Opinion
No. 08 C 4686.
August 19, 2008
MEMORANDUM ORDER
In accordance with this District Court's LR 40.2(b)(1)(B), which establishes an exception to the general random assignment system for newly-filed litigation where the plaintiff is in custody and is a repeat litigator in actions challenging the conditions of confinement, this newest pro se action by Andre Ferguson ("Ferguson") has been assigned directly to this Court's calendar. Ferguson again seeks to sue under 42 U.S.C. § 1983, charging that his constitutional rights have assertedly been violated by conditions at the Cook County Department of Corrections ("County Jail").
All further references to Title 42's provisions will simply take the form "Section —."
But quite apart from deficiencies noted by the Clerk's Office, Ferguson's submission is totally devoid of any showing of his compliance with the precondition to any such prisoner lawsuit set out in Section 1997e(a): the exhaustion of all available administrative remedies. Indeed, the Complaint does not even reflect the commencement of any grievance or other administrative-remedy-seeking activity. Accordingly both the Complaint and this action are dismissed without prejudice.
Ferguson's Complaint delivered to this Court's chambers has been accompanied by a deficiency statement noting (1) the absence of any in forma pauperis application (and of the required accompanying documents) and (2) the delivery of insufficient copies of the Complaint to effect service on both defendants and provide this Court with the required judge's copy.
That said, however, two related subjects should be mentioned. Here they are.
First, this Court should not be misunderstood as expressing any views as to the viability or nonviability of Ferguson's complaints about conditions at County Jail in constitutional terms. That subject will be addressed if, as and when Ferguson may satisfy the statutory precondition to bringing suit.
Second, this District Court's records reveal that Ferguson has done nothing toward paying, or even explaining the nonpayment of, his preexisting obligation of $300 in fees owed in connection with two of his prior lawsuits in this District Court — Case Nos. 02 C 1063 and 02 C 2077. In that respect, this Court's attached March 17, 2006 memorandum order in Case No. 06 C 1393 (another of Ferguson's attempted lawsuits) is self-explanatory.
Accordingly Ferguson is further notified that unless he provides a suitable explanation for his continuing delinquency in that respect, no further litigation efforts on his part will be accepted "unless [he] is under imminent danger of serious physical injury." This Court borrows that exception from the corresponding provision of 28 U.S.C. § 1915(g) that applies to a prisoner who has previously accumulated three "strikes."
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ANDRE FERGUSON, ) ) Plaintiff, ) ) v. ) ) No. 06 C 1393 SHERIFF MICHAEL SHEAHAN, et al.,) ) Defendants. )MEMORANDUM ORDER
Andre Ferguson ("Ferguson") has just tendered a 42 U.S.C. § 1983 ("Section 1983") Complaint against Cook County Sheriff Michael Sheahan and five other defendants affiliated with the Cook County Department of Corrections ("County Jail"), asserting that his constitutional rights were violated while he was in custody at the County Jail (although when Ferguson signed and submitted his Complaint, he had been transferred to Stateville Correctional Center). But before Ferguson's proposed action may be entertained, he must make good on his preexisting obligation referred to in this memorandum order.Ferguson has utilized the form of Complaint provided by this District Court's Clerk's Office for use by prisoners who bring Section 1983 actions, having filled out its provisions in handwriting. As part of that form, Complaint ¶ IV calls for a plaintiff prisoner to list ALL (emphasis in original) previous lawsuits that the plaintiff has filed.
In response to that requirement, Ferguson has identified only a federal action filed June 7, 2004, which he says was assigned to Judge Foreman. What is conspicuously absent from the Complaint is any reference to the three prior lawsuits that Ferguson did file in this District Court — Case Nos. 02 C 1063, 02 C 2077 and 04 C 7087 — all of which were assigned to this Court's calendar (a procedure called for by the District Court assignment rules that require all later actions by persons in custody to be assigned to the same District Judge who received the first such lawsuit).
According to Complaint ¶ IV.E the suit was filed in this Northern District of Illinois, but Senior District Judge James Foreman sits in the Southern District of Illinois. This District Court Clerk's Office has no record of such a lawsuit, although as the text of this order reflects Ferguson did file a lawsuit here several months later in 2004.
What the reason for such silence on Ferguson's part may be is unknown to this Court. But one result of that silence has been that Ferguson has also left unmentioned this Court's April 17, 2002 memorandum order entered in the two 2002 lawsuits, which expressly stated that, because Ferguson was no longer in custody at that point (so that the provisions of 28 U.S.C. § 1915 as to his installment payment of the required filing fees could no longer operate), no further filings of any kind would be accepted from Ferguson until the $300 in fees that he was obligated to pay for those two cases was paid. And that obligation on Ferguson's part was reconfirmed by this Court's November 18, 2004 memorandum order in Case No. 04 C 7087 (also unmentioned in the current Complaint).
Although Ferguson had exhausted his trust fund account at the County Jail as to all but $.51 on February 21, 2006, when the authorized officer there filled out the certificate that forms part of Ferguson's current In Forma Pauperis Application ("Application"), no explanation at all has been offered as to why Ferguson has not honored his earlier obligations and complied with this Court's April 2002 memorandum order in the intervening space of nearly four years. It is worth noting that during the 1-1/2 month period between January 5 and February 21, 2006 that is covered by the printout from the County Jail, he managed to have $160 credited to his account there.
In summary, Ferguson's current Complaint cannot be accepted. Both the Complaint and this action are dismissed by reason of his failure to have complied with the prior court orders. Such dismissal is without prejudice, not only as a procedural matter but also in real world terms — the latter because with the asserted violation of Ferguson's constitutional rights having taken place in February 2006, nearly the entire two-year limitations period remains open before limitations would operate to bar his Section 1983 claim.
This dismissal moots the Application, which is therefore denied.
No opinion is of course expressed (or even implied) here as to the substantive viability of Ferguson's claim.