Crosdale v. Hillsborough County DOC CV-08-216-PB 05/11/09
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raymond Crosdale
v. Case No. 08-cv-216-PB Opinion No. 2009 DNH 066 Hillsborough County Department of Corrections, Superintendent, et a l .
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 1983, Raymond Crosdale, currently
an inmate at the Strafford County Department of Corrections,
alleges that various correctional officers are liable for using
excessive force against him, while he was incarcerated as a
pretrial inmate at the Hillsborough County Department of
Corrections (HCDOC). Crosdale seeks to hold officers George
Antilus, Jason Riley, Ronald Potter, Nicholas Granville, Chad
Pinciaro, and Keith O'Neil, and superintendant James O'Mara, Jr.
liable for the alleged use of excessive force. Before the court
are the parties' cross motions for summary judgment. For the
reasons given below, I grant the defendants' motion for summary
judgment. I. BACKGROUND
At all times relevant to this action, Crosdale was a pre
trial detainee at the HCDOC. The HCDOC Inmate Handbook is given
to each inmate upon entry to the jail, and is required to be
maintained by each inmate until their release. (See Aff. of
James M. O'Mara, Jr., Doc. No. 23, at 5 2.) The HCDOC has a
grievance procedure that is set forth in the inmate handbook,
which provides:
If you have a grievance concerning any matter related to your confinement, a grievance procedure is available to you. The following are the steps of the grievance procedure: Step 1: Informal Resolution - You must make a genuine attempt to seek an informal resolution of your problem with the staff member concerned. Step 2: The second step is initiated using the Inmate Request Form format. Fill out an Inmate Request Form stating your problem and suggested remedy. Submit the form to your Unit Officer. Most request forms will be answered within seven (7) working days of receipt. Step 3: If you are dissatisfied with the response to your Inmate Request Form, you may file an Inmate Grievance Form. The Captain or designee has fifteen (15) working days from receipt to review your grievance and reply unless there are extenuating circumstances. Decisions made by the county correctional facility's disciplinary hearings officer, or classification officer, cannot be appealed through the grievance procedure. Grievances involving other agencies must be addressed directly to those agencies.
(Def.'s Exhibit H at 20.) Per HCDOC procedure, an inmate must
- 2 - use a request form in order to obtain a formal grievance form
(each of which bears an identifying control number, so that the
submission may be tracked); each grievance is responded to and a
copy of each grievance is thereafter placed in their respective
inmate institutional file and administrative file. (Aff. of
James M. O'Mara, Jr., Doc. No. 23, at 5 3.)
In his motion for summary judgment1, Crosdale identifies
seven incidents in which he alleges that correctional officers
used excessive force on him while he was incarcerated at HCDOC.
He has provided some of the incident reports of these seven
incidents, which allegedly occurred on March 26, March 27, March
31, April 1, May 26, June 6, and August 31, 2006.2
O'Mara, who is the Superintendant of the HCDOC and the
1 Defendants assert that Crosdale's "Motion for Summary Judgment in full" (Doc. No. 18), does not meet any of the technical requirements of Rule 56 of the Federal Rules of Civil Procedure or of this Court's Local Rules 7.1(a) and 7.2(b). Further, defendants assert that Crosdale's submission is merely an affidavit pinpointing incidents and is not a pleading in which he moves for summary judgment. However, because I grant defendants' motion for summary judgment on other grounds, I need not address these issues.
2 Crosdale's affidavit notes the last incident as occurring on "8-21", however the incident report he has submitted as an exhibit indicates that this incident occurred on August 31, 2006.
- 3 - custodian of all institutional records, including inmate files,
has asserted in a sworn affidavit that he has reviewed Crosdale's
inmate institutional file and the administrative file, and that
Crosdale did not file any grievances. (Aff. of James M. O'Mara,
Jr., Doc. No. 23, at 5 4.) Crosdale has been given his entire
HCDOC inmate file. (Aff. of Jennifer Poisson, Def.'s Exhibit A,
Doc. No. 21-2.) Review of Crosdale's inmate file shows numerous
documents that he completed in writing while at the HCDOC,
including medical reguest forms and inmate reguest forms for new
shoes, a bible and other literature, a property exchange, to have
recreation time restored with a former cellmate, and to be taken
off the "keep separate" list of another inmate. (Aff. of
Jennifer Poisson, Def.'s Exhibit A, Doc. No. 27-2.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when the "pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). The evidence submitted in support of the
motion for summary judgment must be considered in the light most
- 4 - favorable to the nonmoving party, indulging all reasonable
inferences in its favor. See Torres-Negron v. Merck & Co., 488
F.3d 34, 39 (1st Cir. 2007).
A party seeking summary judgment must first identify the
absence of any genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) . The burden then 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 Myers-Sguibb Co., 95
F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323. The
opposing party "may not rely merely on allegations or denials in
its own pleading; rather, its response must . . . set out
specific facts showing a genuine issue for trial." Fed. R. Civ.
