Smith v. Wrenn, et a l . 07-CV-119-SM 06/29/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Dennis A. Smith, Plaintiff
v. Civil No. 07-cv-119-SM Opinion No. 2009 DNH 097 William Wrenn. Commissioner. N.H. Department of Corrections; Bruce Cattell, Warden. N.H. State Prison; Gregory Crompton; and Denise Heath. Defendants
O R D E R
Pro se plaintiff, Dennis Smith, is a New Hampshire prisoner
currently incarcerated in Huntsville, Texas, pursuant to the
Interstate Corrections Compact. He brings this action seeking
compensatory and punitive damages, as well as declaratory and
injunctive relief, for alleged violations of his constitutionally
protected rights. His claims arise out of his involuntary
transfer from the New Hampshire State Prison ("NHSP") to Texas
and the alleged denial of his right to adequate medical care,
both during his transportation to Texas and after his arrival
there.
Defendants move for summary judgment, asserting that: (a)
Smith's claims are barred by the doctrine of res judicata; (b)
there is an insufficient factual basis to support those claims;
and (c) Smith failed to comply with the exhaustion requirements of the Prison Litigation Reform Act. Because the court agrees
that Smith failed to properly exhaust available prison
administrative remedies, he cannot proceed on the claims raised.
Standard of Review
I. 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, 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 1997e requires an inmate to exhaust all
available administrative processes before filing a federal suit
relating to the conditions of his or her confinement, even if
some or all of the relief the inmate seeks cannot be obtained
through those administrative processes. Booth v. Churner. 532
U.S. 731, 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.").
2 Subsequently, 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, includes
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 whether they allege excessive force or some other wrong.
Porter v. Nussle, 534 U.S. 516, 532 (2002). And, the Court has
held that "the PLRA exhaustion requirement requires proper
exhaustion." Woodford v. Nqo. 548 U.S. 81, 93 (2006). The Court
explained that "proper exhaustion" means "compliance with an
agency's deadlines and other critical procedural rules." Ici. at
90. So, to properly exhaust available administrative 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. McCaughtrv. 286 F.3d 1022, 1025 (7th Cir. 2002)).
II. The NHSP's Administrative Grievance Procedure.
The NHSP has a three-tiered administrative grievance
procedure. See Exhibit C to defendants' memorandum. New
3 Hampshire Department of Corrections Policy and Procedure
Directive ("PPD") 1.16, entitled "Complaints and Grievances by
Persons under DOC Supervision" (document no. 144-5). See also
LaFauci v. N.H. Dep't of Corrections. 2001 DNH 204 at 7-10
(D.N.H. Oct. 31, 2001) (discussing the grievance procedure in
detail).
In October of 2002, those administrative regulations were
amended to provide, among other things, that inmates must invoke
the grievance process within 30 calendar days of the date on
which the event(s ) forming the basis of any complaint occurred.
PPD 1.16 IV. At the lowest level of the administrative process,
inmates are instructed to resolve their complaints orally if
possible. If that proves unsuccessful, they may file a written
complaint or request for information, known as an "inmate request
slip" or "IRS." If an inmate is not satisfied with the response
to his request slip, he has an additional 30 days within which to
invoke the second administrative step by filing a grievance with
the warden. And, finally, if the inmate is dissatisfied with the
warden's response, he is afforded another 30 days 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 those administrative
deadlines if the inmate shows a "valid" reason for delay. Id.
4 The NHSP's deadlines are mandatory and, absent a waiver,
failure to comply with them will result in the inmate's request
being denied as untimely. Here, defendants assert that because
Smith'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.
See generally Woodford v. Nqo. supra. Consequently, say
defendants, his claims must be dismissed.
Background
In conducting his initial review of Smith's complaint, the
Magistrate Judge set forth the factual background to this suit in
substantial detail. See Report and Recommendation (document no.
26) at 3-7. Accordingly, the pertinent facts need be recounted
only briefly.
Smith is a New Hampshire inmate who was, until mid-2004,
housed at the New Hampshire State Prison. In August of that
year, prison officials decided to transfer him to another
correctional facility. Accordingly, defendant Heath prepared a
transfer packet which included, among other things, a "Health
Center Transfer/Discharge Summary" - a document outlining Smith's
medical conditions, current medications, vaccinations, etc. She
received Smith's medical information on approximately September
5 13, 2004, and forwarded the transfer packet to Texas officials on
September 29, 2004. On November 5, 2004, Texas officials agreed
to take Smith.
