United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
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; 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
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)).
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.
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.
October 25, 2016, Cullen directed an IRS to Rob Roy, of the
New Hampshire State Prison (“NHSP”) recreation
department in Concord,  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.
on November 30, Cullen filed a second IRS to make this
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
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
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.
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 ...