FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

WILLIAM SANDERSON, Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil rights complaint brought by four pre-trial detainees pursuant to 42 U.S.C. § 1983.

Parties: Plaintiffs William Frederick Piper ("Piper"), Paul Thomas Roberts ("Roberts"), and Tony Mitchell ("Mitchell") are presently confined at the Johnson County Jail in Cleburne, Texas. Plaintiff Robert Jason Jones ("Jones") was recently transferred to the Lindsay State Jail of the Texas Department of Criminal Justice (TDCJ) in Jacksboro, Texas.

Defendants are the following employees of Johnson County and the Johnson County Jail: Sheriff Bob Alford, Captain Tom Craig, Lt. Ann Brown, Shift Supervisors Prine and Guffey, and Deputies Rorick and Kilcrease. The court has not issued process in this case. However, on December 19, 2002, the Magistrate Judge issued a questionnaire to each of the Plaintiffs. Piper, Roberts and Jones filed their answers to the questionnaire on January 2, 2003, whereas Mitchell filed his answers to the questionnaire on January 15, 2003.

Statement of Case: The complaint seeks monetary relief for (1) denial of access to and inadequacies in the prison law library; (2) ineffective grievance procedures; (2) two-cent surcharge on stamps purchased from the jail commissary; and (4) fees charged for medical services and medications received at the jail.

Contemporaneously with the filing of the complaint, Plaintiffs submitted a motion for a temporary restraining order. On May 19, 2003, Plaintiff Piper also submitted a motion for leave to serve summons and complaint by mail.

Findings and Conclusions: The court has permitted Plaintiffs to proceed in forma pauperis. Their complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:

The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.

Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In Bounds v. Smith, 430 U.S. 817, 822 (1977), the Supreme Court held that prisoners have a fundamental constitutional right to "adequate, effective, and meaningful" access to the courts. See also Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Before an inmate may prevail on a claim that his constitutional right of access to the courts was violated, he must demonstrate that the suffered "actual injury" — i.e. that the denial of access "hindered his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 351 (1996). See also McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). The actual-injury requirement applies even in cases "involving substantial systematic deprivation of access to court," including the "total denial of access to a library," or "an absolute deprivation of access to all legal materials." Lewis, 518 U.S. at 353 n. 4.

In the instant case, in order to satisfy the standing requirement of "actual injury," Plaintiffs must show that the denial of access to the law library hindered his efforts to prepare a defense for the charges pending against them in Johnson County. See Lewis, 518 U.S. at 351. Although Plaintiffs make a general allegation that the denial of access to the jail law library has denied them the opportunity to research the charges, they do not allege any actual injury as a result of that denial. (See Plaintiffs' answers to question 4). On the contrary, any injury claim is foreclosed by the fact that Plaintiffs are/were represented by either appointed or retained counsel on all the criminal charges pending against them. (Plaintiffs' individual answers to question 3). Therefore, absent any cognizable injury or prejudice, Plaintiffs cannot raise a claim for denial of access to the courts.

Insofar as Plaintiffs seek to rely on the pendency of this federal civil rights action to show actual prejudice (Plaintiffs' answers to question 4) their claim fares no better. Plaintiffs need not take any further action at this time. They completed their answers to the questionnaire over four months ago and, as more fully set out below, this case is subject to summary dismissal because it lacks an arguable basis in law.

Next Plaintiffs assert that the grievance procedure at the Johnson County Jail is inadequate. It does not follow state guidelines; it fails to provide for an investigation or an appeal process. (Complaint at p. 8 of handwritten attachment). Moreover, grievances are often "lost" or denied when they raise subjects which Defendants do not want to address. (Id.).

An inmate does not have a constitutional entitlement to an adequate grievance procedure. See e.g., Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (there is no constitutional right to participate in grievance procedures); Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996) (inmates do not have a constitutional right to an adequate grievance procedure; any right to inmate grievance procedure is procedural, not substantive, right and, thus, state's inmate grievance procedures do not give rise to liberty interest protected by due process clause); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam) (inmates do not have a constitutional right to participate in grievance procedures); Jenkins v. Henslee, 2002 WL 432948, *2 (N.D.Tex. Mar 15, 2002) (NO. 3-01-CV-1996-R). Although it is a condition precedent to filing a suit arising under § 1983, see 42 U.S.C. § 1997e(a), its ineffectiveness or altogether absence does not give rise to a constitutional claim. Hence any alleged violation of the grievance procedure as alleged in Plaintiffs' complaint does not amount to a constitutional violation.

Similarly the two-cent surcharge for each 37 cent stamp purchased from the jail commissary does not rise to a constitutional claim. This is not a case where indigent plaintiffs were denied access to the courts because the jail refused to mail a pleading to a court unless the postage, including the two-cent surcharge, was paid. Moreover, Plaintiffs concede that friends and family have mailed them stamps, thus successfully avoiding the two-cents surcharge. (Complaint at p. 8 of handwritten attachment).

