Opinion
Case No. 2:03-CV-359 PGC
November 6, 2003
ORDER
Plaintiff, Gary Arland Mitchell, filed a § 1983 complaint with this Court and was allowed to proceed in forma pauperis under 28 U.S.C. § 1915(b). See 42 U.S.C.A. § 1983 (West Supp. 2003); 28 id. § 1915(b). On August 26, 2003, the Court ordered Plaintiff to show cause why his case should not be dismissed because he had not paid his initial partial filing fee nor submitted his consent-to-collection and second exhaustion-certification forms. Plaintiff has since responded by paying toward his filing fee and explaining why he believes he has met the exhaustion requirement. Plaintiff has yet to submit to the Court his signed consent-to-collection form.
The prison grievance coordinator signed the first court-prepared exhaustion form describing one claim, certifying that Plaintiff exhausted that claim in the grievance process. However, the Court has received a copy of a letter from the prison grievance coordinator to Plaintiff in which she asserts that Plaintiff has submitted no grievances regarding the four claims contained in thesecond court-prepared exhaustion-certification form.
This exhausted claim regarded Plaintiff's "allegations that, by telling other inmates that Mitchell `had informed on them,' Tammie Gardner put Mitchell at risk of retaliation from those inmates, who threatened Mitchell's life. Further, when Mitchell told other staff members of the threats, they ignored him and continually placed him in dangerous situations."
Plaintiff rejoins, alleging that a copy of a grievance he encloses covers two of the claims (claims two and three, as set forth in the second exhaustion-certification document) and that claim four is essentially the same as the exhausted claim found in the first exhaustion-certification document. He offers no explanation regarding his apparent failure to exhaust claim one from the second certification document.
First, the grievance copy Plaintiff has enclosed that allegedly covers claims two and three is dated April 23, 1997, If this grievance indeed refers to those claims, the claims are barred by the statute of limitation, which allows four years in which to bring a § 1983 claim. See Larson v. Snow College, 115 F. Supp.2d 1296, 1307 (D. Utah 2000). On the other hand, if Plaintiff has supplied the Court with a copy of a grievance that does not really cover claims two and three, Plaintiff has not met his burden of showing that he has exhausted these claims. See 42 U.S.C.A. § 1997e(a) (West Supp. 2003). Either way, claims two and three must be dismissed.
Claims two and three are described in the second exhaustion-certification document as follows:
(2) Mitchell "is being housed in Uinta 1, 2 or 4 because UDC refuses to seperate protective custody housing from administrative segregation, death row, and mental ill housing." [Sic]
(3) Under the interstate compact, Mitchell should have the same privileges he would have had in the sending state, Arizona; however, the prison does not "provide these opportunities for contact visits, education, group worship, commissary that are equal to the protective custody inmates of the sending state or the general population inmates of the receiving state."
Second, if, as Plaintiff asserts, claim four is essentially the same as the one described in the first certification document, the Court need not entertain them both. The Court thus dismisses claim four, as described in the second exhaustion-certification document, because it is duplicative of claim one, as described in thefirst exhaustion-certification document.
Claim four is described in the second exhaustion-certification document as follows:
(4) Although inmates Hendrix and Lucero were on Mitchell's "safety concern list," prison staff have since put them near Mitchell. This has happened four times "causing [Mitchell] to be assaulted and extorted." For example, on June 18, 2001, Hendrix visited Mitchell's cell and assaulted him by kicking and punching. And, from August 2001 to September 2001, Mitchell was "extorted and assaulted by Lucero in his friends."
Finally, Plaintiff has not argued or shown that he exhausted claim one from the second exhaustion-certification document. Under 42 U.S.C. § 1997e(a), Plaintiff may not bring this claim "until such administrative remedies as are available are exhausted." 42 id. § 1997e(a). Therefore, claim one, as outlined in the second exhaustion-certification document, is dismissed.
Claim one is described in the second exhaustion-certification document as follows: "(1) After Mitchell was forced to try to escape from the Duchesne County Jail because his safety concerns were ignored, he was punished with more prison time."
IT IS HEREBY ORDERED that:
(1) Claims two and three, as quoted in footnote two, from the second certification of exhaustion, are dismissed because they are either barred by the statute of limitation or Plaintiff has not carried his burden of showing they have been exhausted.
(2) Claims one and four, as quoted in footnotes three and four, from the second certification of exhaustion, are dismissed because Plaintiff has not carried his burden of showing they have been exhausted.
(3) Claim one, as quoted in footnote one, from the first certification of exhaustion, has been exhausted. Thus, at the Court's earliest opportunity, claim one will be screened under 28 U.S.C. § 1915A.See 28 id. § 1915A.
(4) Plaintiff has one more chance to show cause within thirty days why his case should not be dismissed because he has failed to sign and submit to the Court his consent to collection of the remaining balance of his filing fee. Another copy of the consent form is attached for Plaintiff's convenience in applying,
CONSENT TO COLLECTION OF FEES FROM INMATE TRUST ACCOUNT
I, Gary Arland Mitchell (Case No. 2:03-07-359), understand that when the Court grants my application to proceed in forma pauperis and files my complaint, I must still eventually pay the entire filing fee of $150.00. I understand that I must pay the complete filing fee even if my complaint is dismissed.
I consent for the appropriate institutional officials to collect from my account on a continuing basis each month, an amount equal to 20% of each month's income. Each time the amount in the account reaches $10, the Trust Officer shall forward the interim payment to the Clerk's Office, U.S. District Court for the District of Utah, 350 South Main, #150, Salt Lake City, UT 84101, until such time as the $150.00 filing fee is paid in full.
By executing this document, I also authorize collection on a continuing basis of any additional fees, costs, and sanctions imposed by the District Court.