UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard LaRiviere
v. Civil No. 14-cv-405-JD Opinion No. 2016 DNH 032 Adam Rosario, et al.
O R D E R
Richard LaRiviere, proceeding pro se and in forma pauperis,
brings civil rights claims under 42 U.S.C. § 1983 against Adam
Rosario, a corrections officer, and other employees of the
Hillsborough County Department of Corrections. LaRiviere’s
claims arose while he was incarcerated as a pretrial detainee.
Rosario moves for summary judgment, and LaRiviere objects.1
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
1LaRiviere’s pending motion for discovery does not affect the outcome of the motion for summary judgment. Cf. Fed. R. Civ. P. 56(d). case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
2015). Reasonable inferences are taken in the light most
favorable to the nonmoving party, but unsupported speculation
and evidence that “is less than significantly probative” are not
sufficient to avoid summary judgment. Planadeball v. Wyndham
Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
Background2
LaRiviere was a pretrial detainee at the Hillsborough
County House of Corrections on June 17, 2014. His cellmate was
Devonta Searcy. Searcy provided his affidavit in support of
Rosario’s motion for summary judgment in which he describes the
events on the night on June 17.
Searcy states that while he was sleeping, an officer shined
a light on his face, which woke him up. Once awake, he heard
2 Under the local rules of this district, “a memorandum in support of a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried.” LR 56.1(a). Rosario’s memorandum did not include the required factual statement but instead provided facts with record citations in the argument section of the memorandum. Counsel is put on notice that the memorandum does not conform to the local rule and similar filings in the future may be rejected. LaRiviere’s objection also does not include a factual statement. See LR 56.1(b).
2 LaRiviere moaning and calling “help” softly. When he looked
down from his bunk, he saw blood dripping from LaRiviere’s bunk.
Searcy went to the cell door and called for an officer. An
officer came to the door, and Searcy told him that there was
blood on the floor. The officer looked in with a flashlight and
called a “code” on his radio. Other officers and a nurse
responded to the call. Searcy was removed to another cell while
they attended to LaRiviere.
In his own affidavit, Rosario provides a chronology of
events that he took from the jail reports and records. Rosario
went to the cell door when Searcy called and saw LaRiviere on
the bottom bunk with a small amount of blood on the floor.
LaRiviere did not answer to Rosario calling his name. Rosario
called a “10-33” on his radio, which announced a medical
emergency, and a supervisor, three officers, and a nurse
responded. LaRiviere had a cut on his leg and was taken to the
Elliott Hospital Emergency Room.
While in the hospital, LaRiviere told the officer assigned
to him that he was attempting to commit suicide. He said that
just before lights out, he cut his leg with his razor and then
wrapped the leg in a towel and went to sleep. When he got up
later to go to the bathroom, he got blood on the floor and
passed out but managed to get back to his bunk.
3 LaRiviere disputes both Searcy’s account and Rosario’s
account of what happened that night. LaRiviere, however, did
not provide his own affidavit or any other evidence to support
his version of events.3 In addition, because LaRiviere’s claim
against Rosario is dismissed due to a lack of exhaustion, it is
not necessary to resolve the factual disputes LaRiviere raises.
Rosario also states in his affidavit that LaRiviere’s
inmate file includes only one grievance, dated June 9, 2014,
before the suicide attempt. That grievance asks to speak to a
doctor about a rash and lower back pain and states that Nurse
Wheeler has a grudge against LaRiviere. The response to the
grievance is dated June 12, 2014. LaRiviere did not file a
grievance about the suicide incident.
Discussion
As his complaint and amended complaint were construed on
preliminary review, LaRiviere alleges that Rosario violated his
Fourteenth Amendment right to humane treatment by being
deliberately indifferent to LaRiviere’s substantial risk of
serious harm in the suicide attempt. Rosario moves for summary
judgment on the grounds that the undisputed facts show that he
was not deliberately indifferent to a serious medical need and
3See Fed. R. Civ. P. 56(c) & LR 56.1(b).
4 that LaRiviere’s claim cannot proceed because he failed to
exhaust his administrative remedies. Because the issue of
exhaustion is dispositive, the court does not address the merits
of the claim.
A prisoner is prohibited from bringing a claim challenging
prison conditions under § 1983 “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
To satisfy the requirements of § 1997e(a), the prisoner must
exhaust the administrative remedies properly, which includes
“compliance with an agency’s deadlines and other procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 91 (2006). Failure to
exhaust is an affirmative defense to the claim brought by the
prisoner. Jones v. Bock, 549 U.S. 199, 211 (2007).
Rosario provides evidence and LaRiviere does not dispute
that Hillsborough County Department of Corrections had a
mandatory grievance procedure in 2014 when these events
occurred. Rosario also shows that the grievance procedure was
available to LaRiviere and that LaRiviere had filed a grievance
less than two weeks before the suicide incident. The record
shows no grievance filed by LaRiviere about the suicide
incident.
In his objection, LaRiviere addresses the exhaustion
requirement only briefly. He states: “Once again the subject
5 of grievances is being brought up. One cannot file a grievance
if one is not allowed to do so.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard LaRiviere
v. Civil No. 14-cv-405-JD Opinion No. 2016 DNH 032 Adam Rosario, et al.
O R D E R
Richard LaRiviere, proceeding pro se and in forma pauperis,
brings civil rights claims under 42 U.S.C. § 1983 against Adam
Rosario, a corrections officer, and other employees of the
Hillsborough County Department of Corrections. LaRiviere’s
claims arose while he was incarcerated as a pretrial detainee.