With respect to medical services, Plaintiffs complain that they are charged for medical services and medicines received from jail medical staff. The medical services procedure at the Johnson County Jail provides in part as follows:

Within the first (72) hours of an inmate's incarceration the inmate will be assessed by the Medical Staff at no charge. For other services, a fee will be charged to the inmate's account. These fees are posted in each housing unit. If an inmate is indigent, medical service will be given at no charge. If, while in jail, you have a medical problem, you must submit a Request for Services form to the nurse stating the nature of your problem. Inmates will be asked daily if medical care is needed.

(Complaint at Exh. G).

The above policy is similar to "co-pay" policies or fee-for-service programs under which inmates must bear part of the cost of their treatment. Courts have found these polices constitutionally permissible if they do not interfere with timely and effective treatment of serious medical needs.Reynolds v. Wagner, 128 F.3d 166, 174 (3d Cir. 1997) (co-pay policy); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404 (9th Cir. 1985) (co-pay policy); Cameron v. Sarraf, 2000 WL 33677584, at *3-5 (E.D. Va. March 17, 2000) (No. CIV.A.98-1227-AM.) (co-pay policy); Reynolds v. Wagner, 936 F. Supp. 1216, 1225-1227 (E.D. Pa. 1996) (fee-for-service-program); Johnson v. Dept. of Public Safety and Correctional Services, 885 F. Supp. 817 (Md. 1995) (co-pay policy). See also Hudgins v. DeBruyn, 922 F. Supp. 144, 151 (S.D. Ind. 1996) (prison policy which provided that inmates could obtain over-the-counter medicine at cost from institution commissary or as part of necessary treatment for serious medical condition did not constitute cruel and unusual punishment even though former policy generally provided medication free of charge in conjunction with inmate's use of sick-call process; inmate's serious medical needs would be met whether inmate was indigent or not).

Nothing in the deliberate indifference standard guarantees inmates the right to be entirely free from cost considerations relevant to medical decisions. Reynolds, 128 F.3d, at 175. It is only when medical care is denied to inmates because of their inability to pay that deliberate indifference is implicated.See. e.g., Collins v. Romer, 962 F.2d 1508, 1514 (10th Cir. 1992) (affirming district court finding that statute with no exceptions to the co-payment requirement would be unconstitutional because it would deprive an inmate of meaningful access to medical care);Johnson, 885 F. Supp. at 820 (holding statute constitutional "because the policy mandates that no one shall be refused treatment for an inability to pay, [and] the co-pay policy will not result in a denial of care, even for inmates who abuse the system").

The medical services policy presently in effect at the Johnson County Jail passes constitutional muster in that prisoners are to be provided medical attention even if they do not currently have money in their trust account to make a payment. None of the Plaintiffs cites specific instances, either in his complaint or in answer to the Magistrate Judge's questionnaire, where he was denied medical attention as a result of the policy. Jones-Bey v. Cohn, 115 F. Supp.2d 936, 940 (N.D. Ind. 2000). Plaintiffs Roberts and Piper experienced delays in seeing the medical staff for a foot injury (Robert's answer to question 5), for blood pressure checks, (id.), and for breathing difficulties (Piper's answer to question 5). Yet these delays were due to inadequate staffing or unavailability of the medical staff during weekend nights, not their inability to pay a co-pay or partial fee. (Id.). Therefore, neither Roberts nor Piper can state a claim for inadequate medical care.

The same applies to Plaintiff Mitchell. He alleges that he did not to have his shoulder "oozing dark green stuff" and his blood pressure checked after "sick-call-hours" and on the weekend, because he would have incurred a $25.00 after-hour-sick-call charge and a $75.00 weekend charge. (Mitchell's answer to question 5). He further alleges that he had a fellow inmate change the bandage on his spider bite in lieu of paying the $5 daily charge for bandage changes. In neither of the above circumstances, Mitchell was withheld treatment because he was unable to pay a co-payment or partial fee. Rather he decided to forego medical services for pecuniary reasons. This is not sufficient to state a claim for inadequate medical care. Moreover, Mitchell does not present any reason why his blood pressure and the oozing shoulder could not have been checked during normal medical service hours, which may require a lower co-payment or partial fee rate.

Plaintiffs have been given an opportunity to expound on the factual allegations of their complaint by way of questionnaire.See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (same); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (same). Because they have failed to allege any cognizable claim for relief against the named Defendants under § 1983, their complaint should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1) and 1915(e)(2)(B)(i). Plaintiffs' motions for a temporary restraining order and for leave to serve summons should be denied as moot.

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiffs' complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).

It is further recommended that Plaintiffs' motions for a temporary restraining order (docket #6) and for leave to serve summons (docket #17) should be denied as moot.

A copy of this recommendation will be mailed to Plaintiffs.

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.