United States District Court, D. New Hampshire
McCAFFERTY, District Judge.
9, 2010, two inmates at the Strafford County House of
Corrections ("HOC") in Dover, New Hampshire
assaulted Lynette Maryea, another inmate. Maryea brings
federal civil rights claims and state law claims against
Strafford County and Strafford County Department of
Corrections ("DOC") officials based on their
alleged failure to prevent the assault. Defendants have moved
for summary judgment. Maryea objects.
movant is entitled to summary judgment where he "shows
that there is no genuine dispute as to any material fact and
[that he] is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). In reviewing the record, the court
construes all facts and reasonable inferences in the light
most favorable to the nonmovant. Kelley v. Corr. Med.
Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).
2010, Lynette Maryea was an inmate at the HOC. Maryea was
housed in Unit A, a special housing unit for inmates or
pre-trial detainees with mental or physical disabilities. On
or around June 4, Maryea informed staff members several times
that Annette Krikorian, another inmate, was harassing and
provoking her. Maryea also informed staff that other inmates
had warned her "that something was going to happen"
to her. Maryea, however, was unable to provide any specific
details to staff concerning what was going to happen to her.
Although Maryea provides no evidence identifying which staff
members she informed, she alleges that she told
classification officers Robert Metcalf, David Baggs, and
Nicole Wilkins that she was in "imminent danger."
Compl. (doc. no. 1-2) ¶¶ 31-33.
9, Maryea informed classification officer William Bryant that
she was having issues with another inmate and did not want to
act out. Bryant reported this conversation to Lieutenant Gwen
Weisgarber. Weisgarber told Bryant to have Maryea lock
herself in her cell until Weisgarber could speak with her.
Weisgarber spoke with Maryea later in the day, Maryea
informed Weisgarber that she was having issues with
Krikorian, who was provoking her and instigating trouble with
her. Maryea explained that she had tried to confront
Krikorian concerning these issues, but Krikorian had just
yelled at her, called her names, and told her that she would
fight. Maryea also said that she thought Krikorian had some
type of plan, but that she "didn't know what it was
obviously." Maryea Dep. (doc. no. 16) 12:2-7. Maryea
also explained that she did not fear Krikorian because
Krikorian was so "little, I could snap her in
half." Weisgarber Decl. (doc. no. 11-5) ¶ 10.
response, Weisgarber told Maryea that she should stay away
from Krikorian to avoid getting into trouble. She reminded
Maryea that if a problem did occur, Maryea could lock herself
in her cell. Weisgarber also told Maryea that she should
notify an officer if she was having an issue with Krikorian
and should not try to handle anything herself. Finally,
Weisgarber told Maryea that she would speak with Baggs, a
classification officer, and that they would work on a
solution to the issues between Krikorian and Maryea.
Weisgarber did speak to Baggs and the two discussed options
for resolving Maryea's concerns.
stayed locked in her cell for the rest of the day until later
that evening when she left to get dinner. At that time,
Krikorian and another inmate, Ashley Leighton, assaulted
Maryea. Maryea alleges that the assault occurred in the
kitchen. Maryea concedes that there is no evidence that any
defendant or other staff member witnessed the assault. See
Order (doc. no. 27) 2.
filed a complaint in state court alleging federal and state
law claims against Strafford County, Weisgarber, Wilkins,
Bryant, Metcalf, Baggs, and Lieutenant Donna Roy, the
lieutenant that Maryea alleged was on duty during the
assault. Defendants removed the action to this
court. Maryea brought her federal claims under 42 U.S.C. §
1983 and premised them on the allegation that DOC officials
were deliberately indifferent to Maryea's safety because
they failed to prevent the assault. Maryea brings state law
claims against all defendants for negligence and against
Strafford County for negligent hiring and supervision and
time of the assault, the DOC had a policy, which required
inmates with complaints about prison conditions to submit a
grievance. The grievance policy establishes a formal
three-step process, including appeals, for the submission and
resolution of written complaints. Generally, the grievance
policy requires an inmate to "file a written/formal
grievance within fourteen... days of discovery of the
grievable issue." See Pelkie Decl., Ex. A (doc. no.
11-3) 2. It also permits an inmate to make a
"verbal/informal initial grievance" within seven
days of the discovery of a grievable issue. Id . It
is undisputed that Maryea failed to file a formal, written
grievance concerning the assault.
filed two motions for summary judgment. The first motion
(doc. no. 11) argues that Maryea failed to exhaust her
administrative remedies, a requirement for inmates bringing
federal claims, and that defendants are entitled to immunity
on the state law claims under N.H. Revised Statutes Annotated
("RSA") 507-B:5 and 507-B:4, IV. In the second
motion (doc. no. 15), defendants argue that they are entitled
to common law immunity on Maryea's state law claims and
that Maryea has failed to adduce any evidence that creates a
genuine issue of material fact entitling her to a jury trial
on her federal claims. Maryea has objected to both
motions. Because, as discussed below,
defendants' first motion for summary judgment disposes of
Maryea's claims, the court need not address
defendants' second motion.
