Sunn v. NH State Prison Warden

2002 DNH 197

• Court: District Court, D. New Hampshire
• Decided: October 31, 2002
• Docket: CV-02-168-M
• Status: Published

Opinion

Sunn v . NH State Prison Warden CV-02-168-M 10/31/02 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

William Sunn and Justin Barnaby, Plaintiffs

v. Civil N o . 02-168-M Opinion N o . 2002 DNH 197 Bruce Cattell, Warden, NH State Prison in Berlin, Defendant

O R D E R

William Sunn and Justin Barnaby, both proceeding pro s e ,

bring this action against Bruce Cattell, Warden of the Northern

New Hampshire Correctional Facility (“NCF”), seeking declaratory

and injunctive relief for what they claim are ongoing violations

of their First and Fourteenth Amendment Rights. Sunn and

Barnaby, both of whom are incarcerated at NCF, contend that

Cattell abridged their right to freely exercise their Native

American religion and discriminated against them based on their religion, in violation of the Equal Protection Clause of the Fourteenth Amendment.1

Sunn and Barnaby move for summary judgment based on

procedural timeliness issues, arguing, incorrectly, that Cattell

did not adhere to established deadlines for filing his acceptance

of service of process and/or an answer to the complaint. Cattell

filed an acceptance of service on June 1 2 , 2002, within the time

prescribed by the Magistrate Judge. See Acceptance of Service

(document n o . 1 0 ) . See also Order of Magistrate Judge (document

n o . 4 ) at 1 1 . He filed an answer on July 8th, within 30 days of

the court order, dated June 1 0 , 2002, approving the Magistrate

Judge’s Report and Recommendation. Because Cattell filed his

acceptance of service and answer within the prescribed time

frame, plaintiffs’ motion for summary judgment (document n o .

18.2) is denied.

1 In addition, Sunn and Barnaby originally alleged that Cattell violated their rights under the American Indian Religious Freedom Act (“AIRFA”). But, in an earlier Order (Doc. N o . 4 ) , the Magistrate Judge properly dismissed that claim, since AIRFA “does not provide for any cause of action or judicially enforceable individual rights.” Id.

-2- Cattell also moves for summary judgment as to all claims

against him. Specifically, he contends that the Prison

Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (Supp. 2002)

(“PLRA”), precludes this court from hearing plaintiffs’ claims

because they have not exhausted available administrative

remedies. Sunn and Barnaby object, saying they complied with the

PLRA’s exhaustion requirements.

Standard of Review

Pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment is appropriate where “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue of material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). When ruling on a motion for summary judgment, a court

must “construe the record and all reasonable inferences from it

in favor of the nonmovant (i.e., the party opposing the summary

judgment motion).” Perez v . Volvo Car Corp., 247 F.3d 303, 310

(1st Cir. 2001) (quoting Suarez v . Pueblo Int’l, Inc., 229 F.3d

4 9 , 53 (1st Cir. 2000)). See Wynne v . Tufts Univ. Sch. of Med.,

-3- 976 F.2d 7 9 1 , 794 (1st Cir. 1992). “In this context, ‘genuine’

means that the evidence about the fact is such that a reasonable

jury could resolve the point in favor of the nonmoving party

[and] ‘material’ means that the fact is one that might affect the

outcome of the suit under the governing law.” United States v .

One Parcel of Real Property with Bldgs., 960 F.2d 2 0 0 , 204 (1st

Cir.1992) (citing Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 ,

248 (1986)) (internal quotation marks omitted). As the Court of

Appeals for the First Circuit has cautioned, however, “evidence

that is merely colorable or is not significantly probative cannot

deter summary judgment.” Wynne, 976 F.2d at 794 (quoting

Anderson, 477 U.S. at 249-50) (internal quotation marks omitted).

It is not enough that a party “rest upon mere allegations; it

must set forth specific facts demonstrating that there is a

genuine issue for trial.” Ayer v . United States, 902 F.2d 1038,

1044-45 (1st Cir. 1990) (citations omitted).

Background

Viewed in the light most favorable to plaintiffs, the

pertinent facts are as follows. Sunn and Barnaby are members of

the Native American Circle, an established Native American

-4- religion. They are both incarcerated at NCF, a New Hampshire

State Prison in Berlin, New Hampshire, which permits inmates to

participate in Native American religious ceremonies and rituals.

