Rainwater v . NHSP Warden CV-03-216-M 02/19/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Curtis Rainwater, Plaintiff

v. Civil N o . 03-216-M Opinion N o .

Jane Coplan, Warden of the New Hampshire State Prison, Defendant

O R D E R

Curtis Rainwater, a New Hampshire State Prison inmate, has

sued Jane Coplan, Warden of the New Hampshire State Prison,

pursuant to

, for violating his First Amendment

right to freely exercise his religion. Plaintiff asserts that

defendant held him in quarantine for the first five months of his

incarceration, in the special housing unit (“SHU”), after he

refused, on religious grounds, to allow a blood sample to be

drawn. Before the court is defendant’s motion. Plaintiff

objects. For the reasons given below, defendant’s motion is

granted. Summary Judgment Standard

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R . CIV. P .

56(c). “To determine whether these criteria have been met, a

court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp.,

(1st Cir. 2001) (citing Grant’s Dairy-

Me., L L C v . Comm’r of M e . Dep’t of Agric., Food & Rural Res.,

, 14 (1st Cir. 2000)).

Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be “material” and the dispute over it must be “genuine.” In this regard, “material” means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.

Navarro v . Pfizer Corp.,

0 , 93-94 (1st Cir. 2001)

(quoting McCarthy v . Northwest Airlines, Inc.,

(1st Cir. 1995)).

2 In defending against a motion for summary judgment, “[t]he

non-movant may not rely on allegations in its pleadings, but must

set forth specific facts indicating a genuine issue for trial.”

Geffon v . Micrion Corp.,

9 , 34 (1st Cir. 2001) (citing

Lucia v . Prospect S t . High Income Portfolio, Inc.,

7 0 ,

174 (1st Cir. 1994)). When ruling upon a party’s motion for

summary judgment, the court must “scrutinize the summary judgment

record ‘in the light most hospitable to the party opposing

summary judgment, indulging all reasonable inferences in that

party’s favor.’” Navarro, 261 F.3d at 94 (quoting Griggs-Ryan v .

Smith,

1 2 , 115 (1st Cir. 1990)).

Background

From December 1 9 , 2002, until May 2 0 , 2003, Rainwater was

held in SHU, on quarantine status. He was quarantined for a

considerably longer period than typical for new arrivals. But,

that was because he refused to allow prison officials to draw a

blood sample for diagnostic medical testing. Rainwater says he

refused to allow his blood to be drawn because the procedure

conflicts with his Native American religious convictions.

3 Matt Moyer, unit manager of SHU, says, by affidavit, that

Rainwater told him that he was being held in quarantine status

because of his failure to allow a blood sample to be drawn, but

Rainwater never sent an “Inmate Request Slip” to Moyer disclosing

his religious objection to blood drawing or complaining about his

extended quarantine. (Moyer Aff. ¶ 3 ; Sheppard Aff. ¶ 9.) The

record does, however, contain two written communications from

Rainwater on the subject. In a letter to the warden dated May

1 7 , 2003, Rainwater addressed three topics, including his

religion-based objection to having a blood sample drawn.

(Sheppard Aff., Att. 2.) And, Rainwater sent an Inmate Request

Slip, date stamped May 2 1 , 2003, to Commissioner Phil Stanley,

raising his objection to having blood drawn. (Sheppard Aff.,

Att. 3.) In a response dated June 6, a representative of the

commissioner told plaintiff that he was “in R & D [Reception and

Diagnostic] awaiting a C-3 bed.” (Sheppard Aff., Att. 3.)