P. 56(e)(2). On cross motions for summary judgment, the standard
of review is applied to each motion separately. See Am. Home
Assur. Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812
(1st Cir. 2 00 6).
- 5 - III. ANALYSIS
Defendants argue, inter alia, that Crosdale failed to
exhaust administrative remedies as required under the Prison
Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). That
statute pertinently provides:
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Crosdale v. Hillsborough County DOC CV-08-216-PB 05/11/09
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raymond Crosdale
v. Case No. 08-cv-216-PB Opinion No. 2009 DNH 066 Hillsborough County Department of Corrections, Superintendent, et a l .
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 1983, Raymond Crosdale, currently
an inmate at the Strafford County Department of Corrections,
alleges that various correctional officers are liable for using
excessive force against him, while he was incarcerated as a
pretrial inmate at the Hillsborough County Department of
Corrections (HCDOC). Crosdale seeks to hold officers George
Antilus, Jason Riley, Ronald Potter, Nicholas Granville, Chad
Pinciaro, and Keith O'Neil, and superintendant James O'Mara, Jr.
liable for the alleged use of excessive force. Before the court
are the parties' cross motions for summary judgment. For the
reasons given below, I grant the defendants' motion for summary
judgment. I. BACKGROUND
At all times relevant to this action, Crosdale was a pre
trial detainee at the HCDOC. The HCDOC Inmate Handbook is given
to each inmate upon entry to the jail, and is required to be
maintained by each inmate until their release. (See Aff. of
James M. O'Mara, Jr., Doc. No. 23, at 5 2.) The HCDOC has a
grievance procedure that is set forth in the inmate handbook,
which provides:
If you have a grievance concerning any matter related to your confinement, a grievance procedure is available to you. The following are the steps of the grievance procedure: Step 1: Informal Resolution - You must make a genuine attempt to seek an informal resolution of your problem with the staff member concerned. Step 2: The second step is initiated using the Inmate Request Form format. Fill out an Inmate Request Form stating your problem and suggested remedy. Submit the form to your Unit Officer. Most request forms will be answered within seven (7) working days of receipt. Step 3: If you are dissatisfied with the response to your Inmate Request Form, you may file an Inmate Grievance Form. The Captain or designee has fifteen (15) working days from receipt to review your grievance and reply unless there are extenuating circumstances. Decisions made by the county correctional facility's disciplinary hearings officer, or classification officer, cannot be appealed through the grievance procedure. Grievances involving other agencies must be addressed directly to those agencies.
(Def.'s Exhibit H at 20.) Per HCDOC procedure, an inmate must
- 2 - use a request form in order to obtain a formal grievance form
(each of which bears an identifying control number, so that the
submission may be tracked); each grievance is responded to and a
copy of each grievance is thereafter placed in their respective
inmate institutional file and administrative file. (Aff. of
James M. O'Mara, Jr., Doc. No. 23, at 5 3.)
In his motion for summary judgment1, Crosdale identifies
seven incidents in which he alleges that correctional officers
used excessive force on him while he was incarcerated at HCDOC.
He has provided some of the incident reports of these seven
incidents, which allegedly occurred on March 26, March 27, March
31, April 1, May 26, June 6, and August 31, 2006.2
O'Mara, who is the Superintendant of the HCDOC and the
1 Defendants assert that Crosdale's "Motion for Summary Judgment in full" (Doc. No. 18), does not meet any of the technical requirements of Rule 56 of the Federal Rules of Civil Procedure or of this Court's Local Rules 7.1(a) and 7.2(b). Further, defendants assert that Crosdale's submission is merely an affidavit pinpointing incidents and is not a pleading in which he moves for summary judgment. However, because I grant defendants' motion for summary judgment on other grounds, I need not address these issues.
2 Crosdale's affidavit notes the last incident as occurring on "8-21", however the incident report he has submitted as an exhibit indicates that this incident occurred on August 31, 2006.
- 3 - custodian of all institutional records, including inmate files,
has asserted in a sworn affidavit that he has reviewed Crosdale's
inmate institutional file and the administrative file, and that
Crosdale did not file any grievances. (Aff. of James M. O'Mara,
Jr., Doc. No. 23, at 5 4.) Crosdale has been given his entire
HCDOC inmate file. (Aff. of Jennifer Poisson, Def.'s Exhibit A,
Doc. No. 21-2.) Review of Crosdale's inmate file shows numerous
documents that he completed in writing while at the HCDOC,
including medical reguest forms and inmate reguest forms for new
shoes, a bible and other literature, a property exchange, to have
recreation time restored with a former cellmate, and to be taken
off the "keep separate" list of another inmate. (Aff. of
Jennifer Poisson, Def.'s Exhibit A, Doc. No. 27-2.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when the "pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). The evidence submitted in support of the
motion for summary judgment must be considered in the light most
- 4 - favorable to the nonmoving party, indulging all reasonable
inferences in its favor. See Torres-Negron v. Merck & Co., 488
F.3d 34, 39 (1st Cir. 2007).