In addition, the chaplain at NCF dispenses Native American

religious cards to those who practice in the Native American Circle.2

Sunn and Barnaby participate in Native American Circle

activities at NCF and have requested certain items for use during

those activities, as well as for the personal practice of their

religion. To date, they have been provided with only some of the

many items sought, see Complaint (Doc. N o . 1 ) , at paras. 9-10,

and they claim that Cattell’s refusal to provide the remaining

items violates their constitutionally protected right to freely

exercise their religious beliefs. They also advance an equal

protection claim, in which they allege that while inmates at the

New Hampshire State Prison in Concord are allowed to use both

tobacco and the sacred pipe during religious ceremonies, their

requests for those items have been denied. Id. at para. 8 ( B ) .

2 The purpose of issuing Native American Religious Cards is unclear from the record.

-5- The New Hampshire Department of Corrections (“NHDOC”) has in

place a comprehensive administrative system for addressing inmate

complaints and requests. Each inmate is provided with a detailed

description of the system in the “Manual for Guidance of Inmates”

(“Inmate Manual”). Ex. D to Def.’s Mem. for Summ. J. (Doc N o .

24). The system is also described in the NHDOC’s Policy and

Procedure Directive (“PPD”), statement number 1.16, entitled

“Complaints and Grievances by Persons under DOC Supervision.”

Id.

The Inmate Manual describes in detail the means by which

inmates may pursue a complaint or request. First, they are

encouraged to discuss the problem or request with the particular

staff member who can resolve the problem. If the discussion does

not resolve the problem to the inmate’s satisfaction, he or she

may then fill out an inmate request slip, which must contain as

much information as possible detailing the complaint. After

completing a request slip, the inmate must place it in a request

slip box or hand it to the lowest-level staff person able to deal

with the problem. Once a request slip is completed and properly

submitted, the investigative process begins. The PPD provides

-6- that correctional officers shall respond to all complaints within

seven working days, unless the issue raised by the inmate

constitutes an emergency, in which case the complaint is

addressed immediately.

If the “request slip process has not produced satisfactory

answers or responses,” the inmate may take the next step in the

administrative process: complete and submit to the Warden a

departmental grievance form (“grievance form”). Ex. D to Def.’s

Mem. for Summ. J., PPD, statement number 1.1.6 (IV)(G). Upon

receipt of a properly completed grievance form, the Warden will

investigate the issues raised by the inmate and respond within

fifteen days. Absent an emergency or a life threatening

situation, however, grievance forms will not be accepted unless

an inmate first completes a request slip and demonstrates that

the request slip process has not resulted in a satisfactory

response.

If the Warden has not resolved the grievance to the inmate’s

satisfaction, he or she may then pursue the final level of the

administrative appeal by filing a grievance with the Commissioner

-7- of Corrections. The Commissioner must investigate and respond to

a final grievance within twenty days of its receipt. If a final

grievance form is submitted to the Commissioner without evidence

of “attempts at resolution at a lower level, the grievance will

be sent to the activity which can best resolve it.” Ex. D to

Def.’s Mem. for Summ. J. PPD, statement number 1.16 IV(G)(3).

Both Sunn and Barnaby, independently, completed several

request slips addressing a range of Native American issues. They

received a response to each one, but elected not to appeal the

resolution of any of those requests. Consequently, Cattell has

not received any grievance forms from Sunn or Barnaby.3 Nor has

Philip Stanley, the Commissioner of Corrections, received any

final appeals concerning any of the issues raised by plaintiffs.

The Commissioner did receive a letter forwarded from the

Governor’s office, dated June 1 7 , 2002, in which Sunn discussed

his complaints concerning the NCF. Pls. Objection to Def.’s

3 One of Sunn’s request slips, dated May 2 4 , 2002, was addressed to Cattell. It was not, however, an appeal of an adverse response to a request; it was a separate and independent request.

-8- Summ. J. (Doc. N o . 2 8 ) . That letter was not, however, submitted

in compliance with the NHDOC grievance procedures.

Sunn and Barnaby filed this lawsuit April 1 0 , 2002, seeking

relief under 42 U.S.C. § 1983, alleging that they have been

precluded from using objects necessary to practice their

religion, specifically: a buffalo skull; tobacco; a sacred pipe

used in group ceremonies, as well as in private daily use; ethnic

foods; and a sweat lodge.

