Miner v. Grafton County DOC 06-CV-242-JD 2/19/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen Miner
v. Civil No. 06-CV-242-JD Opinion No. 2008 DNH 038
Grafton County Department of Corrections. Superintendent Glenn Libbv, et a l .
O R D E R
Stephen Miner, proceeding pro se and in forma pauperis,
brought suit against Superintendent Glenn Libby, Grafton County
Department of Corrections ("GCDC"), Officers Jason Reed and
Michael Dunn, and Captain Ronald LaFond. Following preliminary
review. Miner's claim under the Americans with Disabilities Act
("ADA") and his claims under 42 U.S.C. § 1983 were allowed. The
defendants move for summary judgment, contending that Miner did
not exhaust his administrative remedies as is required under 42
U.S.C. § 1997e(a). Miner objects to summary judgment.
Standard of Review
Summary judgment is appropriate when "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 a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
When the party moving for summary judgment also bears the burden
of proof at trial, summary judgment will not be granted unless no
reasonable jury could find for the nonmoving party. See E .E .0.C .
v. Union Independiente de la Autoridad de Acueductos v
Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002);
Winnacunnet v. National Union. 84 F.3d 32, 35 (1st Cir. 1996).
In opposing summary judgment, "an adverse party may not rest
upon the mere allegations or denials of [his] pleading, but [his]
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial." Fed. R. Civ. P. 56(e). A statement that is
signed under the penalties of perjury is also competent evidence
to oppose summary judgment. Goldman. Antonetti, Ferraiuoli,
Axtmaver & Hertell v. Medfit Int'l, Inc.. 982 F.2d 686, 689 (1st
Cir. 1993). In this district, memoranda submitted in support of
2 and in opposition to summary judgment must include a statement of
material facts with appropriate record citations, and all
properly supported material facts in the moving party's factual
statement are deemed to be true unless they are properly opposed
by the adverse party. LR 7.2(b).
Background
Superintendent Libby filed an affidavit and exhibits in
support of the defendants' motion for summary judgment. Miner
did not submit an affidavit, a sworn statement, or any evidence
to support his opposition to summary judgment. Therefore, the
statements in Libby's affidavit are taken as true and provide the
background information presented here.
Miner was incarcerated at the GCDC as a pretrial detainee
from May 24, 2006, until July 25, 2006, when he was transferred
to the New Hampshire State Prison. He alleges that he lacks a
right hip joint, making his right leg four inches shorter than
his left leg. He wears a homemade orthopedic shoe, which is a
shoe with flipflops glued to the bottom to make a bigger sole,
and uses a cane.
Miner received a copy of the GCDC rules and regulations
during the intake process. That document explains that grievance
forms can be requested from the unit officer who will forward the
grievance to the officer in charge for review by the captain.
3 The document also describes the rules and disciplinary process
used in the facility.
Miner filed grievance forms dated May 30, June 12, and July
2. The May 30 grievance addressed conduct by Officer Clark, who
is not a defendant in this suit, and the issue raised is
unrelated to the claims in this suit. On June 12, Miner
complained about the food in his housing unit, which is not a
claim raised in this suit and the officer involved is not a
defendant here. On July 2, Miner wrote that while he was
brushing his teeth, one broke, and he sought a dental
appointment. Again, that issue is not raised in his complaint.
Miner filed no grievance forms that address the claims he raises
here.
An incident report dated June 4, 2006, charges Miner with
flooding the handicap cell, where he was housed, by flushing a
pair of pants down the toilet. During the same incident. Miner
swore at the officer who was helping him clean his cell and threw
a urine-soaked wad of toilet paper at the camera in his cell,
blocking its view. He was put into lockdown status pending
review. Following the review, the report was included in Miner's
file, but he was not disciplined.
On June 13, Miner refused to cooperate while the nurse was
administering his medications and an officer was checking his
mouth to be sure he swallowed the medication. He also pressed
4 against the officer and suggested that she check his rectal area.
He refused to obey when she told him to step back. The officer
had Miner removed to the disciplinary block.
When he arrived in the disciplinary block. Miner was ordered
to remove his shoes for inspection. He refused and swore at the
officers. One of the officers told Miner that he would be
sprayed if he did not give them his shoes. In response. Miner
threw his shoes, including his homemade orthopedic shoe, at the
officers, hitting one of them.
