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Hart v. Goulette

United States District Court, D. New Hampshire

January 23, 2018

Kenneth Hannibal Hart
v.
Ryan Goulette, Page Kimball, Eric Barbaro, Paul Cascio, Michael Dube, Dr. Linda DeLorey, and Brendan Luba

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Kenneth 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.

         I. Summary Judgment Standard

         “Summary 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)).

         II. Background

         Because 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 procedure.

         “At 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 way:

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 [1.16](IV)(E)&(F).

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).

         In 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.[1] 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.

         III. Discussion

         Defendants 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.

         A. PLRA Exhaustion

         The 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).

         B. Claim 12

         On preliminary review, the court set out Claim 12 in the following way:

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 ...

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