Perfetto v . NH State Prison et al CV-06-307-JL 4/8/08
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jonathan Andrew Perfetto
v. Civil N o . 06-307-JL Opinion N o . 2008 DNH 077 New Hampshire State Prison, Warden et al. 1
MEMORANDUM AND ORDER
Plaintiff Jonathan Andrew Perfetto, a New Hampshire State
Prison (NHSP) inmate, seeks injunctive relief and damages under
42 U.S.C. § 1983 for a variety of alleged civil rights violations
relating to his incarceration.
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and statute .
. . .” United States v . Coloian, 480 F.3d 4 7 , 50 (1st Cir. 2007)
1 The following NHSP employees comprise the defendants in this case: Unit Manager Lucy Bilodeau, Unit Manager Tim Moquin, Unit Manager Matthew Moyer, Counselor Robert McGrath, Cpl. First Name Unknown (FNU) Brown, L t . FNU Gauthier, L t . Joe Michaud, Sgt. FNU O’Brien, Sgt. FNU Parent, Corrections Officers FNU Ash, FNU Bell, FNU Charter, FNU Edsall, FNU Edmark, FNU Fedele, FNU Flynn, FNU Isabelle, FNU Iseman, FNU Valenti, and FNU Washburn, as well as inmate Timothy Wheeler and several “John Doe” defendants.
A June 2 0 , 2007 order of this court, adopting Magistrate Judge Muirhead’s Report and Recommendation, dismissed the case against additional defendants Cattell, Wrenn, Coplan, Cunningham, Curry, Leitner, Perron, Mosher, Provencher, Mallette, Fellows, and Desmond. (quoting Kokkonen v . Guardian Life Ins. C o . of America, 511 U.S.
375, 377 (1994)). Jurisdiction over this case, uncontested by
the defendants, arises under 28 U.S.C. §§ 1331 (federal question)
and 1343 (civil rights).
The defendants have moved for summary judgment under Fed. R.
Civ. P. 5 6 , arguing that the plaintiff failed to exhaust the
administrative remedies available to him as required by the
Prisoner Litigation Reform Act, 42 U.S.C. § 1997e (PLRA), prior
to bringing this action.
The court heard oral argument on April 2 , 2008. 2 For the
reasons set forth below, the court finds and rules that Perfetto
did not exhaust the administrative remedies available to him and
therefore grants summary judgment in favor of the defendants.
APPLICABLE LEGAL STANDARD
Under Fed. R. Civ. P. 56(c), a motion for summary judgment
will be granted if “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
2 The hearing was conducted via video-conference with the petitioner at the N.H. State Prison facility in Berlin, pursuant to Local Rule 83.7(c).
2 as a matter of law.” See Anderson v . Liberty Lobby, Inc., 477
U.S. 242, 247 (1986); Celotex Corp. v . Catrett, 477 U.S. 317, 322
(1986). To defeat a motion for summary judgment, “the non-moving
party must set forth specific facts showing that a genuine issue
of material fact exists as to each issue upon which she would
bear the ultimate burden of proof at trial.” Torres-Negron v .
Merck & Co., 488 F.3d 3 4 , 39 (1st Cir. 2007) (internal quotation
marks omitted). 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
& Aero. Workers v . Winship Green Nursing Ctr., 103 F.3d 196, 199-
200 (1st Cir. 1996); see also Navarro v . Pfizer Corp., 261 F.3d
9 0 , 93-94 (1st Cir. 2001). In deciding whether summary judgment
is proper, the court must view the entire record in the light
most favorable to the nonmoving party and draw all reasonable
inferences in that party’s favor. Zyla v . Wadsworth, 360 F.3d
243, 246 (1st Cir. 2004).
3 ANALYSIS
The opening provision of the PLRA sets forth its
“invigorated”3 administrative exhaustion requirement. Because
the main purpose of PLRA (itself a group of amendments to the
Civil Rights of Institutionalized Persons Act (CRIPA)) is “to
reduce the quantity and improve the quality of prisoner suits,”4
the exhaustion requirement has been described by the Supreme
Court as the PLRA’s “centerpiece.” Woodford v . Ngo, 548 U.S. 8 1 ,
, 126 S . C t . 2378, 2382 (2006). It provides:
(a) Applicability of Administrative Remedies. No action shall be brought with respect to prison conditions under §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). The PLRA requires prisoners asserting a
claim under 42 U.S.C. § 1983 to exhaust administrative remedies
before–-literally, as a condition precedent to–-putting the
claims into suit. As the Supreme Court noted in Porter, “[a]ll
available remedies must now be exhausted; those remedies need not
meet federal standards, nor must they be plain, speedy and
effective.” 534 U.S. at 524 (internal quotation marks omitted).