Disciplinary reports were written for both incidents, and a
hearing was held on June 15 on the charges. Miner pled guilty to
using obscene, abusive, or profane language and was found guilty
of refusing to comply with simple orders and of throwing his
shoes at officers. He was assigned to lock down status for seven
days for the first incident and another seven days for the second
incident. He did not appeal that decision.
Miner filed his complaint in this case on July 3, 2006.
Discussion
Miner alleges that he has a disabling physical condition and
that the defendants violated the ADA by failing to provide him
5 with adequate accommodation for his disability, which would
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Miner v. Grafton County DOC 06-CV-242-JD 2/19/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen Miner
v. Civil No. 06-CV-242-JD Opinion No. 2008 DNH 038
Grafton County Department of Corrections. Superintendent Glenn Libbv, et a l .
O R D E R
Stephen Miner, proceeding pro se and in forma pauperis,
brought suit against Superintendent Glenn Libby, Grafton County
Department of Corrections ("GCDC"), Officers Jason Reed and
Michael Dunn, and Captain Ronald LaFond. Following preliminary
review. Miner's claim under the Americans with Disabilities Act
("ADA") and his claims under 42 U.S.C. § 1983 were allowed. The
defendants move for summary judgment, contending that Miner did
not exhaust his administrative remedies as is required under 42
U.S.C. § 1997e(a). Miner objects to summary judgment.
Standard of Review
Summary judgment is appropriate when "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 a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
When the party moving for summary judgment also bears the burden
of proof at trial, summary judgment will not be granted unless no
reasonable jury could find for the nonmoving party. See E .E .0.C .
v. Union Independiente de la Autoridad de Acueductos v
Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002);
Winnacunnet v. National Union. 84 F.3d 32, 35 (1st Cir. 1996).
In opposing summary judgment, "an adverse party may not rest
upon the mere allegations or denials of [his] pleading, but [his]
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial." Fed. R. Civ. P. 56(e). A statement that is
signed under the penalties of perjury is also competent evidence
to oppose summary judgment. Goldman. Antonetti, Ferraiuoli,
Axtmaver & Hertell v. Medfit Int'l, Inc.. 982 F.2d 686, 689 (1st
Cir. 1993). In this district, memoranda submitted in support of
2 and in opposition to summary judgment must include a statement of
material facts with appropriate record citations, and all
properly supported material facts in the moving party's factual
statement are deemed to be true unless they are properly opposed
by the adverse party. LR 7.2(b).
Background
Superintendent Libby filed an affidavit and exhibits in
support of the defendants' motion for summary judgment. Miner
did not submit an affidavit, a sworn statement, or any evidence
to support his opposition to summary judgment. Therefore, the
statements in Libby's affidavit are taken as true and provide the
background information presented here.
Miner was incarcerated at the GCDC as a pretrial detainee
from May 24, 2006, until July 25, 2006, when he was transferred
to the New Hampshire State Prison. He alleges that he lacks a
right hip joint, making his right leg four inches shorter than
his left leg. He wears a homemade orthopedic shoe, which is a
shoe with flipflops glued to the bottom to make a bigger sole,
and uses a cane.
Miner received a copy of the GCDC rules and regulations
during the intake process. That document explains that grievance
forms can be requested from the unit officer who will forward the
grievance to the officer in charge for review by the captain.
3 The document also describes the rules and disciplinary process
used in the facility.
Miner filed grievance forms dated May 30, June 12, and July
2. The May 30 grievance addressed conduct by Officer Clark, who
is not a defendant in this suit, and the issue raised is
unrelated to the claims in this suit. On June 12, Miner
complained about the food in his housing unit, which is not a
claim raised in this suit and the officer involved is not a
defendant here. On July 2, Miner wrote that while he was
brushing his teeth, one broke, and he sought a dental
appointment. Again, that issue is not raised in his complaint.
Miner filed no grievance forms that address the claims he raises
here.
An incident report dated June 4, 2006, charges Miner with
flooding the handicap cell, where he was housed, by flushing a
pair of pants down the toilet. During the same incident. Miner
swore at the officer who was helping him clean his cell and threw
a urine-soaked wad of toilet paper at the camera in his cell,
blocking its view. He was put into lockdown status pending
review. Following the review, the report was included in Miner's
file, but he was not disciplined.
