United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
Hart, who appears pro se, is currently incarcerated in the
New Hampshire State Prison (“NHSP”). Using the
vehicle of 42 U.S.C. § 1983, Hart has sued: (1) Ryan
Goulette, Page Kimball, Eric Barbaro, and Paul Cascio, for
violating his rights under the First Amendment to the United
States Constitution by withholding his legal materials in
retaliation for his filing a petition in the probate court
and preparing a lawsuit asserting an excessive-force claim
against two corrections officers (Claim 9); (2) Barbaro and
Michael Dube, for violating his rights under the Eighth
Amendment by using a taser on him to force him to take
medication (Claim 12); (3) Dr. Linda DeLorey, for violating
his rights under the Eighth Amendment by drilling and filling
a healthy tooth (Claim 14(a)); and (4) Brendan Luba, for
violating his rights under the First Amendment by firing him
from his job in the prison kitchen for filing a lawsuit and
various prison grievances (Claim 17). Before this magistrate
judge for a report and recommendation is an unopposed motion
for summary judgment on Claims 12, 14(a), and 17, filed by
defendants Barbaro, Dube, DeLorey, and Luba. According to
defendants, they are entitled to judgment as a matter of law
on those claims because with respect to each of them,
plaintiff has failed to satisfy the exhaustion requirement
imposed by the federal Prison Litigation Reform Act
(“PLRA”). For the reasons that follow,
defendants' motion for partial summary judgment should be
granted in part and denied in part.
Summary Judgment Standard
judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.'” Walker v. President & Fellows of
Harvard Coll., 840 F.3d 57, 61 (1st Cir. 2016) (quoting
Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782
(1st Cir. 2011); citing Fed.R.Civ.P. 56(a)). When a court
considers a motion for summary judgment, “[t]he
evidence . . . must be viewed in the light most favorable to
the nonmoving party . . . and all reasonable inferences must
be taken in that party's favor.” Harris v.
Scarcelli (In re Oak Knoll Assocs., L.P.), 835
F.3d 24, 29 (1st Cir. 2016) (citing Desmond v.
Varrasso (In re Varrasso), 37 F.3d 760, 763
(1st Cir. 1994)).
defendants have invoked the PLRA exhaustion requirement, the
relevant facts are those pertaining to the NHSP's
grievance procedure and plaintiff's use of that
all times relevant to this matter, the DOC employed a
three-level procedure for handling inmate grievances
‘concerning any condition of confinement.'”
Gray v. Perkins, No. 14-cv-386- PB, 2016 WL 5108030,
at *3 (D.N.H. Sept. 20, 2016) (quoting New Hampshire
Department of Corrections (“DOC”) Policy and
Procedure Directive (“PPD”) 1.16(III)(E)). Judge
Barbadoro has described the NHSP grievance procedure this
To complete the first level of the DOC's grievance
process, an inmate utilizes an Inmate Request Slip
(“IRS”) “addressed to the lowest level
staff person with the authority to address the issue
raised.” PPD 1.16(IV)(A)(1). “A request slip
regarding any issue must be received within 30 calendar days
of the date on which the event complained of occurs.”
Id. An inmate dissatisfied with the response to an
IRS may, within thirty days of the date of that response,
direct a Grievance Form to the Warden or Director of the DOC
facility in which the inmate is then housed. PPD 1.16(IV)(B).
An inmate dissatisfied with the Warden's response to his
grievance, within thirty days of the denial of his grievance
to the Warden, may appeal that denial to the DOC
Commissioner. PPD 1.16(IV)(C)(1). The timeframes set forth in
PPD 1.16, and the use of appropriate forms, at each level of
the DOC grievance process, are mandatory. PPD
Id. at *3 (citations to the record omitted); see
also Defs.' Mem. of Law, Ex. A, Hollins Decl.,
Attach. A-1 (doc. no. 69-3).
support of their motion for summary judgment, defendants have
produced declarations from Karin Hollins and Leslie Bartlett.
Hollins is a paralegal in the Civil Bureau of the New
Hampshire Attorney General's office. According to
Hollins, Attachment A-4 to her declaration, which runs 1334
pages, includes copies of every IRS and Grievance Form from
Hart on file at: (1) the NHSP's office of offender
records; (2) the Warden's office; and (3) the office of
the NHSP's Director of Medical and Forensic
Services. See Defs.' Mem. of Law, Ex.
A, Hollins Decl. (doc. no. 69-2) ¶ 3. Bartlett is a
program assistant in the office of the Commissioner of the
DOC. To her affidavit, she attached what she claims to be
“true and correct copies of all grievance forms
submitted to the Commissioner by Kenneth Hart beginning from
April 4, 2000.” Id., Ex. B, Bartlett Decl.
(doc. no. 69-7) ¶ 2.
argue that they are entitled to judgment as a matter of law
on three of plaintiff's four claims because as to those
claims, Hart has not satisfied the PLRA exhaustion
requirement. The court begins by describing that requirement
and then turns to each of the three claims at issue.
PLRA 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. § 1997(e). To exhaust the
administrative remedies available to him, a prisoner must
properly follow the administrative review process provided by
his correctional facility. See Ross v. Blake, 136
S.Ct. 1850, 1856 (2016); Jones v. Bock, 549 U.S.
199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 93
(2006). Moreover, because exhaustion is a prerequisite to
filing suit, when a prisoner attempts to pursue an
unexhausted claim in court, that claim must be dismissed.
See Medina-Claudio v. Rodríguez-Mateo, 292
F.3d 31, 36 (1st Cir. 2002). Finally, failure to exhaust is
an affirmative defense, and to prevail on that defense at
summary judgment, “the defendant must show that no
reasonable jury could find that [the plaintiff] exhausted the
administrative remedies available to him before commencing
[his] action.” Polansky v. McCoole, No.
13-cv-458-JL, 2016 WL 237096, at *3 (D.N.H. Jan. 20, 2016).
preliminary review, the court set out Claim 12 in the
C.O.s Barbaro and Dube . . . tasered Hart to force him to
take medication on April 15, 2012, after Hart had agreed to
take the medication, thereby subjecting Hart to the use of
excessive force in bad faith, in ...