Knowles v . NH DOC CV-05-363-JL 03/11/08 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William J. Knowles
v. Civil N o . 05-363-JL Opinion N o . 2008 DNH 052
NH Department of Corrections, Commissioner, et a l .
MEMORANDUM AND ORDER
Plaintiff William Knowles, a New Hampshire State Prison
inmate, seeks to recover damages from the N.H. Department of
Corrections (DOC) and its employees under 42 U.S.C. § 1983 for
allegedly failing to provide or arrange for medical treatment in
violation of his constitutional rights.
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and statute
. . . .” United States v . Coloian, 480 F.3d 4 7 , 50 (1st Cir.
2007) (quoting Kokkonen v . Guardian Life Ins. C o . of America, 511
U.S. 375, 377 (1994)). This court has subject matter
jurisdiction over this case under 28 U.S.C. §§ 1331 (federal
question) and 1343 (civil rights).
The defendants have moved for summary judgment, arguing that
the plaintiff failed to exhaust the administrative remedies
available to him as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a) (PLRA), and that, as a matter of law, the plaintiff is unable to establish that the defendants acted with
the requisite deliberate indifference to his medical needs.
After a hearing on the motion, for the reasons set forth
below, the court finds that the plaintiff has failed to exhaust
the available administrative remedies available through DOC’s
three-level grievance procedure, and grants summary judgment in
favor of the defendants.
Applicable legal standard
Under Fed. R. Civ. P. 56(c), a motion for summary judgment
will be granted 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 judgment
as a matter of law. See Anderson v . Liberty Lobby, Inc., 477
U.S. 242, 247 (1986); Celotex Corp. v . Catrett, 477 U.S. 317, 322
(1986). "The object of summary judgment is ‘to pierce the
boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required.’" Dávila
v . Corporación de P.R. Rico Para la Difusión Pública, 498 F.3d 9,
12 (1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc.,
386 F.3d 5 , 7 (1st Cir. 2004)).
2 When as here1 the party moving for summary judgment also
bears the burden of proof at trial, summary judgment will not be
granted unless, based on the record taken in the light most
favorable to the nonmoving party, no reasonable jury could find
for the nonmoving party. See E.E.O.C. v . Union Independiente de
la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d
4 9 , 55 (1st Cir. 2002); Winnacunnet Coop. Sch. Dist. v . Nat’l
Union Fire Ins. C o . of Pittsburgh, 84 F.3d 3 2 , 35 (1st Cir.
1996). To defeat a motion for summary judgment, "the non-moving
party must set forth specific facts showing that a genuine issue
of material fact exists as to each issue upon which she would
bear the ultimate burden of proof at trial.” Torres-Negron v .
Merck & Co., 488 F.3d 3 4 , 39 (1st Cir. 2007) (internal quotation
marks omitted). Further, the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts,” and “may not rest upon the mere allegations or
denials of his pleading." Matsushita Elec. Indus. C o . v . Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
When ruling on a party's motion for summary judgment, the
court must view the facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
1 As explained infra, the defendants have asserted the affirmative defense of failure-to-exhaust under 42 U.S.C. § 1997e(a). Since they carry the burden of proving this defense at trial, see Jones v . Bock, ___ U.S. ____, 127 S . C t . 910, 922 (2007), they carry the burden on this motion.
3 party's favor. Rodríguez v . SmithKline Beecham, 224 F.3d 1 , 5
(1st Cir. 2000)).
Failure-to-exhaust available remedies as required by the
PLRA is an affirmative defense. The plaintiff need not plead
exhaustion in the complaint; rather, failure-to-exhaust must be
asserted by and proven by the defendant. Jones v . Brock, 127 S .
Ct. at 922. Having asserted the defense in their answer to the
complaint and the pending motion, the defendants carry the burden
of proving i t .
FACTS2
Knowles was incarcerated at the New Hampshire State
Prison (“NHSP”) from March of 1987 until October of 2003, when he
was released on parole. In the 1990s, while imprisoned, Knowles
was diagnosed with glaucoma. Thus, during his incarceration,
Knowles regularly underwent tests and medical checkups for the
condition. Knowles asserts that he continued to get regular
checkups for his glaucoma on his own once he was released on
parole.
