LaFauci v. NH Dept. of Corrections

2001 DNH 204

Opinion

LaFauci v . NH Dept. of Corrections CV-99-253-M 10/31/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anthony LaFauci, Plaintiff

v. Civil N o . 99-253-M Opinion N o . 2001 DNH 204 New Hampshire Department of Corrections, et a l . , Defendants

O R D E R

Anthony LaFauci is a New Hampshire state inmate, formerly

housed at the New Hampshire State Prison (“NHSP”). He has,

however, been transferred out of the State and it appears that he

is currently being detained at a correctional facility in

Cheshire, Connecticut (having been transferred there from a

correctional facility in Massachusetts). In this proceeding, he

seeks damages from numerous defendants for alleged violations of

his Eighth Amendment rights and various state common law torts -

all allegedly committed during his incarceration at NHSP. Most of LaFauci’s claims against the majority of the named

defendants have already been dismissed for failure to state a

claim. What remains is a single Eighth Amendment claim against

defendants Kenneth Gorski, Lee Morrison, Bert Morrison, A.J.

Williams, Walter Davies, and Charles Ward, as well as a common

law claim for assault and battery arising out of some of the same

events giving rise to the Eighth Amendment claim. Specifically,

LaFauci says that on January 9, 1998, while being transported

from one tier to another, a correctional officer intentionally

stepped on the heel of his sneaker, causing him to fall forward

and injure his mouth, teeth, knee, foot, and both hips.

Plaintiff’s Motion to this Court’s Attention (document n o . 61)

(“Plaintiff’s Memorandum”) at para. 9 5 . Later, he was

transported to another cell where he claims one of the

correctional officers “dumped plaintiff out of [his] wheel chair

onto the concrete floor, causing and inflicting pain.” Id., at

para. 9 9 . In the days following that incident, LaFauci claims to

have received sub-standard medical attention and says he was

2 improperly subjected to “medical lay-in,” a status that required

him to remain in his cell.

Thus, the events pertinent to this proceeding all

necessarily occurred between January 9 (the date on which LaFauci

claims to have been injured) and January 2 1 , 1998 (the date on

which he was transferred to a correctional facility in

Massachusetts). See Report and Recommendation (document n o . 10)

at 7 . See also Complaint at 1 4 . By order dated June 5 , 2001,

the court denied, without prejudice, defendants’ motion for

summary judgment, noting that:

The record presently before the court is silent as to LaFauci’s compliance with the administrative exhaustion requirement of 42 U.S.C. § 1997e(a), thereby suggesting that his complaint must be dismissed, without prejudice, pending such exhaustion. As noted above, however, the court has afforded both LaFauci and the State until August 3 , 2001, to brief this issue. If LaFauci claims to have exhausted available administrative processes, his memorandum shall include references to and copies of all documentation supporting that claim.

3 LaFauci v . N.H. Dept. of Corrections, N o . 99-253-M, 2001 DNH 108

(D.N.H. June 5 , 2001) (emphasis supplied). The parties have

submitted their briefs on the exhaustion issue, and defendants

move to dismiss LaFauci’s claims, without prejudice, for failure

to exhaust available administrative remedies. LaFauci, on the

other hand, says he adequately exhausted and objects to dismissal

of his remaining claims.

Discussion

I. Administrative Exhaustion and Excessive Force Claims.

42 U.S.C. § 1997e, as amended by the Prison Litigation

Reform Act of 1995 (“PLRA”), 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) (Supp. 2000) (emphasis supplied). The

Supreme Court has held that section 1997(e) requires an inmate to

exhaust all available administrative processes before filing a

4 federal suit relating to the conditions of his or her

confinement, even if the inmate seeks, but cannot obtain through

the administrative process, monetary relief. Booth v . Churner,

121 S.Ct. 1819, 1821 (2001) (“The question is whether an inmate

seeking only monetary damages must complete a prison

administrative process that could provide some sort of relief on

the complaint stated, but no money. We hold that he must.”). In

light of that holding, the Court affirmed the lower court’s

dismissal, without prejudice, of Booth’s Eighth Amendment claims

for failure to exhaust.

Although the Supreme Court implicitly concluded that Booth’s

Eighth Amendment claims (e.g., assault and deliberate

indifference to medical needs) related to “prison conditions”

and, therefore, were subject to the PLRA’s exhaustion

requirement, there appears to be some debate in various circuits

(much, though not all, of it preceding the Booth opinion) as to

whether such claims are properly viewed as falling within the

scope of the PLRA’s exhaustion requirement. Compare Smith v .

5 Zachary, 255 F.3d 446 (7th Cir. 2001) (concluding that inmate’s

Eighth Amendment claim stemming from alleged beating by guards

was subject to PLRA exhaustion requirement) with Nussle v .