3 Porter v . Nussle, 534 U.S. 516, 524 (2002). 4 Id.
4 Specifically, what “the PLRA exhaustion requirement
requires” of prisoners is “proper exhaustion.” Woodford, 126
S . C t . at 2387. The doctrine of proper exhaustion provides: “As
a general rule . . . courts should not topple over administrative
decisions unless the administrative body not only has erred, but
has erred against objection made at the time appropriate under
its practice.” Id. at 2385 (internal bracketing omitted)
(quoting United States v . L.A. Tucker Truck Lines, 344 U.S. 3 3 ,
37 (1952)). “Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.” Id.
at 2386 (footnote omitted). In order to fully and properly
exhaust all available remedies, “a prisoner must file complaints
and appeals in the place, and at the time, the prison’s
administrative rules require.” Acosta v . U.S. Marshals Serv.,
445 F.3d 509, 512 (1st Cir. 2006) (quoting Pozo v . McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002)). Conversely, proper
exhaustion cannot be achieved “by filing an untimely or otherwise
procedurally defective administrative grievance or appeal.”
Woodford, 126 S . C t . at 2382; see also Brewer v . Mullin, 130 Fed.
Appx. 264, 265-66 (10th Cir. 2005) (skipping steps in the
prison’s grievance procedure constitutes failure to exhaust).
5 “[T]here is no ‘futility exception’ to the PLRA exhaustion
requirement.” Medina-Claudio v . Rodriguez-Mateo, 292 F.3d 3 1 , 35
(1st Cir. 2002). In other words, even if the prison’s
administrative process does not provide for the type of relief
the inmate desires, the prisoner must complete any prison
administrative process capable of addressing the inmate’s
complaint and providing some form of relief. Booth v . Churner,
532 U.S. 731, 739 (2001). Thus “a prisoner must now exhaust
administrative remedies even where the relief sought--monetary
damages--cannot be granted by the administrative process.”
Woodford, 126 S . C t . at 2382-83 (citing Booth, 532 U.S. at 7 3 4 ) .
BACKGROUND5
The Department of Corrections has promulgated administrative
remedies in the form of a formal grievance procedure for dealing
with inmates’ complaints. The grievance, procedure entitled New
Hampshire Department of Corrections Policy and Procedure
Directive (PPD) 1.16, is set forth in the New Hampshire State
Prison Inmate Manual. As Perfetto admitted at oral argument,
this manual is provided to all inmates upon admission to the
5 The court finds all facts, and draws all factual inferences, in the light most favorable to the plaintiff. Zyla, 360 F.3d at 246.
6 facility, was in fact provided to him, and is available in the
prison library.
PPD 1.16 requires an inmate make an initial attempt--albeit
an informal one--to resolve any issue with the staff member
involved. If that fails, a three-level grievance procedure is
set in motion with the filing of a written complaint--known as an
inmate request slip (IRS)--with the lowest level staff member
authorized to deal with the issue in question.6 The IRS must be
filed within 30 days of the underlying incident or it will be
rejected as untimely. Once filed, prison officials are required
to conduct an appropriate investigation of the issues raised and
provide a written response to the inmate within 15 days.
At the second level, an inmate dissatisfied with the
prison’s response may pursue further administrative remedies by
submitting a “grievance form” to the Warden. The inmate is
afforded 30 days from the receipt of the response to appeal to
6 “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 [PPD 1.16(IV)(A)(4)]; Inmate Manual, § D(3).” LaFauci v . N.H. Dept. of Corr., 2001 DNH 204, 2001 WL 1570932, at *7 (D.N.H. Oct. 3 1 , 2001). A grievance filed directly with the Warden or Commissioner must still be filed within 30 days of the complained of incident. PPD 1.16(IV)(A)(4).
7 the Warden, who then has 30 days to conduct any necessary
investigation and make a decision.
The third and final level of the grievance procedure enables
the inmate to appeal the Warden’s decision to the Commissioner of
Corrections. Any appeal to the Commissioner must be filed within
30 days of the Warden’s response and the Commissioner in turn has
30 days to decide. The Commissioner’s decision is final. See
PPD 1.16, at 3-4; Inmate Manual, § D. Until the Commissioner has
responded to the grievance, the inmate has not fully exhausted
all of his or her administrative remedies.
