Barnett v. Laurel County, Kentucky et al

Filing 5

MEMORANDUM OPINION & ORDER: 1. Pla Robert Herald Barnett's motion to proceed in forma pauperis [R. 2 ] is GRANTED; 2. By 5/27/16, Barnett must pay $36.67 to the Clerk as an initial partial filing fee; 3. The Clerk shall open an account in Barnett's name for receipt of the filing fee. The Clerk shall complete a Notice of Payment Form (Form EDKY 525) with (a) Barnett's name, (b) his inmate reg number, and (c) this case number. The Clerk shall serve a copy of this Order and the Notice of Payment Form upon the Warden of the institution in which Barnett is currently confined; 4. After the initial partial filing fee is paid, each month Barnetts custodian shall send the Clerk a payment in an amount equal to (20%) of his income for the preceding month out of his inmate trust fund account, but only if the amount in the account exceeds $10.00. The custodian shall continue such monthly payments until the entire $350.00 filing fee is pa id. 5. Barnett's complaint [R. 1 ] is DISMISSED; 6. The Court will enter an appropriate judgment contemporaneously herewith; and 7. This matter is STRICKEN from the Court's active docket. Signed by Judge Gregory F. VanTatenhove on 05/03/2016. (Attachments: # 1 Form EDKy 525)(KJA)cc: COR, mailed copy of Order and EDKy Form 525 to pro se filer and Warden Beckley FCI

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
ROBERT HERALD BARNETT,
Plaintiff,
v.
LAUREL COUNTY, KENTUCKY, et al.,
Defendants.

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Case No. 6:16-CV-00066-GFVT

MEMORANDUM OPINION
&
ORDER

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Inmate Robert Herald Barnett is confined at the Federal Correctional Institution - Beckley
in Beaver, West Virginia. Proceeding without an attorney, Barnett has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(b). [R. 1; R. 2.] The Court has reviewed the fee motion and will grant the
request on the terms established by 28 U.S.C. § 1915(b). Because Barnett has been granted
pauper status in this proceeding, the separate $50.00 administrative fee is waived. See District
Court Miscellaneous Fee Schedule, § 14.
However, the Court must also conduct an initial screening of the complaint and dismiss
any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§
1915(e)(2), 1915A; Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010). Upon this screening,
the Court finds Plaintiff Barnett’s complaint must be DISMISSED.
I
On April 29, 2015, Barnett was a federal prisoner being held in custody at the Laurel
County Detention Center (“LCDC”). On that day, Barnett was to be transported to the federal

courthouse in London, Kentucky to attend an evidentiary hearing on his § 2255 motion to vacate
his federal conviction. 1 [R. 1-1 at 2.] The facts set forth in the complaint state that Barnett, who
is 74 years of age, was restrained by “black box” handcuffs, leg chains, and a belly chain during
his transportation from LCDC to the London courthouse. Barnett alleges that after the van
arrived at the courthouse, neither of the two officers from LCDC assisted him with exiting the
vehicle. While exiting the van, Barnett fell to the ground and was injured. [Id. at 4-7.] Barnett
states that, as a result of the fall, he suffered severe injuries to his head, neck, back, arms, and
legs, and he was knocked unconscious. Barnett was taken by helicopter to the University of
Kentucky Medical Center where he remained for two days for treatment and observation. He
indicates that he continues to suffer headaches and back aches, and that he has limited use of the
entire right side of his body. [R. 1-1 at 8-9.] One week after his fall, Barnett attended the
rescheduled evidentiary hearing. Barnett indicates that he did not file any inmate grievances
regarding these events. [R. 1 at 5-6.]
II
Because Mr. Barnett has requested, and been granted, pauper status, the Court conducts
an initial screening of his complaint and must dismiss the complaint if it fails to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). Here, the complaint must be
dismissed for Barnett’s failure to exhaust his administrative remedies. In his complaint, Barnett
acknowledges that he made no effort to exhaust his administrative remedies with either federal,
state, or county authorities, stating “I [was] a federal prisoner being housed in a county detention

1

In 2010, Barnett was convicted of soliciting murder for hire, firearms possession, and use of a firearm
during the commission of a crime of violence, and he was sentenced to forty years of imprisonment. See
United States v. Barnett, No. 5:09-CR-67-JMH-HAI (E.D. Ky. 2009) [R. 49; R. 58; R. 159; R. 163,
therein.]