Analysis

The PLRA provides that “no action shall be brought with

respect to prison conditions under section 1983 [of Title 42] 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)

(Supp. 2002) (emphasis added); see generally Porter v . Nussle,

534 U.S. 516, 122 S . C t . 983 (2002); Booth v . Churner, 532 U.S.

731 (2001). 4

4 In Porter, the Supreme Court resolved a split among the circuits concerning the proper scope of the phrase “prison

-9- One of the main purposes of the PLRA is to afford

“corrections officials time and opportunity to address complaints

internally before allowing the initiation of a federal case.”

Porter, 122 S . C t . at 988 (citing Booth, 532 U.S. at 7 3 7 ) .

Although once discretionary, in 1995 Congress “invigorated the

exhaustion prescription” making the requirement mandatory.

Porter, 122 S . C t . at 988. Thus, a court may not address the

merits of an inmate’s prison conditions claim until it has first

been shown that he or she exhausted all available administrative

remedies. See id.; Booth, 532 U.S. at 741. It follows, then,

that Sunn and Barnaby may only pursue their constitutional claims

against Cattell if they have exhausted administrative remedies

available under the NHDOC grievance system.

As to the exhaustion issue, plaintiffs contend that they

“have made every reasonable [d]ocumented effort to resolve the

issues at hand with the defendant Warden Cattell.” Pls.

conditions” as used in the PLRA. Porter, 122 S . C t . at 992. The Court construed that phrase to mean all aspects of prison life, holding that, “the 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.” Id. (citation omitted).

-10- Objection to Def.’s Summ. J. ¶ 2 . Sunn alleges that despite the

fact that he has approached Cattell in a “professional and

peaceful, diplomatic manner,” Cattell continues to show no

intention of resolving his complaints. Id. Importantly,

however, while both Sunn and Barnaby completed request slips

concerning various Native American issues at NHC, neither

appealed any adverse decision by filing a grievance form with

Cattell. S o , while Sunn may have informally approached Warden

Cattell in a “professional and peaceful, diplomatic manner,” he

plainly did not exhaust the administrative remedies available to

him. Instead, he repeatedly took the first step of the

administrative process - the submission of a request slip -

without ever taking the next step, by submitting a grievance form

to Warden Cattell.

In a final effort to avoid summary judgment, Sunn argues

that he fulfilled the requirements of the PLRA by sending a

letter to New Hampshire’s Governor concerning various Native

American issues at NCF. As noted above, the Governor’s office

routinely forwarded Sunn’s letter to the Commissioner of

Corrections, Philip Stanley. Although New Hampshire law permits

-11- inmates to correspond with the Governor and the Commissioner of

Corrections, without supervision by the NCF staff, see N.H. Rev.

Stat. Ann. (“RSA”) 622:15, the PPD provides that any

correspondence sent to the Commissioner will be reviewed and “if

the grievance does not provide evidence of attempts at resolution

at a lower level, the grievance will be sent to the activity

which can best resolve it.” Ex. D to Def.’s Mem. for Summ. J.,

PPD statement number (IV)(G)(3). Consequently, Sunn’s letter is

not the equivalent of a grievance or subsequent final appeal to

the Commissioner. Bypassing the second step of the

administrative process - filing a grievance form - and sending a

letter directly to the Governor’s office is not consistent with

the NHDOC administrative scheme and does not afford corrections

officials the opportunity to resolve an inmate’s complaints

internally at the lowest effective level. Having failed to avail

themselves of the avenues of appeal established by the NHDOC

administrative grievance process, Sunn and Barnaby failed to

comply with the PLRA’s exhaustion requirement.

-12- Conclusion

The undisputed material facts of record reveal that neither

Sunn nor Barnaby exhausted the administrative remedies available

to them through the inmate grievance procedures. Consequently,

pursuant to the provisions of the PLRA, the court cannot reach

the merits of their claims, which are hereby dismissed, without

prejudice.

Defendant’s motion for summary judgment (Doc. N o . 24) is

granted and plaintiffs’ motion for summary judgment (Doc. N o .

18.2) is denied. The Clerk of the Court shall enter judgment in

favor of the defendant and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3 1 , 2002

cc: William Sunn, pro se Justin Barnaby, pro se Nancy J. Smith, Esq.

-13-