United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Plaintiff Jonathan Santiago is an inmate at the New Hampshire State Prison ("NHSP"). He has sued defendants, employees at the NHSP and/or the New Hampshire Department of Corrections ("DOC"), asserting that NHSP corrections officers used excessive force against him on February 20, 2013, in violation of Santiago's Eighth Amendment right not to be subjected to cruel and unusual punishment. Before the court is defendants' motion for summary judgment (doc. no. 18), alleging that Santiago has failed to exhaust the administrative remedies available to him at the DOC. Santiago has filed an objection (doc. no. 23).
Summary Judgment Standard
"Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'" Ponte v. Steelcase Inc., 741 F.3d 310, 319 (1st Cir. 2014) (citation omitted); see also Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.'" Winslow v. Aroostook Cty., 736 F.3d 23, 29 (1st Cir. 2013) (citation omitted).
"The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.'" Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (citation omitted). "Conclusory allegations, improbable inferences, and unsupported speculation, are insufficient to establish a genuine dispute of fact.'" Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir. 2013) (citation omitted). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his claim." Sánchez-Rodríguez, 673 F.3d at 9 (internal quotation marks and citation omitted). Under this court's local rules, "[a]ll properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party." LR 56.1(b).
I. February 20, 2013, Incident
In the complaint (doc. no. 1), the complaint addendum (doc. no. 9), and Santiago's responses (doc. nos. 19 and 23) to the defendants' motion for summary judgment, Santiago alleges that on February 20, 2013, NHSP Corrections Officer ("C.O.") Craig Orlando spoke to Santiago, who was in his cell in the NHSP's Secure Housing Unit ("SHU"), and told him to "cuff up." When Santiago refused to comply with Orlando's order, Orlando sprayed pepper spray into the cell, and four other C.O.s tackled Santiago to the floor. Once Santiago was on the floor, the officers controlled each of his limbs and head by holding them into the floor. At that point, C.O. Scott Marshall shot Santiago in the head, twice, with a "stun gun, " while Santiago was restrained on the floor and entirely under the control of the officers. Santiago alleges that these actions amounted to excessive force.
II. DOC Grievance Policy
According to the DOC's Policy and Procedure Directive 1.16 (doc. no. 18-9))("PPD 1.16"), "[a]ll persons under supervision are informed of the grievance procedures through the Inmate Manual and publication of this PPD." Id. at III(G). The DOC's grievance procedure is three-tiered. See id. at III(F).
To satisfy the first level of that procedure, inmates who believe they have been aggrieved must, within thirty days of the incident being grieved, file an Inmate Request Slip ("IRS") with a unit-level staff member. Id. at IV(A). Copies of the IRS are forwarded to the appropriate unit-level staff member for a response and to the inmate. See Aff. of Nancy Wolcott (doc. no. 18-2) ("Wolcott Aff."), at 1.
The DOC's grievance policy does provide for a process in which an inmate can request that first level of the grievance process be waived where "the inmate... can demonstrate that using the process is likely to result in identifiable risk of harm to their physical safety or psychological well-being." Id. at IV(A)(4). Such a waiver must be requested within thirty days of the incident to be grieved. Id . However, under the grievance policy, "[a]n unsupported allegation of fear of retaliation without more information is not sufficient" to obtain such a waiver. Id.
The second step in the DOC grievance process is for the prisoner to file, within thirty days of receiving a response to his IRS, a Grievance Form ("GF") with the Warden. See id. at IV(B). The Warden's office maintains a log of each grievance it receives, as well as a copy of the GF and answer thereto. See Aff. of Gail Mansur (doc. no. 18-4) ("Mansur Aff."), at 1.
The third step in the DOC grievance process is for the inmate to file, within thirty days of receiving the Warden's response to his grievance, an appeal, using a GF, to the DOC Commissioner. See id. at IV(c). The Commissioner's office maintains a log of each grievance it receives, as well as ...