LaMarche v. Bell, et al.

2006 DNH 117

• Court: District Court, D. New Hampshire
• Decided: October 13, 2006
• Docket: 04-CV-069-SM
• Status: Published

Opinion

LaMarche v . Bell, et a l . 04-CV-069-SM 10/13/06 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eric M . LaMarche, Sr., Plaintiff,

v. Civil N o . 04-cv-69-SM Opinion N o . 2006 DNH 117 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. Defendants move for summary judgment, saying

LaMarche failed to comply with the administrative exhaustion

requirements of the Prison Litigation Reform Act. For the

reasons set forth below, defendants’ motion is necessarily

granted. Legal Framework

I. Standard of Review.

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v . Smith, 904

F.2d 1 1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Intern’l Ass’n of

Machinists & Aerospace Workers v . Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).

II. The PLRA’s Administrative Exhaustion Requirement.

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,

2 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 cannot be obtained

through the available administrative processes. 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.”).

More recently, the Supreme Court made explicit that which

was implicit in Booth: the phrase “with respect to prison

conditions,” as used in the PLRA’s exhaustion provision,

incorporates within its scope not just conditions generally

affecting the inmate population, but also discrete incidents

affecting only a single individual.

[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and

3 whether they allege excessive force or some other wrong.

Porter v . Nussle, 534 U.S. 516, 532 (2002). Consequently, the

PLRA’s exhaustion requirement applies when the following three

criteria are met: (1) the lawsuit was filed by a “prisoner

confined in any jail, prison, or other correctional facility”;

(2) he or she filed that lawsuit after the effective date of the

PLRA (i.e., April 2 6 , 1996); and (3) the lawsuit is “with respect

to prison conditions,” as that phrase has been interpreted by the

Supreme Court.

Here, the first two conditions are plainly met: LaMarche is

an inmate at the New Hampshire State Prison and he filed this

suit in January of 2004, well after the PLRA’s effective date.

The remaining question is whether LaMarche’s assertion that

defendants violated his constitutionally protected rights - by

failing to protect him from two foreseeable assaults committed by

other inmates and by using excessive force against him - are

complaints “with respect to prison conditions.” They are. See

Porter, supra.

4 Accordingly, before he may pursue his section 1983 claims

against these defendants, LaMarche must first exhaust available

administrative remedies relating to those claims. Although

LaMarche did bring his complaints to the attention of prison

officials, he did not strictly adhere to the filing deadlines

established by the prison’s administrative regulations.

Consequently, defendants assert that he failed to comply with the

exhaustion requirements of the PLRA. Moreover, because the

deadlines for filing administrative grievances related to the

events at issue have passed, defendants say LaMarche has

forfeited the opportunity to administratively exhaust. Thus, say

defendants, not only has LaMarche failed to exhaust, but he is

also precluded from doing so and, therefore, cannot sue on the

asserted (but unexhausted and unexhaustable) claims.

Background

I. The Events Giving Rise to LaMarche’s Claims.

At all relevant times, LaMarche was housed in the prison’s

Secure Housing Unit (“SHU”). He says he was designated as a “PC-

single movement” inmate. That is to say, because there was

concern that he was vulnerable to attack by fellow inmates, he

5 was held in “protective custody” and was never transported with

or housed with other inmates. He claims defendants all knew that

he was a PC-single movement inmate. Nevertheless, LaMarche says

that on May 2 9 , 2002, defendant Jordan transported him from his

cell to the “barber room.” LaMarche claims that, contrary to

prison policy and with full knowledge that LaMarche should not be

left unattended with any other inmates, Jordan left him alone in

that room with an inmate named Rivera, while Jordan conducted his

rounds in other sections of SHU. While Jordan was gone, inmate

Rivera attacked LaMarche, seriously injuring him. LaMarche’s eye

sockets were fractured and his nose was broken. He required

emergency medical treatment and, several months later,

reconstructive surgery.

Approximately 18 months later, in October of 2003, LaMarche

says defendants Bell, Fedele, Dugre, Hopwood, and Karavas were

transporting him between cells within SHU. He claims defendants

handcuffed him and left him in an area of SHU that made him

vulnerable to attack from other inmates (among other things,

LaMarche says he informed the corrections officers that at least

one inmate was spitting on h i m ) . When LaMarche asked the

6 corrections officers to move him directly to his new cell, he

says they ignored his request. LaMarche says the officers then

released inmate Doughie from his cell and Doughie subsequently

attacked, beat, and sexually assaulted him. According to

LaMarche, none of the defendants made an effort to intervene on

his behalf to stop the assault. After the attack, defendants

ordered inmate Doughie to return to his cell. According to

LaMarche, those officers then used excessive force against him by

kicking and punching him until another corrections officer

arrived and ordered defendants to transport LaMarche to his new

cell.

