The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
John W. Gebo, an inmate in the New Hampshire State Prison system, brings an action pursuant to 42 U.S.C. § 1983 against Robert Thyng, who was the Unit Manager at the Northern Correctional Facility ("NCF") in New Hampshire when Gebo was assaulted in September of 2009. Gebo alleges that Thyng violated his Eighth Amendment rights by failing to protect him from assault by other inmates. Thyng moves for summary judgment on the ground that Gebo failed to exhaust his administrative remedies. Gebo objects.
A hearing was held on May 22, 2012. Thyng did not attend the hearing but instead submitted his deposition for consideration. Three witnesses testified on behalf of Thyng: Ann Marie Morin, who was a sergeant at NCF in September of 2009; Edward S. McFarland, Jr., who also was a sergeant at NCF; and Diane R. Bouthot, who is the administrative secretary to the Warden at NCF. Gebo testified, and David Peters, who was an inmate at NCF in September of 2009, testified on behalf of Gebo.
The Prison Litigation Reform Act of 1995 provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Section 1997e(a) requires "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 88 (2006). Proper exhaustion means that a prisoner must complete the grievance process in the manner required by the prison. Jones v. Bock, 549 U.S. 199, 218 (2007). Because the administrative exhaustion requirement under § 1997e(a) is an affirmative defense, the defendant bears the burden of proving that the plaintiff failed to exhaust. Id. at 216; Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir. 2002); Starr v. Moore, --- F. Supp. 2d ---, 2012 WL 1034452, at *3 (D.N.H. Mar. 28, 2012).
As noted in the previous order, the parties' summary judgment memoranda and supporting materials demonstrated that material facts are in dispute as to whether Gebo exhausted his administrative remedies. All courts that have considered the issue have concluded that there is no Seventh Amendment right to a jury trial on disputed factual issues for purposes of deciding the § 1997e(a) exhaustion issue. See, e.g., Messa v. Goord, 652 F.3d 305, 308 (2d Cir. 2011) (citing cases). Instead, the trial court resolves factual disputes related to the exhaustion defense and decides whether the defendant has carried his burden of proving that the plaintiff failed to exhaust administrative remedies. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
Gebo, proceeding pro se and in forma pauperis, filed a complaint alleging claims under § 1983. On preliminary review, the magistrate judge recommended dismissal of Gebo's Fourteenth Amendment claim and ordered service on Robert Thyng of Gebo's Eighth Amendment claim. Gebo's motion for appointment of counsel was granted. An attorney entered an appearance on Gebo's behalf and filed an amended complaint, alleging that Thyng violated Gebo's Eighth Amendment rights by failing to protect him. Thyng moved for summary judgment, and Gebo objected.
The following background information is taken from the parties' summary judgment materials, along with the testimony and evidence presented during the hearing.
John Gebo was an inmate at the Northern New Hampshire Correctional Facility in September of 2009.*fn1 At that time, NCF was overcrowded, housing 200 inmates more than its peak capacity. In addition, the number of staff had been reduced by layoffs. Although inmates were not supposed to move between the two housing levels in the prison, in 2009 they were able to access the stairs and did move between the levels.
On September 2, 2009, Gebo was attacked by other inmates who hit him repeatedly, causing a large gash on the back of his head and other injuries. Gebo knew that at least two of the attackers were members of a prison gang, and he believed he was attacked because he refused to join a gang. He was treated at Androscoggin Valley Hospital for his injuries and returned to the prison that night.
When he returned to the prison, Gebo was placed in Administrative Review status. The next day, September 3, Gebo told Unit Manager Robert Thyng that he needed to be in protective custody because he had been assaulted by a known gang member. Thyng denied his request and returned Gebo to general population, although Gebo was moved from Unit A on the first level to Unit E on the second level.
Gebo prepared a request slip in which he asked to meet with Thyng for an explanation as to why his request for protective custody was denied. On his way to the request slip box which was located outside of the sergeant's office on the second level, Gebo met another inmate, David Peters, whom he knew. Peters was surprised to see Gebo in the second level hallway because he thought Gebo was in A Unit on the first level and asked him what he was doing up there. Gebo told Peters about the assault and showed him the gash on his head and other wounds. Peters was shocked and asked Gebo why he was not in the health services unit. Peters was aware of the danger from gang members in prison and thought Gebo should be moved out of the prison. Gebo showed Peters the inmate request slip he had completed and explained that he was very concerned for his safety and was trying to get a meeting with Thyng so that he could have a protective custody hearing and be moved out of NCF. Peters saw ...