The policy expressly stresses the importance of the filing
deadlines to inmates cautioning them that “[t]he timeframes set
out in this policy are mandatory. . . . Failure to comply with
the timeframes . . . will result in a request or grievance being
dismissed as untimely. Inmates should be aware that failure to
comply with these timeframes might impact their right to pursue
any other legal remedy.” PPD 1.16(IV)(E) (bold emphasis in
original).
Anthony Perfetto is an inmate at the New Hampshire State
Prison (NHSP) in Berlin, following a 2002 conviction for
possession of child pornography. At all times relevant to this
motion, however, he was incarcerated at the NHSP facility in
8 Concord, where he alleges the constitutional violations at issue
here occurred.
Perfetto’s surviving claims of unconstitutional prison
conditions include: (1) deprivation of sanitary conditions, (2)
denial of water, (3) failure to properly protect his safety, (4)
use of excessive force, (5) denial of adequate medical care,
(6) retaliation, (7) denial of access to the courts, and (8)
denial of the right to petition the government to redress
grievances through the administrative grievance procedure.7
The defendants here argue that the case must be dismissed
because the plaintiff has not properly exhausted his available
administrative remedies with respect to any of his claims. The
court agrees. As explained below, in many instances, Perfetto
failed to take even the initial formal step of filing an IRS.
When he did file an IRS, Perfetto either failed to do so within
the timeframes set forth in the prison’s grievance policy, or
failed to appeal, timely or otherwise, the prison’s response to
his initial request for administrative relief. This failure to
7 On June 2 0 , 2007, the court dismissed all of the official capacity claims against the defendants, as well as Perfetto’s claims alleging denials of clothing, food, appropriate housing, lower security classification, adequate mental health care, rehabilitative programming, religious practice, personal property, and verbal harassment.
9 fully and properly exhaust administrative remedies is fatal to
his request for judicial remedies.
1. Deprivation of sanitary conditions and water
Perfetto alleges that between May 15-17, 2004, and at
various times over the following months, Corrections Officers
Ash, Charter, Fedele, Valenti, and another unidentified officer
subjected him to unsanitary conditions by denying him access to a
shower, a toilet, toiletries, clothing, silverware, and other
items necessary to maintain minimally adequate hygiene. He
further claims that on one occasion, after being denied use of
the facilities, he had no choice but to defecate on the floor of
his cell before Corrections Officer Charter instructed him to
roll in his own excrement, an instruction with which he complied.
Perfetto also alleges that between May 15-17, 2004, and May 28-
June 1 , 2004, an unidentified “John Doe” officer refused to allow
him to have water with his meals or medications, and that he had
to drink his own urine for hydration.
Nearly one year later, on May 3 , 2005, Perfetto filed an IRS
with the unit manager complaining of these incidents. The
manager promptly responded to Perfetto’s IRS. Dissatisfied,
Perfetto filed a grievance with the Warden of his facility who
10 denied the grievance as unsubstantiated. Perfetto never appealed
the Warden’s response to the Commissioner of Corrections.8
On June 2 1 , 2004, Perfetto filed an IRS inquiring about the
status of a complaint he made against Corrections Officer Charter
in May or June 2004. 9 In response, Perfetto was informed that he
would need to file an IRS with the NHSP’s “Investigations”
Department to get the information he sought. Perfetto filed
another IRS on August 4 , 2004, claiming harassment by Corrections
Officer Charter and another NHSP employee. In response, a
commanding officer indicated that he felt the situation had been
satisfactorily resolved. Over nine months later, Perfetto filed
an untimely grievance appeal. The Warden denied it as
unsubstantiated and there is no evidence to suggest that Perfetto
8 At the April 2 , 2008 hearing on summary judgment, Perfetto argued that a June 6, 2005 grievance appeal he filed with the Commissioner related to his deprivation of sanitation claims, thereby perfecting his appeal. The court, after a review of this grievance, does not agree, and concludes, based on its date and content, that the June 2004 document in question referenced a different IRS and grievance not involved in this case. Further, as explained supra, both the initial IRS and grievance were untimely, and thus did not constitute proper exhaustion under Woodford, 126 S . C t . at 2387. 9 The record is not clear as to what incident was referenced in the complaint. Drawing all inferences in Perfetto’s favor, the court will infer that it related to his allegation that Corrections Officer Charter ordered Perfetto to roll in his own waste sometime between May 15-17, 2004.
