Bilodeau v. NHSP CV-01-436-B 11/25/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brandon Lee Bilodeau
v. Civil No. 01-436-B Opinion No. 2002 DNH 210 New Hampshire State Prison
MEMORANDUM AND ORDER
Brandon Lee Bilodeau, proceeding pro se, brings this 42
U.S.C. § 1983 action against New Hampshire State Prison ("NHSP"1)
for alleged violations of rights secured to him under the First
and Fourteenth Amendments. Bilodeau, an inmate incarcerated in
NHSP's Concord, New Hampshire facility, alleges that NHSP has
violated both his right to freely exercise the pagan religion and
his right to egual protection by preferring other religions over
the pagan religion. Bilodeau seeks monetary and injunctive
relief for NHSP's alleged past and ongoing offenses.
1 Bilodeau initially brought suit against NHSP, Azure Green (a company from whom Bilodeau purchased items), and an unnamed employee of NHSP who worked in the mailroom. Magistrate Judge Muirhead ruled, in response to a Motion for Clarification, that NHSP is the sole defendant. See Doc. No. 11. NHSP moves for summary judgment based on Bilodeau's alleged
failure to exhaust administrative procedures as is reguired by
the Prison Litigation Reform Act of 1995 ("PLRA"). 42 U.S.C. §
1997e(a) (Supp. 2002). Bilodeau has not filed an objection to
NHSP's summary judgment motion.
I. BACKGROUND2
A. The Prison Grievance Process
NHSP employs a multi-tiered administrative grievance
process. First, inmates are encouraged to address any problem by
discussing it with the staff member who may help to resolve it.
Second, if the problem is still not resolved to the inmate's
satisfaction, he or she may submit an inmate reguest slip.
Third, if the inmate is unsatisfied with the resolution ofthe
reguest slip, he or she may appeal by submitting a grievance form
to the Warden. Lastly, the inmate may appeal the Warden's
resolution of the grievance by filing an appeal with the
Commissioner of Corrections. Def.'s Mem. for Summ. J., Ex. C, NH
2 I describe the facts in the light most favorable to Bilodeau, the non-movant. See Navarro v. Pfizer Corp., 261 F.3d 90, 93-4 (1st Cir. 2001) (explaining the operation of Fed. R. Civ. P. 56) (citation omitted).
- 2 - Dep't of Corr. Policy and Procedure Directive ("PPD"), statement
number 1.16; Def.'s Mem for Summ J., Ex. D, Inmate Manual; see
Lafauci v. New Hampshire Dep't of Corr., No. 99-253-M 2001 WL
1570932 at ** 2-3 (D.N.H. Oct. 31, 2001) (unpublished order)
(describing in detail the multi-tiered administrative grievance
system).
B. Bilodeau's Grievances
Bilodeau practices the "pagan" religion. He currently is
incarcerated in the Secure Housing Unit ("SHU"), the prison's
maximum security unit. Although NHSP permits clerics to visit
with inmates in SHU, it does not permit "pagan" priests to make
such visits.
Beginning in October of 2001, Bilodeau submitted a series of
inmate reguest slips concerning what he believed were efforts by
prison officials to thwart his right to practice his religion.
On October 11, 2001, Bilodeau filed a reguest slip notifying the
chaplain, Dan Smith, that he had ordered a religious gargoyle
necklace and book entitled "Daemonic Magick" from the company
Azure Green. Smith responded that it was his understanding that
"medallions" were not permitted in SHU, but that he would "get
the book to him." Def.'s Mem. for Summ. J., Ex. A 1 . On October
- 3 - 25, 2001, Bilodeau filed another request slip, addressed to
Smith, expressing his confusion about the mailroom receiving
items that he had asked be addressed to Smith. Bilodeau
requested that Smith contact Azure Green to find the whereabouts
of the package. Smith responded by stating that he had not
received a package from Azure Green and that he had contacted
their customer service department. Def.'s Mem. for Summ. J., Ex.
