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.

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.

(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,

(2002). And, the Court has

held that "the PLRA exhaustion requirement requires proper

exhaustion." Woodford v. Nqo.

(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.,

(1st Cir. 2006) (quoting

Pozo v. McCaughtrv.

(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.

(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.

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.

(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.

, 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,

(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.

(1st Cir. 2002). See

also Booth

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.

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