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Christopher Palermo v. Michael Edmark

September 12, 2012

CHRISTOPHER PALERMO
v.
MICHAEL EDMARK, ET AL.



The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 159

ORDER

Christopher Palermo brings a civil rights action under 42 U.S.C. § 1983 against corrections officers at the New Hampshire State Prison for Men, alleging that the officers attacked and beat him on two occasions while he was incarcerated at the prison. Palermo's counsel withdrew, effective July 10, 2012. Palermo is now proceeding pro se.

The defendants move for summary judgment on the ground that Palermo failed to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a). Palermo objects, arguing that he raised the issues that form the basis for his claims in correspondence to prison officials, during an investigatory interview, and in a grievance that was denied as untimely filed. Palermo also contends that he requested a grievance form that was never provided to him. The defendants filed a reply to address Palermo's version of events.

Standard of Review

Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Material facts are "facts that might affect the outcome of the suit under the governing law." Id. at 248. The court considers the undisputed material facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011). However, the party opposing summary judgment "cannot rest on conclusory allegations, improbable inferences, or unsupported speculation to defeat a motion for summary judgment," but instead "must set forth specific facts showing that there is a genuine issue for trial." Barry v. Moran, 661 F.3d 696, 703 (1st Cir. 2011) (internal quotation marks omitted).

Under the local rules of this district, the party moving for summary judgment must provide "a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no issue to be tried." LR 7.2(b)(1). In response, the objection must include "a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial." LR 7.2(b)(2). Further, "[a]ll properly supported material facts set forth in the moving party's factual statement shall be deemed admitted unless properly opposed by the adverse party." Id.

In their reply to Palermo's objection to summary judgment, the defendants repeatedly refer to Palermo's response as being based on "unsworn allegations." Palermo, however, filed his declaration in support of his objection to summary judgment in which he purported to swear to the truth of all facts stated in his objection under penalty of perjury. The defendants did not move to strike any part of Palermo's declaration or object to it in any way. Therefore, the facts in the objection are considered, for purposes of the current motion for summary judgment only, as if they were presented in an affidavit in compliance with Rule 56(c)(4). See Desrosiers v. Hartford Life & Accident Co., 515 F.3d 87, 91-92 (1st Cir. 2008); Perez v. Volvo Car Corp., 247 F.3d 303, 314-15 (1st Cir. 2001); Lacey v. Lumber Mut. Fire Ins. Co. of Boston, 554 F.2d 1204, 1205 (1st Cir. 1977); Aftokinito Props., Inc. v. Millbrook Ventures, LLC, 2010 WL 2108225, at *1, n.1 (D.N.H. May 25, 2010).

Background*fn1

During the incidents at issue in this case, Palermo was a New Hampshire inmate, and the incidents occurred at the New Hampshire State Prison for Men ("NHSP").*fn2 However, Palermo was housed in a Rhode Island prison pursuant to an interstate transfer in 2008 until he was returned to the NHSP in April of 2011.

While Palermo was in Rhode Island, he was returned to New Hampshire on several occasions for court proceedings. Palermo contends that during one of the times he was returned to New Hampshire, on March 24, 2009, he was attacked by guards at the NHSP, which required treatment at Catholic Medical Center. Palermo further contends that after receiving medical treatment he was put on a stretcher restraint and returned to Rhode Island the same day.*fn3

The defendants provide evidence that Palermo did not file an inmate request form about the March 24, 2009, incident within the time allowed to do so. Palermo contends that when he returned to Rhode Island he asked a "Captain of the High Security Center" about the incident and requested a grievance form. That person told Palermo that he would have to write to the NHSP about the attack.

Palermo states that the next day he sent a letter to Denise Heath, who was the interstate compact coordinator at the NHSP. When he did not get a response for two weeks, he sent another letter to Heath. He contends that in both letters he requested grievance forms. Palermo was returned to New Hampshire for the period from April 8 to April 28, 2009, and was housed at the Northern New Hampshire Correctional Facility during that time.*fn4

Palermo contends that when he asked for a grievance form he was told to send a request asking for a form. Palermo states that he sent a request for a grievance form but because his ...


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