The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
(CHIEF) COL. MICHAEL S. OWL
FEATHER-GORBEY,
Plaintiff,
v. CIVIL ACTION NO. 5:21-cv-00091
LT. OR OFFICER BROWN, et al.,
Defendants,
(CHIEF) COL. MICHAEL S. OWL
FEATHER-GORBEY,
Plaintiff,
v. CIVIL ACTION NO. 5:21-cv-00209
SMITH, United Manager, et al.,
Defendants,
(CHIEF) COL. MICHAEL S. OWL
FEATHER-GORBEY
Plaintiff,
v. CIVIL ACTION NO. 5:21-cv-00210
UNITED STATES OF AMERICA,
Defendant.
(CHIEF) COL. MICHAEL S. OWL
FEATHER-GORBEY,
Plaintiff,
v. CIVIL ACTION NO. 5:21-cv-00270
MANNING, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are numerous filings1 by Plaintiff (Chief) Col. Michael S. Owl
Feather-Gorbey in the four above-styled actions: complaints filed pursuant to Bivens v. Six
Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and a complaint
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq.; motions for sanctions,
preliminary injunctions, and temporary restraining orders [Case No. 91, Docs. 23, 24, 25, 28; Case
No. 209, Doc. 17; Case No. 210, Doc. 11]; and Plaintiff’s Application to Proceed In Forma
Pauperis (“IFP”) [Case No. 270, Doc. 1]. Also pending are the United States’ motions to
reconsider Plaintiff’s filing status as IFP filed in three of the above-styled actions. [Case No. 91,
Doc. 26; Case No. 209, Doc. 22; Case No. 210, Doc. 16]. These actions were previously referred
to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission of proposed
findings and a recommendation (“PF&R”). Magistrate Judge Aboulhosn filed the PF&Rs on
March 26, 2021 [Case No. 91, Doc. 13], April 12, 2021 [Case No. 209, Doc. 5; Case No. 210, Doc.
6], and May 14, 2021 [Case No. 270, Doc. 7]. Magistrate Judge Aboulhosn recommended the
Court take the following actions: (1) dismiss certain counts or the entirety of the Complaints and
Amended Complaints [Case No. 91, Doc. 7; Case No. 209, Doc. 2; Case No. 210, Doc. 2; Case
No. 270, Doc. 2], and (2) deny Plaintiff’s application to proceed IFP [Case No. 270, Doc. 1].
Magistrate Judge Aboulhosn recommended referring the cases back for further proceedings on the
surviving claims. [Case No. 91, Doc. 13; Case No. 209, Doc. 5; Case No. 210, Doc. 6; Case No.
1 For ease of reference when referring to documents from multiple actions, the first
number corresponds with the first styled action, and so forth. When referring to a single document
from an action, the last numbers of the Civil Action Number will be referenced prior to the
document number.
270, Doc. 7]. Mr. Feather-Gorbey timely objected to the PF&Rs.2 [Case No. 91, Doc. 14; Case
No. 209, Doc. 16; Case No. 210, Doc. 10; Case No. 270, Doc. 9].
Prior to the Court adjudicating the PF&Rs in the first three actions, the United
States moved to reconsider Plaintiff’s filing status as IFP [Case No. 91, Doc. 26; Case No. 209,
Doc. 22; Case No. 210, Doc. 16]. Magistrate Judge Aboulhosn filed PF&Rs relating to those
motions on May 14, 2021 [Case No. 91, Doc. 29; Case No. 209, Doc. 24; Case No. 210, Doc. 18].
Magistrate Judge Aboulhosn recommended the Court (1) grant the United States’ motion to
reconsider Plaintiff’s filing status as IFP [Case No. 91, Doc. 26; Case No. 209, Doc. 22; Case No.
210, Doc. 16]; (2) revoke Plaintiff’s IFP status; (3) deny Plaintiff’s motion for reconsideration of
the PF&R [Case No. 91, Doc. 15]; (4) deny Plaintiff’s motions for sanctions, injunctions, and
temporary restraining orders [Case No. 91, Docs. 23, 24, 25, 28; Case No. 209, Doc. 17; Case No.
210, Doc. 11]; (5) deny Plaintiff’s motion for leave to amend [Case No. 209, Doc. 18, Case No.
210, Doc. 13]; (6) dismiss the Amended Complaint and Complaints [Case No. 91, Doc. 7; Case
No. 209, Doc. 2; Case No. 210, Doc. 2]; and (7) remove the matters from the Court’s docket. Mr.