Discussion

Defendant moves for summary judgment on grounds that

plaintiff has failed to exhaust his administrative remedies as

required by 42 U.S.C. § 1997e(a), a provision of the Prison

4 Litigation Reform Act (“PLRA”). Plaintiff counters by submitting

evidence purporting to show that he did, indeed, exhaust his

administrative remedies.1

According to the exhaustion provision of the Prison

Litigation Reform Act:

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). Even though an inmate seeks only relief

not available through his prison’s administrative process, the

inmate remains obligated to exhaust the administrative process,

so long as it “could provide some sort of relief on the complaint

stated, but no money.” Booth v . Churner,

3 1 , 734

1 Specifically, plaintiff submitted the canary-colored copy of a “Grievance Form” dated May 1 , 2003. On that form, plaintiff stated his religious objection to having blood drawn. However, the sections of the form in which the director (warden) and the commissioner are to describe their responses to the grievance are both blank. Moreover, the bottom of the form contains the following instructions: “Forward all three copies. White will be filed in offender records, canary to responder and pink to grievant.” Plaintiff’s submission of the canary copy rather than the pink copy, coupled with the absence of any response from the warden or commissioner, tend to undercut the reliability of the form as evidence of administrative exhaustion.

5 (2001) (holding that inmate bringing excessive force claim had to

exhaust his administrative remedies, even after being transferred

out of the prison in which he was allegedly subjected to

excessive force).

When an inmate files suit without properly exhausting his or

her administrative remedies, dismissal is ordinarily required.2

See Medina-Claudio v . Rodriguez-Mateo,

1 , 36 (1st Cir.

2002). When a prison’s administrative remedies include a

grievance process, “strict compliance . . . is required or else

dismissal must follow inexorably.” McCoy v . Goord,

(S.D.N.Y. 2003) (citations and internal question

marks omitted); see also Houze v . Segarra,

9 4 ,

397) (S.D.N.Y. 2002) (“Prison officials are entitled to require

strict compliance with an existing grievance procedure.”)

(quoting Hemphill v . New York,

(S.D.N.Y. 2002)). Strict compliance includes completing all

steps of the grievance procedure, even when an inmate is released

from custody prior to filing his complaint. See Morgan v .

2 This case does not involve a “mixed complaint,” which raises different issues with regard to whether the entire complaint must be dismissed or only the unexhausted claims.

6 Maricopa County,

(D. Ariz. 2003). The strict

compliance requirement also bars an inmate from claiming

exhaustion when he has bypassed steps in the administrative

process. See, e.g., Labounty v . Johnson,

(W.D.N.Y. 2003) (citations omitted); Jeanes v . U.S. Dep’t

of Justice,

8 , 51 (D.D.C. 2002) (citations

omitted).

Defendant contends that because plaintiff failed to strictly

comply with the grievance procedure available to NHSP inmates, he

has not exhausted his administrative remedies for purposes of the

PLRA. The court agrees.

The NHSP grievance procedure, discussed in detail in LaFauci

v . New Hampshire Department of Corrections, N o . 99-253-M,

(Oct. 3 1 , 2001 D.N.H.), requires an inmate to follow a

sequential process involving: (1) an Inmate Request Slip,

directed to the correctional officer of lowest rank who can

respond to the issue raised and filed within thirty days of the

event complained o f ; (2) a Grievance Form, directed to the warden

and filed within thirty days of the response to an Inmate Request

7 Slip; and (3) a Grievance Form, directed to the commissioner and

filed within thirty days of the warden’s response to a Grievance

Form.3 The second and third steps in the process are, in

essence, appeals of the decisions rendered in the first and

second steps.

Here, plaintiff never properly initiated the grievance

process by addressing an Inmate Request Slip to the lowest level

correctional officer who could respond. Based upon the material

submitted by defendant, plaintiff’s first communication regarding

his religious objection to blood drawing was a letter to the

warden, followed by an Inmate Request Slip directed to the

commissioner. Plaintiff’s May 1 7 , 2003, letter to the warden did

not comply with the grievance procedure’s requirements because it

was not preceded by an Inmate Request Slip addressed to a unit

3 The time limitations applicable to the three steps in the grievance process were added after LaFauci was decided. At least one court has excused the exhaustion requirement when the prisoner would be time barred from pursuing an administrative remedy after dismissal. See Johnson v . True,

(W.D. V a . 2000). But the better view is that “it would be contrary to Congress’ intent in enacting the PLRA to allow prisoners to wait until their time to bring an administrative action had expired and then bring an action in court.” Timmons v . Pereiro, N o . 00 Civ. 1278(LAP),

, at *2 (S.D.N.Y. Jan. 2 7 , 2003) (citing Giano v . Goord,

1 4 , 417 n.3 (6th Cir. 2001)).

