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 for summary judgment [d/e 30] and the plaintiff's response.
The plaintiff filed his lawsuit pursuant to 42 U.S.C. §1983 claiming his constitutional rights were violated by three defendants at Pontiac Correctional Center including; Lieutenant Lance Evans, Correctional Officer Cory Womble and Correctional Officer Lewis. After merit review, the court found the plaintiff had the following claims:
a) Defendants Womble and Lewis used excessive force against the plaintiff on April 10, 2009 in violation of the Eighth Amendment;
b) Defendant Evans failed to protect the plaintiff from the April 10, 2009, attack in violation of the Eighth Amendment;
c) Defendants Womble, Lewis and Evans engaged in a conspiracy in violation of §1983 to cover up the use of excessive force; and,
d) Defendants Womble and Lewis committed the state law offense of battery on April 10, 2009. November 9, 2009 Merit Review Order.
Defendants Evans and Womble have filed a motion for summary judgment alleging that the plaintiff has failed to exhaust his administrative remedies as required.
The defendants have submitted copies of two documents:
June 8, 2009 Grievance- this grievance is signed by the plaintiff which states the defendants used excessive force against him on April 10, 2009. The grievance is stamped that it was received by the Office of Inmate Issues on June 24, 2009.
Letter from Administrative Review Board (herein ARB)- the letter is dated July 7, 2009. It states that the board received a grievance from the plaintiff on June 24, 2009. The grievance is denied ...