Opinion
No. 06 C 2888.
June 5, 2006
MEMORANDUM ORDER
Earl Marshall Smith, Jr. ("Smith") has tendered a self-prepared 42 U.S.C. § 1983 ("Section 1983") Complaint against a half-dozen defendants affiliated with the Lake County Jail, where Smith is now in custody. This memorandum order is issued sua sponte to address the matters raised by Smith's Complaint and by his Application To Proceed Without Prepayment of Fees ("Application"), which has also utilized a Clerk-provided form and has been submitted with the Complaint.
"Self-prepared" is used in the sense that Smith (1) has utilized a printed form provided by this District Court's Clerk's Office for use by persons in custody and (2) has completed the form with handwritten insertions.
To begin with the latter, it does not appear that Smith really seeks in forma pauperis status (he has expressed doubt in that respect) because his trust fund account at the Jail contains more than enough funds to pay the $350 filing fee. Although a letter that Smith has sent to the Clerk's Office together with his other papers mistakenly refers to a $250 fee, obviously because Smith is unaware of the $100 fee increase that took effect April 9 of this year, one of the documents that he has submitted shows that the May 15, 2006 balance in that account was just over $7,500. That is unsurprising in light of his statement in Application ¶ 3(c) that he receives $2,600 monthly from the Veterans Administration.
Yet as Smith says in his letter referred to in the preceding paragraph, the Jail's personnel have (for some unexplained reason) refused to allow him to prepay the fee, instead requiring an order from this Court to deduct the amount from his account. This Court so orders, and a copy of this memorandum order is being sent to the Jail with instructions to remit the sum of $350, payable to the Clerk, U.S. District Court, referring to this Case No. 06 C 2888 and addressed to:
Clerk, U.S. District Court 219 South Dearborn Street Chicago IL 60604Attention: Fiscal Department
Because Smith has thus shown himself unqualified for in forma pauperis treatment, the Application is denied. And that being so, the provision of Fed.R.Civ.P. ("Rule") 4(c)(2) for service of process by the United States Marshals Service is inapplicable. Accordingly Smith is advised that the same Rule authorizes service of process to be made by anyone who is at least 18 years of age, and if he advises whom he has designated to effect service on each of the six named defendants, the extra copies of the Complaint that Smith has supplied will be made available for that purpose. This Court is also sending Smith a copy of Rule 4 for his information, and it is strongly recommended that he review its provisions with care.
As for the merits of Smith's Complaint, it should first be noted that he claims to have exhausted all administrative remedies, as is required by 42 U.S.C. § 1997e(a) as a precondition to filing suit. Although his handwritten response does not make that entirely clear, because he relies primarily on the failure of Jail officials to respond to his several filled-out grievances, this Court will accept Smith's representations for present purposes. If any defendant were to claim otherwise, that would have to be done by bringing a timely motion in an appropriate manner.
To turn to the substantive terms of the Complaint, 28 U.S.C. § 1915A(a) requires this Court to engage in a preliminary screening to see whether grounds for dismissal pursuant to 28 U.S.C. § 1915A(b) do or do not exist on the face of the Complaint. This Court has done so, and it finds that the Complaint clearly surpasses that threshold as to Sergeant Gerald Alter, and it may well do so as to one or more of the other named defendants. That being so, no dismissal will now be ordered, although this finding is without prejudice to the right of any defendants to seek dismissal from this action after they have been duly served.