IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL MYERS, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-16-1488

:

DR. XIE, ET AL., : (Judge Brann)

:

Defendants :

MEMORANDUM

August 2, 2016

Background

Michael Myers, an inmate presently confined at the State Correctional

Institution, Waymart, Pennsylvania (SCI-Waymart), filed this pro se civil rights

action pursuant to 42 U.S.C. § 1983. Plaintiff has also submitted an in forma

pauperis application. Named as Defendants in the Complaint are two (2) SCIWaymart psychiatrists, Doctors Xie and Chelick. The Remaining Defendant is

SCI-Waymart chaplain, Reverend Pepper.

Plaintiff states that he is presently confined in the SCI-Waymart Forensic

Treatment Center. He asserts that Defendants Doctors Xie and Chelick have acted

improperly by prescribing him psychotropic medications which make him sleepy

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and depressed. Myers contends that he does not require the medications because

he is neither a threat to himself nor anyone else. The remaining portion of the

Complaint generally contends that Chaplain Pepper has refused to act on

Plaintiff’s request for an exemption which would permit him to grow long hair. 

As relief, Myers seeks a removal from his prescribed psychotropic medications,

issuance of a hair exemption, and a transfer to general population at another state

correctional facility.

Discussion 

Title 28 U.S.C. § 1915(g) provides that a federal civil action by a prisoner

proceeding in forma pauperis is barred if he or she:

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.

Plaintiff has previously filed approximately fourteen civil actions in this

district. The following civil actions which were dismissed for failure to state a

claim: Myers v. Morgan, Civil No. 4:95-1127 (M. D. Pa. March 4, 1996)(Muir);

Myers v. Dimott, No. 4:95-1335 (M.D Pa. July 22, 1996)(Muir); and Myers v.

Corbin, Civil No. 4:99-738 (M.D. Pa. Nov. 12, 2000)(Muir). Another action filed in

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this district by Plaintiff, Myers v. Gaddis, et al., Civil No. 4:CV-05-2234 (M.D. Pa.

July 13, 2006)(Muir), was dismissed under § 1915(g).1

There are no averments set forth in the instant complaint which could support

a determination that the unconstitutional conduct alleged in Plaintiff’s latest action

placed this inmate in danger of imminent "serious physical injury" at the time that

the action was filed on July 13, 2016. See Abdul-Akbar v. McKelvie, 239 F.3d 307,

312 (3d Cir. 2001); McCarthy v. Warden, USP-Allenwood, 2007 WL 2071891 *2 

(M.D. Pa. July 18, 2007)(Caldwell, J.) (the danger of serious physical injury must be

about to occur at any moment or impending at the time the complaint was filed, not

at the time of the alleged incident). To the contrary, Plaintiff’s asserts only that he

was placed on medications which made him sleepy2

 and he has been denied an

exemption to wear long hair. 

 There is also no indication that Myers is alleging that he was subjected to any

constitutional violations which placed him at risk of serious physical injury when

this action was filed. Based upon those considerations, this action will be dismissed

1 This action similarly included a request that his forced medication be stopped.

2 It is noted that Plaintiff acknowledges that he is presently under the care of

two psychiatrists who have apparently both determined that he requires medication for

a mental health condition.

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under § 1915(g).3

 

Since the dismissal of Plaintiff’s action is being entered under § 1915(g) and

since he is barred from proceeding in forma pauperis, Plaintiff’s in forma pauperis

application (Doc. 2) will be denied. An appropriate Order will enter.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

3 It is additionally noted that a prisoner’s disagreement with the quality of the

medical care provided to him, sounds in negligence and is usually not actionable in a

civil rights action. See Whooten v. Bussanich, No. 07-1441, slip op. at 4 (3d Cir.

Sept. 12, 2007)(citation omitted). 

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