Opinion
No. 01 C 1705, No. 01 C 1751
March 22, 2001
MEMORANDUM ORDER
Randy Cook ("Cook"), who although a repeat filer has not accumulated three "strikes" so as to subject him to the constraints imposed by 28 U.S.C. § 1915(g), has filed two pro se 42 U.S.C. § 1983 actions in quick succession:
According to the records compiled by this District Court's Staff Attorney's Office, Cook's original lawsuit (Case No. 92 C 7185) was filed under the name Leroy Nash, while Case Nos. 96 C 4707 and 97 C 3241 (like these two actions) have been brought under the Cook name.
Citations to other portions of that section will take the form "Section 1915 — ," omitting the reference to Title 28.
1. Case No. 01 C 1705 charges that on January 8, 2001 Stateville Correctional Center ("Stateville") Superintendent Hosy unjustifiably sprayed Cook with mace and injured Cook's finger, then failed to provide Cook with access to prompt medical attention.
2. Case No. 01 C 1751 charges that on the very next day (January 9) Stateville Lieutenant E. Godwin applied excessive force in the course of handcuffing Cook.
Although Cook's first Complaint was unaccompanied by the information required by Section 1915(a)(2), he has submitted a filled-out Application To Proceed Without Prepayment of Fees ("Application") and a printout of transactions in his trust fund account at Stateville together with the Complaint in Case No. 01 C 1751.
Stateville employee C. Streit has filled out a certificate (part of the Application form) to the effect that Cook's average balance in his account during the period covered by the printout came to $30.84. But this Court's alternative calculation of "the average monthly deposits to the prisoner's account" (as prescribed by Section 1915(b)(1)(A)) shows a monthly average of $136.12, and the statute calls for the greater of those two average figures to be used as the basis for a case's initial partial filing fee. That being the case, the required initial partial fee that Cook must pay for each of these lawsuits is 20% of $136.12 (Section 1915(b)(1)) or $27.22.
Accordingly, Cook is assessed an initial partial filing fee of $27.22 for each of these actions, and the Stateville trust fund officer is ordered to collect those partial filing fees from Cook's trust fund account there and to pay them directly to the Clerk of Court ("Clerk").
After such payments, the trust fund officer at Stateville or any other correctional facility where Cook is confined is authorized to collect monthly payments for each lawsuit 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 $150 filing fee is paid for each lawsuit. Both the initial payments and all future payments shall be sent to the Clerk, United States District Court, 219 South Dearborn Street, Chicago, Illinois 60604, attention: Fiscal Department, and each shall clearly identify Cook's name and the number of the case to which it applies: 01 C 1705 or 01 C 1751. To implement these requirements, the Clerk shall send two copies of this order (thus covering both cases) to the Stateville trust fund officer.
As for Cook's claims themselves, in each instance he says (Complaint ¶ III in each case) that he has exhausted the available administrative remedies before bringing suit. But his submissions do not confirm that at all:
1. In Case No. 01 C 1705, the Complaint is accompanied only by Cook's handwritten filling out of the Committed Person's Grievance Report form (a photocopy of which is attached as Ex. 1 to this memorandum order). All of the places on that form that are used to reflect the institutional response and any further administrative action are left blank — nothing whatever discloses the processing of Cook's grievance through the available administrative process.
2. Case No. 01 C 1751 does a bit better — in addition to the same form (a photocopy of which is attached as Ex. 2A), the Disciplinary Report form reflecting some institutional processing has also been submitted (a photocopy is attached as Ex. 2B). But the last line of that form, after the Chief Administrative Officer's action has been recorded, reads:
The committed person has the right to appeal an adverse decision through the grievance procedure established by Department Rule 504: Subpart F.
And nothing that Cook has proffered shows that he has indeed exhausted his administrative remedies by pursuing such an appeal.
In summary, Cook is granted until April 12, 2001 to file appropriate documentation in this Court's chambers that confirms the purported exhaustion of administrative remedies as required by 42 U.S.C. § 1997e(a). In the absence of such a filing in either or both these cases, the flawed action or action will be dismissed as premature. Each such dismissal will constitute a "strike" under Section 1915(g) and will not excuse Cook's obligation to pay the balance of the $150 filing fee for that action in the installments provided for earlier.
Because this Court has granted Cook more than ample time for such filing even taking normal delays into account, he will not be granted the additional benefit of the "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988) and subsequent cases unless he makes an affirmative showing of extraordinary delays occasioned by the Stateville authorities. Absent such a showing, the date of delivery to this Court's chambers will control.