Simpson, II v. NH DOC, et al.

2008 DNH 083

• Court: District Court, D. New Hampshire
• Decided: April 18, 2008
• Docket: 07-CV-265-SM
• Status: Published

Opinion

Simpson, II v . NH DOC, et a l . 07-CV-265-SM 04/18/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Dennis R. Simpson, I I , pro s e , Plaintiff

v. Civil N o . 07-cv-265-SM Opinion N o . 2008 DNH 083 William Wrenn, Commissioner, New Hampshire Department of Corrections, et a l . , Defendants

O R D E R

Plaintiff, Dennis R. Simpson, I I , is an inmate in the

Northern New Hampshire Correctional Facility (“NCF”). On August

2 2 , 2007, he filed a civil complaint seeking injunctive relief

from restrictions placed on religious liturgies he sought to

participate i n , and an order “allowing plaintiff to resolve the

matter with the [prison] administration, or to exhaust

administrative remedies in preparation for [suit].” Complaint at

para. 7 (document n o . 1 ) . Although the complaint is somewhat

cryptic, the Magistrate Judge construed it as stating claims

against the named defendants for violating Simpson’s First

Amendment right to freely exercise his religion, see generally

42 U.S.C. § 1983, and his rights under the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc. Plaintiff also filed a number of motions for injunctive relief, one of

which remains pending.

Defendants move to dismiss the complaint on grounds that

plaintiff, a prisoner confined in a state prison, did not exhaust

the administrative remedies available to him before filing his

complaint, as is required by the Prison Litigation Reform Act,

42 U.S.C. § 1997e(a). Plaintiff objects.

Discussion

Although defendants have filed a motion to dismiss, both

parties have submitted, and ask the court to rely upon, materials

outside the pleadings. Accordingly, defendants’ motion will be

treated as one for summary judgment. See Fed. R. Civ. P. 12(d);

Scott v . Gardner, 287 F. Supp. 2d 4 7 7 , 485 (S.D.N.Y. 2003) (“If

nonexhaustion is not clear from the face of the complaint

[subject to the PLRA], a defendant’s motion should be converted,

pursuant to Rule 12(b), to one for summary judgment limited to

the narrow issue of exhaustion.”); Collins v . Goord, 438 F. Supp.

2d 399, 412 (S.D.N.Y. 2006) (“district courts have converted

motions to dismiss to summary judgment without notice to

determine exhaustion in PLRA cases where, as here, both parties

2 submitted materials outside the pleadings and it is apparent that

the plaintiff will not be taken by surprise by such conversion”).

Here, the dispositive facts are not in serious dispute.

Plaintiff himself has filed copies of the administrative

grievances he filed relative to the subject matter of his civil

complaint. The first grievance was filed on September 4 , 2007,

after his civil complaint had been filed on August 2 2 , 2007. See

Exhibit 1 to plaintiff’s objection (document n o . 2 2 - 2 ) .

The PLRA’s exhaustion requirement is strict and 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). “[F]ailure to exhaust is an affirmative

defense under the PLRA.” Jones v . Bock, 127 S . C t . 9 1 0 , 921

(2007). A defendant who demonstrates lack of exhaustion is

entitled to dismissal of the unexhausted claims in the

plaintiff’s complaint. Medina-Claudio v . Rodriguez-Mateo, 292

F.3d 3 1 , 36 (1st Cir. 2002). And, there is no “futility

exception” to the PLRA’s exhaustion requirement. Id. at 3 5 . “In

3 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.” Knowles v . Commission, ___ F.Supp. 2d ___, 2008 WL

648737 (D.N.H. March 1 1 , 2008) (citing Booth v . Churner, 532 U.S.

731, 739 (2001)).

Simpson does not claim that he exhausted available

administrative remedies before filing his complaint.1 Instead,

he argues that the complaint was not his “final” or “complete”

complaint. Actually, it was, but it is of no moment — the

administrative remedies available to plaintiff have not been

exhausted and were not exhausted before he filed suit, as the

complaint itself acknowledges, and as the exhibits he filed

demonstrate.

Nevertheless, plaintiff says that it would be fruitless to

dismiss his complaint for failure to exhaust, because he will

simply refile. That may be s o . But, of course, he cannot refile

1 Those administrative remedies, and the various levels of appellate review, are described in New Hampshire Department of Corrections Policy and Procedure Directive, PPD 1.16. See LaFauci v . New Hampshire Department of Corrections, 2001 WL 1570932 (D.N.H. Oct. 3 1 , 2001).

4 unless he has first exhausted the available administrative

remedies, or can demonstrate entitlement to some recognized

exception to that requirement. Exhaustion of all available

administrative remedies is a condition precedent to filing any

claim governed by the PLRA. Porter v . Nussle, 534 U.S. 516, 524

(2002). And, the administrative process might well result in

accommodations that render plaintiff’s complaints moot. The

exhibits suggest that prison officials recognize the legitimacy

of the issues plaintiff has raised and are endeavoring to resolve

those issues in a manner that satisfies the interests of both the

state and plaintiff.

Conclusion

Because plaintiff did not fully exhaust the administrative

remedies available to him before filing his complaint,

defendants’ motion to dismiss (document n o . 15) is granted. The

Clerk of Court shall enter judgment dismissing the complaint for

failure to exhaust available administrative remedies and close

the case. Plaintiff’s pending motion for injunctive relief

(document n o . 16) is denied as moot.

5 SO ORDERED.

____________ Steven J./McAuliffe ^hief Judge

April 1 8 , 2008

cc: Dennis R. Simpson, pro se Deborah B . Weissbard, Esq. NH Department of Corrections NH Attorney General