The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff, Robert Edwards, was a federal prisoner incarcerated at Metropolitan Correctional Center (MCC) in 2009. He is no longer incarcerated. He initiated this civil rights action in September 2009 against Lieutenant Valisha Price, a nurse providing services to MCC inmates. Plaintiff alleged that he suffered a back injury and that Lt. Price ignored his requests for medical attention. Plaintiff also named as Defendants Zamora Martinez (a unit manager), W.L. Scnake (a case manager) and the MCC itself. The Court dismissed Martinez, Scnake, and the MCC on initial review because Plaintiff alleged no claims against Martinez or Scnake and because the MCC is not a suable entity. Price, the only remaining Defendant, has filed a motion to dismiss or, alternatively, for summary judgment. She contends that, under 42 U.S.C. § 233(a), she is immune from being sued in a Bivens v. Six Unknown Named Agents of FBI, 403 U.S. 388 (1971), action, and that Plaintiff did not exhaust administrative remedies before bringing this suit. Plaintiff has filed a response, and Defendant Price has replied. For the following reasons, the Court grants the motion for summary judgment.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Defendant Price's motion is labeled as a motion to dismiss or, alternatively, for summary judgment. (R. 21.) Each of the two issues she presents for dismissal (failure to exhaust and immunity) requires consideration of declarations and prison records not included with the complaint. (R. 22, Def.'s Rule 56.1 Statement.) Because "matters outside the pleadings are presented" for consideration of Defendant's motion, the motion shall be treated as one for summary judgment. Fed. R. Civ. P. 12(d); see also Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010). The Court will thus construe Defendant's motion as a one for summary judgment.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine issue of material fact, a court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When addressing a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
If the moving party meets its burden, the nonmoving party has the burden "to go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if a reasonable finder of fact could return a decision for the nonmoving party based upon the record. See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596 (7th Cir. 2000). With respect to whether an inmate exhausted administrative remedies, the court, and not a jury, must resolve factual issues relating to the exhaustion issue. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
When addressing summary judgment motions, background facts are derived from the parties' Local Rule 56.1 Statements, which assist the court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Because Plaintiff is proceeding pro se, the Defendant served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by N.D. Ill. Local Rule 56.2. The notice explains the consequences of failing to properly respond to a motion for summary judgment and to a statement of material facts under Fed. R. Civ. P. 56(e) and Local Rule 56.1. (R. 23.)
Plaintiff filed a response to Defendant's motion for summary judgment, (R. 28); however, he filed no response to Defendant's Rule 56.1 Statement. The Court may thus consider Defendant's Rule 56.1 statements true. See Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006).
Plaintiff injured his back while working in the kitchen at the MCC on August 4, 2009. (R. 9, Amended Compl. at 6.) Plaintiff informed an officer, who sent him to the infirmary. At the infirmary, Nurse Williams told Plaintiff that she could not treat him that day because she was training a new employee. Plaintiff returned to his floor. The following day, he informed an officer that he was still in pain. The officer sent Plaintiff back to the infirmary. At the infirmary, Nurse Price told Plaintiff that she could not see him because he had been there the day before. Plaintiff returned to either his cell or his work in the kitchen. He later requested treatment and again was sent to the infirmary. Allegedly, Price again refused to treat him. Plaintiff states that he did not see a doctor until August 12, 2009, and that the doctor only tapped his back in several places and prescribed Motrin. Plaintiff indicates that, since he could not get treatment, "this [suit] was my course of action." (Id. at 6.)
With respect to the exhaustion issue, Defendant Price presents the declaration of Jennifer Knepper, the Attorney Advisor at the MCC. According to Knepper, there is a three-tiered grievance system available to inmates at the MCC. (R. 22-1, Knepper Aff., ¶¶ 1-3); see also 28C.F.R. §§ 542.10-19. Knepper states that Plaintiff's SENTRY file (an electronic record keeping system that tracks all BOP inmate grievances) shows that he filed no grievances during his stay at the MCC between March and December 2009. (Id. at ¶¶ 4-6.)
Plaintiff's response to Defendant's motion seems to concede that he did not file any grievances, but instead, told several officers about his inability to get treatment. Plaintiff states that he first went to an officer, then a counselor, then a captain, and then an assistant warden "and still no help. Besides this was an emergency." (R. 28, Pl.'s Response at 1.)
With respect to the immunity issue, Defendant presents the declaration of Commissioned Corps Liason Ben Brown. Brown states that Lt. Price was a commissioned officer of the United States Public Health Service on active duty assigned to ...