Opinion
No. 08 C 1701.
March 31, 2008
MEMORANDUM OPINION AND ORDER
Marcus Brown ("Brown") has filed a self-prepared 42 U.S.C. § 1983 ("Section 1983") Complaint against Chief of Corrections Jennifer witherspoon of the Lake County Jail ("Jail") and a number of other personnel at the Jail, accompanying his Complaint with an In Forma Pauperis Application ("Application") and a Motion for Appointment of Counsel ("Motion"). This memorandum opinion and order will address all of Brown's filings.
All three submissions are on forms provided by this District Court's Clerk's Office for use by persons in custody, with the information called for in each document having been supplied in handwritten form.
To begin with, the Application includes a certification by the Jail's fiscal officer reflecting summary information as to Brown's trust fund account there as of February 18, 2008 — but that certification is unaccompanied by a printout covering all transactions in Brown's account during the six-month period preceding his current filing, as is required by 28 U.S.C. § 1915(a)(2). That omission is puzzling, because Brown has attached to the Application a copy of his Inmate Request Form (also dated February 18) in which he asked for such a printout — a request that carries an "OK" staff response — yet the Complaint and other documents (but not the printout) were not received in the Clerk's Office here until March 24, although Brown's signature to the Complaint carried the same month-earlier February 18 date.
All further references to Title 28's provisions will simply take the form "Section ___."
Given the March 24 filing date of the Complaint and associated documents, it would seem most likely that Brown did not transmit that filing to this District Court until well after the February 18 date. Why then the omission of the trust fund printout from that filing? This Court has no way of knowing on whose doorstep that omission should be placed, but there is no need to pursue any inquiry along those lines. Instead this Court is transmitting a copy of this memorandum opinion and order to the Jail, with a directive that a printout for the entire period from September 1, 2007 to the current date be sent to the following address forthwith, with Case No. 08 C 1701 being referred to in the transmittal:
This is not the first time that Brown has confronted this Court with a comparable delay. In November 2006 he filed a purported Section 1983 action against Jail personnel (Case No. 06 C 5915, referred to in his current Complaint ¶ IV-more on that lawsuit a bit later), asserting another claimed constitutional violation. As this Court's November 7, 2006 memorandum order at 2 n. 2 reflects, in that case as well there was "an unexplained gap of 1-1/2 months between the preparation of the Application and printout and the Clerk's Office's receipt of the Complaint." But at least in that instance Brown tendered the required printout, while here he apparently did nothing during the gap period to obtain the requested printout and submit it as part of his documentation.
As for the Motion, although Brown has not filled out a response to its paragraph 2, which requires his declaration as to his attempts to retain counsel on his own, he has attached photocopies of envelopes addressed to a number of lawyers. This Court will proceed on the premise, though unstated specifically, that Brown had transmitted requests for representation to each of those addressees. That gives Brown the benefit of the doubt, because he has provided nothing to indicate the content of any of his communications or of any responses he received. That however will be treated as a nonproblem, because the Motion has to be denied as moot in all events because of what follows in this opinion as to the substance of Brown's claims.
Those claims have been set out at length in the Complaint. Although Brown somehow seeks to multiply his asserted grievances, the first five of his seven asserted grounds really set out a single claim (see NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)), all stemming from his having been kept in administrative detention about 4-1/2 months after he claims he was entitled to be relieved of that status back in August of 2006. This is a summary of Brown's other two claims:
1. Claim 6 asserts a failure to keep him protected against another inmate, Emmanuel Johnson ("Johnson"), who was the subject of a "keep separate" court order, and who attacked Brown when the two encountered each other.
2. Claim 7 asserts a failure to provide Brown with proper medical care after the Johnson encounter.
This Court has conducted the initial screening of the Complaint that is required by Section 1915A(a), for which purpose it has had the benefit of voluminous documentation that Brown has attached to the Complaint, including (1) some departmental correspondence from the Sheriff's Office in connection with some of his grievances, (2) a series of Inmate Request Forms showing Brown's numerous requests and the responses he received from Chief Witherspoon or other members of the staff and (3) some Inmate Grievance Forms and Reports of Disciplinary Committee Findings. Even though the general principle applicable to reviewing complaints in substantive terms is that a plaintiff's allegations are to be accepted as true, that principle is tempered by the sensible doctrine that if documents attached to the complaint negate a plaintiff's allegations, those documents "trump the facts or allegations presented in the Complaint" (Chicago Dist. Council of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463, 466 (7th Cir. 2007)) — in other words, a plaintiff such as Brown may plead himself out of court.
Before this opinion turns to the attached documentation for that purpose, it should be said at the outset that it is not at all clear that Brown has satisfied his obligation to exhaust all available administrative procedures — something that 42 U.S.C. § 1997e(a) makes a prerequisite to his filing suit. Resolution of that issue of course depends on whether any administrative review is available beyond the internal proceedings evidenced by Brown's attachments, information that this Court does not have.