On November 23, while he was still confined at NHSP, Smith
was seen by a nurse practitioner who diagnosed him as having
elevated blood pressure and prescribed Vasotec, 20 milligrams per
day, for one year. Defendants admit that Smith's transfer
packet, which had previously been provided to Texas officials,
was never updated to include the diagnosis of hypertension or the
prescription for Vasotec. Consequently, Smith says he was
deprived of adequate medical care from the time he left New
Hampshire (December 16, 2004), through his arrival in Texas
(which he says was January 5, 2005), and continuing for some
period thereafter during his incarceration in Texas.
On January 18, 2005, Smith says he was transported to the
Estelle High Security Facility, in Huntsville, Texas, where,
shortly after his arrival, he received a medical examination. He
claims that exam was limited to a review of the conditions listed
in his transfer packet and, therefore, did not include anything
related to his hypertension. And, says Smith, when he asked the
examining medical provider to review the order for Vasotec, he
was told that such an order did not exist and, even if it did.
6 his blood pressure was normal. Smith says the medical provider
refused to contact New Hampshire authorities about his blood
pressure, saying that if an active order for prescription blood
pressure medication existed, it would be reflected in Smith's
medical records. For his part. Smith claims he did not pursue
the matter because he assumed the prescription must have expired.
On June 26, 2005 - approximately five months later - Smith
sent an inmate request slip to the New Hampshire State Prison
Medical Records Administrator, requesting information about the
date on which he had been diagnosed with hypertension and the
medication that had been prescribed. Complaint, Exhibit C
(document no. 4-2), at 9. Smith was provided with the requested
information on July 6, 2005. Ici. On October 2, 2006 -
approximately 15 months later and nearly two years after his
arrival in Texas - Smith sent an inmate request slip to defendant
Heath, accusing her of intentionally interfering with his medical
treatment. Complaint, Exhibit E (document no. 4-2), at 11-13.
Heath responded by letter dated October 17, 2006 and, among other
things, explained that she was unaware that he had been diagnosed
as hypertensive after she prepared the transfer packet, denied
having intentionally sought to interfere with his medical
treatment, and recommended that he seek an examination and/or
7 treatment by medical staff at the Texas facility and obtain any
necessary medications from them. Ici- at 14.
On October 29, 2006, Smith filed a grievance with the
warden, complaining that NHSP officials were "utilizing the
transfer process to intentionally interfere" with the medical
treatment of his hypertension. Complaint, Exhibit G (document
no. 4-2), at 18. And, on December 19, 2006, Smith sent a similar
grievance to the Commissioner of Corrections. Complaint, Exhibit
I (document no. 4-3) at 21. Displeased with the responses he
received to those grievances. Smith filed the instant suit.
Discussion
I. Defendants' Motion for Summary Judgment.
As construed by the Magistrate Judge, Smith's amended
complaint sets forth the following claims: (a) Eighth Amendment
claims against defendants Wrenn, Cattell, Crompton, and Heath,
premised on the denial of adequate medical care; and (b)
Fourteenth Amendment due process claims against defendants Wrenn,
Cattell, and Vinson, premised on the contention that Smith was
subjected to atypical and significant hardships in relation to
the ordinary incidents of prison life. See Report and
Recommendation (document no. 26); Report and Recommendation (document no. 58). See generally Sandin v. Conner. 515 U.S. 472
(1995) .
It is likely that all of the claims Smith is currently
pursuing are, by virtue of his prior lawsuit against virtually
identical defendants and arising out of the same basic facts and
circumstances, barred by the doctrines of res judicata and/or
collateral estoppel. See Smith v. Warden. Civ. no. 05-cv-374
(civil rights complaint arising out of Smith's transfer to Texas,
advancing claims of, among other things, retaliatory transfer and
violations of various constitutionally protected rights).