Willette, 224 F.3d 95 (2d Cir. 2000) (concluding that PLRA

exhaustion requirement does not apply to inmate’s claims of

assault and excessive force, since such claims do not relate to

“prison conditions”), cert. granted, 121 S.Ct. 2213 (2001).

Having granted certiorari in Nussle, it would appear that

the Supreme Court intends to resolve any lingering confusion on

this issue. In the interim, however, this court agrees with the

majority of courts that have addressed the question and concludes

that Eighth Amendment claims of excessive force relate to “prison

conditions” and, therefore, are subject to the PLRA’s exhaustion

requirement. See generally Smith, 255 F.3d at 448-52;

Higginbottom v . Carter, 223 F.3d 1259, 1260-61 (11th Cir. 2000);

Freeman v . Francis, 196 F.3d 641, 643-44 (6th Cir. 1999);

Freytes v . LaBoy, 143 F. Supp. 2d 187 (D.P.R. 2001); Moore v .

Smith, 18 F. Supp. 2d 1360, 1363 (N.D.Ga. 1998). Accordingly,

6 before he may pursue his Eighth Amendment claims in this forum,

LaFauci must demonstrate that he exhausted available prison

administrative remedies relating to those claims.

II. The Administrative Grievance Scheme.

The New Hampshire Department of Corrections has adopted an

administrative scheme through which inmates may seek to have

various complaints addressed and resolved. The process is

explained in the “Manual for Guidance of Inmates,” a copy of

which is provided to all inmates upon their arrival at the

correctional facility. It is also outlined in the New Hampshire

Department of Corrections Policy and Procedure Directive (“PPD”)

1.16, entitled “Complaints and Grievances by Persons under DOC

Supervision,” another publication widely available to inmates.

See generally Exhibit 1 to Defendants’ Memorandum (document n o .

6 6 ) , Affidavit of Warden Bruce Cattell and attachments thereto.

At the lowest level of the administrative process, inmates

are instructed to resolve their complaints orally if possible.

7 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.1

When an inmate request slip is received, one of three

outcomes will follow: (1) the prison staff member who is

allegedly the source of the problem or who possesses information

the inmate seeks 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. See Exhibit 2 to

1 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 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.

8 defendants’ memorandum, affidavit of Warden Jane Coplan, at para.

22. 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

9 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 20 days

within which to provide an interim or final response. The

ultimate decision of the Commissioner is final. See Exhibit A to

Cattell affidavit, Inmate Manual, section D; Exhibit B to Cattell

affidavit, PPD 1.16, at 3-4. At that point, the inmate has fully

exhausted his or her administrative remedies.

10 III. LaFauci’s Efforts to Exhaust Administrative Remedies.

Plaintiff’s memorandum in response to the court’s recent

order is a lengthy chronicle of countless unpleasant

confrontations he claims to have had with correctional officers

dating back as far as April of 1995. Most of those details are,

however, irrelevant in this proceeding; as noted above, the only

events at issue here are those that transpired between January 9

(the date on which LaFauci fell and sustained injuries) and

January 2 1 , 1998 (the date on which he was transferred to a

correctional facility in Massachusetts). And, as noted in the

court’s prior order, the pertinent inquiry at this stage of the

litigation is limited to whether LaFauci exhausted available

administrative remedies with regard to his complaints arising out

of those particular events.

As to the events that occurred within the relevant time

frame, the record reveals that on January 9, 1998, LaFauci filed

an inmate request slip, in which he complained about correctional

officers having replaced his sneakers with new, ill-fitting ones.

11 See Exhibit TP-11 attached to plaintiff’s memorandum. LaFauci’s

unit manager responded, explaining why his personal sneakers had

been replaced with those issued by the Department of Corrections.

LaFauci did not pursue any appeal. That is to say, he did not

file an inmate grievance form, nor did he avail himself of any

other administrative remedy provided under the Inmate Manual

(e.g., an effort to seek monetary compensation for the

confiscated sneakers), nor did he appeal any adverse decision(s)

to the Commissioner of Corrections.

On January 14th, LaFauci submitted an inmate request slip to

Dr. Ward, complaining about Dr. Ward’s decision to order medical

lay-in and notifying Dr. Ward that he had been named as a

defendant in one of LaFauci’s many civil lawsuits. Dr. Ward

responded by explaining that, “You have been given medical lay-in

because your behavior is so unpredictable. Your crutches, which

could be used as weapons, are an additional factor. We are

trying to protect you and others from harm.” Exhibit N-20.

LaFauci did not pursue any appeal.

12 Also on January 14th, LaFauci filed an inmate request slip

in which he complained to his unit manager that he had been

harassed by correctional officer Williams. The unit manager

investigated LaFauci’s claim and, among other things, interviewed

Williams. He then informed LaFauci that Williams denied having

engaged in any harassing behavior but told LaFauci that, as a

precaution, all future interactions with him would be video

taped. Exhibit TP-9. Again, LaFauci did not pursue any appeal.

