The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by Chief United States District Judge G. Patrick Murphy pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion for a Summary Judgment (Doc. 16), filed by Defendants Counselor Goforth and Tyrone Murry on January 3, 2007. For the reasons set forth below, it is RECOMMENDED that the motion be GRANTED, that this case be DISMISSED,and that the Court adopt the following findings of fact and conclusions of law:
Plaintiff Eric Pirtle, an inmate in the Menard Correctional Center, filed this action on March 10, 2005, alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff Pirtle alleges that Defendant Ahmed and unknown nurses were deliberately indifferent to his serious medical needs, and that Gofurth and Murry retaliated against Plaintiff for filing grievances by denying or ignoring his grievances (Doc. 6 at 1-2).
January 3, 2007, Defendants Murray and Goforth filed the instant Motion for Summary Judgment (Doc. 16), alleging summary judgment is appropriate in their favor because (1) Plaintiff failed to exhaust his administrative remedies, (2) the undisputed facts demonstrate that Defendants' denials of Plaintiff's grievances were not retaliatory in nature, and (3) Defendants are entitled to qualified immunity. These defendants also filed, on January 3, 2007, a Faulkner Notice (Doc. 18) advising Plaintiff how to respond to a motion for summary judgment, and warning Plaintiff of the consequences of failing to respond to Defendant's Motion for Summary Judgment. That notice correctly informed Plaintiff, "Unless you respond to this motion with sworn statements which contradict important facts claimed by the defendant in their sworn materials, the Court will accept the defendant's uncontested facts as true." (Doc. 18 at 2). Despite this notice and warning, Plaintiff failed to respond to Defendant's Motion for Summary Judgment. The Court, therefore, considers this an admission of the merits of the motion pursuant to SDIL-LR 7.1(c).
Plaintiff states that he suffers from sleep apnea and must use a breathing machine when he sleeps (Doc. 1 at 4). When he arrived at Menard Correctional Center, Plaintiff requested a breathing, or CPAP, machine, and explained that he had been issued one at the St. Clair County Jail where he was housed prior to his transfer (Doc. 1 at 4). Defendant Ahmed told Plaintiff that he did not believe that Plaintiff needed a breathing machine (Doc. 1 at 4). Plaintiff states that Defendant Ahmed was hateful, verbally combative, and abusive with Plaintiff about the CPAP machine (Doc. 1 at 5). Plaintiff states that unknown Defendants, nurses in the Menard Health Care Unit, told Plaintiff that they did not believe he needed a breathing machine and that the state would not issue one (Doc. 1 at 5). Plaintiff states that without the CPAP machine his health problems have gotten worse (Doc. 1 at 5). Plaintiff alleges that this treatment constituted deliberate indifference to his serious medical needs in violation of the Eighth Amendment (Doc. 1 at 5).
Plaintiff also states that he filed a number of grievances about the breathing machine but that they all were denied or ignored (Doc. 1 at 5). He states that the more he tried to get medical treatment, the "harsher" Defendants became (Doc. 1 at 5). He states that Defendants Goforth and Murry retaliated against him by denying his grievances (Doc. 5).
To initiate this lawsuit, Plaintiff filled out a form complaint that asks certain questions and provides space for a response. Under section three, entitled "Grievance Procedure", Plaintiff responded "Yes" when asked if he presented the facts relating to his complaint in the prisoner grievance procedure (Doc. 1 at 3). When asked what steps he took, Plaintiff responded, "Filed several grievances, made verbal complaints[,] had family make weekly phone calls complaining to Director, Warden ect (sic), wrote dozen (sic) of request (sic)." (Doc. 1 at 3). When asked about the result, he responded, "All grievances were denied, all complaints were ignormed, all phone calls were responded to with lies." (Doc. 1 at 3). When asked to either attach copies of his request for an administrative remedy and any response received or explain why he cannot do so, Plaintiff gave no response (Doc. 1 at 4).
Defendants allege as undisputed material fact that Plaintiff did not exhaust his administrative remedies regarding his claims in this lawsuit (Doc. 17 at 3). In support of this claim, Defendant attached a sworn affidavit of Jackie D. Miller, a chairperson with the Office of Inmate Issues for the Illinois Department of Corrections. In her affidavit, Jackie Miller explains what grievance procedures are available to inmates in accordance with Department Rule 504F: Grievance Procedures for Committed Persons (Doc. 32-2 at 23). As explained in the affidavit, an inmate must first attempt to resolve a grievance informally through his counselor, and if it remains unresolved, then submit a written grievance on a grievance form to the facility Grievance Officer (Doc. 32-2 at 23). The Grievance officer investigates and reports any findings to the Chief Administrative Officer, who then renders a decision, which is reported to the inmate (Doc. 32-2 at 23). If the inmate feels the issue is still unresolved after receiving this response, the inmate may appeal in writing to the Director of the Department by submitting the Grievance Officer's report and Chief Administrative Officer's decision (Doc. 32-2 at 23). The Administrative Review Board, as the Director's designee, reviews the appeal, decides whether to hold a hearing, and ultimately issues a written report and recommendation to the Director or Director's designee, who makes a final determination on the grievance, of which a copy is sent to the inmate (Doc. 32-2 at 23). At this point there is no further administrative means for review (Doc. 32-2 at 23).
Jackie Miller states in her affidavit that at the request of the Attorney General's Office, she has searched the Administrative Review Board records regarding Inmate Eric Pirtle (Doc. 17-2 at 13). She further states, "A review of the ARB records indicate that Eric Pirtle, #B81133 did not file a grievance in accordance with departmental rule 504, regarding medical treatment or retaliation." (Doc. 17-2 at 15).
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999); Dempsey v. Atchison, Topeka and Santa Fe Railway Company, 16 F.3d 832, 836 (7th Cir. 1994). The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). A fact is material if it is outcome determinative under applicable law. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999); Smith v. Severn, 29 F.3d 419, 427 (7th Cir. 1997); Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1173 (7th Cir. 1997). Even if the facts are not in dispute, summary judgment is inappropriate when the information before the court reveals a good faith dispute as to inferences to be drawn from those facts. Plair v. E.J. Brach & Sons, Incorporated,105 F.3d 343, 346 (7th Cir. 1997); Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th Cir. 1994); Dempsey, 16 F.3d at 836. Finally, summary judgment "will not be defeated ...