LaMarche v . Bell, et a l . 04-CV-069-SM 11/08/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eric M . LaMarche, Sr., Plaintiff,
v. Civil N o . 04-cv-69-SM Opinion N o . 2005 DNH 154 Paul Bell, Roger Dugre, Daniel Fedele, Paul Hopwood, Eric Karavas, and Mark Jordan Defendants
O R D E R
Plaintiff, Eric M . LaMarche, Sr., is an inmate at the New
Hampshire State Prison (“NHSP”). He brings suit against several
corrections officials, claiming they violated his Eighth
Amendment rights by using excessive force against him and by
failing to protect him from foreseeable attacks committed by
other inmates. See generally 42 U.S.C. § 1983. Defendants move
for summary judgment, saying LaMarche failed to comply with the
administrative exhaustion requirements of the Prison Litigation
Reform Act. Legal Framework
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) (emphasis supplied). The Supreme Court has
held that section 1997(e) requires an inmate to exhaust all
available administrative processes before filing a federal suit
that relates to the conditions of his or her confinement, even if
some or all of the relief the inmate seeks is not available
through the administrative processes afforded by the State.
Booth v . Churner, 532 U.S. 7 3 1 , 734 (2001) (“The question is
whether an inmate seeking only money 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.”). See also Porter v . Nussle, 534 U.S. 516, 532 (2002).
Accordingly, before he may pursue his section 1983 claims against
these defendants, LaMarche must first exhaust available
administrative remedies relating to those claims.
2 Although LaMarche did bring his complaints to the attention
of prison officials, he did not strictly comply with the filing
deadlines established by the prison’s administrative regulations.
Consequently, defendants say he failed to comply with the
exhaustion requirements of the PLRA and, because the deadlines
for filing an administrative grievance related to the events at
issue in this case have passed, defendants assert that LaMarche
has forfeited the opportunity to administratively exhaust. Thus,
say defendants, not only did LaMarche fail to exhaust, but he is
also now precluded from doing so and, therefore, cannot sue on
the asserted (but unexhausted) claims.
Discussion
LaMarche says he gave prison authorities sufficient notice
of his claims and ought to be deemed to have “substantially”
complied with the PLRA’s exhaustion requirements. In support of
his position LaMarche advances four arguments. First, he says he
did “exhaust” available administrative remedies by filing all
required request slips and grievance forms with the appropriate
corrections personnel, albeit after the administrative deadlines
had lapsed. Next, he says that while his filings may not have
3 complied with the newly-adopted deadlines, there is no evidence
that he was provided with notice of those new deadlines,
implicitly suggesting that the new filing deadlines should not
apply to him.
Alternatively, LaMarche says he fully exhausted his
administrative remedies, albeit through an atypical route - that
i s , by filing an administrative claim with the New Hampshire
Board of Claims (which was subsequently denied, since LaMarche
sought damages ($500,000) beyond the jurisdictional limit of that
board). See generally N.H. Rev. Stat. Ann. ch. 541-B. And,
finally, LaMarche argues that he should be excused from strict
compliance with the administrative deadlines due to incapacity,
pointing to his well-documented mental illness. Defendants
counter that Lamarche’s arguments lack merit and do not excuse
his failure to comply with the established administrative
grievance procedure, including its relatively short time
limitations.
That the administrative exhaustion requirement of the PLRA
is compulsory is beyond argument. See Porter, 534 U.S. at 524
4 (“Once within the discretion of the district court, exhaustion in
cases covered by § 1997e(a) is now mandatory.”). The question
presented in this case is whether an inmate may comply with that
mandatory exhaustion requirement by pursuing available prison
administrative remedies beyond the time established by prison
administrators. On that issue, there is a decided lack of
agreement among the various circuit courts of appeals that have
addressed i t .
The Third, Seventh, Tenth, and Eleventh Circuits have
adopted the most rigid approach, importing the concept of
“procedural default” from the habeas context and concluding that
an inmate’s failure to comply with established deadlines for
filing an administrative grievance precludes exhaustion of
administrative remedies (seemingly without regard to how short
those time periods may b e , whether they are “reasonable,” or
whether they are justified by legitimate penological or even
administrative concerns). That failure to exhaust, in turn, bars
any subsequent federal suit arising out of the events that should
have been the subject of the administrative grievance. See Pozo
v . McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Ross v .
5 County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004);
Spruill v . Gillis, 372 F.3d 2 1 8 , 222 (3d Cir. 2004); Johnson v .
Meadows, 418 F.3d 1152, 1157-59 (11th Cir. 2005).
