Dullen v . Cheshire County, et a l . CV-05-129-PB 04/14/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick E . Dullen
v. Case N o . 05-cv-139-PB Opinion N o . 2006 DNH 044 Cheshire County, et a l .
MEMORANDUM AND ORDER
Pro se plaintiff Patrick Dullen brings this action pursuant
to 42 U.S.C. § 1983, alleging that he was denied adequate medical
and dental care while incarcerated at the Cheshire County House
of Corrections (CCHOC). The parties have filed cross-motions for
summary judgment. Dullen contends that he is entitled to
judgment as a matter of law on the undisputed facts. Defendants
Carol Ann Rocheleau and Robin Cook seek dismissal of the case on
the basis that Dullen failed to exhaust his administrative
remedies prior to filing suit.1 Because I agree that Dullen
failed to meet the exhaustion requirement, I grant defendants’
1 Rocheleau was employed as a nurse and Cook was the Director of Operations when Dullen was incarcerated at CCHOC. Dullen’s claims against the other defendants were dismissed in prior rulings. See Orders dated July 2 6 , 2005 (Doc. N o . 13) and April 4 , 2006. motion and deny Dullen’s motion.
I. BACKGROUND
A. Dullen’s medical and dental care
Dullen, a federal prisoner, was incarcerated at CCHOC from
April 29 to July 2 7 , 2004. Affidavit of Robin L . Cook (“Cook
Aff.”) ¶ 6. When Dullen arrived at CCHOC, the nursing staff took
his medical history and made an assessment of his condition.
Affidavit of Carol Anne Rocheleau, R.N. (“Rocheleau Aff.”) ¶ 6.
Dullen complained of headaches, left upper arm pain and weakness
and/or numbness due to a 2002 motor vehicle accident. Id. ¶ 5 .
Dullen was taking several medications and claimed during the
assessment that he was entitled to more medication than the
federal marshals brought to the jail with him. Id. ¶ 6.
After reviewing Dullen’s medical records, Doctor Barry Stern
ordered a new spinal MRI because one year had passed since
Dullen’s previous MRI. Id. ¶ 9. After the MRI was performed on
May 1 4 , Stern referred Dullen to a neurologist and prescribed
Ultracet for his headaches. Id. ¶ 1 3 . Dullen visited the
neurologist on May 2 7 . Id. ¶ 1 9 . Based on the neurologist’s
report, Stern advised Dullen that more medication would not make
-2- him feel better until he had surgery. Id. ¶ 3 6 . Stern also
recommended that Dullen be transferred to a facility with neuro-
surgical treatment capability. Id. Stern and Rocheleau then met
with Cook and the CCHOC superintendent to advise them of these
recommendations. Id. Dullen also visited a neurosurgeon for a
neuro-spinal surgical examination on July 2 3 , shortly before he
was transferred to another facility. Id. ¶ 5 2 .
Regarding Dullen’s dental care, he visited a dental office
in late June 2004 to have his lower denture relined. Id. ¶¶ 3 1 ,
42. The dentist advised that relining would not be effective and
that Dullen needed a new set of dentures. Id. ¶ 4 2 . The dental
office later told CCHOC staff that they would not provide further
treatment to Dullen or any other inmate due to the effect that
Dullen’s presence had on other patients. Cook Aff. ¶ 2 1 .
Dullen was transferred to the Franklin County House of
Corrections in Massachusetts on July 2 7 , 2004, where he was
incarcerated when he filed the current action.
B. Inmate grievance procedure
The Cheshire County Department of Corrections Inmate Manual,
which is provided to every inmate at CCHOC, sets forth the
following inmate grievance procedure:
-3- Should you experience a situation where you feel that you have been unfairly treated or denied rights that you are entitled under the rules and regulations of this facility, you must put into writing the following:
Your name, the date, and your housing unit Nature of the grievance Dates and times of occurrence Names of individuals involved Narrative of the incident
This grievance must be submitted to the Director of Operations. All grievances will be reviewed. Written responses will be returned if warranted.
Pl.’s Compl. Attach. 8 ; Cook Aff. ¶ 1 1 .
According to Dullen’s inmate records, he did not file any
formal grievances under the procedure outlined above during his
incarceration at CCHOC. Cook Aff. ¶ 9. Dullen sent a number of
handwritten notes to CCHOC staff concerning various issues,
including the variety of meals and requests to train other
inmates on the computer. Id. In one such note, dated June 3 ,
2004, Dullen stated: “I have some issues I need to have
addressed. I have tried twice to address these issues. I do not
believe in grievances as most situations can usually be settled
by 2 adults talking.” Id.
Dullen also submitted numerous written requests to the
medical department, often seeking additional medication and/or a
-4- consultation with Doctor Stern. In one such correspondence,
Dullen wrote: “I am still having severe headaches. There are
also a couple of issues I would like to discuss with you. I
don’t believe in grievances, because I believe people as adults
should be able to talk.” Rocheleau Aff. ¶ 2 4 . Rocheleau
forwarded this request to the CCHOC superintendent. Id.