The following day, LaFauci submitted an inmate request slip to

Dr. Hill, complaining of pain and swelling in his knee. Dr. Hill

responded by encouraging LaFauci to go to sick call. Exhibit N-

20. LaFauci did not pursue any appeal. On January 18th, LaFauci

directed another inmate request slip to Dr. Ward, complaining

about his continued medical lay-in status. Dr. Ward responded by

informing LaFauci, “As long as you need crutches we will continue

your medical lay in for your safety and the safety of others. I

will keep in touch with the SHU staff about your meds. Please

13 inform the nurses about your medical problems.” Exhibit N-20.2

Finally, on January 21st, LaFauci directed an inmate request

slip to Dr. Sidley, complaining of pain in his knee, requesting

an MRI, and notifying D r . Sidley that “I will be going to court

soon.” D r . Sidley responded by telling LaFauci, “I’m sorry that

you feel that you must go to court. In any case, I am convinced

that you have been receiving proper treatment.” Exhibit N-22.

LaFauci has not submitted to the court (nor has he even made

reference to) any documentation demonstrating that he pursued his

administrative remedies relating to the events in question beyond

2 The reference to “SHU” in D r . Ward’s response is a short-hand name for the “Secure Housing Unit,” the most secure unit at the New Hampshire State Prison. Although it is unclear why he was held there, LaFauci appears to have been housed in SHU at all times relevant to this proceeding. Consequently, he was subjected to greater supervision and constraints on his movement than were the inmates in general population and concerns that he (or others) might use his crutches as weapons were likely heightened.

14 simply filing an inmate request slip; there i s , for example,

nothing in the record showing that he ever filed an inmate

grievance slip with the Warden as to any of those events. See

Exhibit 3-B to defendants’ memorandum. His most recent efforts

to exhaust, undertaken in August, 2001 (i.e., more than three and

one-half years after the events at issue occurred), were

insufficient and his “Grievance to Exhaust Administrative

Remedies,” Exhibit 3-C to defendants’ memorandum (the “omnibus

grievance”), suffers from several deficiencies.

First, although LaFauci’s omnibus grievance does reference

his complaint about the removal of his personal sneakers, it does

not appear to address all of the specific incidents at issue in

this case. Instead, it simply recites a series of alleged wrongs

to which he says he was subjected (without providing any dates)

and focuses largely on his claim that his transfer out of New

Hampshire was retaliatory (a claim not at issue in this case).

Second, even if it had addressed the events relevant to this

proceeding in detail sufficient to permit a meaningful

15 investigation, LaFauci’s grievance form was returned to him by

legal counsel to the Department of Corrections as having been

improperly filed and incomplete. See Exhibit 3-D to defendants’

memorandum. Specifically, LaFauci was reminded that inmates must

use request slips to resolve any disputes and must demonstrate

that such efforts were unsuccessful before submitting grievances.

His omnibus grievance failed to make such a showing. And,

parenthetically, the court notes that LaFauci’s failure to pursue

any of his requests or complaints beyond the “request slip” stage

suggests that each was answered or resolved to his satisfaction

(at least at that time). LaFauci was also reminded that, before

appealing to the Commissioner, an inmate must first bring his or

her complaint(s) to the attention of the Warden. Again, his

omnibus grievance form contains no evidence that he ever brought

any of his concerns to the attention of the Warden.

LaFauci was told how to correct the deficiencies in his

omnibus grievance and was also provided with a claim form, so

that he might seek compensation for the sneakers that were taken

16 from him. Nothing in the record suggests that LaFauci attempted

to address those identified deficiencies or that he submitted a

properly completed grievance form to the Warden relating to the

events at issue in this case. Consequently, his facially

deficient effort to circumvent one step in the administrative

process (i.e., appealing directly to the Commissioner prior to

filing an interim appeal with the Warden) cannot be viewed as

evidence that LaFauci properly exhausted his administrative

remedies.

Conclusion

The materials submitted by LaFauci (as supplemented by the

State) reveal that as to each complaint he had within the

relevant time frame, he filed an inmate request slip, an employee

of the Department of Corrections responded, and LaFauci did not

pursue the matter any further - he neither filed an inmate

grievance slip, nor did he otherwise attempt to bring the

matter(s) directly to the attention of the Warden o r , if

dissatisfied with the Warden’s response, to the Commissioner.

17 His recent efforts to exhaust by filing his “Grievance to Exhaust

Administrative Remedies” were deficient; his submission was not

properly filed and, therefore, was returned to him without

further action.

Consequently, on the current record, the court cannot

conclude that LaFauci exhausted his administrative remedies with

regard to the incidents that are the subject of this litigation.

His complaint i s , therefore, dismissed without prejudice, see

Booth v . Churner, 121 S.Ct. 1819 (2001), and the Clerk of the

Court shall close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3 1 , 2001

cc: Anthony LaFauci, pro se Mary E . Schwarzer, Esq.