Feather-Gorbey timely objected. [Case No. 91, Doc. 35; Case No. 209, Doc. 25; Case No. 210,
Doc. 19].
Mr. Feather-Gorbey recently filed motions relating to a physical assault he
allegedly experienced at FCI Beckley. [Case No. 91, Doc. 51; Case No. 209, Doc. 42; Case No.
210, Doc. 37]. Mr. Feather-Gorbey has filed a separate civil action relating to these exact
allegations. Feather-Gorbey v. Warden, 5:21-cv-00492. Insofar as these motions are duplicative
of claims asserted in the new civil action, the motions are denied without prejudice.
2 Mr. Feather-Gorbey moved for reconsideration of the Magistrate Judge’s PF&R. [Case
No. 91, Doc. 15]. The Court treats the motion as objections to the PF&R.
Inasmuch as common questions of law and fact are extant, and pursuant to Federal
Rule of Civil Procedure 42(a), the Court DIRECTS that these actions be CONSOLIDATED. The
first styled action above is designated as the lead case, and all future filings shall be made therein.
I.
The Court is required “to make a de novo determination of those portions of the
report or specified findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court need not review, under a de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” (emphasis
added)). Further, the Court need not conduct de novo review when a party “makes general and
conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
II.
Mr. Feather-Gorbey contends the Court should only consider the first set of PF&Rs
and disregard the second set of PF&Rs recommending the granting of the United States’ motions
to reconsider Plaintiff’s IFP filing status. The Court is required to screen all cases in which a
plaintiff seeks to proceed IFP, and the Court “shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous or malicious; fails to state a claim on which relief
may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). The Court undertakes similar screening when the plaintiff seeks relief
from a governmental entity or a governmental entity’s officers or employees. 28 U.S.C.
§ 1915A(b).
The inmate’s complaint is subject to the “three strikes” provision of the Prison
Litigation Reform Act (“PLRA”). This subsection provides that
[i]n no event shall a prisoner bring a civil action . . . 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). The Court’s screening under the “three strikes” rule imposes an additional
pleading requirement on the plaintiff who has struck out: even if the plaintiff’s claims pass general
scrutiny under § 1915(e)(2)(B) or § 1915A, the plaintiff must be “under imminent danger of serious
physical injury” for his Complaint to survive the Court’s screening. 28 U.S.C. § 1915(g).
Magistrate Judge Aboulhosn screened Mr. Feather-Gorbey’s complaints under 28
U.S.C. § 1915A because the Complaints alleged claims against federal government employees or
officers. He initially recommended dismissing all claims except those alleging failure to protect
and deliberate indifference concerning Mr. Feather-Gorbey’s medical needs under the Eighth
Amendment. [Case No. 91, Doc. 13 at 25-26; Case No. 209, Doc. 5 at 20; Case No. 210, Doc. 6
at 5-6]. Without previously considering Mr. Feather-Gorbey’s prior filings, Magistrate Judge
Aboulhosn issued PF&Rs recommending dismissal of all claims as Mr. Feather-Gorbey failed to
demonstrate he is facing imminent danger of serious physical injury which would allow him to
proceed IFP. [Case No. 91, Doc. 29 at 14; Case No. 209, Doc. 24 at 12; Case No. 210, Doc. 18 at
11]. Magistrate Judge Aboulhosn recommended denial of the motion to proceed IFP and dismissal
of the Complaint in the remaining case for the same reasons. [Case No. 270, Doc. 7].
For this reason, Mr. Feather-Gorbey’s objection on this issue is OVERRULED.
III.
Mr. Feather-Gorbey contends the Magistrate Judge’s reliance on the United States’
motion to revoke Plaintiff’s IFP status was improper because he was not given notice or adequate
response time. The Magistrate Judge’s findings and recommendations are not final until adopted
by the District Court. 28 U.S.C. § 636(b)(1). The PF&R is a recommendation to the Court to
which parties may file objections. Id. Mr. Feather-Gorbey timely filed objections to the PF&Rs.
Finding no prejudice, the Court OVERRULES the objection.
IV.
Mr. Feather-Gorbey contends he is under imminent danger of serious physical
injury and may proceed IFP. Magistrate Judge Aboulhosn concluded Mr. Feather-Gorbey had not
made a showing that he was under imminent danger of serious physical injury. Construing the pro
se filings liberally, this Court agrees with the Magistrate Judge. “Imminent danger of serious
physical injury” requires “that the imminent danger ‘must exist at the time the complaint or the
appeal is filed, not when the alleged wrongdoing occurred.’” Feather-Gorbey v. Dunbar, 787 Fed.