II. Recent Amendments to the NHSP Inmate Grievance Process.

The NHSP has a three-tiered administrative grievance

procedure. See Exhibit E to defendants’ memorandum, New

Hampshire Department of Corrections Policy and Procedure

Directive (“PPD”) 1.16, entitled “Complaints and Grievances by

Persons under DOC Supervision.” See also LaFauci v . N.H. Dep’t

of Corrections, 2001 DNH 204 at 7-10 (D.N.H. Oct. 3 1 , 2001).

Shortly after the Supreme Court’s opinion in Porter, the NHSP

amended its administrative regulations governing the inmate

7 grievance process to provide, among other things, that inmates

must invoke the grievance process (by filing an inmate request

slip) within 30 calendar days of the date on which the event(s)

forming the basis of any complaint occurred. PPD 1.16 IV. If

the inmate is not satisfied with the response to his request

slip, he has an additional 30 days within which to file a

grievance with the warden. If the inmate is dissatisfied with

the warden’s response, he is afforded another 30-day period

within which to file a grievance with the Commissioner of

Corrections. The administrative regulations provide that

corrections officials retain the authority to waive any of these

administrative deadlines if the inmate shows a “valid” reason for

delay. Id.

The NHSP’s recently-adopted administrative deadlines are

mandatory and, absent a waiver, failure to comply with those

deadlines will result in the inmate’s request being denied as

untimely. Defendants assert that because LaMarche’s efforts to

exhaust the prison’s administrative remedies were untimely, and

because he did not obtain (or even seek) a waiver of those

deadlines, he is now precluded from exhausting.

8 LaMarche, on the other hand, points out that although he

failed to comply with the administrative deadlines applicable to

NHSP’s inmate grievance process, he did file the appropriate

inmate requests slips/grievances at each of the three levels

required by the NHSP’s regulations. On February 1 4 , 2005, he

filed an inmate request slip seeking financial reimbursement for

the assaults that form the basis of this suit. Although the

record is not entirely clear, it appears that request was denied

as untimely. Subsequently, LaMarche filed a grievance with the

prison’s warden, and then with the Commissioner of Corrections,

both of which were denied as untimely. Consequently, while

LaMarche did not comply with the prison’s administrative

deadlines, he did present corrections officials at all available

levels of appeal with the opportunity to address his complaints

on the merits, if they so desired. They declined that

opportunity, choosing instead to deny his grievances as time-

barred.

After defendants’ filed their motion for summary judgment,

but before the court addressed the merits of that motion, the

Supreme Court granted certiorari in a case involving precisely

9 the issue raised in this case: whether an inmate who seeks relief

at all available levels of a prison’s administrative grievance

procedure, but who fails to adhere to that procedure’s filing

deadlines, has “exhausted” available administrative remedies, as

required by the PLRA. See Woodford v . Ngo, 126 S . C t . 647 (2005)

(granting petition for certiorari). Accordingly, the court

stayed this action pending the Supreme Court’s resolution of the

issue, and afforded the parties an opportunity to supplement

their legal memoranda once a decision was issued in Ngo. The

deadline for such submissions has now passed. Defendants have

filed a supplemental memorandum, while LaMarche has elected not

to do s o .

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 filing

10 deadlines had passed. Next, he says that while his filings may

not have complied with the newly-adopted deadlines, there is no

evidence that he was provided with notice of those new deadlines.

Accordingly, he implicitly suggests 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 documented history of mental illness.

Defendants counter that Lamarche’s arguments lack merit and

cannot excuse his failure to comply strictly with the established

administrative grievance procedure, including its relatively

short time limitations. In support of their position, defendants

rely heavily on the Supreme Court’s recent opinion in Woodford v .

11 Ngo, 126 S . C t . 2378 (2006). In light of that opinion, say

defendants, LaMarche’s failure to comply with the prison’s

limitations periods applicable to inmate grievances means he has

failed to exhaust available administrative remedies and,

therefore, cannot pursue his claims in this forum. The court

agrees.

I. PLRA’s Exhaustion Requirement.

There is no doubt that the administrative exhaustion

requirement of the PLRA is compulsory. See Porter, 534 U.S. at

524 (“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-frame

prescribed by prison administrators. Until recently, there had

been a decided lack of agreement in the various circuit courts of

appeals on that issue. That disagreement has, however, been

resolved by the Supreme Court.

12 In Ngo, the Court held that, prior to filing a claim in

federal court, an inmate must fully and “properly” exhaust all

available prison administrative remedies in a timely manner. His

or her failure to do so will result in a complete bar to any

federal litigation arising out of those claims. In other words,

in Ngo the Court concluded that the text of the PLRA contains an

implicit procedural default provision, similar to the federal

common law procedural default principle made applicable to habeas

corpus petitions. Ngo, 126 S . C t . at 2387. See generally

Wainwright v . Sykes, 433 U.S. 72 (1977); Coleman v . Thompson, 501

U.S. 722 (1991).