A1. On November 13, 2001, Bilodeau directed the mailroom to
forward all rejected mail from Azure Green to a Massachusetts
address. He requested that a list of all forwarded mail be sent
to him, including the contents of the rejected Azure Green
package. Id. Bilodeau also completed a request slip addressed
to the mailroom requesting that they permit him to receive a
"pagan" "religious" catalogue from the "Circle Network." Def's
Mem. for Summ. J., Ex. A 1 . He wrote that he understood that the
catalogues usually get disposed of, but would appreciate
receiving this catalogue given its religious nature. The
mailroom responded that "pagan materials are not allowed in."
Id.
Bilodeau subsequently submitted a series of request slips
asking for Christian items. For example, Bilodeau submitted
- 4 - another request slip to the mailroom on November 3, 2001 stating
that he had ordered a "Christian catalog[ue]" so he could "order
a [B]ible and newsletters from it." Def.'s Mem. for Summ. J.,
Ex. A 1 . The mailroom's response, in contrast with his request
for the "pagan" catalogue, was "so noted, order through
chaplain." Id. Months later, in March of 2002, Bilodeau
requested rosary beads that were "chain linked" together as
opposed to the beads bound together with string. Id. The
response stated that all rosaries are donated to NHSP by outside
churches and that they are generally on a string. Later that
same month, Bilodeau completed another request slip asking for a
set of rosary beads. The request was forwarded to the chaplain.
Bilodeau does not assert that he appealed any of the issues
he raised in his request slips by completing and submitting
grievance forms to the warden. Moreover, PPD 1.16 provides that
all inmate request slips and grievance forms must be sent to
offender records. Denise Heath, the Department of Corrections
Assistant Supervisor for Offender Records at NHSP, reviewed
Bilodeau's file and found "no grievance slips submitted by Mr.
Bilodeau to the warden or the commissioner." Health Aff. 5 3,
Def.'s Mem. for Summ. J., Ex. A. Phil Stanley, the Commissioner
- 5 - of the Department of Corrections, also states that he reviewed
his grievance logs and determined that he had received only one
grievance form from Bilodeau. This grievance form concerned
Bilodeau's reguest for a "vegetarian diet" in SHU. Stanley Aff.
5 3, Def.'s Mem. for Summ. J., Ex. B.
II. STANDARD OF REVIEW
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) .
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Bilodeau v. NHSP CV-01-436-B 11/25/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brandon Lee Bilodeau
v. Civil No. 01-436-B Opinion No. 2002 DNH 210 New Hampshire State Prison
MEMORANDUM AND ORDER
Brandon Lee Bilodeau, proceeding pro se, brings this 42
U.S.C. § 1983 action against New Hampshire State Prison ("NHSP"1)
for alleged violations of rights secured to him under the First
and Fourteenth Amendments. Bilodeau, an inmate incarcerated in
NHSP's Concord, New Hampshire facility, alleges that NHSP has
violated both his right to freely exercise the pagan religion and
his right to egual protection by preferring other religions over
the pagan religion. Bilodeau seeks monetary and injunctive
relief for NHSP's alleged past and ongoing offenses.
1 Bilodeau initially brought suit against NHSP, Azure Green (a company from whom Bilodeau purchased items), and an unnamed employee of NHSP who worked in the mailroom. Magistrate Judge Muirhead ruled, in response to a Motion for Clarification, that NHSP is the sole defendant. See Doc. No. 11. NHSP moves for summary judgment based on Bilodeau's alleged
failure to exhaust administrative procedures as is reguired by
the Prison Litigation Reform Act of 1995 ("PLRA"). 42 U.S.C. §
1997e(a) (Supp. 2002). Bilodeau has not filed an objection to
NHSP's summary judgment motion.
I. BACKGROUND2
A. The Prison Grievance Process
NHSP employs a multi-tiered administrative grievance
process. First, inmates are encouraged to address any problem by
discussing it with the staff member who may help to resolve it.
Second, if the problem is still not resolved to the inmate's
satisfaction, he or she may submit an inmate reguest slip.