Moreover, given the facts of record, even if Smith's claims are
not barred, they would probably fail on the merits. Even
charitably construed in Smith's favor, the record reveals that,
at the very most, defendants may have been negligent in failing
to update his medical records. It is, however, well-established
that mere negligence does not equate to "deliberate indifference"
and, therefore, cannot form the basis of a viable Eighth
Amendment claim. See, e.g.. Estelle v. Gamble. 429 U.S. 97, 105-
06 (1976) ("[I]n the medical context, an inadvertent failure to
provide adequate medical care cannot be said to constitute an
unnecessary and wanton infliction of pain or to be repugnant to
the conscience of mankind. Thus, a complaint that a physician
has been negligent . . . . does not state a valid claim of
9 medical mistreatment under the Eighth Amendment.") (citations and
internal punctuation omitted); Ruiz-Rosa v. Rullan, 485 F.3d 150,
156 (1st Cir. 2007) ("[S]ubstandard care, malpractice,
negligence, inadvertent failure to provide care, and disagreement
as to the appropriate course of treatment are all insufficient to
prove a constitutional violation.").
Nevertheless, the court cannot address the preclusive effect
of Smith's prior litigation, nor can it consider the merits of
his constitutional claims, because it is plain that he failed to
timely exhaust available administrative remedies, as required by
the PLRA.
As noted above, the NHSP administrative regulations clearly
and unambiguously provide that an inmate must initiate the three
tiered inmate grievance process within 30 days of the event(s ) of
which he complains. Here, the record is unambiguous — by January
18, 2005 (and probably earlier). Smith knew that the medical
records provided by NHSP to Texas corrections officials contained
no reference to either his hypertension or the prescription for
Vasotec. See Complaint, Exhibit 1, Smith declaration at para.
15. Nevertheless, Smith did not begin the inmate grievance
process until June 26, 2005 - more than six months later - when
he inquired about his diagnosis and prescription medications.
10 Complaint, Exhibit C (document no. 4-2), at 9. And, he never
appealed the response to that IRS to the warden or the
commissioner. So, not only was the IRS untimely, it was
incomplete insofar as Smith failed to appeal to either of the two
remaining (compulsory) administrative levels.
The only grievance concerning his medical records/
prescription that Smith appears to have made at each of the three
administrative levels was first filed (as an inmate request slip)
on October 2, 2006 - more than 18 months after Smith became aware
of the underlying issues of which he now complains. Complaint,
Exhibit E (document no. 4-2), at 11-13. Plainly, Smith failed to
comply with the administrative regulation's compulsory 30-day
limitations period. Consequently, he did not "properly exhaust"
available administrative remedies as required by the PLRA.
Smith's efforts to side-step the administrative filing
deadlines are unavailing. First, he says that although he was
aware of the issue in January of 2005, the fact that he was
"faced with an indigent postal limit influenced [his] decision
not to pursue the issue." Smith Declaration at para. 15. Smith
is alluding to a Texas Department of Corrections regulation
allegedly limiting indigent prisoners to five mailings per week.
But, as Smith well knew, he had 30 days within which to initiate
11 the grievance process and raise his claims related to his medical
records and prescription. So, even assuming he is correct about
the mailing limit imposed on him, he could have mailed more than
20 items during that 30-day period. It necessarily follows that
he could have filed a single inmate request slip in a timely
manner, notwithstanding the alleged limit on how much mail he was
permitted to send each week.
Next, Smith claims that, at least upon his arrival in Texas,
he simply assumed the prescription for Vasotec had expired and
had no reason to suspect that defendants had omitted information
concerning his prescription from his transfer packet. Smith
Declaration at para. 15. At least implicitly, then. Smith
suggests that he did not have all the necessary facts to
appreciate that he had been harmed by defendants' (alleged)
wrongdoing and, therefore, there was no basis for him to begin
the grievance process. That claim is, however, without factual
support since, as he repeatedly points out, he knew, when he
arrived in Texas, that the prescription had been written for 20
milligrams per day, for one year. See, e.g.. Complaint at para.
28. And he knew that information relating to both his diagnosis
and his prescription had been omitted from the transfer packet
provided to Texas corrections officials.
