be DISMISSED; and that this case be removed from the docket of the court. The undersigned also recommends that Feather-Gorbey's other pending motions seeking to recuse multiple federal judges, (ECF No. 6), receive an emergency hearing, (ECF No. 7), and for the court to take

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judicial notice of his arguments, (ECF Nos. 8, 10), be DENIED, as moot.

I. Standard of Review

The undersigned has conducted an initial screening of the complaint as required by 28 U.S.C. §§ 1915, 1915A. Title 28 U.S.C. § 1915 governs proceedings in forma pauperis and requires the court to “dismiss the case at any time if the court determines that ... the action ... (1) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e) (2)(B). In addition, § 1915(g) provides that “[i]n 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 added).

Similarly, Title 28 U.S.C. § 1915A provides as follows:

(a) Screening.--The court shall review before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity

(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief

See Title 28 U.S.C. §§ 1915A(a), (b). Both sections 1915 and 1915A define the term “prisoner” to mean “any person incarcerated or detained in any facility who is accused

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of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. §§ 1915(h), 1915A(b)(c).

A “frivolous” case is one that lacks “an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Denton v. Hernandez, 504 U.S. 25, 32 (1992). A case lacks an arguable basis in law when it relies upon an indisputably meritless legal theory. Denton 504 U.S. at, 31-32; Anders v. California, 386 U.S. 738, 744 (1967). A case lacks an arguable basis in fact when the supporting allegations describe “fantastic or delusional scenarios.” Neitzke, 490 U.S. at 328. Allegations in a complaint that are “fanciful” or outlandish may be disregarded, and a complaint that relies on such allegations may be dismissed as factually frivolous. See Denton, 504 U.S. 25, 32-33 (1992). (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”).

Moreover, a complaint fails to state a compensable claim, and therefore should be dismissed, when viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court of the United States further clarified the “plausibility” standard in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), stating that the Court is required to accept as true the factual allegations asserted in the complaint, but is not required to accept the legitimacy of legal conclusions that are “couched as ... factual allegation[s].” Id. at 678 (quoting Bell Atlantic Corp, 550 U.S. at 554). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id.

Although pro se complaints, such as the one filed in this case, must be liberally construed to allow the development of potentially meritorious claims, the court may not rewrite the pleading to include claims that were never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the plaintiff's legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II. Relevant Background

On December 27, 2021, Feather-Gorbey initiated the instant action and asked to proceed IFP. (ECF Nos. 1, 2). In his 41-page complaint, Feather-Gorbey names eighty-three individual defendants.^[1] (ECF No. 2 at 1-14). Feather-Gorbey alleges that the named defendants “colluded together or in [sequence], abusing powers of office” to violate his rights. (ECF No. 2 at 15). He asserts that the defendants have denied him medical treatment, caused him “significant hardships” and “excessive punishments, denial of access to courts, [and] other legal agencies” by tampering with his legal mail. (Id.). Further, he alleges that he has been denied writing materials, “religious access,” and access to administrative remedies to “bootstrap enforce retaliations [and] discriminations while repeatedly subjecting [him] to [retaliatory], capricious

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disciplinary actions [and] adverse custody changes without due process or appeal.” (Id.).

Specifically, Feather-Gorbey complains that he was denied religious services at FCI Beckley, including “weekly pipe ceremonies[,] a religious common fair diet,” and “his yearly November ceremonial meal.” (ECF No. 2 at 17). He claims that West Virginia state officials improperly placed a detainer on him “15 times,” and that he was twice shot by the police before his current offense of conviction. (Id. at 18-19). Feather-Gorbey contends that on August 9, 2021, he was assaulted by several staff members at FCI Beckley while being led away from the recreation yard in handcuffs, causing injury to his neck, arms, hands, elbow, and wrist. (Id. at 19-20). He asserts he was denied medical treatment at first, but on August 24, 2021, an FCI Beckley physician ordered “x-rays, treatment [and] medications,” which he did not receive. (Id. at 20-21). Feather-Gorbey claims that FCI Beckley staff attempted to force him, through the use of threats, to sign a form stating he refused the X-rays and treatment. He alleges that staff forged his signature after he tore up the form. (Id. at 21). Because of this forgery, Feather-Gorbey asserts that he filed a lawsuit against the staff, and shortly thereafter, staff destroyed the forged refusal form. (Id. at 21-22). According to Feather-Gorbey, several federal judges colluded with government attorneys and prison staff by not trying to assist him or “abate the issues,” but instead “summary shut [Feather-Gorbey] out of court” by abusing procedural mechanisms and refusing to return the filing fees in some of his previous civil...