II. STANDARD OF REVIEW
Summary judgment is appropriate only “if 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). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 250 (1986). A material fact is one “that might affect
the outcome of the suit.” Id. at 248.
In ruling on a motion for summary judgment, I construe the
evidence in the light most favorable to the nonmovant. See
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The
-5- party moving for summary judgment “bears the initial
responsibility of . . . identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 ,
323 (1986). Once the moving party has met its burden, the burden
shifts to the nonmovant to “produce evidence on which a
reasonable finder of fact, under the appropriate proof burden,
could base a verdict for i t ; if that party cannot produce such
evidence, the motion must be granted.” Ayala-Gerena v . Bristol
Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing Celotex,
477 U.S. at 323; Anderson, 477 U.S. at 2 4 9 ) .
III. ANALYSIS
Defendants argue that Dullen’s claims should be dismissed
because he failed to exhaust his administrative remedies.2 The
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Dullen v . Cheshire County, et a l . CV-05-129-PB 04/14/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick E . Dullen
v. Case N o . 05-cv-139-PB Opinion N o . 2006 DNH 044 Cheshire County, et a l .
MEMORANDUM AND ORDER
Pro se plaintiff Patrick Dullen brings this action pursuant
to 42 U.S.C. § 1983, alleging that he was denied adequate medical
and dental care while incarcerated at the Cheshire County House
of Corrections (CCHOC). The parties have filed cross-motions for
summary judgment. Dullen contends that he is entitled to
judgment as a matter of law on the undisputed facts. Defendants
Carol Ann Rocheleau and Robin Cook seek dismissal of the case on
the basis that Dullen failed to exhaust his administrative
remedies prior to filing suit.1 Because I agree that Dullen
failed to meet the exhaustion requirement, I grant defendants’
1 Rocheleau was employed as a nurse and Cook was the Director of Operations when Dullen was incarcerated at CCHOC. Dullen’s claims against the other defendants were dismissed in prior rulings. See Orders dated July 2 6 , 2005 (Doc. N o . 13) and April 4 , 2006. motion and deny Dullen’s motion.
I. BACKGROUND
A. Dullen’s medical and dental care
Dullen, a federal prisoner, was incarcerated at CCHOC from
April 29 to July 2 7 , 2004. Affidavit of Robin L . Cook (“Cook
Aff.”) ¶ 6. When Dullen arrived at CCHOC, the nursing staff took
his medical history and made an assessment of his condition.
Affidavit of Carol Anne Rocheleau, R.N. (“Rocheleau Aff.”) ¶ 6.
Dullen complained of headaches, left upper arm pain and weakness
and/or numbness due to a 2002 motor vehicle accident. Id. ¶ 5 .
Dullen was taking several medications and claimed during the
assessment that he was entitled to more medication than the
federal marshals brought to the jail with him. Id. ¶ 6.
After reviewing Dullen’s medical records, Doctor Barry Stern
ordered a new spinal MRI because one year had passed since
Dullen’s previous MRI. Id. ¶ 9. After the MRI was performed on
May 1 4 , Stern referred Dullen to a neurologist and prescribed
Ultracet for his headaches. Id. ¶ 1 3 . Dullen visited the
neurologist on May 2 7 . Id. ¶ 1 9 . Based on the neurologist’s
report, Stern advised Dullen that more medication would not make
-2- him feel better until he had surgery. Id. ¶ 3 6 . Stern also
recommended that Dullen be transferred to a facility with neuro-
surgical treatment capability. Id. Stern and Rocheleau then met
with Cook and the CCHOC superintendent to advise them of these
recommendations. Id. Dullen also visited a neurosurgeon for a
neuro-spinal surgical examination on July 2 3 , shortly before he
was transferred to another facility. Id. ¶ 5 2 .
Regarding Dullen’s dental care, he visited a dental office
in late June 2004 to have his lower denture relined. Id. ¶¶ 3 1 ,
42. The dentist advised that relining would not be effective and
that Dullen needed a new set of dentures. Id. ¶ 4 2 . The dental
office later told CCHOC staff that they would not provide further
treatment to Dullen or any other inmate due to the effect that
Dullen’s presence had on other patients. Cook Aff. ¶ 2 1 .
Dullen was transferred to the Franklin County House of
Corrections in Massachusetts on July 2 7 , 2004, where he was
incarcerated when he filed the current action.
B. Inmate grievance procedure
The Cheshire County Department of Corrections Inmate Manual,
which is provided to every inmate at CCHOC, sets forth the
following inmate grievance procedure:
-3- Should you experience a situation where you feel that you have been unfairly treated or denied rights that you are entitled under the rules and regulations of this facility, you must put into writing the following:
Your name, the date, and your housing unit Nature of the grievance Dates and times of occurrence Names of individuals involved Narrative of the incident
This grievance must be submitted to the Director of Operations. All grievances will be reviewed. Written responses will be returned if warranted.
Pl.’s Compl. Attach. 8 ; Cook Aff. ¶ 1 1 .