But even if Brown has indeed exhausted his administrative remedies, the materials that he has attached to the Complaint confirm that no constitutional deprivations were involved in the matters about which he complains:
1. As to the first five claims, either or both of two flaws doom them as potential sources of Section 1983 relief:
(a) One of the numerous forms attached to the Complaint as exhibits (the barrage of such documents — for example, one Inmate Request Form after another, often as an almost daily repetition on the same subject — not only portrays Brown as a constant complainer but leaves no room for doubt as to his keen awareness of any claimed violation of his rights) is an August 23, 2006 Inmate Grievance form in which Brown complained that the failure to release him from restricted custody on August 20 violated his due process rights — the selfsame claim that he now makes the gravamen of his first five claims in this action. Yet when Brown filed his Section 1983 suit in November 2006, when the same custodial status continued to exist, he did not advance that claim as a predicate for relief. That omission would appear to bar the current claims on claim preclusion grounds.
(b) Even apart from that, the response to that Inmate Grievance was that removal from such restricted status required a determination by then Chief Patrick Firman (who, not incidentally, was the first named defendant in Brown's 2006 lawsuit, but was not then targeted with the claim now asserted). That response went on to invite Brown to submit a request for reclassification, but he attaches nothing to show that he followed up on that. That is not the stuff of which constitutional deprivations are formed — at worst Brown suggests a purported violation of internal Jail regulations as a matter of administrative procedure, something that this Court learned very early in its judicial tenure did not implicate federal due process considerations (see, e.g., Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982), enunciating a principle often repeated since then).
2. As to Brown's encounter with Johnson, what is reflected by the attachments is that as soon as any potential encounter between the two took place Brown was ordered to return to his cell — but he disobeyed that direct order, and the consequent attack by Johnson then followed (and would not have taken place but for) that disobedience (see attached Exs. 1A and 1B, the Report of Disciplinary Findings and the ensuing February 1, 2008 Disciplinary Appeal Response issued by Chief Witherspoon). To charge a Jail officer with a violation of Brown's constitutional rights when that officer actually sought to avoid any Johnson-Brown confrontation is totally without merit.
3. Brown's claim of constitutionally inadequate care for a "serious medical need" under the principle established by Estelle v. Gamble, 429 U.S. 97, 104 (1976) and its progeny is also totally empty — see attached Ex. 2, the Memo confirming the minor nature of Brown's injury stemming from the Johnson encounter.
Brown has also attached the Report of Disciplinary Committee Findings as to inmate Johnson, pursuant to which Johnson was also subjected to a disciplinary lockdown because of the encounter. Interestingly, that report includes a statement from inmate witness Melendez that confirmed Brown's failure to follow the correctional officer's order to return to his cell, followed by Johnson's throwing a garbage can at Brown.
In summary, this Court's Section 1915A(a) screening has revealed that Brown has "fail[ed] to state a claim upon which relief may be granted," which under Section 1915A(b)(1) constitutes a ground for dismissal. Both the Complaint and this action are accordingly dismissed, and this dismissal constitutes a "strike" for purposes of Section 1915(g).
This dismissal does not eliminate the need for the Jail's delivery to this District Court of the printout covering transactions in Brown's trust fund account at the Jail, as called for earlier in this opinion.
IMG
LAKE COUNTY ADULT CORRECTIONAL DIVISION INMATE GRIEVANCE RESPONSE FORM
Disciplinary Appeal Response Date: Grievance Appeal Response Grievance Response Inmete Housing Unit 3N 19 Resolution: _____ Approved X Denied _____ Irresolvable _____ Improper format _x_ February 1, 2008 ___ ___ Brown, Marcus L# 108457 *Explanation: Inmate Brown, in your appeal you asked that the incident be investigated. It has been.Your request is denied because you stated in your hearing that" I had to protect myself, even after you admit that the officer had told you to lock down. I spoke to Ofcr. Crittendon also, who states Ofcr. Sapyta told you several times to go back to your cell and you questioned him "why", instead of returning to your cell. This was a violation because you disobeyed a direct order. She also states once you were hit, you charged at the other inmate to attack him after the officer told you to return to your cell again. You had no need to protect yourself after the initial hit, since the inmate was being secured by the officer. You would not have been charged if you had returned to your cell as directed. In regards to your subconscious telling you to turn, if the fact that both of the officers were yelling to you to return to your cell is counted as your subconscious then you were right to listen.
The officer involved will be addressed by Administration and proper action will be taken if necessary.
You asked that Ofcr. Krerowitz and Sgt. Novarro be investigated. You did not specify why you would like them investigated. *If you wish to appeal this decision, check your inmate hand book for the procedure Signed Printed
______________________________ ____________________Ex. 1 B
Date: 1/30/08 From: David Padilla DON To: Inmate brown marcus Re: Grievance 08g061 This note is in response to your grievance 08g061. Upon receiving your communication, I reviewed your chart Your cut above the eye was superficial and did not require any stitches or steri strips. Doctor ordered motrin for you when he saw you on 1/22/08.If your status changes and you feel the need to see, the Physician again fill out a Request Form.
If I can be of any other assistance, feel free to contact me.