The Court of Appeals for the Second Circuit has embraced a
more relaxed standard, concluding that an inmate’s failure to
exhaust available prison administrative remedies does not bar the
inmate’s subsequent federal suit when: (1) defendants have waived
the affirmative defense of non-exhaustion; (2) defendants have
engaged in conduct that effectively estops them from invoking
that affirmative defense; or (3) “special circumstances” exist
that equitably excuse an inmate’s failure to exhaust. See Giano
v . Goord, 380 F.3d 6 7 0 , 675-76 (2d Cir. 2004) (collecting cases).
Finally, the Courts of Appeals for the Sixth and Ninth
Circuits have held that an inmate complies with the PLRA
exhaustion requirement so long as he or she actually files an
administrative claim with prison officials and pursues all
available avenues of appeal, even if the filing was untimely
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LaMarche v . Bell, et a l . 04-CV-069-SM 11/08/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eric M . LaMarche, Sr., Plaintiff,
v. Civil N o . 04-cv-69-SM Opinion N o . 2005 DNH 154 Paul Bell, Roger Dugre, Daniel Fedele, Paul Hopwood, Eric Karavas, and Mark Jordan Defendants
O R D E R
Plaintiff, Eric M . LaMarche, Sr., is an inmate at the New
Hampshire State Prison (“NHSP”). He brings suit against several
corrections officials, claiming they violated his Eighth
Amendment rights by using excessive force against him and by
failing to protect him from foreseeable attacks committed by
other inmates. See generally 42 U.S.C. § 1983. Defendants move
for summary judgment, saying LaMarche failed to comply with the
administrative exhaustion requirements of the Prison Litigation
Reform Act. Legal Framework
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) (emphasis supplied). The Supreme Court has
held that section 1997(e) requires an inmate to exhaust all
available administrative processes before filing a federal suit
that relates to the conditions of his or her confinement, even if
some or all of the relief the inmate seeks is not available
through the administrative processes afforded by the State.
Booth v . Churner, 532 U.S. 7 3 1 , 734 (2001) (“The question is
whether an inmate seeking only money 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.”). See also Porter v . Nussle, 534 U.S. 516, 532 (2002).
Accordingly, before he may pursue his section 1983 claims against
these defendants, LaMarche must first exhaust available
administrative remedies relating to those claims.
2 Although LaMarche did bring his complaints to the attention
of prison officials, he did not strictly comply with the filing
deadlines established by the prison’s administrative regulations.
Consequently, defendants say he failed to comply with the
exhaustion requirements of the PLRA and, because the deadlines
for filing an administrative grievance related to the events at
issue in this case have passed, defendants assert that LaMarche
has forfeited the opportunity to administratively exhaust. Thus,
say defendants, not only did LaMarche fail to exhaust, but he is
also now precluded from doing so and, therefore, cannot sue on
the asserted (but unexhausted) claims.
Discussion
LaMarche says he gave prison authorities sufficient notice
of his claims and ought to be deemed to have “substantially”
complied with the PLRA’s exhaustion requirements. In support of
his position LaMarche advances four arguments. First, he says he
did “exhaust” available administrative remedies by filing all
required request slips and grievance forms with the appropriate
corrections personnel, albeit after the administrative deadlines
had lapsed. Next, he says that while his filings may not have
3 complied with the newly-adopted deadlines, there is no evidence
that he was provided with notice of those new deadlines,
implicitly suggesting that the new filing deadlines should not
apply to him.
Alternatively, LaMarche says he fully exhausted his
administrative remedies, albeit through an atypical route - that
i s , by filing an administrative claim with the New Hampshire
Board of Claims (which was subsequently denied, since LaMarche
sought damages ($500,000) beyond the jurisdictional limit of that
board). See generally N.H. Rev. Stat. Ann. ch. 541-B. And,
finally, LaMarche argues that he should be excused from strict
compliance with the administrative deadlines due to incapacity,
pointing to his well-documented mental illness. Defendants
counter that Lamarche’s arguments lack merit and do not excuse
his failure to comply with the established administrative
grievance procedure, including its relatively short time
limitations.
That the administrative exhaustion requirement of the PLRA
is compulsory is beyond argument. See Porter, 534 U.S. at 524
4 (“Once within the discretion of the district court, exhaustion in
cases covered by § 1997e(a) is now mandatory.”). The question
presented in this case is whether an inmate may comply with that
mandatory exhaustion requirement by pursuing available prison
administrative remedies beyond the time established by prison
administrators. On that issue, there is a decided lack of
agreement among the various circuit courts of appeals that have
addressed i t .