In March of 2004, Knowles violated the conditions of his
parole and was returned to the NHSP where he remains. Between
March of 2004 and August of 2005, Knowles underwent eye
2 These facts are presented in a light most favorable to the plaintiff. Rodriguez, 224 F.3d at 5 .
4 examinations by Optivan, an eye care service that contracted with
the DOC to provide vision care to DOC inmates. During these
examinations, Knowles was evaluated for glasses, the status of
his glaucoma, and for other special vision needs.
On at least three occasions, Optivan personnel notified the
NHSP medical department that Knowles needed to be sent to an
outside specialist for a “field test,” a specialized procedure
for glaucoma patients to determine the nature and extent of
ocular damage. Knowles was advised by two nurse practitioners
that he was on a list to be taken to see a specialist for a
“field test,” but was never performed.
On August 3 1 , 2005, Knowles told a nurse taking his blood
pressure that he had been experiencing slight blurriness in his
left eye for several days. The nurse advised Knowles to report
to sick call if the problem persisted. Two days later, Knowles
reported to sick call at 7:50 a.m. to report that the problem
with his left eye was quickly worsening. Late that afternoon,
Knowles was taken outside of the prison to see a specialist, Dr.
Ford, who advised Knowles the damage to his left eye was
permanent. Dr. Ford prescribed additional medication and other
follow-up measures, and directed that Knowles be seen again after
two weeks. (As of October 1 1 , 2005, Knowles had not been
returned to Dr. Ford’s office for follow-up. In that time,
5 Knowles asserts the condition of his left eye has worsened to the
point where it has become almost entirely nonfunctional.)
Knowles alleges that the defendants’ lack of attention to
his known and serious eye condition caused it to worsen to the
point where his vision has been severely and permanently damaged.
He claims that although he has received some medical care, it has
been inadequate to meet his serious known medical needs because
he was denied prompt access to both an eye specialist and a
“field test” which was a necessary tool in properly diagnosing
and treating the glaucoma.3
In his objection to the motion for summary judgment, the
plaintiff claims that he “attempted to obtain the help he needed
through the administrative grievance procedure in place at the
prison.” The NHSP records before the court reveal that he filed
a number of inmate request slips (see the explanation of NHSP’s
administrative grievance procedure, infra) regarding his general
ocular health, need for eyeglasses, and eventually, his glaucoma.
On March 5 , 2004, he submitted an inmate request slip expressing
his desire for an eye examination and glasses. On March 1 7 ,
3 Although not directly germane to the motion at bar, an opinion letter issued by Dr. Ford at the plaintiff’s request, dated August 1 7 , 2007, opined that the “failure to perform visual field evaluation did not lead to Mr. Knowles’ unfortunate outcome in his left eye.” Although this document was not authenticated as required by Rule 56(e), all parties discuss it in their summary judgment filings and evidently do not question its admissibility. See Perez v . Volvo Car Corp., 247 F.3d 303 (1st Cir. 2001).
6 2004, he filed an inmate request slip making the same request.
On May 1 0 , 2004, after undergoing the eye examination, he
submitted an inmate request slip asking prison personnel to
“check on my glasses as I’ve not received them yet . . . .” On
March 3 1 , 2005, he submitted an inmate request slip explaining
that “Opti-Van will be giving me a pressure-check for glaucoma in
right eye; I would also like an eye exam & new glasses. At the
same appt if that is OK.” On October 2 4 , 2005, he submitted an
inmate request slip stating that he had requested a “follow-up
appt with Dr. Ford r e : left eye,” as well as other health
issues. On December 1 5 , 2005, and January 1 5 , 2006, the
plaintiff filed inmate request slips making reference to the
claims asserted in this lawsuit.
Each of these inmate request slips prompted written
responses from the facility administrators, but none resulted in
a field test or visit to an eye doctor. Nowhere in his summary
judgment papers does the plaintiff claim that he appealed these
responses to the Warden, or from there, to the Commissioner of
Corrections. The NHSP records before the court contain no
documentation of any such appeals. The defendants have filed
three affidavits stating that no records of any appeals to the
Warden or Commissioner of Corrections are under the custody or
control of the Department of Corrections.