Rosario moves for summary judgment, and LaRiviere objects.1
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
1LaRiviere’s pending motion for discovery does not affect the outcome of the motion for summary judgment. Cf. Fed. R. Civ. P. 56(d). case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
2015). Reasonable inferences are taken in the light most
favorable to the nonmoving party, but unsupported speculation
and evidence that “is less than significantly probative” are not
sufficient to avoid summary judgment. Planadeball v. Wyndham
Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
Background2
LaRiviere was a pretrial detainee at the Hillsborough
County House of Corrections on June 17, 2014. His cellmate was
Devonta Searcy. Searcy provided his affidavit in support of
Rosario’s motion for summary judgment in which he describes the
events on the night on June 17.
Searcy states that while he was sleeping, an officer shined
a light on his face, which woke him up. Once awake, he heard
2 Under the local rules of this district, “a memorandum in support of a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried.” LR 56.1(a). Rosario’s memorandum did not include the required factual statement but instead provided facts with record citations in the argument section of the memorandum. Counsel is put on notice that the memorandum does not conform to the local rule and similar filings in the future may be rejected. LaRiviere’s objection also does not include a factual statement. See LR 56.1(b).
2 LaRiviere moaning and calling “help” softly. When he looked
down from his bunk, he saw blood dripping from LaRiviere’s bunk.
Searcy went to the cell door and called for an officer. An
officer came to the door, and Searcy told him that there was
blood on the floor. The officer looked in with a flashlight and
called a “code” on his radio. Other officers and a nurse
responded to the call. Searcy was removed to another cell while
they attended to LaRiviere.
In his own affidavit, Rosario provides a chronology of
events that he took from the jail reports and records. Rosario
went to the cell door when Searcy called and saw LaRiviere on
the bottom bunk with a small amount of blood on the floor.
LaRiviere did not answer to Rosario calling his name. Rosario
called a “10-33” on his radio, which announced a medical
emergency, and a supervisor, three officers, and a nurse
responded. LaRiviere had a cut on his leg and was taken to the
Elliott Hospital Emergency Room.
While in the hospital, LaRiviere told the officer assigned
to him that he was attempting to commit suicide. He said that
just before lights out, he cut his leg with his razor and then
wrapped the leg in a towel and went to sleep. When he got up
later to go to the bathroom, he got blood on the floor and
passed out but managed to get back to his bunk.
3 LaRiviere disputes both Searcy’s account and Rosario’s
account of what happened that night. LaRiviere, however, did
not provide his own affidavit or any other evidence to support
his version of events.3 In addition, because LaRiviere’s claim
against Rosario is dismissed due to a lack of exhaustion, it is
not necessary to resolve the factual disputes LaRiviere raises.
Rosario also states in his affidavit that LaRiviere’s
inmate file includes only one grievance, dated June 9, 2014,
before the suicide attempt. That grievance asks to speak to a
doctor about a rash and lower back pain and states that Nurse
Wheeler has a grudge against LaRiviere. The response to the
grievance is dated June 12, 2014. LaRiviere did not file a
grievance about the suicide incident.
Discussion
As his complaint and amended complaint were construed on
preliminary review, LaRiviere alleges that Rosario violated his
Fourteenth Amendment right to humane treatment by being
deliberately indifferent to LaRiviere’s substantial risk of
serious harm in the suicide attempt. Rosario moves for summary
judgment on the grounds that the undisputed facts show that he
was not deliberately indifferent to a serious medical need and
3See Fed. R. Civ. P. 56(c) & LR 56.1(b).
4 that LaRiviere’s claim cannot proceed because he failed to
exhaust his administrative remedies. Because the issue of
exhaustion is dispositive, the court does not address the merits
of the claim.
A prisoner is prohibited from bringing a claim challenging
prison conditions under § 1983 “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
To satisfy the requirements of § 1997e(a), the prisoner must
exhaust the administrative remedies properly, which includes
“compliance with an agency’s deadlines and other procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 91 (2006). Failure to
exhaust is an affirmative defense to the claim brought by the
prisoner. Jones v. Bock, 549 U.S. 199, 211 (2007).
Rosario provides evidence and LaRiviere does not dispute
that Hillsborough County Department of Corrections had a
mandatory grievance procedure in 2014 when these events
occurred. Rosario also shows that the grievance procedure was
available to LaRiviere and that LaRiviere had filed a grievance
less than two weeks before the suicide incident. The record
shows no grievance filed by LaRiviere about the suicide
incident.
In his objection, LaRiviere addresses the exhaustion
requirement only briefly. He states: “Once again the subject
5 of grievances is being brought up. One cannot file a grievance
if one is not allowed to do so. This was a right of the
plaintiff that was repeatedly denied outright by jail staff.”
LaRiviere provided no affidavit or any other evidence to support
that statement.
LaRiviere’s statement is not properly supported and is not
competent to dispute Rosario’s evidence that the grievance
process was available to LaRiviere. LaRiviere does not explain
what efforts he made to file a grievance or how he was prevented
from doing so. Ojo v. Medic, 2012 WL 7150497, at *6-*7 (D.N.H.
Dec. 17, 2012) (explaining showing necessary to raise issue of
unavailability). Further, the record shows that LaRiviere did
file a grievance against another jail employee shortly before
the suicide incident.
Rosario has met his burden of showing that LaRiviere failed
to exhaust the administrative remedies that were available to
him before he filed suit. See, e.g., Santiago v. N.H. Dep’t of
Corrs., 2015 WL 5097782, at *5 (D.N.H. Aug. 27, 2015); Kargbo v.
Brown, 2013 WL 6533230, at *3 (D.N.H. Dec. 13, 2013). Because
LaRiviere did not show a factual dispute about his failure to
exhaust or the availability of the grievance process, Rosario is
entitled to summary judgment on the claim brought against him.
6 Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 51) is granted. Count III is
dismissed.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
February 23, 2016
cc: Richard LaRiviere, pro se John A. Curran, Esq. Sarah Murdough, Esq.