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Cullen v. Wrenn

United States District Court, D. New Hampshire

January 29, 2018

Allan Cullen
v.
NH DOC Commissioner William Wrenn

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Allan Cullen, who appears pro se, is currently being incarcerated by the New Hampshire Department of Corrections (“DOC”) at the Northern New Hampshire Correctional Facility (“NCF”) in Berlin, New Hampshire. Through the vehicle of 42 U.S.C. § 1983, he claims that the DOC's “one-tote policy” for the storage of legal materials in an inmate's cell at NCF violates his federal constitutional rights to: (1) equal protection;[1] and (2) access to the courts. Before this magistrate judge for a report and recommendation is respondent's motion for summary judgment, to which plaintiff objects. For the reasons that follow, defendant's motion for summary judgment should be granted.

         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)). To defeat summary judgment, “[t]he non-moving party . . . must ‘produc[e] specific facts sufficient to deflect the swing of the summary judgment scythe.'” Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016) (quoting Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003)).

         Background

         The facts recited in this section are undisputed. At all times relevant to this matter, Cullen was an inmate at NCF. His claims arise from NCF's enforcement of its one-tote policy, and its refusal to allow him a second tote to store his legal materials.

         With respect to inmate complaints about conditions of confinement, the DOC employs a three-step grievance procedure which involves: (1) directing an inmate request slip (“IRS”) “to the lowest level staff person with the authority to address the issue raised, ” Def.'s Mot. Summ. J., Ex. A, Attach. 1 (doc. no. 25-2), at 2; (2) appealing an unfavorable response to an IRS by directing a Grievance Form to the Warden, see id. at 3-4; and (3) appealing an unfavorable response from the Warden by directing a Grievance Form to the office of the Commissioner of the DOC, see id. at 4-5.

         On October 25, 2016, Cullen directed an IRS to Rob Roy, of the New Hampshire State Prison (“NHSP”) recreation department in Concord, [2] to make the following request: “Order second legal tote. Please note first tote split down side - can still be used as second [indecipherable] tote.” Def.'s Mot. Summ. J., Ex. A, Attach. 2 (doc. no. 25-3), at 39. Three days later, Cullen received the following response from a staff member in the recreation department: “Done.” Id.

         Then, on November 30, Cullen filed a second IRS to make this request:

Attached is copy of request slip approving second legal tote. On 11-29-16 I went to recreation to pick up second tote. I was told I was only allowed one by Mr. Griffin. I would like to know why Berlin inmates are allowed one tote while Concord inmates are allowed two or more. Could you please find out why.

Id. at 43 of 44. On December 6, 2016, Cullen received the following response from Lieutenant McFarland: “For starters you should have asked me 1st. NCF only allows 1 legal [tote] because of space in the cell.” Id.

         According to the DOC's grievance procedure, Cullen had 30 calendar days from the day on which Lt. McFarland responded to his IRS to file a Grievance Form with the Warden. On December 21, 2016, while the time to file a Grievance Form with the Warden was still running, Cullen filed the complaint that initiated this case. Furthermore, between January 1, 2016, and July 17, 2017, Cullen did not file any Grievance Forms with the Warden. See Def.'s Mot. Summ. J., Ex. B (doc. no. 25-4) ¶ 3.

         Discussion

         Defendant argues that he is entitled to judgment as a matter of law on plaintiff's claims because plaintiff has not satisfied the exhaustion requirement imposed by the ...


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