United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the court for preliminary review, pursuant to 28 U.S.C.
§ 1915A(a) and LR 4.3(d)(1), is a complaint (Doc. No.
1), filed by Henry Bellemare, an inmate at the New Hampshire
State Prison for Men (“NHSP”). A request for
preliminary injunctive relief set forth in the complaint has
been referred to the magistrate judge for a hearing, if
necessary, and a report and recommendation, pursuant to 28
U.S.C. § 636(b)(1)(B). See July 27, 2018 Order.
asserts claims arising under the Eighth and Fourteenth
Amendment, relating to the July 13, 2018 conduct of two
transport officers, Corrections Officer Colpas and Cpl.
Provost. Bellemare alleges he reported the incidents alleged
in the complaint to Lt. James Brown in person, who stated, in
a same-day reply to a July 20, 2018 inmate request slip, that
Bellemare and Brown had spoken about the incident on July 15,
2018, and that Brown had since filed an incident report up
the chain of command. Bellemare asserts he filed a grievance
about the matter, and a copy of an incomplete grievance form,
dated July 20, 2018, is attached to the complaint.
court conducts a preliminary review of inmate complaints.
See 28 U.S.C. § 1915A(a); LR 4.3(d)(1).
Disregarding any legal conclusions, the court takes as true
the factual content in the pleading and inferences reasonably
drawn therefrom, and considers whether plaintiff has stated a
claim to relief. Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). Claims may be
dismissed if, among other things, the complaint fails to
state a claim upon which relief may be granted, the court
lacks jurisdiction, or a defendant is immune from the relief
sought. See 28 U.S.C. § 1915A(b); LR
the Prison Litigation Reform Act of 1995
(“PLRA”), 42 U.S.C. § 1997e(a), “[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.” The PLRA requires
“proper exhaustion.” Woodford v. Ngo,
548 U.S. 81, 84 (2006). Claims for which administrative
remedies have not been exhausted are subject to dismissal.
Medina-Claudio v. Rodríguez-Mateo, 292 F.3d
31, 36 (1st Cir. 2002).
to exhaust is an affirmative defense. See Ramos v.
Patenaude, 640 F.3d 485, 488 (1st Cir. 2011). Dismissing
an action on the basis of an affirmative defense, such as
PLRA exhaustion, is permissible if the facts alleged in the
complaint, or matters susceptible of judicial notice,
conclusively establish the elements of the affirmative
defense. See Gray v. Evercore Restructuring LLC, 544
F.3d 320, 324 (1st Cir. 2008).
employs a three-level procedure for handling inmate
grievances. See DOC Policy and Procedure Directive
(“PPD”) 1.16(III)(E); see also Hart v.
Goulette, No. 16-CV-028-PB, 2018 WL 1310010, at *1, 2018
U.S. Dist. LEXIS 41878, at *3 (D.N.H. Jan. 23, 2018) (D.N.H.
Jan. 23, 2018), R&R adopted in part, No.
16-CV-28-PB, 2018 U.S. Dist. LEXIS 40665, 2018 WL 1307643
(D.N.H. Mar. 13, 2018). The first step is an inmate request
slip (“IRS”). PPD 1.16(IV)(A)(1); Hart,
2018 WL 1310010, at *1, 2018 U.S. Dist. LEXIS 41878, at *3.
The second and third steps are grievances, which are subject
to thirty-day deadlines. PPD 1.16(IV)(B)&(C)(1);
Hart, 2018 WL 1310010, at *1, 2018 U.S. Dist. LEXIS
41878, at *3-*4. The timeframes and uses of appropriate forms
are mandatory. PPD 1.16(IV)(E)&(F); Hart, 2018
WL 1310010, at *1, 2018 U.S. Dist. LEXIS 41878, at *4.
appears to have filed a timely IRS relating to the incidents
described in the complaint. He also alleges he filed a
grievance. A grievance form dated July 20, 2018, is attached
to the complaint. See Doc. No. 1-1, at 13. It is not
clear whether that grievance was submitted to the NHSP warden
or the DOC commissioner. Blank spaces on the grievance
attached to the complaint indicate that no response had been
received before Bellemare placed the complaint in the mail.
The timeline of events alleged in the complaint and the
attached incomplete grievance demonstrate that Bellemare has
not exhausted his claims at all levels of the DOC grievance
system. Accordingly, this action should be dismissed, without
prejudice, because it was filed before Bellemare exhausted
his DOC remedies.
Requests for ...