McDonald v. Federal Bureau of Prisons et al
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/28/2017. Mailed notice (cc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DAVID MICHEAL McDONALD,
Reg. No. 40077-424,
FEDERAL BUREAU OF PRISONS, et al.,
Case No. 17 C 1351
MEMORANDUM OPINION AND ORDER
Chicago Metropolitan Correctional Center ("MCC") inmate David McDonald
("McDonald") has used the Clerk's-Office-supplied form of "Complaint Under the Constitution
('Bivens' Action), Title 28 Section 1331" in an effort to launch his most recent battle in his
several-years dispute with federal prison authorities and the medical staff assigned to the Federal
Bureau of Prisons. But because the tag end of his turgid saga 1 sounds the death knell for his
current effort, this sua sponte memorandum opinion and order need not address the other major
difficulties with McDonald's lengthy and repetitive account.
Before that subject is addressed, however, the first order of business in dealing with any
prisoner action undertaken without an up-front payment of the entire filing fee is to review his or
her compliance or noncompliance with the requirements of 28 U.S.C. § 1915 ("Section 1915").
McDonald's Complaint and its attachments (which together constitute Dkt. No. 1) span
fully 33 pages, 24 of which are devoted to the Complaint itself. It is at the very end of the nine
pages of attachments (page 33 of 33) that the poison pill referred to in the text appears.
In this instance McDonald has submitted another Clerk's-Office-supplied form, the In Forma
Pauperis Application ("Application"), but the essential ingredient of the Application called for by
Section 1915(a)(2) and by the Application instructions themselves -- the printout of transactions
in the prisoner's trust fund account "for the 6-month period immediately preceding the filing of
the complaint" -- is totally lacking. Instead McDonald has tendered only a brief snapshot that
has no listing at all of the transactions in the account from August 18, 2016 to the presumptive
"filing" date of February 17, 2017. 2
That being the case, this Court has enlisted the good offices of the staff attorney assigned
to this case for oversight purposes, and she has requested and obtained from the MCC a printout
reflecting all transactions in McDonald's trust fund account there during the period referred to at
the end of the preceding paragraph. That has enabled this Court to determine that the average
monthly deposits to that account during that time frame (see Section 1915(b)(1)(A)) amounted to
$19.34, 20% of which (id.) is $3.87. Accordingly McDonald is assessed an initial partial filing
fee of $3.87, and the MCC trust fund officer is ordered to collect that amount from McDonald's
trust fund account there and to pay it directly to the Clerk of Court ("Clerk"):
Office of the Clerk
United States District Court
219 South Dearborn Street
Chicago IL 60604
Attention: Fiscal Department.
Because even a proper printout must be requested and obtained by a prisoner before he
or she sends all the papers that make up a filing to the Clerk's Office, by definition the trust fund
statement cannot reach the end of the relevant six-month period -- it must be remembered that
the date of "filing" the complaint is determined under the Houston v. Lack, 487 U.S. 266 (1988)
"mailbox rule." For that reason this Court customarily requests an update from the custodial
institution so that the calculation called for by Section 1915(b)(1) can be made.
After such payment the trust fund officer at the MCC (or at any other correctional facility
where McDonald may hereafter be confined) is authorized to collect monthly payments 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 $350 filing fee is paid. Both
the initial payment and all future payments shall clearly identify McDonald's name and the
17 C 1351case number assigned to this action. To implement these requirements, the Clerk shall
send a copy of this order to the MCC trust fund officer.
Now to the fatal flaw in McDonald's action that was referred to at the outset of this
opinion. McDonald's lengthy narrative makes it crystal clear (and as stated a bit later, McDonald
himself evidences his realization) that he must satisfy -- but that he has not satisfied -- the
precondition to suit established by 42 U.S.C. § 1997e(a) ("Section 1997e(a)"):
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
It is plain that the statutory reference to "any other Federal law" includes a putative
Bivens action of the type McDonald seeks to advance. Here is what the unanimous Supreme
Court opinion in Porter v. Nussle, 534 U.S. 516, 524 (2002) said in that regard at the conclusion
of its analysis of the statutory change enacted by the PLRA as Section 1997e(a):
Thus federal prisoners suing under Bivens v. Six Unknown Fed.Narcotics Agents,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), must first exhaust inmate
grievance procedures just as state prisoners must exhaust administrative processes
prior to instituting a § 1983 suit.
Accord, the similarly brief but thorough explanation in Kikumura v. Osagie, 461 F.3d 1269,
1281 (10th Cir. 2006)).
In this instance the earlier-mentioned page 33 of Dkt. No. 1 (photocopy attached)
expressly states that McDonald has not exhausted his available administrative remedies -- it
notifies him of his right to appeal to the Office of General Counsel of the Federal Bureau of
Prisons by an appeal that had to be received in that Office within 30 days from the January 25,
2017 response date: that is, on or before February 23. Instead McDonald has specifically
recognized that right to appeal in a separate Dkt. No. 5 included in his filings here, a five page
statement that flatly rejects the exercise of that right and thus flouts the congressional mandate
by turning to this District Court instead.
In sum, this action must be and is dismissed because of McDonald's violation of
Section 1997e(a), and that dismissal constitutes a "strike" under Section 1915(g). Lastly,
McDonald's other use of a Clerk's-Office-supplied form -- its Motion for Attorney
Representation (Dkt. No. 4) -- is denied as moot.
Milton I. Shadur
Senior United States District Judge
Date: February 28, 2017
fo tsP- l0
Case: 1:17-cv-01351 Document #: 1 Filed: 02/21/17 Page 33 of 33 PageID #:33
U. S. Department of Justice
Regional Administrative Remedy Appeal
Part B - Response
Federal Bireiatr of Prisons
North Central Regional Office
Administrative Remedy Number: 872499-R4
This is in response to your RegionalAdministrative Remedy Appeal received on December 23, 2016.
You allege you were not provided cornea surgery in a timely manner. Specifically, you claimed you
were injured in October 2013 but did not receive cornea surgery untilApril 2016. For relief, you
request the employment of the staff members involved be terminated.
We have reviewed the documentation related to your appeal. Based on this review, we concur with
the manner in which the Warden addressed your concerns. You have consistently been provided
timely and appropriate medical care in accordance with Program Statement 6031.04, Patient Care.
Through this review we have learned you were not in Federal Bureau of Prisons custody for seven
months of the timeframe you refer to in your complaint. A review of your electronic medical record
indicates upon your return to Federal Bureau of Prisons custody, you were evaluated by an
optometrist and ophthalmologist for corneal scars on several occasions. During these encounters,
the providers performed a physical evaluation and created a treatment plan based on your condition.
The treatment plans included prescribing eye drops, referrals to a cornea specialist, and eventually
cornea surgery. A cornea transplant was performed on April 7,2016. This treatment was
appropriate for your condition. Given this, our intervention is not warranted at this time.
Based on these findings, your RegionalAdministrative Remedy
lf you are dissatisfied with this response, you may appeal to the Office
Bureau of Prisons,320 First Street, NW, Washington, DC 20534. Your ap
the Office of General Counsel within 30 days from the date of this response.
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