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Green v. Warden

August 7, 2008

DAVID LEE GREEN, PLAINTIFF,
v.
WARDEN, MCC CHICAGO; MS. CHRISTMAS; UNITED STATES OF AMERICA; AND MR. HARRIS, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

David Lee Green has sued three Bureau of Prison officials under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the United States under the Federal Tort Claims Act (FTCA). Defendants have moved for summary judgment on all of Green's claims. For the following reasons, the Court grants defendants' motion with regard to the Bivens claims but denies it with regard to the FTCA claim.

Facts

Because defendants have moved for summary judgment, the Court views the facts in the light most favorable to Green and draws reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

On November 7, 2005, Green was detained at the Metropolitan Correctional Center in Chicago (MCC). On that date, another inmate struck Green and threatened his life. Green says he reported this to defendant Raymonde Harris, a supervising correctional officer, telling Harris he feared for his safety. Harris, however, did not believe Green and left him alone with the other inmate. The other inmate then struck Green again, knocking him to the floor, causing Green to lose a tooth and breaking his eyeglasses.

On November 11, 2005, Green submitted to the Bureau of Prisons (BOP) a Form SF-95, entitled "Claim for Damages, Injury, or Death," seeking compensation of $600 for his personal injury and $216 for the loss of his glasses, a total of $816. Submission of this form is a prerequisite to filing a lawsuit under the FTCA. In the form, Green stated that he was assulted [sic] while at work, in the kitchen of the MCC Chicago, at around 5:15 AM Monday 11-1-05 I had been hit on the back of my head while at the ovens in the kitchen, I went to the supervisors dest [sic] and was telling him that inmate Tucker had hit me and also threatened my life -- at which time right in front of the supervisors desk he Tucker hit me in my mouth -- breaking my tooth & knocking a tooth out -- and causing my classes to break as I was knocked to floor.

Def. Ex. C, attachment 5.

About a week later, Green submitted to counselor Charvella Christmas an internal grievance on a BOP form, accusing Harris of failing to protect him. He did not receive a written response to the grievance. Green claims that on December 6-7, 2005, Christmas and another counselor named Owens pressured him to drop his grievance and, he says, threatened him when he refused to do so. Two days later, Green was transferred to the Kankakee County Jail; he contends this was in retaliation for refusing to drop the grievance against Harris. Green remained at the Kankakee jail from for nearly nine months, from December 9, 2005 through September 1, 2006. While there, Green says, he lacked access to any legal materials.

Because he did not receive a response to his first grievance, Green says, he submitted an appeal by letter to the BOP regional office in December 2005, shortly after he arrived at the Kankakee jail. The BOP advised Green by letter dated January 10, 2006 that it was rejecting his appeal, stating that he had to first file and pursue a grievance at the institution, namely, at the MCC.

Green submitted a second grievance form to the MCC on February 7 or 8, 2006, while he was still at the Kankakee jail. In that grievance, Green asserted complaints against Harris relating to the assault and against Christmas and Irvin relating to their alleged interference with his first grievance. Green again did not receive a response, so on March 10, 2006 he wrote the MCC's warden to find out about the status of his grievances. On March 16, 2006, Green received a letter from Richard Hansford, an attorney-advisor at the MCC, stating that the MCC could not "receipt" Green's grievance because he was no longer incarcerated there. In the letter, Hansford stated that Green could submit a "remedy request" to the BOP regional office. Hansford also stated that Green could "resubmit [his] request to MCC Chicago if you return to this institution." Pl. Ex. 13.

In early April 2006, Green received a letter from the BOP dated March 30, 2006, in response to his filing of the Form SF-95. The Court quotes the letter in full:

March 30, 2006

David Green

Register No. 01665-041 Jerome Combs Correctional Facility 3050 S. Justice Way Kankakee, IL 60901Re: Administrative ...


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