11 completed the administrative remedy process by appealing the
Warden’s denial to the Commissioner of Corrections.
2. Failure to protect
NHSP re-classified Perfetto as a “protective custody” inmate
and moved him from the prison’s general population into its
Secure Housing Unit (SHU) for periods in August and September of
2003. Perfetto alleges that while he was in protective custody
in the SHU, defendants Bell, Moyer, and Washburn nevertheless
housed him with “general population” inmates on four separate
occasions. Perfetto also claims that defendants Flynn, Gauthier,
Moquin, and Parent moved him to a tier of the prison that housed
an inmate included on his “keep away” list. He further alleges
that Corrections Officer Flynn later witnessed another inmate
assault him, but failed to move him to another cell to protect
his safety.
With respect to his complaint about being housed with
general population inmates, Perfetto never submitted an IRS, but
filed a grievance with the Warden nearly three years after the
alleged incidents. The Warden responded that the grievance was
untimely filed and therefore denied. Perfetto then filed a
grievance with the Commissioner, which was denied for the same
reason. The record before the court indicates that Perfetto
12 never filed an IRS or grievance regarding the allegations that he
was housed near an inmate on his “keep away” list and that he was
held in a cell with a physically threatening inmate.
3. Excessive force
Perfetto alleges three separate instances of excessive force
by NHSP employees. He alleges: (1) in May 2004, Corrections
Officer Fedele slammed him into the wall and ripped a crucifix
off of his neck; (2) later that same day Corrections Officer
Edmark pushed his face into the wall and threatened him; and (3)
in July 2004, he was drenched with a hose by another inmate at
the direction of Corrections Officer Charter while Charter stood
by and laughed.
With respect to the May 2004 allegations of excessive force,
Perfetto first filed an IRS nearly a year later. The prison
responded to Perfetto that he had admitted he had been off his
medication and had apologized for the incidents. Perfetto then
filed a grievance with the Warden. He did not appeal to the
Commissioner.
The record as to the July 2004 incident indicates that
Perfetto did not file an IRS until some nine months later and
never appealed to the Warden or Commissioner.
13 4. Denial of adequate medical care
Perfetto alleges that, in the late summer and early fall of
2003, Corrections Officer Charter and Unit Manager Moyer
repeatedly denied him adequate medical care by either allowing
his prescriptions to run out after he had made timely requests
for refills, or actively withholding medication from him after it
had been received by NHSP. The record contains no evidence that
an IRS or grievance regarding this complaint was ever filed
regarding this issue.
Perfetto also claims that his eyeglasses went missing during
this same period so he filed IRS forms inquiring whether anyone
had found them. NHSP personnel responded in the negative and
Perfetto eventually found his eyeglasses. Nearly three years
later, he filed grievances with the Warden and Commissioner over
the missing eyeglasses; both were denied as untimely and he did
not appeal.
Perfetto makes additional allegations regarding the
dispensing of his medications. He claimed in an IRS filed in May
2004 that Corrections Officer Iseman dispensed medication to him
twice in one particular day rather than once as prescribed. An
NHSP employee responded that Perfetto had admitted to taking the
medications contrary to his prescription. Perfetto makes no
14 claim that he appealed that decision to the Warden or the
He further alleges that during the summer of 2004,
unidentified staff at NHSP dispensed twice the prescribed dosage
of his medication to him, and that in November 2006, Corrections
Officer Flynn withheld medication from him. The record before
the court contains no claim or indication that Perfetto filed
an IRS or grievance with respect to either the 2004 or 2006
claims.
5. Retaliation
According to Perfetto, NHSP personnel took retaliatory
action against him for filing grievances and contesting his
treatment. Perfetto claims that two days after he filed an IRS
requesting additional IRS forms, counselor McGrath responded in
an “unprofessional” manner.
He also alleges the following additional instances of
retaliation:
• On August 4 , 2006, Col. Brown singled Perfetto out for a cell search during which newspapers were taken from him;
• On August 7 and August 8 , 2006, L t . Michaud singled Perfetto out for cell searches during which his typewriter, magazines, and a book were taken from him;
15 • On August 1 0 , 2006, Unit Manager Bilodeau intercepted an IRS Perfetto had filed that day, and threatened him with disciplinary action for an unrelated IRS he filed on July 2 9 ;
• Also on August 1 0 , 2006, Col. Brown and Sgt. O’Brien singled Perfetto out for a cell search during which legal papers were destroyed and his cell was left in disarray.
