Opinion
No. 1:05-cv-320.
March 2, 2006
MEMORANDUM AND ORDER
Plaintiff Norman Sullivan ("Sullivan") has filed a pro se prisoner civil rights complaint pursuant to 42 U.S.C. § 1983 [Court File Nos. 3]. Sullivan seeks a judgment against the defendants for money damages for lost property and the costs of certain surgical procedures. The essence of Sullivan's claims are the defendants lost his personal property and they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment of the United States Constitution.
I. Application to Proceed In Forma Pauperis
It appears from the application to proceed in forma pauperis submitted by Sullivan that he lacks sufficient financial resources at the present time to pay the required filing fee of $250.00. Sullivan is not relieved of the ultimate responsibility of paying the $250.00 filing fee. Since Sullivan is an inmate or prisoner in custody at the Hamilton County Jail in Chattanooga, Tennessee, he will be ASSESSED the civil filing fee of $250.00 under the Prisoner Litigation Reform Act, Pub.L. 104-134, 110 Stat. 1321, codified in 28 U.S.C. § 1915. Sullivan shall pay the full filing fee of two-hundred and fifty dollars ($250.00) pursuant to Prisoner Litigation Reform Act, Pub.L. 104-134, 110 Stat. 1321, codified in 28 U.S.C. § 1915.
Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Sullivan's inmate trust account at the institution where he now resides shall submit to the Clerk, United States District Court, Post Office Box 591, Chattanooga, Tennessee 37401-0591, as an initial partial payment, whichever is the greater of
(a) twenty percent (20%) of the average monthly deposits to Sullivan's inmate trust account; or
(b) twenty percent (20%) of the average monthly balance in Sullivan's inmate trust account for the six-month period preceding the filing of the complaint.
Thereafter, the custodian shall submit twenty percent (20%) of Sullivan's preceding monthly income (or income credited to his trust account for the preceding month), but only when such monthly income exceeds $10.00, until the full filing fee of $250.00 as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk of Court is DIRECTED to send a copy of this memorandum and order to the Sheriff of Hamilton County, the Custodian of Inmate Trust Fund Accounts at the Hamilton County Jail, the Commissioner of the Tennessee Department of Correction, and the Attorney General for the State of Tennessee to ensure the custodian of Sullivan's inmate trust account complies with the portion of the Prison Litigation Reform Act relating to payment of the filing fee.
The agency having custody of the plaintiff shall collect the filing fee as funds become available. This order shall become a part of inmate Sullivan's file and follow the inmate if he is transferred to another institution. The agency having custody of the plaintiff shall continue to collect monthly payments from plaintiff's prisoner account until the entire filing fee of $250.00 is paid. II. Administrative Remedies
Send remittances to the following address:
Clerk, U.S. District Court P.O. Box 591 Chattanooga, TN 37401-0591All checks or other forms of payment shall be payable to "Clerk, U.S. District Court."
Sullivan's complaint is based on claims that arose while he was housed at the Hamilton County Jail. Sullivan has failed to demonstrate he exhausted his administrative remedies. Instead, Sullivan asserts he first filed requests forms and then he filed grievances but Sullivan fails to file any documentation of his grievances or demonstrate he presented his grievances to all levels of the inmate grievance program. Consequently, the Court is unable to determined whether plaintiff has indeed exhausted his remedies.
The Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that no action shall be brought with respect to prison conditions under 42 U.S.C. § 1983 by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. In Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.), cert. denied, 525 U.S. 833 (1998), the United States Court of Appeals for the Sixth Circuit held that district courts should enforce the exhaustion of administrative remedies sua sponte if necessary. The Sixth Circuit has ruled that the plain mandatory language of the statue regarding exhaustion of remedies, the legislative purpose underlying the plain language, and the sound policy on which it is based requires all prisoners filing § 1983 cases involving prison conditions to allege and show they have exhausted all available administrative remedies. Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.), cert. denied, 525 U.S. 833 (1998). "A prisoner should attach to his § 1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint." Id.
The exhaustion requirement applies to all cases filed on or after April 26, 1996, the effective date of the Prison Litigation Reform Act. Id. citing Sullivan v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). It is unclear from the record whether Sullivan has exhausted his available administrative remedies by fairly presenting his claim to the Hamilton County Jail inmate grievance program. The plaintiff's complaint indicates there is an inmate grievance program in the Hamilton County Jail, but it does not confirm that Sullivan presented the facts relating to his claim in his complaint to all levels of the inmate grievance program.
Accordingly, this Court cannot proceed to consider and adjudicate the merits of the plaintiff's claims until all available administrative remedies have been completely exhausted. Id.; White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). The Court is unable to determine whether all available administrative remedies have been completely exhausted. Therefore, the Clerk SHALL send the defendants a copy of the complaint [Court File No. 3] along with a copy of this Order to enable the parties to submit to the Court any additional records, documents, and papers concerning Sullivan's grievances and the administrative decisions made with regard to the grievances by the Grievance Board, the Sheriff, or any other review board. If there has been a final administrative decision on Sullivan's grievances, the parties shall provide a copy of it to this Court as part of their response.
Each party SHALL file a response and explain in detail the grievance procedure Sullivan followed. In addition, copies of all grievances, appeals, and responses involving Sullivan's claims shall be submitted to the Court. In their responses, the parties shall explain the standard procedures for processing inmate grievances, including all available appeals, and provide this Court with a copy of the relevant written regulations and prison grievance policies and procedures. The parties are ORDERED to file their response, with the Court on or before March 20, 2006.
Sullivan is ORDERED to notify this Court and defendant or defendant's counsel of record, immediately of any change of address. If Sullivan is transferred to another institution, he is ORDERED to provide the prison officials at any new institution with a copy of this order. Failure of Sullivan to notify this Court or defendant of an address change with ten (10) days from the date of his transfer, and the new prison officials of this order and outstanding debt, will result in the imposition of appropriate sanctions against plaintiff without any additional notice or hearing by the Court. Failure to respond to this order on or before March 20, 2006, will result in the dismissal of this action.