Hall v. Zerba, et al.

2008 DNH 160

• Court: District Court, D. New Hampshire
• Decided: August 27, 2008
• Docket: 07-CV-332-SM
• Status: Published

Opinion

Hall v . Zerba, et a l . 07-CV-332-SM 08/27/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kevin D. Hall, Plaintiff

v. Civil N o . 07-cv-332-SM Opinion N o . 2008 DNH 160 Roger Zerba, Commissioner of Cheshire County; and the Cheshire County Commissioners, Defendants

O R D E R

Defendants move to dismiss the complaint on grounds, inter

alia, that plaintiff’s claims relate to the conditions of his

confinement in the Cheshire County Jail, and plaintiff, a

prisoner, had not exhausted the administrative remedies available

to him before filing the complaint. Plaintiff has filed an

objection to the motion to dismiss, but it is not responsive to

the issues raised, and, in any event, does not assert that he has

exhausted administrative remedies and does not contradict

evidence referenced by defendant which demonstrates that he has

not done s o . It does not appear to be disputed, then, that

plaintiff did not exhaust the administrative remedies available

to him before he filed his complaint.

The Prison Litigation Reform Act’s exhaustion requirement is

strict and provides that: 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). "[F]ailure to exhaust is an affirmative

defense under the PLRA." Jones v . Bock, 127 S . C t . 9 1 0 , 921

(2007). A defendant who demonstrates lack of exhaustion is

entitled to dismissal of the unexhausted claims in the

plaintiff's complaint. Medina-Claudio v . Rodriguez-Mateo, 292

F.3d 3 1 , 36 (1st Cir. 2002). And, there is no "futility

exception" to the PLRA's exhaustion requirement. Id. at 3 5 . "In

other words, even if the prison's administrative process does not

provide for the type of relief the inmate desires, the prisoner

must complete any prison administrative process capable of

addressing the inmate's complaint and providing some form of

relief." Knowles v . Commission, ___ F.Supp. 2d ___, 2008 WL

648737 (D.N.H. March 1 1 , 2008) (citing Booth v . Churner, 532 U.S.

731, 739 (2001)).

In summary, Hall does not claim that he exhausted available

administrative remedies before filing his complaint and

defendants have established that he did not. The court then

concludes that it is undisputed that the administrative remedies

available to plaintiff were not exhausted before he filed suit.

2 Accordingly the complaint must be dismissed (it is not necessary

to address the other, apparently meritorious, grounds for

dismissal raised in defendants’ motion given this disposition).

Conclusion

Because plaintiff did not fully exhaust the administrative

remedies available to him before filing his complaint,

defendants' motion to dismiss (document no. 13) is granted. The

Clerk of Court shall enter judgment dismissing the complaint for

failure to exhaust available administrative remedies and close

the case. Defendants’ pending motions to consolidate (document

no. 12) and to conform the docket (document no. 18) are

denied as moot.

The Clerk of Court shall enter judgment and close the case.

SO ORDERED.

Steven J. __McAuliffe Chief Judge

August 27, 2008

cc: Kevin D. Hall, pro se John A. Curran, Esq.