David Meyers v. J. Bentley ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6177
DAVID MEYERS,
Plaintiff - Appellant,
v.
J. D. BENTLEY; SGT. J. B. HALL; J. FANNIN; M. L. COUNTS; WALTER
SWINEY; C. R. STANLEY; F. STANLEY; A. CLEVINGER; OFFICER
STANLEY; JR. OFFICER WELLS; SGT. WILLIAMS; C. STALLARD;
GERALDINE BAKER BAKER; OFFICER GWEN; MAJOR TATE; CAPTAIN
D. STILL; CAPTAIN BLEVINS; OFFICER MCCOWAN; J. B. MESSER; S.
ESCOFFERY; T. DORTON; FL. OFFICER LEWIS; SGT. MEADE; MARCUS
ELAM; A. DAVID ROBINSON; PAUL HAYMES; HENRY PONTON; S.
BRYAN; CURTIS PARR; P. SYKES; J. GIBSON; J. ARTRIP; DR. EDWARD
BONKYE; KAREN STAPLETON; J. BLEDSOE; DR. FOX; C. DICKENSON;
OFFICER CATERON; OFFICER BENTLEY,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. James P. Jones, District Judge. (7:18-cv-00051-JPJ-PMS)
Submitted: June 13, 2019 Decided: June 25, 2019
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Meyers, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
David Meyers, a Virginia inmate, has filed a notice of appeal. While we grant
Meyers’ motion for leave to proceed without prepayment of fees under the Prison
Litigation Reform Act (PLRA), we dismiss the appeal for lack of jurisdiction.
Because is it uncontested that Meyers has had three civil actions or appeals
dismissed as frivolous, malicious, or for failure to state a claim, he must show that he is
in imminent danger of serious physical injury in order to proceed in a civil action or
appeal without prepayment of the filing fees. See 28 U.S.C. § 1915(g) (2012). We have
considered Meyers’ allegations and conclude that he has sufficiently shown that he is in
imminent danger of serious physical injury and he may proceed under the PLRA without
prepayment of fees.
“The effect of a notice of appeal is determined at the time it is filed.” Trinidad
Corp. v. Maru, 781 F.2d 1360, 1362 (9th Cir. 1986). A proper notice of appeal is filed
“after the entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A).
Here, Meyers seeks to appeal an order denying his motion to seal. When Meyers filed
the notice of appeal, there was no order denying a motion to seal, nor was there a pending
motion to seal. There being no appealable order when the appeal was filed, we dismiss
the appeal for lack of jurisdiction.
Accordingly, we grant leave to proceed without prepayment of fees under the
PLRA, but dismiss the appeal for lack of jurisdiction. We also deny Meyers’ motion for
injunctive relief. We dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before this court and argument would not aid
the decisional process.
DISMISSED
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