The majority in Ngo has endorsed the notion that prison

officials can, in essence, create extremely short administrative

limitations periods (in that case, just 15 days), with which

inmates must strictly comply. Failure to comply with those

administrative limitations periods results in the loss of any

ability to pursue federal constitutional claims in federal court.

In other words, inmates who make procedural errors during the

course of attempting to exhaust available prison administrative

remedies are subjected to a “waiver sanction,” which completely

13 precludes access to federal courts on federal constitutional

claims.

The dissenters in Ngo compellingly argued against reading so

much into the text of the PLRA and counseled against inferring

the existence of an implicit procedural default provision.

In habeas law it is a separate judge-made doctrine of procedural default, stemming from our decision in Wainwright v . Sykes, 433 U.S. 72 (1977), that may bar relief even though a claim has been exhausted. This procedural default doctrine is based on unique considerations of comity in the habeas context, including the need to ensure that the state criminal trial remains the “main event” rather than a “tryout on the road” for a later federal habeas proceeding. Moreover, procedural default in habeas is closely related to the principle that this Court lacks certiorari jurisdiction to review a state-court judgment that rests on an adequate and independent state procedural ground. It is undisputed that these unique considerations do not apply in the context of 42 U.S.C. § 1983 suits, because the “very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights.”

Ngo, 126 S . C t . at 2396 n.5 (Stevens, J., dissenting) (citations

omitted). Plainly, however, the majority found those arguments

unpersuasive. And, while application of the principles

established by the majority opinion in Ngo may, in some cases,

14 result in harsh or even seemingly unjust results - the inability

of an inmate to pursue a valid and meritorious constitutional

claim in federal court, due to a simple procedural misstep - this

court is obviously bound to apply that precedent.1

II. LaMarche’s Claims were not Properly Exhausted.

In light of the Court’s opinion in Ngo, LaMarche’s position,

that he “exhausted” available administrative remedies by filing

his grievances with the appropriate authorities, albeit in an

1 As many courts have observed, the PLRA’s exhaustion requirement was not intended to prevent inmates from pursuing valid constitutional claims in federal court. Instead, Congress’ goal was to establish a means by which to filter out the valid claims from the frivolous. In his dissent, Justice Stevens observed:

As explained by Senator Hatch when he introduced the legislation on the Senate floor, the PLRA was needed because the quantity of frivolous suits filed by prisoners was, in Senator Hatch’s view, making it difficult for “courts to consider meritorious claims.” He continued: “Indeed, I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised.” Similarly, as Senator Thurmond, a cosponsor of the bill, stated: “[The PLRA] will allow meritorious claims to be filed, but gives the judge broader discretion to prevent frivolous and malicious lawsuits filed by prison inmates.

Ngo, 126 S . C t . at 2401 (Stevens, J., dissenting) (citations omitted).

15 untimely manner, is without merit. S o , too, is his contention

that he complied with the PLRA’s exhaustion requirement by filing

a claim with the New Hampshire Board of Claims. In neither of

those situations did LaMarche comply with the PLRA’s “proper

exhaustion requirement.” Ngo, 126 S.Ct. at 2386.

As to his assertion that he should be excused from strict

compliance with the prison’s administrative filing deadline

because (a) there is no evidence that he received notice of those

filing requirements, and (b) he suffers from mental illness, the

majority opinion in Ngo would seem to foreclose those arguments

as well. Moreover, even if such avenues remain open to inmates

who fail to timely exhaust available prison administrative

remedies, LaMarche has failed to demonstrate that he would be

entitled to the relief they might afford. In response to

LaMarche’s unsupported claim that he never received notice of the

30 day deadline within which to file inmate grievances,

defendants have submitted evidence that demonstrates the

contrary. Similarly, defendants have submitted evidence

demonstrating that LaMarche’s claimed mental illness did not

preclude him from understanding the nature and import of the

16 administrative filing deadlines. In response, LaMarche has

remained silent.

The majority opinion in Ngo establishes a seemingly harsh,

though straight-forward proposition: if an inmate fails to comply

with a prison’s administrative filing deadlines, the inmate has

not complied with the PLRA’s “proper exhaustion” requirement.

That, in turn, bars the inmate from litigating any claims in

federal court relating to the conditions of his or her

confinement. Such is the case here: there is no dispute that

LaMarche filed his administrative grievances in an untimely

manner. Consequently, he failed to properly exhaust those claims

as required by the PLRA and cannot pursue them in this forum.

LaMarche’s remedies, if any, would seem to lie in either the

state court system or with the state Board of Claims.

Conclusion

For the reasons set forth above, as well as those set forth

in defendants’ memoranda, defendants’ motion for summary judgment

(document n o . 47) is granted. The Clerk of Court shall enter

judgment in accordance with this order and close the case.

17 SO ORDERED.

Steven J./McAuliffe :hief ^Judge

October 1 3 , 2006

cc: Michael J. Sheehan, Esq. Nancy J. Smith, Esq.