7 ANALYSIS
The opening provision of the PLRA sets forth its
“invigorated” administrative exhaustion requirement.4 Because
the main purpose of PLRA (itself a group of amendments to the
Civil Rights of Institutionalized Persons Act (CRIPA)) is “to
reduce the quantity and improve the quality of prisoner suits,”5
the exhaustion requirement has been described by the Supreme
Court as the PLRA’s “centerpiece.” Woodford v . Ngo, 548 U.S. 8 1 ,
, 126 S . C t . 2378, 2382 (2006). It provides:
(a) Applicability of Administrative Remedies. No action shall be brought with respect to prison conditions under §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). The PLRA requires prisoners asserting a
claim under 42 U.S.C. § 1983 to exhaust administrative remedies
before –- literally, as a condition precedent to –- putting the
claims into suit. As the Supreme Court noted in Porter, “All
available remedies must now be exhausted; those remedies need not
meet federal standards, nor must they be plain, speedy and
effective.” 534 U.S. at 524 (internal quotation marks omitted).
4 Porter v . Nussle, 534 U.S. 516, 524 (2002). 5 Id.
8 Specifically, what “the PLRA exhaustion requirement
requires” of prisoners is “proper exhaustion.” Woodford, 126
S . C t . at 2387. The doctrine of proper exhaustion provides: “As
a general rule ... courts should not topple over administrative
decisions unless the administrative body not only has erred, but
has erred against objection made at the time appropriate under
its practice.” Id. at 2385 (internal bracketing omitted)
(quoting United States v . L.A. Tucker Truck Lines, 344 U.S. 3 3 ,
37 (1952)). “Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.” Id.
at 2386 (footnote omitted).
“[T]here is no ‘futility exception’ to the PLRA exhaustion
requirement.” Medina-Claudio v . Rodriguez-Mateo, 292 F.3d 3 1 , 35
(1st Cir. 2002). 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. Booth v . Churner,
532 U.S. 731, 739 (2001). Thus ”a prisoner must now exhaust
administrative remedies even where the relief sought -- monetary
damages -- cannot be granted by the administrative process.”
9 Woodford, 126 S . C t . at 2382-2383 (citing Booth, 532 U.S. at 734,
121 S . C t . at 1819).
The defendants argue that the case must be dismissed because
the plaintiff has not exhausted his available administrative
remedies. The DOC has promulgated administrative remedies in the
form of a formal grievance procedure for dealing with inmates’
complaints. The grievance procedure is set forth in DOC Policy
and Procedure Directive (PPD) 1.16, which the defendants have
attached as an exhibit to their motion for summary judgment. The
procedure is also set forth in the New Hampshire State Prison
Inmate Manual. The parties agree that all inmates receive the
Inmate Manual upon admission to the facility, and that the manual
is readily available to them.
PPD 1.16's three-level process was thoroughly but succinctly
described by this court in LaFauci v . New Hampshire Department of
Corrections, 2001 DNH 204, 2001 WL 1570932 (McAuliffe, J . ) :
At the lowest level of the administrative process, inmates are instructed to resolve their complaints orally if possible. If that proves unsuccessful, they may file a written complaint or request for information, known as an “inmate request slip.” Typically, both oral and written requests and/or complaints must follow the “chain of command.” Accordingly, inmates are instructed to address their requests to the correctional officer of lowest rank whom they believe can resolve the issue.
When an inmate request slip is received, one of three outcomes will follow: (1) the prison staff member who is allegedly the source of
10 the problem or who possesses information the inmates seek will respond to the inmate directly; or (2) that staff member’s supervisor will investigate the matter; or (3) a formal investigation will be initiated. In the majority of cases involving allegations of inappropriate conduct by correctional officers (e.g., unprofessional or demeaning language), a written request or complaint is sent to the staff member’s supervisor. The person who is the subject of the complaint is interviewed, as are other staff members and any inmates who might have witnessed the complained-of conduct. A brief summary of the investigation is then presented to the Warden. In circumstances involving more serious charges-claims of excessive force, for example-the investigation takes on greater formality, and more witnesses may be interviewed. Again, the results of the investigation are presented to the Warden.
When an investigation is complete, the inmate receives a written response to his request. Any discipline that is imposed on correctional facility staff (e.g., oral reprimand, written reprimand, order to undergo counseling, discharge, etc.) i s , however, kept confidential. Of course, if a staff member is transferred or terminated, his or her absence would likely be noticed by the complaining inmate, who might reasonably infer that the staff member had been disciplined.
An inmate who is not satisfied with a response to his or her request slip may pursue further administrative remedies and appeal to the Warden, by submitting an inmate “grievance form.” Under the administrative scheme, the Warden is afforded 15 days within which to answer the inmate’s grievance with either an interim or final response. If the inmate is dissatisfied with the Warden’s response, he or she may appeal the matter to the Commissioner of Corrections. The Commissioner is allowed 30 days within which
11 to provide an interim or final response. The ultimate decision of the Commissioner is final. At that point, the inmate has fully exhausted his or her administrative remedies.
