The opinion of the court was delivered by: Harold A. Baker United States District Judge
MEMORANDUM OPINION AND ORDER
Before the court are the defendants, Sheriff Robert E. Kinderman and Chief Deputy David L. Mahan's summary judgment motion  and the plaintiff's response .
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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." Fed. R. Civ. P.56(c); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). Further, this burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Credibility questions "defeat summary judgment only '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other citations omitted).
Fed. Rule Civ. Pro. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986).
The plaintiff, Oliver Devine brings this action against the defendants, Christian County Sheriff Robert Kinderman , Christian County Chief Deputy Sheriff David Mahan, alleging constitutional violations under §1983. He alleges a state claim against the defendant, Kyle Beaty, an inmate.
In his complaint, the plaintiff claims that defendants David L. Mahan and Robert E. Kinderman failed to protect him although he wrote several grievances to Mahan and Kinderman regarding Inmate Kyle Beaty's conduct and verbal threats made against the plaintiff. The plaintiff claims Mahan and Kinderman did not take his grievances seriously, did not respond and failed to protect him in violations of his constitutional rights. The plaintiff claims that Kyle Beaty physically attacked him on May 31, 2004. The plaintiff claims that Inmate Kyle Beaty assaulted him causing a swollen esophagus, temporary loss of hearing in one ear and broken eyeglasses.
The plaintiff claims Kinderman and Mahan were deliberately indifferent to his serious medical needs when they denied his requests for medical treatment for a loss of hearing in one ear, sore throat and swollen esophagus after being involved in the altercation with Beaty.
The plaintiff also claims that the defendants, Kinderman and Mahan discriminated against him due to his race and sexual orientation when he was placed in a female cell after being attacked by defendant Kyle Beaty. The plaintiff also claims Kinderman and Mahan retaliated against him when he was transferred to the female cell and when he was transferred to another institution. The plaintiff claims this is where "discrimination because of his race and sexual orientation took place and violations of his legal constitutional rights took place also." In his complaint, the plaintiff specifically states that after the assault, c/o Jim told him to pack his stuff and he was moving the plaintiff for his safety. He asked why he was being moved instead of Kyle because the plaintiff was the one attacked. The plaintiff claims he was moved to the female cellblock next to the females in a dirty cell where he killed several big spiders. He was unable to sleep until correctional staff provided the plaintiff with cleaning materials to clean the cell up. The plaintiff does not allege that either Mahan or Kinderman were involved in his placement in the female cell. In fact, when he complained in his June 1, 2004 grievance to Kinderman about his placement in the female cell, Kinderman responded the next day, June 2, 2004 and advised the plaintiff that he would be moved "today." Further, the plaintiff claims his transfer to another cell resulted in a loss of inmate privileges such as television, phone, and comradery with other inmates. The plaintiff claims the loss of these privileges amount to the level of significant hardship to ordinary incidents of prison life. The plaintiff also claims that he could not phone his attorney to advise him about the disciplinary for the assault incident because the phone was not working where he was housed.
In their summary judgment motion, the defendants, Kinderman and Mahan state that essentially, the plaintiff was moved from his cell after engaging in contact with another inmate. The plaintiff was placed in another cell for approximately two days. The plaintiff stated his ear was "closed up" and his throat hurt. Kinderman and Mahan assert that the plaintiff was simply not in need of medical care. Further, the defendants maintain the plaintiff was not injured and not in need of a doctor's visit, that the plaintiff's transfer to a holding cell for two days was not legally improper, that the U.S. Marshal Service, not the defendants, transferred the plaintiff to Sangamon County Jail and that the defendants did not impose an atypical or significant hardship to the ordinary incidents of prison life on the plaintiff. Kinderman and Mahan assert that they did not violate the constitutional rights of the plaintiff and all treatment was well within federal law. The defendants request this court to grant summary judgment in their favor and dismiss the plaintiff's claims against them with prejudice, award attorney's fees and any other relief the court deems just and appropriate.
Undisputed Material Facts
1. On May 31, 2004, Plaintiff was a federal detainee housed in the bullpen area of the Christian County Jail, Christian County, Illinois. (Plaintiff's Complaint ¶ 1).
2. On the above day, Plaintiff became involved in an altercation with another inmate, Co-Defendant, Kyle Beaty. During the altercation, Plaintiff was struck on the side of his head with a fist and ...