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 United States District Judge Michael J. Reagan pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a) for a Report and Recommendation on the Motion for a Summary Judgment (Doc. 31), filed by Defendant Davis on November 2, 2006. 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 Carey Pettigrew, an inmate in the Menard Correctional Center, filed this action on February 28, 2005, alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff Pettigrew alleges that Defendant Davis failed to protect him from injury inflicted on him during a fight with another inmate, in violation of the Eight Amendment's ban on cruel and unusual punishment.
On November 2, 2006, Defendant Davis filed the instant Motion for Summary Judgment, alleging summary judgment is appropriate in his favor because (1) Heck v. Humphrey, 512 U.S. 477 (1994), bars Plaintiff's failure to protect claim, (2) Plaintiff failed to exhaust his administrative remedies, and (3) the undisputed facts demonstrate that Plaintiff cannot establish the elements of a failure to protect claim. Defendant Davis also filed, on November 2, 2006, a Faulkner Notice (Doc. 33) 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. 33 at 3). 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).
While Plaintiff was an inmate in the Shawnee Correctional Center, he was housed with an inmate with whom he fought regularly and, on or about May 24, 2004, Plaintiff and his cell mate got into a fight (Doc. 1 at 4). Defendant Davis is a correctional officer at Shawnee Correctional Center, who, before the fight, was told by Plaintiff that he and his cell mate had been clashing verbally, that it was inevitable that they would fight, and that someone was going to get hurt (Doc. 32-2, at 4). Defendant Davis told Plaintiff that there was nothing he could do about it because Defendant Davis had notified a Sergeant that Plaintiff wanted to change cells, but the Sergeant would not move Plaintiff.
On May 24, 2004, Plaintiff's cell mate "swung on him" and they started fighting (Doc. 32-2 at 3). During the fight, Plaintiff's cell mate bit him and choked him, and Plaintiff grabbed his flexible segregation ink pen and struck his cell mate with it (Doc. 1 at 4; Doc. 32-2 at 3). Plaintiff had injuries from the fight including bruises and abrasions that lasted for two to three weeks (Doc. 32-2 at 10-11).
Plaintiff received a disciplinary report and lost some good time for his involvement in the fight (Doc. 32-2 at 7, 20). The fight also led to Plaintiff's criminal prosecution for aggravated battery on an inmate, to which Plaintiff plead guilty and, pursuant to a plea bargain, was sentenced to two additional years of incarceration (Doc. 32-2 at 7-9).
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). He responded, "I wrote a grievance" when asked what steps he took (Doc. 1 at 3). When asked about the result, he responded, "They said I was out of the time line and that the situation could not be addressed further." (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 responded, "The facility won't search my property and retrieve the grievance, but I do have the response from Springfield." (Doc. 1 at 4).
Defendant Davis alleges as undisputed material fact that Plaintiff did not fully and properly exhaust his administrative remedies regarding his alleged failure to protect Plaintiff from an assault by his cell mate (Doc. 32 at ¶ 25). In support of this claim, Defendant attached a sworn affidavit of Sherry Benton, the chairperson with the Office of Inmate Issues for the Illinois Department of Corrections. In her affidavit, Sherry Benton 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).
Sherry Benton states in her affidavit that at the request of the Attorney General's Office, a thorough search of the ARB records was conducted (Doc. 32-2 at 24). She further states, "Department records reflect that Offender Cary Pettigrew, Register No. R26024, has not filed a timely grievance to this office regarding allegations that Officer Davis failed to protect him from his ...