A party seeking summary judgment must first identify the
absence of any genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) . The burden then 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 Myers-Sguibb Co., 95
F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323. The
opposing party "may not rely merely on allegations or denials in
its own pleading; rather, its response must . . . set out
specific facts showing a genuine issue for trial." Fed. R. Civ.
P. 56(e)(2). On cross motions for summary judgment, the standard
of review is applied to each motion separately. See Am. Home
Assur. Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812
(1st Cir. 2 00 6).
- 5 - III. ANALYSIS
Defendants argue, inter alia, that Crosdale failed to
exhaust administrative remedies as required under the Prison
Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). That
statute pertinently provides:
No 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.
42 U.S.C. § 1997e(a). Moreover, the PLRA requires "proper
exhaustion," which is defined as "compliance with an agency's
deadlines and other critical procedural rules." Woodford v. Ngo,
548 U.S. 81, 90 (2006). "[T]he PLRA's exhaustion requirement
applies to all inmate suits about prison life, . . . whether they
allege excessive force or some other wrong." Porter v. Nussle,
534 U.S. 516, 532 (2002). "[FJailure to exhaust is an
affirmative defense under the PLRA." Jones v. Bock, 549 U.S.
199, 216 (2007). The plaintiff need not plead exhaustion in the
complaint; rather, failure-to-exhaust must be asserted by and
proven by the defendant. Id. A defendant who shows lack of
exhaustion is entitled to dismissal of the unexhausted claims in
the plaintiff's complaint. See Medina-Claudio v. Rodriguez-
- 6 - Mateo, 292 F.3d 31, 36 (1st Cir. 2002). Defendants who are
invoking the affirmative defense may be required to show that
there were available (albeit unexhausted) remedies. Casanova v.
Dubois, 304 F.3d 75, 77-78 (1st Cir. 2002).
The defendants have established that administrative remedies
do exist at the HCDOC and that there is no record that Crosdale
attempted to exhaust these administrative remedies. Further,
Crosdale does not dispute that the administrative remedies
available to him at the HCDOC were not exhausted before he filed
suit. Instead, he merely asserts in his objection to the
defendants' cross motion for summary judgment that he was "going
through a very difficult time in [his] life where [he] was deemed
incompetent" and that he "knew nothing of a grievance procedure."
(Pl.'s Obj. of Def.'s Cross Mot. for Summ. J., Doc. No. 24.)
However, the PLRA foes not permit liberalized pleading
standards merely because a plaintiff is proceeding pro se. See
Woodford, 548 U.S. at 103 (noting that an argument that
"requiring proper exhaustion is harsh for prisoners, who
generally are untrained in the law and often poorly educated . .
. overlooks the informality and relative simplicity of prison
grievance systems"); see also Ellison v. New Hampshire Dep't of
- 7 - Corr., 2009 WL 424535, at *5 (D.N.H. Feb. 19, 2009) ("Since the
vast majority of claims subject to the PLRA exhaustion
requirement are brought by pro se plaintiffs, excusing them from
the requirements would be tantamount to eliminating it
altogether."). Further, the grievance procedures at the HCDOC
are straightforward and simple. While Crosdale suggests that his
incompetence may have prevented him from following the HCDOC
grievance procedure, he has failed to produce any evidence to
support his claim. Moreover, while Crosdale asserts that he knew
nothing of a grievance procedure, such lack of knowledge is not
an excuse where the evidence indicates that the grievance
procedure was knowable to Crosdale through the HCDOC Inmate
Handbook. C f . Goebert v. Lee County, 510 F.3d 1312, 1323 (11th
Cir. 2007)(determining that failure to exhaust an administrative
remedy was excused because the prison grievance procedure was not
in the Inmate Handbook or laid out in documents that inmates were
ever permitted to see, and an administrative remedy that is
"unknown and unknowable is unavailable" for purposes of the
PLRA).
The evidence indicates that Crosdale had sufficient
competence and knowledge of the prison's administrative
- 8 - procedures to draft many inmate request forms requesting
medication, new shoes, and other property, access to other
inmates and reading material. Inmates are informed about Inmate
Request Forms in the same way they are informed of the grievance
procedure - in the Inmate Handbook. Crosdale had a copy of the
Inmate Handbook. Thus, the evidence simply does not support a
claim that the grievance procedures were unknowable to Crosdale.
IV. CONCLUSION
Because Crosdale did not exhaust the administrative remedies
available to him before filing his complaint, defendants' motion
for summary judgment (Doc. No. 19) is granted.3 The clerk shall
enter judgment accordingly and close the case. Plaintiff's
motion for summary judgment (Doc. No. 18) is denied as moot.
SO ORDERED.
/s/Paul Barbadoro________ Paul Barbadoro United States District Judge May 11, 200 9
cc: Raymond Crosdale, pro se
3 It is not necessary to address the other grounds for summary judgment raised in the defendants' motion given this disposition. John A. Curran, Esq. Elizabeth L. Hurley, Esq.
- 10 -