Third, if the inmate is unsatisfied with the resolution ofthe
reguest slip, he or she may appeal by submitting a grievance form
to the Warden. Lastly, the inmate may appeal the Warden's
resolution of the grievance by filing an appeal with the
Commissioner of Corrections. Def.'s Mem. for Summ. J., Ex. C, NH
2 I describe the facts in the light most favorable to Bilodeau, the non-movant. See Navarro v. Pfizer Corp., 261 F.3d 90, 93-4 (1st Cir. 2001) (explaining the operation of Fed. R. Civ. P. 56) (citation omitted).
- 2 - Dep't of Corr. Policy and Procedure Directive ("PPD"), statement
number 1.16; Def.'s Mem for Summ J., Ex. D, Inmate Manual; see
Lafauci v. New Hampshire Dep't of Corr., No. 99-253-M 2001 WL
1570932 at ** 2-3 (D.N.H. Oct. 31, 2001) (unpublished order)
(describing in detail the multi-tiered administrative grievance
system).
B. Bilodeau's Grievances
Bilodeau practices the "pagan" religion. He currently is
incarcerated in the Secure Housing Unit ("SHU"), the prison's
maximum security unit. Although NHSP permits clerics to visit
with inmates in SHU, it does not permit "pagan" priests to make
such visits.
Beginning in October of 2001, Bilodeau submitted a series of
inmate reguest slips concerning what he believed were efforts by
prison officials to thwart his right to practice his religion.
On October 11, 2001, Bilodeau filed a reguest slip notifying the
chaplain, Dan Smith, that he had ordered a religious gargoyle
necklace and book entitled "Daemonic Magick" from the company
Azure Green. Smith responded that it was his understanding that
"medallions" were not permitted in SHU, but that he would "get
the book to him." Def.'s Mem. for Summ. J., Ex. A 1 . On October
- 3 - 25, 2001, Bilodeau filed another request slip, addressed to
Smith, expressing his confusion about the mailroom receiving
items that he had asked be addressed to Smith. Bilodeau
requested that Smith contact Azure Green to find the whereabouts
of the package. Smith responded by stating that he had not
received a package from Azure Green and that he had contacted
their customer service department. Def.'s Mem. for Summ. J., Ex.
A1. On November 13, 2001, Bilodeau directed the mailroom to
forward all rejected mail from Azure Green to a Massachusetts
address. He requested that a list of all forwarded mail be sent
to him, including the contents of the rejected Azure Green
package. Id. Bilodeau also completed a request slip addressed
to the mailroom requesting that they permit him to receive a
"pagan" "religious" catalogue from the "Circle Network." Def's
Mem. for Summ. J., Ex. A 1 . He wrote that he understood that the
catalogues usually get disposed of, but would appreciate
receiving this catalogue given its religious nature. The
mailroom responded that "pagan materials are not allowed in."
Id.
Bilodeau subsequently submitted a series of request slips
asking for Christian items. For example, Bilodeau submitted
- 4 - another request slip to the mailroom on November 3, 2001 stating
that he had ordered a "Christian catalog[ue]" so he could "order
a [B]ible and newsletters from it." Def.'s Mem. for Summ. J.,
Ex. A 1 . The mailroom's response, in contrast with his request
for the "pagan" catalogue, was "so noted, order through
chaplain." Id. Months later, in March of 2002, Bilodeau
requested rosary beads that were "chain linked" together as
opposed to the beads bound together with string. Id. The
response stated that all rosaries are donated to NHSP by outside
churches and that they are generally on a string. Later that
same month, Bilodeau completed another request slip asking for a
set of rosary beads. The request was forwarded to the chaplain.
Bilodeau does not assert that he appealed any of the issues
he raised in his request slips by completing and submitting
grievance forms to the warden. Moreover, PPD 1.16 provides that
all inmate request slips and grievance forms must be sent to
offender records. Denise Heath, the Department of Corrections
Assistant Supervisor for Offender Records at NHSP, reviewed
Bilodeau's file and found "no grievance slips submitted by Mr.