8 manager or other lower-level prison official and because it was

not submitted on a Grievance Form. Likewise, Plaintiff’s May 2 1 ,

2003, communication to the commissioner did not comply with the

grievance procedure because it was not an appeal of a decision by

the warden and because it was not submitted on a Grievance Form.

Plaintiff’s failure to properly invoke the NHSP grievance

procedure is fatal to this claim. See McCoy,

.

Furthermore, the Grievance Form plaintiff submitted with his

objection to summary judgment does not help his case. Leaving

aside its dubious reliability, see note 1 , supra, that form is

dated May 1 , 2003, making it the earliest complaint document in

the record. Once again, because a Grievance Form must be

preceded by an unsuccessful attempt at redress by means of an

Inmate Request Slip, the May 1 Grievance Form did not effectively

initiate the NHSP grievance procedure. Moreover, a Grievance

Form that does not include responses from the official(s) to whom

it was addressed is facially insufficient to demonstrate

exhaustion of administrative remedies. An incomplete Grievance

Form has presumptively not made its way through the established

9 system and cannot, therefore, standing alone, document a final

disposition of the prisoner’s complaint, which is essential to

exhaustion. See Tolbert v . McGrath, N o . C 02-5456 SI(PR),

, at *1 (N.D. Cal. Dec. 2 7 , 2002) (“Merely sending in

[an] appeal to the highest level is not sufficient; the prisoner

must wait until he receives a response from the highest level of

review before filing a federal complaint.”); c f . Harris v .

Totten,

(S.D.N.Y. 2003) (“Harris has

still not exhausted his administrative remedies pursuant to the

PLRA since there has been no final disposition of his grievance

at the administrative level”); Knuckles-El v . Toombs,

(6th Cir. 2000) (explaining that exhaustion is

demonstrated by production of “cop[ies] of the applicable

administrative dispositions to the complaint” o r , in the

alternative, a specific description of the administrative

proceeding and its outcome).

Finally, the fact that plaintiff was released from

quarantine shortly after he ineffectively began the NHSP

grievance process does not excuse the exhaustion requirement.

While this might appear to be a situation in which the

10 administrative process was unable to provide any sort of relief

once plaintiff was released from quarantine, Booth suggests

otherwise. In that case, Booth, a prisoner, brought an excessive

force action, claiming violation of his right, under the Eighth

Amendment, be free from cruel and unusual punishment.

. In his complaint, “Booth sought various forms of

injunctive relief, including transfer to another prison, as well

as several hundred thousand dollars in money damages.”

By

the time the court of appeals affirmed the trial court’s decision

to dismiss Booth’s complaint for failure to exhaust, Booth had

been transferred to another prison. Id. at 735. Even s o , the

Supreme Court held that exhaustion was required, identifying

several forms of relief the administrative process might produce:

(1) the satisfaction of being heard, coupled with the possibility

of administrative change; and (2) the opportunity to hone

arguments prior to filing suit. See id. at 737.

Based upon Congress’s clear, strong mandate of exhaustion,

see id. at 739-41; see also Porter v . Nussle,

2 0 , 523-

25 (2002), and the Supreme Court’s opinion in Booth, this court

cannot say that the administrative process offered plaintiff no

11 relief whatsoever once he was released from quarantine. After

all, unlike Booth, plaintiff in this case remains incarcerated in

the same facility that he alleges violated his constitutional

rights. Thus, the administrative process held out the

possibility of providing administrative changes favorable to

plaintiff’s religious observance. In sum, this court is bound by

Booth, and under that precedent, plaintiff is obligated to

exhaust his administrative remedies before filing suit here.

For the reasons given above, defendant’s motion for summary

judgment (document n o . 23) is granted, and plaintiff’s complaint

is dismissed without prejudice. The Clerk of the Court shall

enter judgment in accordance with this order and close the case.

Because the case is dismissed, plaintiff’s pending motions

(documents n o . 2 0 , 2 1 , 2 5 , and 28) are all moot.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 1 9 , 2004

12 cc: Curtis Rainwater Nancy J. Smith, Esq.

13