12 But, even crediting Smith's claimed lack of knowledge, he
cannot deny that he was aware of the issue as of July 6, 2005,
when, in response to his inmate request slip, the NHSP Medical
Records Director informed him that, "[r]eview of medical records
shows that Mooney, ARNP diagnosed HTN [hypertension] as new
diagnosis on 11/23/04 and ordered Vasotec 20 mg. p. day x 1
year." Complaint, Exhibit C (document no. 4-2), at 9. At the
very least, then, by July of 2005, Smith knew that:
(a) he had been diagnosed as hypertensive on November 23, 2004;
(b) on that same date, he was given a one-year prescription for Vasotec; and
(c) that information had been omitted from the transfer packet sent to Texas officials.
Nevertheless, he still waited another fourteen months before
filing an inmate request slip complaining about that issue (and
following-up on that IRS with grievances to the warden and
commissioner). See Complaint, Exhibit E (document no. 4-2), at
11-13 .
Finally, Smith suggests that "N.H. DOC PPD 1.16 does not
apply to me." Plaintiff's memorandum. Exhibit 1, Declaration in
Opposition to Summary Judgment (document no. 147-3) at para. 4.
Specifically, Smith points to a recent (March 16, 2009) inmate
request slip inquiring about the person to whom he should direct
13 his inmate request slips. See Document no. 147-5. In response
to his inquiry. Smith says he was informed (erroneously) that,
because he had been transferred to an out-of-state correctional
facility. New Hampshire's grievance procedure no longer applied
to him. And, says Smith, he was entitled to rely upon that
erroneous information. He is incorrect.
The three-tiered grievance process plainly and unambiguously
applies to '■'all inmates, former inmates for issues that arose
during their confinement, and staff." PPD 1.16 (document no.
144-5), Section II, entitled "Applicability." And, the PLRA's
exhaustion requirement applies even when, as here, the inmate has
been transferred to another correctional facility. See Medina-
Claudio v. Rodriquez-Mateo. 292 F.3d 31, 35 (1st Cir. 2002). See
also Booth 532 U.S. at 735 n.2. Smith obviously understood that
the NHSP grievance process still applied to him, as evidenced by
his repeated communications (from Texas) with NHSP staff, using
NHSP inmate request slips. Moreover, he cannot claim that he
relied to his detriment on the faulty information he received in
March of 2009, because he received that erroneous interpretation
of the PPD's well after the events giving rise to his
constitutional claims (November, 2004 through January, 2005), and
well after the thirty day administrative filing deadline had
14 lapsed, and well after he made his untimely efforts (in October
of 2006) to exhaust the NHSP administrative grievance procedures.
Smith's actions plainly and unequivocally demonstrate that
he understood that, notwithstanding his transfer to Texas, the
NHSP's inmate grievance procedures still applied to him - at
least to the extent he was raising issues related to his period
of incarceration in New Hampshire. And, it is equally plain that
Smith failed to timely exhaust available prison administrative
remedies as to the constitutional claims he now seeks to pursue.
Nor did he seek a waiver of the administrative filing deadlines.
Consequently, Smith's claims - all of which are unexhausted - are
precluded by the PLRA.
II. Plaintiff's Motion to Stay Proceedings.
Smith moves the court to stay any ruling on defendants'
motion for summary judgment until he has been afforded additional
time within which to "preserve for appeal" his request for
appointed counsel. Smith's repeated requests for appointed
counsel have been addressed (and denied) several times. See,
e.g.. Docket entries dated December 3, 2007 (denying Smith's
motion for reconsideration on the issue of appointment of
counsel) and April 30, 2009 (denying another of Smith's motions
for reconsideration on the issue of appointment of counsel). At
15 this point, the court has resolved all of his pending motions
(and motions for reconsideration) on that issue. Smith has not
shown that he is entitled to a stay. His motion is, therefore,
denied.
Conclusion
For the foregoing reasons, as well as those set forth in
defendants' memoranda, defendants' motion for summary judgment
(document no. 144) is granted to the extent the complaint is
dismissed for failure to exhaust available administrative
remedies. Smith's motion to stay (document no. 152) is denied.
The Clerk of Court shall enter judgment in accordance with this
order and close the case.
SO ORDERED.
Smeven j/ McAuliffe Chief Judge
June 29, 2009
cc: Dennis A. Smith, pro se Danielle L. Pacik, Esq. Nancy J. Smith, Esq. John C. Vinson, Esq.