The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendant's motion to dismiss and/ or motion for summary judgment. [d/e 19] Since the defendants are asking the court to consider matters outside the pleadings, the court will consider this motion only as a motion for summary judgment. The plaintiff was provided adequate time to file a response.
The plaintiff, Joshua Boyer, originally brought this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). On March 16, 2005, the court conducted a merit review of the plaintiff's second amended complaint and found that the plaintiff had adequately alleged the following claims:
1) Defendant Brian Farlin violated the plaintiff's Eighth Amendment rights when he failed to protect the plaintiff against inmate attack in January and February of 2002. The claim is against Defendant Farlin in his individual capacity only.
2) A Federal Tort Claims Act against the United States based on the negligent action of Defendant Farlin. See March 17, 2005 Court Order.
The defendants have filed a motion to dismiss and/or motion for summary judgment. The plaintiff has filed a response.
The plaintiff did not directly respond to the defendants' statement of undisputed facts. The following facts are taken from the dispositive motion, the response, the reply and attached exhibits.
The plaintiff is an inmate at the Federal Correctional Institution in Pekin Illinois. He first arrived at the facility on January 17, 2002. On February 6, 2002, the plaintiff got into an altercation with another inmate named Arnold Haskins. The incident report states that the plaintiff accused Haskins of stealing his radio, and the two got into a fight. Both inmates had injuries. The plaintiff maintains that he only struck Haskins in self-defense, but the Bureau of Prisons disciplines all fighting. The plaintiff was found guilty and lost some good time credits as a result.
The Bureau of Prisons has an administrative remedy program in place. See 28 C.F.R. §542.10 et seq. Inmates are first encouraged to resolve their complaints informally. If this is insufficient, the inmate may file a formal complaint with the Warden but it must be done within twenty of the alleged incident. (A "BP-9" form) The Warden then has twenty days to respond to the complaint. If the inmate is not satisfied with this response, he may appeal to the Regional Office. (A "BP-10" form) The Regional Office has 30 days to answer the claim. If the inmate is still not satisfied, he may file a final appeal with the Central Office in Washington, D.C. (A "BP-11" form) The Central Office has 40 days to respond.
Senior Attorney for the Bureau of Prisons, Tracy Knutson, says all complaints made by an inmate are recorded and assigned a tracking number. If the request is accepted, the agency will respond and maintain a copy. If a request is rejected, the institution does not maintain copies. In addition, each time a complaint is recorded, an electronic notice is generated. The prison staff delivers the notices to inmates on a daily basis which informs each inmate if his complaint has been received.
From March, 11, 2002 to April, 2006, the Bureau of Prisons has received and logged 114 administrative remedy filings from the plaintiff. After the altercation with inmate Haskins, the plaintiff did file an "Inmate Attempt at Informal Resolution". (Plain. Memo, Ex. 4, ) The plaintiff stated that he had frequently complained to Defendant Farlin about "my concerns about being the only white man in the cell with all blacks." Id. The plaintiff also said his radio had been stolen and that had made the situation even worse. The plaintiff says he believes the incident with Inmate Haskins could have been avoided if he had been moved.
The plaintiff received a response on February 21, 2002, stating that the incident with under investigation and once it was complete he would be advised of his cell assignment. During the investigation the plaintiff had been moved to the Special Housing Unit. The plaintiff was also advised that if he felt ...