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McDonald v. Federal Bureau of Prisons

United States District Court, N.D. Illinois, Eastern Division

February 28, 2017

DAVID MICHEAL McDONALD, Reg. No. 40077-424, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Milton I. Shadur Senior United States District Judge.

         Chicago Metropolitan Correctional Center ("MCC") inmate David McDonald ("McDonald") has used the Clerk's-Office-supplied form of "Complaint Under the Constitution ('Bivens' Action), Title 28 Section 1331" in an effort to launch his most recent battle in his several-years dispute with federal prison authorities and the medical staff assigned to the Federal Bureau of Prisons. But because the tag end of his turgid saga[1] sounds the death knell for his current effort, this sua sponte memorandum opinion and order need not address the other major difficulties with McDonald's lengthy and repetitive account.

         Before that subject is addressed, however, the first order of business in dealing with any prisoner action undertaken without an up-front payment of the entire filing fee is to review his or her compliance or noncompliance with the requirements of 28 U.S.C. § 1915 ("Section 1915"). In this instance McDonald has submitted another Clerk's-Office-supplied form, the In Forma Pauperis Application ("Application"), but the essential ingredient of the Application called for by Section 1915(a)(2) and by the Application instructions themselves -- the printout of transactions in the prisoner's trust fund account "for the 6-month period immediately preceding the filing of the complaint" -- is totally lacking. Instead McDonald has tendered only a brief snapshot that has no listing at all of the transactions in the account from August 18, 2016 to the presumptive "filing" date of February 17, 2017.[2]

         That being the case, this Court has enlisted the good offices of the staff attorney assigned to this case for oversight purposes, and she has requested and obtained from the MCC a printout reflecting all transactions in McDonald's trust fund account there during the period referred to at the end of the preceding paragraph. That has enabled this Court to determine that the average monthly deposits to that account during that time frame (see Section 1915(b)(1)(A)) amounted to $19.34, 20% of which (id.) is $3.87. Accordingly McDonald is assessed an initial partial filing fee of $3.87, and the MCC trust fund officer is ordered to collect that amount from McDonald's trust fund account there and to pay it directly to the Clerk of Court ("Clerk"):

Office of the Clerk United States District Court 219 South Dearborn Street Chicago IL 60604 Attention: Fiscal Department.

         After such payment the trust fund officer at the MCC (or at any other correctional facility where McDonald may hereafter be confined) is authorized to collect monthly payments from his trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from the trust fund account shall be forwarded to the Clerk each time the amount in the account exceeds $10 until the full $350 filing fee is paid. Both the initial payment and all future payments shall clearly identify McDonald's name and the 17 C 1351case number assigned to this action. To implement these requirements, the Clerk shall send a copy of this order to the MCC trust fund officer.

         Now to the fatal flaw in McDonald's action that was referred to at the outset of this opinion. McDonald's lengthy narrative makes it crystal clear (and as stated a bit later, McDonald himself evidences his realization) that he must satisfy -- but that he has not satisfied -- the precondition to suit established by 42 U.S.C. § 1997e(a) ("Section 1997e(a)"):

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

         It is plain that the statutory reference to "any other Federal law" includes a putative Bivens action of the type McDonald seeks to advance. Here is what the unanimous Supreme Court opinion in Porter v. Nussle, 534 U.S. 516, 524 (2002) said in that regard at the conclusion of its analysis of the statutory change enacted by the PLRA as Section 1997e(a):

Thus federal prisoners suing under Bivens v. Six Unknown Fed.Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.

         Accord, the similarly brief but thorough explanation in Kikumura v. Osagie, 461 F.3d 1269, 1281 (10th Cir. 2006)).

         In this instance the earlier-mentioned page 33 of Dkt. No. 1 (photocopy attached) expressly states that McDonald has not exhausted his available administrative remedies -- it notifies him of his right to appeal to the Office of General Counsel of the Federal Bureau of Prisons by an appeal that had to be received in that Office within 30 days from the January 25, 2017 response Dated: that is, on or before February 23. Instead McDonald has specifically recognized that right to appeal in a separate Dkt. No. 5 included in his filings here, a five page statement that flatly rejects the exercise of that right and thus flouts the congressional mandate by turning to this District Court instead.

         In sum, this action must be and is dismissed because of McDonald's violation of Section 1997e(a), and that dismissal constitutes a "strike" under Section 1915(g). Lastly, McDonald's other use of a Clerk's-Office-supplied form -- its Motion for Attorney Representation (Dkt. No. 4) -- is denied as moot.

          U.S. Department of Justice Federal Bureau of Prisons ...


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