Id. at 7-10 (citing, inter alia, PPD 1.16) (internal citations
and footnote omitted). 6
The defendants point out that the plaintiff arguably took
the first step in the grievance process by submitting several
inmate request slips, but never took the required second step of
submitting an inmate grievance form to the Warden, much less the
third of appealing to the Commissioner of Corrections. As a
result, they argue, the case must be dismissed under the PLRA’s
exhaustion requirement.
The plaintiff counters that it was impossible for him to
exhaust his remedies because there was no valid administrative
remedy or other grievance procedure in effect at the time he was
experiencing his eye problems and submitting inmate request slips
about them. He acknowledges that the three-step grievance
6 “There is an exception to the ‘chain of command’ rule when the inmate believes that he or she is subject to imminent injury or harm. Under those circumstances, the inmate may directly address the Warden or the Commissioner of Corrections, even if the inmate has not previously filed an inmate request slip. See [PPD 1.16] Inmate Manual, section D ( 3 ) . In the days and weeks following the events at issue in this case, LaFauci never sought to avail himself of that exception. And, because he is no longer incarcerated at the NHSP, he cannot be subject to imminent harm or injury at the hands of any NHSP inmate or employee and, therefore, the exception plainly does not apply.” Lafauci, 2001 D.N.H. at 8 n.1.
12 procedure set forth above (PPD 1.16) had been promulgated at the
time. But relying on the New Hampshire Supreme Court’s decision
in Gosselin v . New Hampshire Department of Corrections,7 he
argues that the grievance procedure had not been duly adopted
under the requirements of New Hampshire’s Administrative
Procedure Act (“APA”), N.H. Rev. Stat. Ann. 541-A, and therefore
was invalid.8 In effect, the plaintiff argues that although the
three-level grievance procedure at PPD 1.16 existed at the
relevant time in this case, it was not an “administrative remedy
. . . available” to him because, he believes, New Hampshire’s APA
and the Gosselin decision rendered it invalid. In his words, “in
the instant case, there were no legally enforceable
administrative remedies available . . . .”
The PLRA specifically provides that a state’s “failure ...
to adopt or adhere to an administrative grievance procedure shall
not constitute the basis for an action under” CRIPA. 42 U.S.C. §
1997e(b). This provision, which bars prisoners from claiming
that a state’s lack of failure to follow an established grievance
7 153 N.H. 696 (2006). 8 In 2007, the New Hampshire Legislature enacted a statutory scheme which exempted certain of the DOC’s practices and procedures from the procedural requirements of the APA. The parties take different positions as to the applicability of the Gosselin decision to PPD 1.16's three-level grievance procedure as well as the relevance, retroactivity and ultimate effect of this statutory fix. As explained supra, the court need not address these issues to decide the motion for summary judgment.
13 procedure itself constitutes a violation of their constitutional
rights, answers a different question than the one raised by the
plaintiff. The plaintiff does not claim that DOC’s purported
lack of compliance with the New Hampshire APA in adopting PPD
1.16 violated his rights. He argues, rather, that this alleged
failure to comply rendered PPD 1.16's three-level grievance
process “unavailable” to him under the PLRA.
A. Availability
When interpreting a statute, the court looks first and
foremost to its text, United States v . Alvarez-Sanchez, 511 U.S.
350, 356 (1994), because the court assumes “that the legislative
purpose is expressed by the ordinary meaning of the words used.”
American Tobacco C o . v . Patterson, 456 U.S. 6 3 , 68 (1982)
(quoting Richards v . United States, 369 U.S. 1 , 9 (1962)). Thus,
“‘absent a clearly expressed legislative intention to the
contrary, that language must ordinarily be regarded as
conclusive.’” Id. (quoting Consumer Product Safety Comm’n v . GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)) (bracketing omitted).
This focus on ordinary and natural definitions is required where,
as here, a word or phrase to be interpreted is not defined in the
statute in question. Alvarez-Sanchez, 511 U.S. at 357.
