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Valerio v. Wrenn

United States District Court, D. New Hampshire

March 25, 2019

Dwayne M. Valerio
v.
William Wrenn et al.[1]

          Dwayne M. Valerio, pro se.

          Seth Michael Zoracki, Esq.

          ORDER

          Landya McCafferty, United Statlpp District Judge.

         Before 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).

         Background [2]

         I. 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.

         II. Facts Underlying Claim

         On 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).

         In the 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).

         III. DOC Administrative Grievance Process

         At the 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 by ...


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