UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS
November 24, 2008
FRANKLIN BROWN, PLAINTIFF,
The opinion of the court was delivered by: Harold A. Baker United States District Judge
Order Dismissing Complaint Without Prejudice
The plaintiff has filed a "motion to reply," asking to be transferred from Dixon Correctional Center back to Logan Correctional Center. He states that he transferred to Dixon for a job which has not materialized, and that Dixon is riddled with gangs and drugs. He alleges that he is not safe at Dixon, but he gives no specifics.
It is not clear that the plaintiff meant to send his "motion to reply" to this court. This is a U.S. District Court for the Central District of Illinois. The plaintiff titles his motion for the "clerk of the circuit court," and also appears to include a case number, so maybe he meant to send this motion to a state court where he has an action pending. He appears to refer to a criminal case in the body of his motion. Maybe he meant to send his motion there.
However, the court does not want to guess the plaintiff's intentions. The court has directed the clerk to docket the letter as a complaint and to open a case. The complaint will be dismissed without prejudice because it does not give fair notice of any constitutional claims. The plaintiff has no constitutional right to be housed in one prison over another, and the court does not have the authority to order prison officials to transfer the plaintiff to a more preferable prison.
If the prison officials at Dixon are being deliberately indifferent to a serious risk of harm to the plaintiff, the plaintiff would be able to pursue an Eighth Amendment claim, but a transfer to a better prison would not be the relief available. The relief would be to protect the plaintiff from that specific harm. Further, the complaint does not give fair notice of how the plaintiff is at serious risk of harm or which prison officials are being deliberately indifferent to that risk and how they are being deliberately indifferent.*fn1 In any event, such a case would not be filed here, but in the Northern District of Illinois, where the defendants are. See 28 U.S.C. § 1391(a). And, to file a civil case in the federal district court the plaintiff must pay the filing fee of $350, or file a petition to proceed in forma pauperis. Even if he is allowed to proceed in forma pauperis, the entire $350 filing fee must be taken from his prison account in installments until it is paid. 28 U.S.C. § 1915(b)(1). The filing fee will be collected even if the plaintiff's complaint is dismissed. If the plaintiff does file a case it must be dismissed if the plaintiff has not exhausted his administrative remedies, which typically means timely filing a grievance and timely appealing it all the way to the Administrative Review Board. See 42 U.S.C. § 1997e(a)("[n]o action shall be brought with respect to prison conditions . . . by a prisoner . . . until such administrative remedies as are available are exhausted."). Lastly, if the plaintiff files a case and it is dismissed for failure to state a claim, a "strike" will be assessed against him. Once he has three "strikes," he will not be allowed to proceed in forma pauperis on civil cases in federal court unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED:
1) The plaintiff's complaint is dismissed without prejudice for the reasons above.
2) If the plaintiff wishes to proceed with this action (if this is indeed an action), he must file an amended complaint by December 19, 2008. If he does not file an amended complaint, this case will be closed and no filing fee or strike will be assessed against him. If the plaintiff does file an amended complaint, he must either pay the $350 filing fee or file a petition to proceed in forma pauperis. If the plaintiff files an amended complaint, he will be responsible for paying the filing fee.
Enter this 24th day of November 2008.