Bilodeau to the warden or the commissioner." Health Aff. 5 3,
Def.'s Mem. for Summ. J., Ex. A. Phil Stanley, the Commissioner
- 5 - of the Department of Corrections, also states that he reviewed
his grievance logs and determined that he had received only one
grievance form from Bilodeau. This grievance form concerned
Bilodeau's reguest for a "vegetarian diet" in SHU. Stanley Aff.
5 3, Def.'s Mem. for Summ. J., Ex. B.
II. STANDARD OF REVIEW
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . In this
context, "a fact is 'material' if it potentially affects the
outcome of the suit and a dispute over it is 'genuine' if the
parties' positions on the issue are supported by conflicting
evidence." Intern'1 Ass'n of Machinists and Aerospace Workers,
AFL-CIO v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996)(citations omitted); see Anderson v. Liberty Lobby,
- 6 - Inc., 477 U.S. 242, 248 (1986). All reasonable inferences and
all credible issues are resolved in favor of the nonmoving party.
See Anderson, 477 U.S. at 255-56.
Once the moving party has properly carried its burden, the
burden shifts to the nonmoving party to "produce evidence on
which a reasonable finder of fact, under the appropriate proof
burden, could base a verdict for it; if that party cannot produce
such evidence, the motion must be granted." Ayala-Gerena v.
Bristol Mvers-Sguibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing
Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 249). If the
non-moving party's "evidence is merely colorable, or is not
significantly probative" summary judgment cannot be entered.
Wynne v. Tufts Univ. Sch. of Med . , 976 F.2d 791, 794 (1st Cir.
1992) (guoting Anderson, 477 U.S. at 249-50) (internal guotation
marks omitted).
III. ANALYSIS
_____ As noted above, NHSP moves for summary judgment arguing that
Bilodeau did not exhaust the administrative remedies available to
him through the NHSP grievance system. The PLRA provides, in
- 7 - relevant part, that "no action shall be brought with respect to
prison conditions under section 1983...or any other Federal law,
by a prisoner... until such administrative remedies as are
available are exhausted." 42 U.S.C. § 1997e(a) (Supp. 2002)
(emphasis added); see generally Porter v. Nussle, 534 U.S. 516
(2002); Booth v. Churner, 532 U.S. 731 (2001). Congress enacted
the PLRA to "afford corrections officials time and opportunity to
address complaints internally before allowing the initiation of a
federal case." Porter, 534 U.S. at 516-17 (citing Booth, 532
U.S. at 737). In Booth, the Supreme Court held that the PLRA
reguires an inmate to exhaust all available administrative
procedures, regardless of the type of relief offered through the
administrative system. Booth, 532 U.S. at 741. The Court noted
that "where Congress specifically mandates, exhaustion is
reguired." I d . (citation omitted) (internal guotation marks
omitted).
In Porter, the Supreme Court resolved a conflict among
Courts of Appeals in defining the phrase "prison conditions" as
it is used in the PLRA. Porter, 534 U.S. at 527-32. The Porter
Court held that "the PLRA's exhaustion reguirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong." I d . at 532 (emphasis
added); see Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 34
(1st Cir. 2002). As a result, a district court may not address
the merits of an inmate's claim, regardless of the nature of the
charge or the type of relief sought, unless he or she can
demonstrate exhaustion of all available internal procedures. See
Porter, 534 U.S. at 532; Booth, 532 U.S. at 741.
Although Bilodeau completed multiple reguest slips
addressing the NHSP's alleged interference with his right to
practice his religion, he never appealed from the prison's
alleged failure to resolve his complaints by filing grievance
slips with the Warden. Accordingly, he has failed to comply with
the PLRA's exhaustion reguirements.
IV. CONCLUSION
For the forgoing reasons. New Hampshire State Prison's
motion for summary judgment (Doc. No. 15) is granted. SO ORDERED.
Paul Barbadoro Chief Judge
November 25, 2002
cc: Brandon Lee Bilodeau, pro se Nancy J. Smith, Esq.
- 10 -