The Third, Seventh, Tenth, and Eleventh Circuits have
adopted the most rigid approach, importing the concept of
“procedural default” from the habeas context and concluding that
an inmate’s failure to comply with established deadlines for
filing an administrative grievance precludes exhaustion of
administrative remedies (seemingly without regard to how short
those time periods may b e , whether they are “reasonable,” or
whether they are justified by legitimate penological or even
administrative concerns). That failure to exhaust, in turn, bars
any subsequent federal suit arising out of the events that should
have been the subject of the administrative grievance. See Pozo
v . McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Ross v .
5 County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004);
Spruill v . Gillis, 372 F.3d 2 1 8 , 222 (3d Cir. 2004); Johnson v .
Meadows, 418 F.3d 1152, 1157-59 (11th Cir. 2005).
The Court of Appeals for the Second Circuit has embraced a
more relaxed standard, concluding that an inmate’s failure to
exhaust available prison administrative remedies does not bar the
inmate’s subsequent federal suit when: (1) defendants have waived
the affirmative defense of non-exhaustion; (2) defendants have
engaged in conduct that effectively estops them from invoking
that affirmative defense; or (3) “special circumstances” exist
that equitably excuse an inmate’s failure to exhaust. See Giano
v . Goord, 380 F.3d 6 7 0 , 675-76 (2d Cir. 2004) (collecting cases).
Finally, the Courts of Appeals for the Sixth and Ninth
Circuits have held that an inmate complies with the PLRA
exhaustion requirement so long as he or she actually files an
administrative claim with prison officials and pursues all
available avenues of appeal, even if the filing was untimely
under the prison’s administrative procedures. See Thomas v .
6 Woolum, 337 F.3d 720 (6th Cir. 2003); Ngo v . Woodford, 403 F.3d
620 (9th Cir. 2005).
Although the Court of Appeals for the First Circuit has yet
to address the issue, it has, like several other courts of
appeals, concluded that an inmate’s failure to comply with the
PLRA’s exhaustion requirement is not a jurisdictional defect.
Instead, it is an affirmative defense, which must be raised and
proved by the defendants. See Casanova v . Dubois, 304 F.3d 7 5 ,
77 n.3 (1st Cir. 2002). It is reasonable to expect, then, that
the court, like the Court of Appeals for the Second Circuit,
would also conclude that the affirmative defense of non-
exhaustion is not available under certain circumstances (e.g.,
circumstances involving waiver, estoppel, or equitable tolling).
See, e.g., Wendell v . Asher, 162 F.3d 8 8 7 , 890 (5th Cir. 1998)
(cited with approval by Casanova, supra). Whether the court
would fully embrace the view adopted by the Sixth and Ninth
Circuits on exhaustion and time-barred complaints i s , however,
unresolved and open to speculation. Time will tell.
7 In the meantime, this court must resolve the parties’
current dispute: whether defendants are entitled to judgment as a
matter of law because LaMarche’s section 1983 suit is barred due
to his failure to timely exhaust available prison administrative
remedies. But, regardless of whether this court embraces the
view adopted by the Seventh, Second, or Sixth Circuit Court of
Appeals on inmate exhaustion of available administrative
processes, defendants’ motion for summary judgment cannot be
resolved simply upon the parties’ filings. Accordingly, the
Clerk of Court shall confer with counsel and schedule a hearing
at which the parties should be prepared to present relevant
evidence and discuss:
1. Whether LaMarche sought a waiver of the administrative filing deadlines under the prison’s rules and, if not, whether such a waiver might be available to him if he were to seek one (or, viewed slightly differently, whether seeking such a waiver at this point would be futile);
2. If the court were to adopt the procedural default concept embraced by the Seventh Circuit, whether LaMarche can demonstrate cause and prejudice;
3. If the court were to adopt the view embraced by the Second Circuit, whether LaMarche has evidence to support his assertion that principles of equity should permit him to
8 proceed with this suit (e.g., the nature of LaMarche’s asserted mental illness, and the extent to which it might have impaired his ability to comply with the prison’s administrative filing deadlines);
4. Whether LaMarche received notice of the recently adopted administrative deadlines and, if not, if that might serve to equitably estop defendants from asserting that his administrative grievances were untimely; and
5. Evidence supportive of any other argument(s) advanced by LaMarche that his failure to comply with the prison’s administrative filing deadlines does not preclude him from pursuing this federal litigation (i.e., evidence supportive of his claimed entitlement to equitable estoppel or demonstrating that “special circumstances” exist to excuse his failure to strictly comply with the filing deadlines).
The Clerk of Court shall confer with counsel for the
defendants and counsel for the plaintiff and schedule a hearing
on this matter at a mutually convenient date and time.
SO ORDERED. ^-v^
Steven J. McAuliffe ^Chief Judge
November 8, 2005
cc: Michael J. Sheehan, Esq. Nancy J. Smith, Esq.