“Available” means accessible or capable of being possessed
or used. In this context, it does not involve concepts of
14 procedural or technical validity. Webster’s defines “available”
as “having sufficient power or force to achieve an end,” as well
as “capable of use for the accomplishment of a purpose,”
“immediately utilizable,” and “that is accessible or may be
obtained: personally obtainable.” Webster’s Third New
International Dictionary 150 (1993). 9 The 1990 edition of
Black’s Law Dictionary defines “available” as “[s]uitable;
usable; accessible; obtainable; present or ready for immediate
use.” Black’s Law Dictionary 134 (6th ed. 1990). 10 See Smith v .
United States, 508 U.S. 223, 228-29 (1993) (citing Webster’s and
Black’s to ascertain ordinary or natural meaning); Alvarez-
Sanchez, 511 U.S. at 357-58 (same, American Heritage Dictionary).
There is no question that the three-level grievance
procedure set forth in the Inmate Manual and promulgated by the
DOC at PPD 1.16 was literally “available” to the plaintiff. He
makes no claim that it was not, and describes his own use of its
first level. Questions as to whether the DOC’s adoption of PPD
9 Section 1997e(a) was enacted in 1994. Citations to dictionaries in this opinion are to editions published at the time of the enactment of the PLRA. 10 It is true that the definitions of “available” in these references also include the adjective “valid” in the legal context, but those definitions refer to the validity of a legal plea or charge in the sense of an allegation or assertion, as opposed to the meaning argued by the plaintiff: the “foundational” or derivative validity of an article of positive law, such as a statute, rule, or regulation, derived from its foundation i n , its enactment’s or compliance with, enabling legislation.
15 1.16 complied, or was required to comply, with the provisions of
New Hampshire’s APA have no bearing on either it was
“unavailable” to the plaintiff or any other inmate.
As the heavy docket of prisoner litigation in this court
makes readily apparent, inmates have managed to exhaust the
administrative remedies set forth in the three-level procedure
since its implementation in 2002. It is set forth in the Inmate
Manual distributed to each inmate upon admission to the prison.
It gives inmates the opportunity to lodge complaints in a manner
which provides notice to the prison administration. PPD
1.16(IV)(A). It provides for an administrative response to the
inmate’s complaint and requires that such responses be in
writing. PPD 1.16(IV)(A)(3),(5). The first step is also
waivable where an inmate can demonstrate that using the process
“is likely to result in an identifiable risk of harm to their
physical safety or psychological well-being.” See supra n.6;
Lafauci, 2001 D.N.H. at 8 n.1. The procedure allows an appeal to
the prison warden on an “Inmate Grievance Form” if the inmate is
not satisfied with the initial response to his complaint (PPD
1.16(IV)(B)), and from there, an appeal to the Commissioner of
Corrections, who must provide an interim or final response within
30 days. PPD 1.16(IV)(C). The grievance procedure, while simple
and immediately accessible to prisoners, is highly formalized and
standardized, with specific time frames and mandatory
16 standardized forms. PPD 1.16(III)(D), (E) and ( F ) . As explained
supra, use of these forms and observance of these deadlines is
required for “proper exhaustion.” Woodford, 126 S . C t . at 2386.
B. Administrative Remedy
Since the three-level grievance procedure was undoubtedly
available to the plaintiff in both the literal and legal senses,
the question remains whether, despite never having been adopted
in the manner set forth under New Hampshire’s APA, PPD 1.16 is in
fact an “administrative remedy” as required by § 1997e(a).
Because Congress did not define the term “administrative remedy”
in § 1997e(a), this court gives those words their ordinary
meaning. See Asgrow Seed C o . v . Winterboer, 513 U.S. 179, 187
(1995) (citing FDIC v . Meyer, 510 U.S. 471, 476 (1994)). Black’s
Law Dictionary defines “administrative remedy” to be “‘a
nonjudicial remedy provided by an administrative agency.’”
Black’s Law Dictionary 1296 (7th ed. 1999). PPD 1.16 fits the
bill. It was promulgated by the DOC, undoubtedly a state
administrative agency. Utilized and enforced by this agency
since 2002, it is formally entitled “New Hampshire Department of
Correction Policy and Procedure 1.16.”
Another source defines “administrative” as “proceeding from
. . . an administration,” which, in turn, is defined as “a body
of persons who are responsible for managing a business or an
17 institution.” Webster Third New International Dictionary 28
(1993). In this case, PPD 1.16, printed in the Inmate Manual,
“proceeded from” the DOC through the prison Warden and his staff,
who, as a group responsible for managing the prison, comfortably
fit within the above-quoted definition of “administration.”