On June 13, Miner refused to cooperate while the nurse was
administering his medications and an officer was checking his
mouth to be sure he swallowed the medication. He also pressed
4 against the officer and suggested that she check his rectal area.
He refused to obey when she told him to step back. The officer
had Miner removed to the disciplinary block.
When he arrived in the disciplinary block. Miner was ordered
to remove his shoes for inspection. He refused and swore at the
officers. One of the officers told Miner that he would be
sprayed if he did not give them his shoes. In response. Miner
threw his shoes, including his homemade orthopedic shoe, at the
officers, hitting one of them.
Disciplinary reports were written for both incidents, and a
hearing was held on June 15 on the charges. Miner pled guilty to
using obscene, abusive, or profane language and was found guilty
of refusing to comply with simple orders and of throwing his
shoes at officers. He was assigned to lock down status for seven
days for the first incident and another seven days for the second
incident. He did not appeal that decision.
Miner filed his complaint in this case on July 3, 2006.
Discussion
Miner alleges that he has a disabling physical condition and
that the defendants violated the ADA by failing to provide him
5 with adequate accommodation for his disability, which would
include housing him in an appropriately equipped cell and
allowing him to use his cane and his orthopedic shoe. Under §
1983, Miner alleges that by denying him his cane and orthopedic
shoe, the defendants deprived him of his right to equal
protection, that he was denied all access to personal hygiene
products and showers for five days in administrative segregation
in violation of the Fourteenth Amendment, that he was denied due
process prior to punishment, and that he was subjected to
unreasonable strip searches. The defendants assert, supported by
the affidavit of Superintendent Libby, that Miner failed to file
grievances related to any of his claims.
Section 1997e(a) requires prisoners to exhaust all available
administrative remedies before bringing a claim under federal law
that challenges prison conditions. The exhaustion requirement
applies to claims under the ADA as well as claims under § 1983.
Porter v. Nussle, 534 U.S. 516, 524 (2002); Woodford v. Nqo, 548
U.S. 81, 126 S. Ct. 2378, 2383 (2006); O'Guinn v. Lovelock Corr.
Ctr., 502 F.3d 1056, 1058 (9th Cir. 2007). Exhaustion under §
1997e(a) is an affirmative defense, and defendants who prove a
failure to exhaust are entitled to have unexhausted claims
dismissed. Jones v. Bock. 127 S. C t . 910, 921, 923-26 (2007);
Medina-Claudio v. Rodriquez-Mateo. 292 F.3d 31, 36 (1st Cir.
2002).
6 In this case, the defendants provide Libby's affidavit that
Miner filed only three grievances while he was incarcerated at
GCDC. Those grievances are unrelated to the claims in Miner's
complaint. Although Miner states in his objection that he did
file grievances and that he discussed his grievances with Libby
and LaFond, he failed to provide an affidavit or sworn statement
to support his allegations. In addition. Miner's statements
about his grievances, even if they were properly supported, are
too vague to oppose the defendants' evidence.
Miner states generally that he filed "the required
Grievances." He also states that he "made a note of one
grievance" and quotes the contents of his note. Miner's "note,"
however, only says that he was "exhausting, " that he met with
Libby on two occasions about unspecified grievances, and that he
handed grievances to Officer Devine and was assured that they
were submitted. Miner also states that cassettes could show the
content of his meetings with LaFond but offers no insight into
what those meetings were about.
None of Miner's statements provide any information about the
subject matter addressed in his grievances. It is undisputed
that Miner filed three grievances on topics unrelated to the
claims in his complaint. Therefore, his statements about
grievances, even if properly supported, do not provide evidence
7 that he filed grievances on the subject matter of the claims
raised here.
In the absence of properly supported facts showing a dispute
as to whether Miner filed the required grievances^ the defendants
have provided conclusive evidence that Miner did not exhaust his
available administrative remedies. Therefore^ the defendants are
entitled to summary judgment on all claims.
Conclusion
For the foregoing reasons, the defendants* motion for
summary judgment (document no. 24) is granted. The clerk of
court shall enter summary judgment in favor of the defendants on
all claims and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
February 19, 2008
cc: Brian J.S. Cullen, Esquire Donald E. Gardner, Esquire Donald L. Smith, Esquire Stephen Miner, pro se