United States District Court, D. New Hampshire
Dwayne M. Valerio
William Wrenn et al.
M. Valerio, pro se.
Michael Zoracki, Esq.
McCafferty, United Statlpp District Judge.
the court is the defendants' motion for summary judgment
(doc. no. 63), as to the sole claim remaining in this case.
Plaintiff Dwayne Valerio filed an objection (doc. no. 65) to
the motion. Defendants filed a reply (doc. no. 67) to the
objection, and Valerio filed a surreply (doc. no. 68).
Procedural History The operative complaint in this matter is
plaintiff's verified second amended complaint (doc. no.
57) (“SAC”), as construed by the court's
November 29, 2017 Order (doc. no. 56) approving the
magistrate judge's October 23, 2017 Report and
Recommendation (doc. no. 53) (“October 2017
R&R”). The sole claim pending in this case, as set
forth in the October 17 R&R, is as follows:
[Corrections Officers John Marescia and Bruce Sauerheber], on
October 16, 2013, subjected Valerio to a visual body cavity
strip search, in front of forty to fifty other inmates and a
video camera that could be monitored remotely by prison
officials, without a privacy screen, and in the absence of
exigent circumstances, in violation of Valerio's First
Amendment right to freely exercise his religion, as it
violates Valerio's religious beliefs to be unclothed in
the presence of other men.
October 2017 R&R, at 4.
Facts Underlying Claim
October 16, 2013, Valerio attended an event at the New
Hampshire State Prison, where he is incarcerated, called the
Tailgate Revival, which Valerio describes as a Christian
religious event attended by forty to fifty prisoners and
fifty community volunteers. See SAC, 4-5 ¶ 14
(Doc. No. 57). After the event, the community volunteers were
escorted out of the gym, and the inmates remained in the gym
with ten corrections officers (“COs”).
See Id. at 5 ¶ 16 (Doc. No. 57).
SAC, Valerio set forth the following sworn facts underlying
his First Amendment claim, to which he swore in a declaration
made pursuant to 28 U.S.C. § 1746:
The COs . . . informed the inmates that they were stripping
them out. The COs formed into three teams of three in which
two performed a strip search each while one observed, which
allowed for six inmates to be strip searched at the same
time. These searches were conducted while the inmates being
searched were in plain view of each other and all the other
inmates awaiting to be stripped searched [sic]. The Plaintiff
was called over by [CO Marescia] and ordered to strip.
Plaintiff requested a private search due to his religious
convictions, which was denied. The search was conducted out
in the open without the use of privacy screens and [in]
direct view and proximity of the remaining forty (40) to
fifty (50) inmates waiting to be searched.
Id. at 5 ¶¶ 16-18 (Doc. No. 57). In the
SAC, Valerio identified CO Sauerheber as the officer who
observed Valerio's strip-search. See Id. at 5
¶ 19 (Doc. No. 57).
DOC Administrative Grievance Process
time the events underlying this case occurred, the DOC
employed a procedure for handling inmate grievances
“through which [inmates] seek formal review of an issue
related to any aspect of their confinement if less formal
procedures have not resolved the matter.” DOC Policy
and Procedure Directive (“PPD”) 1.16(I) (eff. May
1, 2012) (Doc. No. 21-2, at 4). The DOC Manual for the
Guidance of Inmates effective in October 2013 (“Inmate
Manual”) states that before utilizing that
administrative grievance process, an inmate must “try
to talk to a staff member” about his or her complaint.
Inmate Manual (Doc. No. 21-1, at 8, 9). If an inmate does not
receive a satisfactory response after making an informal oral
request, he or she must then file an Inmate Request Slip
(“IRS”) to an appropriate prison official within
thirty days of the date of the incident giving rise to the
complaint. See PPD 1.16(IV)(A)(1) (Doc. No. 21-2, at 5);
Inmate Manual (Doc. No. 21-1, at 8). The next step is a
written grievance to the warden of the inmate's
institution within thirty days of the date of the response
the inmate received to his or her IRS. See PPD
1.16(IV)(B) (Doc. No. 21-2, at 6); Inmate Manual (Doc. No.
21-1, at 9). An inmate dissatisfied with the Warden's
response may utilize the last step of the grievance procedure