The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' motion to dismiss and motion for summary judgment. [d/e 37].
The pro se plaintiff filed his complaint on August 9, 2007, pursuant to Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against five defendants at the Federal Correctional Institution in Pekin, Illinois including Warden J.C. Zuercher and Food Service Directors Steve Dennis, Nancy Burnham, Manning Gamez and Daniel Scott. On September 24, 2007, the court conducted a merit review of the plaintiff's complaint and found the plaintiff has alleged that:
1) the defendants violated his Eighth Amendment rights when they were deliberately indifferent to his health and safety; and,
2) the defendants violated the Federal Tort Claims Act when the plaintiff was injured on the job on August 16, 2006.
Due to the plaintiff's Federal Tort Claims Act, the United States was added as a defendant.
The plaintiff's complaint specifically claimed that he worked in the food service area and the individual defendants were aware that there was faulty plumbing in his area, but did nothing to fix it. On August 16, 2006, the plaintiff says he fell as a result of the leaking water and injured himself.
The plaintiff arrived at the Federal Correctional Institution in Pekin, Illinois, on June 28, 2006. On July 24, 2006, the plaintiff was assigned to work the morning shift in the prison kitchen.
The Bureau of Prisons Administrative Remedy Program is set forth in 28 C.F.R.§542.10, et. seq. Under this process, inmates must first attempt to resolve their complaints informally by discussing the problem with a member of their unit team. 28 C.F.R.§542.13. If informal resolution is insufficient, the inmate may file a formal complaint with the Warden within 20 days of the incident.
28 C.F.R.§542.14. If the inmate is still unsatisfied with the result, the inmate may appeal the response to the Regional Director within 20 days of the response. 28 C.F.R. §542.15. If the regional response is insufficient, the inmate may file a nation appeal to the Office of General Counsel in Washington, D.C. 2 C.F.R.§542.15. This is the final step in the grievance process within the Bureau of Prisons.
Sherri Nichols says she is the Warden's secretary at the Federal Correctional Institution in Pekin, Illinois. (Herein FCI Pekin) Nichols says she also serves as the Clerk for the Administrative Remedy Program and therefore has access to the program records. (Def. Memo, Nichols Aff, p. 1).
Nichols says she has searched the records for all remedies filed by the plaintiff. Nichols says the plaintiff filed one request for an administrative remedy to the Warden disputing his status in the Financial Responsibility Program. He did not appeal this request. (Def. Memo, Nichols Aff, p. 1)
The plaintiff also filed a remedy complaining about a delay in receiving medical care. The request was denied and the plaintiff appealed to the Regional Office. The appeal was also denied. The plaintiff attempted to appeal to the Administrator of National Inmate Appeals, but the appeal was rejected as untimely. The plaintiff was given an opportunity to explain the delay in his appeal, but "[t]here is no ...