Appx. 824, 825 (4th Cir. 2019) (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)).
Mr. Feather-Gorbey alleges he faces serious physical injury due to the lack of
appropriate medical treatment for his glaucoma, which poses a threat of blinding him. Specifically,
Mr. Feather-Gorbey denies laser surgery and other treatments as recommended by a physician and
wishes to be prescribed marijuana. [Case No. 91, Doc. 35 at 11; Case No. 209, Doc. 25 at 9; Case
No. 210, Doc. 19 at 9]. Any exacerbation of Mr. Feather-Gorbey’s condition is self-inflicted. Mr.
Feather-Gorbey has not been denied medical treatment for his glaucoma; he simply refuses to
accept the prescribed treatment. This is not an imminent danger of serious physical injury.
Mr. Feather-Gorbey contends he is subject to verbal threats, placed in a cell with
gang members, denied prosthetics, and denied a lower bunk pass, all of which constitute imminent
danger of serious physical injury. Because “imminent danger” is an additional pleading
requirement for prisoners with three strikes, the allegation of imminent danger must meet the same
plausibility standard required of all complaints. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Mr. Feather-Gorbey set forth conclusory
statements in his Complaints that he is being threatened; he has failed to plead specific facts
regarding these threats.
Mr. Feather-Gorbey has thus not demonstrated that he is in imminent danger of
serious physical injury so as to allow him to proceed IFP. The Court OVERRULES the objections.
V.
Based upon the foregoing discussion, the Court ORDERS as follows with respect
to the above-captioned actions:
1. That the actions be CONSOLIDATED and the first styled case be designated the lead
case, with all future filings being made therein;
2. That the objections be OVERRULED and the motions to reconsider be DENIED [Case
No. 91, Docs. 14, 15, 35; Case No. 209, Docs. 16, 25; Case No. 210, Docs. 10, 19; Case
No. 270, Doc. 9] and the Magistrate Judge’s PF&Rs be ADOPTED [Case No. 91, Docs.
13, 29; Case No. 209, Docs. 5, 24; Case No. 210, Docs. 6, 18; Case No. 270, Doc. 7].
3. That the motion to proceed IFP be DENIED [Case No. 270, Doc. 1];
4. That the United States’ motions to reconsider Plaintiff’s IFP status be GRANTED [Case
No. 91, Doc. 26; Case No. 209, Doc. 22; Case No. 210, Doc. 16], and Plaintiff’s IFP
status be REVOKED;
5. That Plaintiff's motions for sanctions, injunctions, and temporary restraining orders be
DENIED [Case No. 91, Docs. 23, 24, 25, 28; Case No. 209, Doc. 17; Case No. 210, Doc.
11]; and
6. That the Complaints and Amended Complaints [Case No. 91, Doc. 7; Case No. 209, Doc.
2; Case No. 210, Doc. 2; Case No. 270, Doc. 2] in the lead and consolidated actions be
DISMISSED.
Upon dismissal of these actions, the following motions are DENIED as moot:
(1) the United States’ motions to stay [Case No. 91, Doc. 44; Case No. 209, Doc. 35; Case No.
210, Doc. 31]; (2) Plaintiffs motions to receive a copy of the United States’ filings of May 4, 2021
[Case No. 91, Doc. 39; Case No. 209, Doc. 31; Case No. 210, Doc. 26; Case No. 270, Doc. 16];
(3) Plaintiffs motions to enforce the PLRA by its terms [Case No. 91, Doc. 42; Case No. 209,
Doc. 33; Case No. 210, Doc. 29; Case No. 270, Doc. 18]; (4) Plaintiff's motion to correct [Case
No. 210, Doc. 21]; (5) Plaintiffs motions for sanctions, contempt, and temporary restraining
orders not addressed in the PF&Rs [Case No. 91, Docs. 40, 42; Case No. 209, Doc. 33; Case No.
210, Doc. 29; Case No. 270, Doc. 18]; (6) Plaintiff's motions relating to a physical assault, which
is the subject of another civil action [Case No. 91, Doc. 51; Case No. 209, Doc. 42; Case No. 210,
Doc. 37]; (7) Plaintiffs motions to amend [Case No. 209, Doc. 18, Case No. 210, Doc. 13]. The
Court, again, hereby ORDERS these consolidated actions be DISMISSED.
The Court directs the Clerk to transmit a copy of this written opinion and order to
any counsel of record and any unrepresented party herein.
ENTER: November 1, 2021
Oz a
oS Frank W. Volk
“Gaps United States District Judge