Perfetto does not claim that he filed an IRS or grievance with
respect to any of these allegations of retaliatory action.
6. Denial of access to the courts
According to Perfetto, the destruction of his legal papers
during the August 1 0 , 2006 cell search, discussed supra, left him
at a disadvantage in preparing a complaint and chilled his
pursuit of judicial and administrative remedies. Perfetto makes
no claims opposing the defendants’ position that no IRS or
grievance to this event was ever filed.
7. Denial of right to petition the government for a redress of grievances through the administrative grievance procedure
Perfetto’s final claim alleges that, in the summer of 2004,
Corrections Officers Charter, Edsall, Isabelle, and an
unidentified “John Doe” officer denied him IRS forms, grievance
forms, pens, and pencils. He reports that during this time
period, IRS forms were made available to him only two to three
16 times a week. The record contains no indications that he made
any attempt to lodge a written complaint.
Of course, Perfetto cannot be held accountable for any
failure-to-exhaust if prison officials have rendered his
administrative remedies unavailable to him. See, e.g., Abney v .
McGinnis, 380 F.3d 663, 667 (2d Cir. 2004); Dale v . Lappin, 376
F.3d 652, 656 (7th Cir. 2004); Mitchell v . Horn, 318 F.3d 523,
529 (3d Cir. 2003); Miller v . Norris, 247 F.3d 736, 740 (8th Cir.
2001). The PLRA is clear that proper exhaustion of
administrative remedies is only of those remedies “as are
available.” 42 U.S.C. § 1937e(a). The test for determining
whether administrative remedies are available is objective and
asks whether “a similarly situated individual of ordinary firmess
[would] have deemed them available.” Hemphill v . New York, 380
F.3d 680, 688 (2d Cir. 2004) (internal quotation marks omitted);
see, e.g., Macias v . Zenk, 495 F.3d 3 7 , 44-45 (2d Cir. 2007)
(remedies may not be “available” to prisoner threatened by prison
employee); Beltran v . O’Mara, 405 F. Supp. 2d 140, 153 (D.N.H.
2005) (remedies potentially rendered unavailable to inmate where
prison made misleading statements regarding whether complaint is
grievable).
Other than Perfetto’s bare assertions, there is nothing in
the record to suggest that he was denied access to the IRS forms
17 or dissuaded to a degree that effectively made administrative
remedies unavailable to him. During the period complained o f ,
Perfetto filed ten IRS forms with the prison relating to other
issues not involved in this habeas petition.10 Even taking
Perfetto at his word that the prison limited his access to the
IRS and grievance forms to two or three times a week, the
grievance procedure or remedy was nonetheless always “available”
to him in the sense that the means to take advantage of it were
available to him frequently enough to comfortably meet all of its
procedural requirements and deadlines.
CONCLUSION
Even accepting as true the facts asserted in Perfetto’s
summary judgment opposition papers, and viewing those facts in
the light most favorable to him, the court discerns no evidence
to suggest that the plaintiff exhausted his administrative
10 July 6, 2004 (request to consult with NHSP employee); July 7 , 2004 (legal inquiry regarding brother); July 9, 2004 (request for legal paperwork); July 9, 2004 (appeal of NHSP disciplinary action); July 1 5 , 2004 (visitor request); July 2 2 , 2004 (request for witness to signature); July 2 2 , 2004 (appeal of NHSP disciplinary action); July 3 0 , 2004 (prescription refill request); July 3 1 , 2004 (additional clothes and supplies request), August 4 , 2004 (request for transfer of NHSP employees).
18 remedies11 with regard to any of the claims involved in this
litigation. See Anderson, 477 U.S. at 255-56. The defendants’
motion for summary judgment (document n o . 92) on their failure-
to-exhaust defense is therefore granted. The plaintiff’s claims
are all dismissed without prejudice for his failure to properly
exhaust administrative remedies. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Date: April 8 , 2008
cc: Anthony I . Blenkinsop, Esq. Jonathan A . Perfetto, pro se
11 Perfetto filed a motion on March 2 4 , 2008, entitled “Motion to Exhaust Remedies,” in which he acknowledged that he failed to properly exhaust his administrative remedies, and requested additional time to fully exhaust. At the hearing on the motion, he again acknowledged his failure to properly exhaust on all claims except the deprivation of sanitary conditions claim. Despite this concession, the court addressed the remainder of his claims for the sake of thoroughness.