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 to Dismiss (Doc. 20), now construed by the Court as a Motion for Summary Judgment (Doc. 20), filed by Defendants L. Sample and P. Trivillion on January 5, 2007. For the reasons set forth below, it is RECOMMENDED that the Motion to for Summary Judgment (Doc. 20) be GRANTED, that this case be DISMISSED,and that the Court adopt the following findings of fact and conclusions of law:
On August 16, 2005, Plaintiff commenced thisaction against Defendants P. Bakke and L. Sample alleging violations of his constitutional rights by persons acting under color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On September 2, 2005, Plaintiff filed a Motion to Reinstate Parties (Doc. 8), which the Court construed as a Motion for Leave to File an Amended Complaint. The Court subsequently denied that motion, but granted Plaintiff thirty days leave to amend his complaint in accordance with the federal rules (Doc. 13). On September 11, 2006, Plaintiff filed his amended complaint, which added Defendant P. Trivillion to the action (Doc. 15). About a month later, Defendants Sample and Trivillion waived service and then filed the instant Motion to Dismiss (Doc. 20), which seeks dismissal on the grounds that Plaintiff failed to exhaust his administrative remedies. To this date, Defendant P. Baake has not been served.
On July 24, 2007, this Court issued a Notice and Order to Respond (Doc. 23) directed to Plaintiff. That order notified Plaintiff that the Court had construed Defendants' Motion to Dismiss as a Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 12(d), because Defendants filed affidavits and exhibits in support of the motion to dismiss. The order advised Plaintiff how to respond to a motion for summary judgment, and warned Plaintiff of the consequences of failing to respond to Defendant's Motion for Summary Judgment (Doc. 20). 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. 23 at 2). The Court then warned Plaintiff, "More importantly, you will lose this lawsuit, in whole or in part, if the Court determines that, under those unchallenged facts, the defendants are entitled to judgment under the law." (Doc. 23 at 2). The Court explicitly ordered, "Plaintiff shall respond to the motion to dismiss and/or for summary judgment and file any such affidavits or other evidence with the court no later than August 24, 2007." (Doc. 23 at 3) (emphasis in original).
Despite this notice and warning, Plaintiff failed to respond to Defendant's Motion for Summary Judgment. While Plaintiff did his own Motion for Summary Judgment (Doc. 24) on August 6, 2007, he failed to address Defendants' Motion for Summary Judgment in name or substance, not even mentioning exhaustion of administrative remedies. The Court, therefore, considers this an admission of the merits of the motion pursuant to SDIL-LR 7.1(c).
Plaintiff states two counts of alleged constitutional violations of his rights under the Eighth Amendment: use of excessive force by Defendant Sample, and deliberate indifference to Plaintiff's serious medical needs by Defendants Bakke and Trivillion. Specifically, Plaintiff alleges that On March 21, 2005, Defendant Sample used excessive force against him in an unspecified manner, causing him to suffer a head injury. Plaintiff further alleges that Defendant Trivillion, an employee at the prison hospital, denied Plaintiff treatment for the injuries he sustained and refused to determine whether Plaintiff had sustained serious head injuries. Thereafter, Plaintiff alleges he began experiencing painful headaches and sought treatment for the pain beginning on March 29, 2005, specifically requesting x-rays and pain medication. As to Defendant Bakke, the Hospital Administrator, Plaintiff alleges that this defendant had the authority to provide treatment of the pain but did not do so, despite Plaintiff's numerous requests.
The circumstances surrounding these claims were the substance of three administrative complaints filed by Plaintiff pursuant to the Federal Bureau of Prison's Administrative Remedy Program (Doc. 21-2 at 2). Each of his complaints were assigned a Remedy Identification Number, then logged and tracked in the BOP's SENTRY computer program (Doc. 21-2 at 2). Plaintiff's complaints were assigned the Remedy Identification Numbers 377191 ("Complaint 1"), 380953 ("Complaint 2") and 393626 ("Complaint 3). Defendants allege that Plaintiff's case must be dismissed because Plaintiff failed to exhaust his administrative remedies as to all three of these grievances. The undisputed material facts indicate as follows:
In Complaint 1, Plaintiff alleges lack of medical treatment for chronic headaches (Doc. 23-3 at 10). Complaint 1 was properly presented first to the Warden, who issued a response, and then appealed to the Regional Director on June 9, 2005 (Doc. 21 at 5; Doc. 23-3 at 10). Before receiving a response from the Regional Director Plaintiff appealed to the General Counsel on July 29, 2005 (Doc. 23-4 at 4; Doc. 23-3 at 11). The General Counsel, however, rejected this appeal attempt because a response by the Regional Director had not been issued and was not yet due until August 8, 2005 (Doc. 21-2 at ¶ 10; Doc. 23-4 at 4). The General Counsel informed Plaintiff to wait for the response from the Regional Director before appealing to the General Counsel level, but Plaintiff did not subsequently file any appeal to the Regional Director's response denying Complaint 1 (Doc. 21-2 at ¶ 10; Doc. 21-4 at 4; Doc. 21-3 at 10).
In Complaint 2, Plaintiff alleges that one of his medical records contains inaccurate information that was put there by Defendant Trivillion (Doc. 21-2 at ¶ 11). Plaintiff properly presented this complaint to the Warden who subsequently issued a response. On July 25, 2005, Plaintiff timely appealed the response to the Regional Director, who also issued a timely response. When Plaintiff attempted to appeal the Regional Director's response to the General Counsel it was rejected because it did not contain copies of the Warden and Regional Director's complaint forms (Doc. 21-2 at ¶ 11). Plaintiff was given fifteen days to resubmit the appeal with the correct documentation, but there is no record that any further attempt to appeal was made (Doc. 21-2 at ¶ 11; Doc. 21-3 at 2).
In Complaint 3 Plaintiff alleges that he was assaulted by Defendant Sample, who was part of a conspiracy against him. Plaintiff filed Complaint 3 as an appeal of a disciplinary hearing regarding the facts surrounding Plaintiff's excessive force claim in which Plaintiff was found to have committed the act of Threatening Another With Bodily Harm (Doc. 21-3 at 15).
Complaint 3 was properly presented to the Warden, who issued a response, and then appealed on October 27, 2005, to the Regional Director, who issued a response on November 22, 2005 (Doc. 21-3 at 11, 14; Doc. 21 at 4). When Plaintiff tried to appeal to the General Counsel on January 11, 2006, his appeal was rejected by the General Counsel, because (1) it was filed more than thirty days after the Regional Director's response was issued, (2) Plaintiff did not submit a complete set of the request or appeal forms, and (3) ...