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 28]
The plaintiff's initial complaint was filed pursuant to 42 U.S.C.§1983 and was dismissed as a violation of Rule 8, 18 and 20 of the Federal Rules of Civil Procedure. The plaintiff was given additional time to file an amended complaint. See September 21, 2009 Court Order.
After merit review of the plaintiff's amended complaint, the court found the plaintiff had adequately alleged claims against seven defendants including: Dietary Manager Marcia Keys, Warden Keith Anglin, Warden Joseph Loftus, Assistant Warden Victor Calloway, Food Service Manager Suzann Griswold and Counselors Laker and Peterson.
The court found the plaintiff had stated the following claims:
1) Defendants Marcia Keys, Suzann Griswold, Keith Anglin, Joseph Loftus and Victor Calloway were deliberately indifferent to the plaintiff's health and safety when they continued to provide the plaintiff with a high soy content diet despite the negative consequences for the plaintiff's health; and,
2) Defendants Anglin, Laker and Peterson also violated the plaintiff's Eighth Amendment rights based on his filthy living conditions. The claims are against the defendants in their individual capacities only. See October 29, 2009 Merit Review Order.
The plaintiff was advised that he would need to clarify the time frame of his allegations during the discovery process. October 29, 2009 Merit Review Order, p. 4. Defendants Anglin, Calloway, Keys and Griswold have filed a motion for summary judgment on the issue of exhaustion.
The plaintiff did not respond directly to the defendants' statement of undisputed facts. Therefore, the following facts are taken from the exhibits submitted by the parties.
Sarah Johnson says she is the Chairperson of the Office of Inmate Issues and maintains the record for the Administrative Review Board (herein ARB). (Def. Memo, John. Aff, p. 1). Johnson says she has searched the records of the ARB for any grievances filed by the plaintiff relating to the issues in his complaint.
The plaintiff filed one grievance concerning the soy diet which was dated March 7, 2008. The ARB responded on July 25, 2008. The ARB also has one grievance from the plaintiff pertaining to a dirty cell. This grievance is dated May 19, 2008. It was signed by the Chief Administrative Officer on August 7, 2008, but it was not received by the ARB until September 29, 2008. The ARB returned the grievance to the plaintiff on December 28, 2008, since it was not submitted in the proper time frame.
The defendants have provided copies of both grievances. The grievance pertaining to soy products dated March 7, 2008, states that the plaintiff has several medical conditions caused by his soy diet. The plaintiff says Defendants Griswald and Keys are aware that the soy diet contributes to certain medical conditions. The plaintiff also says the program administrators and ...