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Gilmore v. U.S. Penitentiary-McCreary

United States District Court, Sixth Circuit

November 7, 2013

ERRICK GILMORE, Plaintiff,
v.
UNITED STATES PENITENTIARY-McCREARY, et al., Defendants.

MEMORANDUM OPINION & ORDER

GREGORY F. VAN TATENHOVE, District Judge.

Errick Gilmore is an inmate presently confined at the United States Penitentiary-Coleman ("USP-Coleman") in Coleman, Florida. Pursuant to the doctrine announced in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), Gilmore, proceeding pro se, filed this civil rights action against the defendants, various prison officials and prison staff at the United States Penitentiary-McCreary ("USP-McCreary") located in Pine Knot, Kentucky, asserting that these defendants violated his constitutional rights while he was an inmate at that prison facility. [R. 1, 11] Gilmore has been granted pauper status. [R. 6]

The Court must conduct a preliminary review of Gilmore's complaint because he has been granted permission to proceed in forma pauperis and because he asserts claims against government officials. 28 U.S.C. ยงยง 1915(e)(2), 1915A. A district court must 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. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Gilmore's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Gilmore's factual allegations as true and liberally construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

For the reasons set forth below, the Court will dismiss Gilmore's complaint because based on a review of the face of Gilmore's Complaint, Amended Complaint, and the exhibits attached thereto, Gilmore failed to exhaust his administrative remedies, as a prisoner must do prior to filing a complaint.

I

Gilmore claims that numerous prison officials at USP-McCreary violated several of his rights afforded by the United States Constitution while he was an inmate there. Gilmore has a laundry list of complaints. In summary, Gilmore states that the defendants have violated:

... my 1st Amendment right to Freedom of Speech through the Grievance Procedure. My 5th Amendment right to due process by blocking me from getting relief through the grievance procedure. My 8th Amendment right against cruel and unusual punishment by denying me medical attention for my injured ribs, by denying me medical attention twice when I had a diabetic attack, and by taking my cloth[e]s, sheets, blankets, towels, washcloths, soap, deodorant, and lotion and not allowing me to take a shower for 10 days, and allowing me to be assaulted on camera by 4 inmates and not charging or locking any of them up, then conspiring to cover it up. They also violated my 14th Amendment right to be treated equally.

[R. 1, p. 3]

Gilmore further claims that after he was assaulted by the four inmates on November 26, 2012, none of those inmates were charged for a disciplinary offense, that he was the only inmate who was "locked up" afterwards, and that he was charged with destroying government property, placed in handcuffs, and removed from his cell and taken to the SHU, where he was chained to a bed for twelve hours because he had stated that he was going to complain to Captain Maruka about being assaulted. Id. Gilmore states that defendants SIS Parson, SIA Corvalt, SIS Baker, Captain Maruka, Lt. Boulet, and C/O Eliot have conspired to conceal their abuse of him and their activities in violating his constitutional rights.

Gilmore also states that prison officials have been deliberately indifferent to his serious medical needs, an Eighth Amendment violation, in that (1) his injured ribs were never x-rayed, and he was denied pain medication for the injured ribs; (2) on December 15, 2012, he, a diabetic, experienced a low blood sugar episode late in the night and that he was denied timely medical care at that time because the prison does not employ medical personnel to be available during the third shift, resulting in his having to wait until morning to receive treatment for that low blood sugar episode.

Gilmore also claims that the grievance system at the prison does not work, that his grievances disappear, and/or that Counselor Partin, Counselor Lawson, and Unit manager Roane will not file his grievances, retaliated against him, and threatened to keep him in SHU because he continued to file grievances. Gilmore asserts that his Fifth Amendment right to due process was violated in that he was originally placed in the SHU under a bogus protective custody order, when he had not requested to be placed in protective custody.

For relief, Gilmore requests that he receive the following injunctive relief: (1) immediate treatment for injured ribs, (2) that the medical department stop mixing other medications with his insulin in order to save money on needles, and (3) that USP-McCreary be ordered to employ a third shift medical nurse. Gilmore requests $10, 000, 000 in compensatory damages for pain and suffering and $50, 000, 000 in punitive damages, and a jury trial.

Gilmore's complaint is accompanied by numerous exhibits, comprising a total of 57 unnumbered pages, but are identified in alphabetical order as Exhibit A through Exhibit W, which appear to be evidence of Gilmore's filing of grievances, Requests for Informal Resolution, and numerous Requests for Administrative Remedy, concerning various incidents and situations at USP-McCreary, beginning with his alleged assault by four other inmates on November 26, 2012. These exhibits are more particularly described below:

Exhibit A - Administrative Remedy Procedure For Inmates, Informal Resolution Form, dated December 3, 2012. This request concerns Gilmore's not being allowed to take a shower for 10 days, not being provided with clean clothes, being denied underwear, and being forced to wear a paper gown exposing his genitalia to female prison staff. He requests that these constitutional violations cease and that the various prison employees involved be sanctioned.

Exhibit B - unnumbered Request for Administrative Remedy, dated January 8, 2013, concerning his being assaulted by four inmates on November 26, 2012, and the alleged cover-up of this assault and falsified reports by ...


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