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center located in London, KY. I was simply being transported to the U.S. Courthouse for an
evidentiary hearing and was not in the prison where I am serving my sentence.” [R. 1 at 5-6.]
Unfortunately for Mr. Barnett, his apparent belief that his status as a prisoner in transport
relieved him of the obligation to exhaust his administrative remedies prior to filing suit is
mistaken.
Federal law provides that “[n]o action shall be brought with respect to prison conditions
under [42 U.S.C. § 1983], 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 exhausted.” 42
U.S.C. § 1997e(a). Exhaustion is mandatory. Jones v. Bock, 549 U.S. 199, 211 (2007) (“There
is no question that exhaustion is mandatory . . . and that unexhausted claims cannot be brought in
court.”). Further, the requirement applies to any claim that arises out of any aspect of prison life,
whether it involves general circumstances or particular episodes, and whether it alleges excessive
force or some other wrong. See Porter v. Nussle, 534 U.S. 516, 532 (2002).
Barnett was a federal prisoner at the time of his fall, but he was temporarily housed in a
county facility, the Laurel County Detention Center, so that he could attend his hearing in
London. Under these circumstances, Barnett was required to invoke the LCDC’s inmate
grievance program and exhaust all available remedies. See 28 C.F.R. 542.10(b) (explaining the
Bureau of Prison’s inmate grievance program does not apply to federal inmates confined in nonfederal facilities). The LCDC’s inmate grievance procedure was adopted pursuant to 501 K.A.R.
§ 3:140 and required Barnett to promptly file a grievance regarding these events. See Jailer
Jamie Mosley, Inmate Orientation Manual, available at http://www.laurelcorrections.com/
plugins/show_image.php?id=29 (last visited on April 27, 2016). See also Wiley v. Boone Co.
Sheriff’s Office, No. 09-cv-98-WOB, 2009 WL 2390164, at 3 (E.D. Ky. Aug. 4, 2009) (finding a
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prisoner who contracted tuberculosis at a county jail but was transferred to a federal facility in
Oklahoma two days later was required to exhaust administrative remedies at the county facility).
Barnett acknowledges he made no effort to utilize the LCDC grievance system. Where a
plaintiff admits in his complaint that he did not exhaust his administrative remedies before he
filed suit, dismissal of his complaint is appropriate upon the Court’s initial review. See Jones,
549 U.S. at 214-15 (explaining a district court can dismiss a complaint sua sponte when it is
apparent from the face of the complaint that the claim is barred by an affirmative defense);
Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (where the complaint made clear that a
prisoner failed to exhaust administrative remedies, district court could dismiss the complaint sua
sponte for failure to state a claim); Fletcher v. Myers, No. 5:11-141-KKC (E.D. Ky. May 17,
2012), aff’d, No. 12-5630 (6th Cir. Jan. 4, 2013) (“Because Fletcher’s failure to exhaust, or to
attempt to exhaust, administrative remedies is apparent from the face of his complaint, the
district court properly dismissed Fletcher’s complaint on that basis.”).
Because Barnett is no longer detained at LCDC and because any grievance filed a year
after the incident in question would be untimely, the administrative remedy process is no longer
available to him. Accordingly, Barnett’s complaint should be dismissed with prejudice. See
Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995) (“Without the prospect of a dismissal with
prejudice, a prisoner could evade the exhaustion requirement by filing no administrative
grievance or by intentionally filing an untimely one, thereby foreclosing administrative remedies
and gaining access to a federal forum without exhausting administrative remedies.”); Berry v.
Kerik, 366 F. 3d 85, 88 (2d Cir. 2004) (dismissal with prejudice was proper where previously
available administrative remedies had become unavailable). Nonetheless, Barnett must still pay
the filing fee as set forth below. See McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir.
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1997), overruled on other grounds (“When an inmate seeks pauper status, the only issue is
whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time
under an installment plan . . . [T]he Prison Litigation Act makes prisoners responsible for their
filing fees the moment the civil action or appeal is filed . . . .”).
III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
as follows:
1.

Plaintiff Robert Herald Barnett’s motion to proceed in forma pauperis [R. 2] is

GRANTED;
2.

On or before May 27, 2016, Barnett must pay $36.67 to the Clerk of the Court as

an initial partial filing fee. See 28 U.S.C. § 1915(b)(1)(A);
3.

The Clerk of the Court shall open an account in Barnett’s name for receipt of the

filing fee. The Clerk shall complete a Notice of Payment Form (Form EDKY 525) with (a)
Barnett’s name, (b) his inmate registration number, and (c) this case number. The Clerk shall
serve a copy of this Order and the Notice of Payment Form upon the Warden of the institution in
which Barnett is currently confined;
4.

After the initial partial filing fee is paid, each month Barnett’s custodian shall

send the Clerk of the Court a payment in an amount equal to twenty percent (20%) of his income
for the preceding month out of his inmate trust fund account, but only if the amount in the
account exceeds $10.00. The custodian shall continue such monthly payments until the entire
$350.00 filing fee is paid. 28 U.S.C. § 1915(b)(2); McGore v. Wrigglesworth, 114 F.3d 601, 606
(6th Cir. 1997);
5.

Barnett’s complaint [R. 1] is DISMISSED;
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6.

The Court will enter an appropriate judgment contemporaneously herewith; and

7.

This matter is STRICKEN from the Court’s active docket.

This the 3rd day of May, 2016.

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