Exhaustion of Federal Claims
argue that they are entitled to summary judgment on
Maryea's federal claims under the Prison Litigation
Reform Act ("PLRA") because Maryea did not submit a
grievance concerning the assault and therefore failed to
exhaust her administrative remedies. Maryea contends that she
is excused from the PLRA exhaustion requirements.
the Prison Litigation Reform Act of 1995, "[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). To exhaust
administrative remedies under the PLRA, a prisoner "must
complete the administrative review process in accordance with
the applicable procedural rules." Jones v.
Bock, 549 U.S. 199, 218 (2007) (internal quotation marks
omitted). The PLRA's exhaustion requirement "applies
to all inmate suits about prison life, whether they involve
general circumstances or particular episodes."
Porter v. Nussle, 534 U.S. 516, 532 (2002).
enacted the PLRA's exhaustion requirement "to reduce
the quantity and improve the quality of prisoner suits."
Nussle, 534 U.S. at 524. To achieve this purpose,
the PLRA "afford[s] corrections officials time and
opportunity to address complaints internally before allowing
the initiation of a federal case." Id. at 525.
"In some instances, corrective action taken in response
to an inmate's grievance might improve prison
administration and satisfy the inmate, thereby obviating the
need for litigation." Id . And when a prisoner
does proceed with a lawsuit, requiring exhaustion can improve
the quality of that suit "by producing a useful
administrative record." Bock, 549 U.S. at 204.
inmate fails to properly exhaust administrative remedies, her
federal claims are subject to dismissal under the PLRA.
Medina-Claudio v. RodrÃguez-Mateo, 292 F.3d 31, 36
(1st Cir. 2002); Polansky v. McCoole, No. 13-CV-458-JL, 2016
WL 237096, at *7 (D.N.H. Jan. 20, 2016) (granting summary
judgment where inmate failed to exhaust administrative
remedies). If no administrative remedies are available,
however, exhaustion is not required. Brown v.
Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (noting that
"the statutory language [of the PLRA] does not require
exhaustion when no pertinent relief can be obtained through
the internal process"). Failure to exhaust is an
affirmative defense, Bock, 549 U.S. at 216, and, as
such, it "must be raised and proved by the
defense." Cruz Berrios v. Gonzalez-Rosario, 630
F.3d 7, 11 (1st Cir. 2010).
move for summary judgment on Maryea's federal claims,
arguing that Maryea did not exhaust her administrative
remedies because she failed to file a grievance concerning
the assault. Maryea concedes that she did not submit a
grievance regarding the assault. She argues, however, that
she is excused from the PLRA's exhaustion requirement
because there were no administrative remedies
"available" to her. The DOC's administrative
remedies were unavailable, Maryea contends, because once the
assault occurred, those remedies could not provide any
"relief... regarding inadequate protection." Obj.
(doc. no. 16) 4.
"available" under the PLRA a remedial scheme need
only provide prison officials authority to "take some
action in response to a complaint." Frazier v.
Fairhaven Sch. Comm., 276 F.3d 52, 62 (1st Cir. 2002)
(quoting Booth v. Churner, 532 U.S. 731, 736
(2001)); Johnson v. Thyng, 369 F.Appx. 144, 149 (1st
Cir. 2010). Consequently, an inmate must exhaust the entire
administrative process, "regardless of the relief
offered through administrative procedures."
Booth, 532 U.S. at 741. That is so even when the
relief offered might not personally benefit the plaintiff.
See Medina-Claudio, 292 F.3d at 35-36 (holding that
exhaustion is still required under the PLRA even when the
inmate has been transferred to another institution);
Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d
Cir. 2006) (requiring exhaustion because formal grievance
might have "resulted in developing... policies and
procedures pertaining to the grievance or disciplining the
relevant officers") (quoting Braham v. Clancy,
425 F.3d 177, 183 (2d Cir. 2005)).
defendants have submitted an affidavit from Bruce Pelkie, the
current DOC superintendent, listing examples of the actions
that DOC officials could have taken had Maryea filed a
grievance after the assault. See Pelkie Decl. (doc. no. 17-1)
¶¶ 3-8. For example, Pelkie contends that DOC officials could
have investigated Maryea's claims and disciplined any
officers who did not adequately perform their duties.
Id. at ¶¶ 5-6. Pelkie also asserts that DOC
officials could have moved Maryea, Krikorian, or Leighton for
Maryea's future safety. Id. at ¶ 7.
Finally, Pelkie asserts that DOC officials could have changed
the DOC's procedures, policies, and training guidelines
for the issues presented in Maryea's claims. Id.
at ¶ 5.
is no evidence in the summary judgment record refuting
Pelkie's statements that DOC officials could have taken
these actions had Maryea submitted a grievance concerning the
assault. Therefore, the DOC's administrative remedies