According to Dullen’s inmate records, he did not file any
formal grievances under the procedure outlined above during his
incarceration at CCHOC. Cook Aff. ¶ 9. Dullen sent a number of
handwritten notes to CCHOC staff concerning various issues,
including the variety of meals and requests to train other
inmates on the computer. Id. In one such note, dated June 3 ,
2004, Dullen stated: “I have some issues I need to have
addressed. I have tried twice to address these issues. I do not
believe in grievances as most situations can usually be settled
by 2 adults talking.” Id.
Dullen also submitted numerous written requests to the
medical department, often seeking additional medication and/or a
-4- consultation with Doctor Stern. In one such correspondence,
Dullen wrote: “I am still having severe headaches. There are
also a couple of issues I would like to discuss with you. I
don’t believe in grievances, because I believe people as adults
should be able to talk.” Rocheleau Aff. ¶ 2 4 . Rocheleau
forwarded this request to the CCHOC superintendent. Id.
II. STANDARD OF REVIEW
Summary judgment is appropriate only “if 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). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 250 (1986). A material fact is one “that might affect
the outcome of the suit.” Id. at 248.
In ruling on a motion for summary judgment, I construe the
evidence in the light most favorable to the nonmovant. See
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The
-5- party moving for summary judgment “bears the initial
responsibility of . . . identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 ,
323 (1986). Once the moving party has met its burden, the burden
shifts to the nonmovant to “produce evidence on which a
reasonable finder of fact, under the appropriate proof burden,
could base a verdict for i t ; if that party cannot produce such
evidence, the motion must be granted.” Ayala-Gerena v . Bristol
Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing Celotex,
477 U.S. at 323; Anderson, 477 U.S. at 2 4 9 ) .
III. ANALYSIS
Defendants argue that Dullen’s claims should be dismissed
because he failed to exhaust his administrative remedies.2 The
2 Dullen failed to respond to defendants’ arguments and instead asserts that defendants violated his rights to privacy and patient confidentiality when they accessed his medical records and inmate file to prepare their affidavits. See Rebuttal to Def.’s Mot. for Summ. J. at 4-6. Dullen’s argument that these actions provide a basis for denying defendants’ motion is without merit because he waived his right to confidentiality in those records by filing suit against CCHOC and its staff. See Woods v . Goord, N o . 01CV03255, 2002 WL 731691, at *11 (S.D.N.Y. 2002) (“It is settled law that release of an inmate’s medical records in defense of litigation does not violate any right of the inmate when he has filed suit against prison officials.”).
-6- Prison Litigation Reform Act of 1995 (“PLRA”) provides, in
relevant part, that “[n]o action shall be brought with respect to
prison conditions under section 1983 . . . 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). The PLRA’s
exhaustion requirement “applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes.” Porter v . Nussle, 534 U.S. 516, 532 (2002). A
prisoner’s failure to exhaust results in dismissal of the case.
Medina-Claudio v . Rodriguez-Mateo, 292 F.3d 3 1 , 36 (1st Cir.
2002) (Section 1997e(a) “clearly contemplates exhaustion prior to
the commencement of the action as an indispensable requirement.
Exhaustion subsequent to the filing of suit will not suffice.”).
Here, the administrative remedy available to Dullen was the
filing of a grievance in accordance with the procedure outlined
in the inmate manual. Dullen claims that this procedure is
inadequate because the jail does not provide grievance forms and
an inmate is not guaranteed a response to any grievance
submitted. Compl. Summation ¶ 3 . In notes sent to CCHOC staff,
Dullen also indicated that he did not “believe in” filing
-7- grievances. Rocheleau Aff. ¶ 2 4 ; Cook Aff. ¶ 9. Nonetheless,
the First Circuit has held that “there is no ‘futility exception’
to the PLRA exhaustion requirement.” Medina-Claudio, 292 F.3d at
35 (quotation omitted).
Dullen also alleges that he in fact submitted several
grievances “and received no answers to many of them.” Compl.
Summation ¶ 3 . To support this claim, Dullen submitted copies of
two handwritten notes that he sent to Cook concerning his dental
care. Pl.’s Compl. Attach. 3-4. These notes were not in the
form of a grievance but rather inquired whether a dental
appointment had been scheduled for Dullen. Cook also
acknowledged receiving numerous handwritten notes from Dullen
concerning a variety of issues; however, none of these were in
the required format outlined in the inmate manual. Cook Aff. ¶
9. This evidence, taken in the light most favorable to Dullen,
is simply insufficient to demonstrate that he complied with the
CCHOC grievance procedure prior to filing suit in this court.
Accordingly, Dullen’s claims against Rocheleau and Cook for
denial of adequate medical and dental care must be dismissed.
See Medina-Claudio, 292 F.3d at 3 6 .
-8- IV. CONCLUSION
For the reasons set forth above, defendants’ Motion for
Summary Judgment (Doc. N o . 41) is granted and Dullen’s Motion for
Summary Judgment (Doc. N o . 34) is denied. The clerk is
instructed to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 1 4 , 2006
cc: Patrick Dullen, pro se John A . Curran, Esq.
-9-