Although this question -- whether the three-level grievance
procedure was available to the plaintiff despite the fact that it
was not promulgated in accordance with allegedly applicable
enabling legislation (like New Hampshire’s APA) -- is an issue of
first impression in this court and circuit, the Third Circuit
addressed the issue squarely in Concepcion v . Morton, 306 F.3d
1347 (3rd Cir. 2002). The issue there, as here, was “whether the
PLRA’s exhaustion requirement applies to a grievance procedure
described in an inmate handbook but not formally adopted by a
state administrative agency.” Id. at 1348-49. The court held
“that a remedy need not be formally adopted through regulations
by an agency in order for it to be considered an ‘administrative
remedy’ within the scope of § 1997e(a)’s exhaustion requirement.”
306 F.3d at 1355. The plaintiff has not cited, either in his
summary judgment papers or at the motion hearing, any authority
to the contrary.
The Fifth Circuit reached a similar conclusion in a case
cited by the defendants, Ferrington v . Louisiana Department of
Corrections, 315 F.3d 529 (5th Cir. 2002). There, the plaintiff
18 argued that since the Louisiana Supreme Court held the state’s
prisoner grievance system to be unconstitutional,11 the grievance
system was thus “unavailable” to him as an administrative remedy
under the PLRA. The Court of Appeals disagreed and affirmed the
district court’s dismissal on failure-to-exhaust grounds.
Specifically, the court held that the invalidity of the grievance
system under state law “has no impact on the necessity of
exhaustion prior to the filing of a § 1983 claim in federal
court. As long as a prison administrative grievance system
remains in force . . . , [the prisoner] must exhaust. Exhaustion
remains mandatory, ‘irrespective of the forms of relief sought
and offered through administrative remedies.’” Ferrington, 315
F.3d at 532 (quoting Booth, 532 U.S. at 741 n . 6 ) .
Nowhere in § 1997e did Congress indicate that the manner in
which a remedy is enacted, adopted, or otherwise promulgated
affects the applicability of the statute’s exhaustion
requirement. The court is unaware of -- and the plaintiff has
not presented any evidence of -- an instance in which New
Hampshire state prison officials have refused to entertain an
inmate request slip, grievance form addressed to the warden or
appeal to the Commissioner of Corrections on the ground that its
11 Pope v . Louisiana, 792 S o . 2d 713 (La. 2001) (holding Louisiana’s prison grievance system unconstitutional to the extent that it purported to deprive Louisiana state courts of original jurisdiction over prisoner cases).
19 own three-step procedure under PPD 1.16 had not been duly enacted
under New Hampshire’s APA. If it had, the result here might be
different because it could not be said that an administrative
remedy procedure considered invalid by the prison administration
itself was an “administrative remed[y]... available” to inmates.
See 42 U.S.C. § 1997e(a). In that instance, the plaintiff’s
argument that the doctrine of estoppel should prohibit the
defendants from raising failure-to-exhaust as an affirmative
defense might warrant further consideration. See generally,
Beltran v . O’Mara, 405 F.Supp.2d 140, 153-54 (D.N.H. 2005)
(reasoning that prison officials can make remedy “unavailable”
under PLRA by preventing inmate from using i t ) . That is simply
not the case here.
The plaintiff does not argue, or present evidence to
contradict, the defendants’ sworn assertions that he never
appealed from or otherwise progressed beyond level one of the
three-level grievance procedure, either within the time limits
imposed by PPD 1.16 or at any other time. Nor does the plaintiff
claim that he had not received notice of the three-level
grievance procedure, or was otherwise unaware of it in a way that
might arguably have made it unavailable to him.
20 CONCLUSION
Even accepting as true the facts asserted in the plaintiff’s
summary judgment opposition papers, and viewing the facts in a
light most favorable to the plaintiff, the court discerns no
evidence to suggest that the plaintiff exhausted his
administrative remedies with regard to the issues involved in
this litigation. See Celotex, 477 U.S. at 323; Anderson v .
Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986). The
defendants’ motion for summary judgment (Document n o . 37) on his
failure-to-exhaust affirmative defense is therefore granted. The
plaintiff’s claim is dismissed without prejudice for his failure
to exhaust administrative remedies. The clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Date: March 1 1 , 2008
cc: Nancy Sue Tierney, Esq. Anthony I . Blenkinsop, Esq.