Gebo v. Thyng 11-CV-47-JD 06/07/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John W . Gebo

v. N o . 11-cv-047-JD Opinio n N o .

Robert Thyng

O R D E R

John W . Gebo, an inmate in the New Hampshire State Prison

system, brings an action pursuant to

against

Robert Thyng, who was the Unit Manager at the Northern

Correctional Facility (“NCF”) in New Hampshire when Gebo was

assaulted in September of 2009. Gebo alleges that Thyng violated

his Eighth Amendment rights by failing to protect him from

assault by other inmates. Thyng moves for summary judgment on

the ground that Gebo failed to exhaust his administrative

remedies. Gebo objects.

A hearing was held on May 2 2 , 2012. Thyng did not attend

the hearing but instead submitted his deposition for

consideration. Three witnesses testified on behalf of Thyng:

Ann Marie Morin, who was a sergeant at NCF in September of 2009;

Edward S . McFarland, Jr., who also was a sergeant at NCF; and

Diane R. Bouthot, who is the administrative secretary to the Warden at NCF. Gebo testified, and David Peters, who was an

inmate at NCF in September of 2009, testified on behalf of Gebo.

Standard of Review

The Prison Litigation Reform Act of 1995 provides that “[n]o

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). Section 1997e(a) requires

“proper exhaustion.” Woodford v . Ngo,

1 , 88 (2006).

Proper exhaustion means that a prisoner must complete the

grievance process in the manner required by the prison. Jones v .

Bock,

(2007). Because the administrative

exhaustion requirement under § 1997e(a) is an affirmative

defense, the defendant bears the burden of proving that the

plaintiff failed to exhaust. Id. at 216; Casanova v . Dubois,

5 , 77 n.3 (1 st Cir. 2002); Starr v . Moore, --- F. Supp. 2d

---,

(D.N.H. Mar. 2 8 , 2012).

As noted in the previous order, the parties’ summary

judgment memoranda and supporting materials demonstrated that

material facts are in dispute as to whether Gebo exhausted his

administrative remedies. All courts that have considered the

2 issue have concluded that there is no Seventh Amendment right to

a jury trial on disputed factual issues for purposes of deciding

the § 1997e(a) exhaustion issue. See, e.g., Messa v . Goord,

(2d Cir. 2011) (citing cases). Instead, the trial

court resolves factual disputes related to the exhaustion defense

and decides whether the defendant has carried his burden of proving that the plaintiff failed to exhaust administrative

remedies. Pavey v . Conley,

(7th Cir. 2008).

Background

Gebo, proceeding pro se and in forma pauperis, filed a

complaint alleging claims under § 1983. On preliminary review,

the magistrate judge recommended dismissal of Gebo’s Fourteenth

Amendment claim and ordered service on Robert Thyng of Gebo’s

Eighth Amendment claim. Gebo’s motion for appointment of counsel

was granted. An attorney entered an appearance on Gebo’s behalf

and filed an amended complaint, alleging that Thyng violated

Gebo’s Eighth Amendment rights by failing to protect him. Thyng

moved for summary judgment, and Gebo objected.

The following background information is taken from the

parties’ summary judgment materials, along with the testimony and

evidence presented during the hearing.

3 John Gebo was an inmate at the Northern New Hampshire

Correctional Facility in September of 2009.1 At that time, NCF

was overcrowded, housing 200 inmates more than its peak capacity.

In addition, the number of staff had been reduced by layoffs.

Although inmates were not supposed to move between the two

housing levels in the prison, in 2009 they were able to access

the stairs and did move between the levels.

On September 2 , 2009, Gebo was attacked by other inmates who

hit him repeatedly, causing a large gash on the back of his head

and other injuries. Gebo knew that at least two of the attackers

were members of a prison gang, and he believed he was attacked

because he refused to join a gang. He was treated at

Androscoggin Valley Hospital for his injuries and returned to the

prison that night.

When he returned to the prison, Gebo was placed in

Administrative Review status. The next day, September 3 , Gebo told Unit Manager Robert Thyng that he needed to be in protective

custody because he had been assaulted by a known gang member.

Thyng denied his request and returned Gebo to general population,

1 The units are also referred to as pods and blocks. Gebo initially was housed in A Unit, which is on the first level of the prison, along with B , C , and D Units. E , F, G, and H Units are on the second level.

4 although Gebo was moved from Unit A on the first level to Unit E

on the second level.

Gebo prepared a request slip in which he asked to meet with

Thyng for an explanation as to why his request for protective

custody was denied. On his way to the request slip box which was

located outside of the sergeant’s office on the second level, Gebo met another inmate, David Peters, whom he knew. Peters was

surprised to see Gebo in the second level hallway because he

thought Gebo was in A Unit on the first level and asked him what

he was doing up there. Gebo told Peters about the assault and

showed him the gash on his head and other wounds. Peters was

shocked and asked Gebo why he was not in the health services

unit. Peters was aware of the danger from gang members in prison

and thought Gebo should be moved out of the prison. Gebo showed

Peters the inmate request slip he had completed and explained that he was very concerned for his safety and was trying to get a

meeting with Thyng so that he could have a protective custody

hearing and be moved out of NCF. Peters saw the inmate request

slip, which was addressed to Thyng and had extensive writing on

i t , and saw Gebo put the slip in the box outside the sergeant’s

office. Gebo got no response from the request slip, and he

remained in general population in the prison.

5 On September 5 , 2009, Gebo was assaulted again by inmates

who threw boiling water on him and hit him with a lock. Gebo was

treated for burns, lacerations, and bruising at Androscoggin

Valley Hospital. Following that attack, Gebo spent several days

in health services at NCF. He was placed on Administrative

Review status but again was returned to the general population, F

Unit. Gebo completed and submitted another request slip

addressed to Thyng, asking for a meeting about the assaults and

his need for protective custody, but did not receive a response.2

A few days later, Gebo spoke to Sergeant Morin about his

situation, and she told Gebo that she would call Thyng. Gebo

raised the protective custody issue again at his classification

review, which was held on September 1 7 , 2009, but was told that

protective custody was not an issue for consideration by the

classification review board. His classification remained the

same. Gebo talked with Morin again who suggested he contact Sergeant McFarland. Gebo asked McFarland for a grievance form

but was told that he had to wait for a response from his request

slips before he could have a grievance form.

2 No one else saw this request slip. Prison officials have searched the files and did not find inmate request slips from Gebo that asked for a meeting with Thyng about Gebo’s safety or his request for protective custody. Gebo’s testimony about the second slip was less clear than for the first slip.

6 On October 1 5 , 2009, Gebo told Morin that he was in fear for

his life. Morin told Gebo to write his complaints in a

statement. Gebo wrote that inmates in the BOWW gang were

charging him “rent”, which he could not afford, and that he was

afraid because he had been attacked twice. Morin then escorted

Gebo to administrative segregation, where he was held over night. The next day, when officers attempted to move him back to general

population in C Unit, Gebo refused to move, saying that he could

not stay in general population because of threats to his safety.

Gebo was written up for a minor disciplinary offense, and he

pleaded guilty. When officers returned to move him, Gebo again

refused to move and was written up for a major disciplinary

offense and was transferred to the secure housing unit. Gebo

remained in the secure housing unit.

Prison officials found several request slips that Gebo filed in November and December.3 On November 3 , he submitted a request

slip asking to have his property brought to him. On November 1 2 ,

he submitted a request slip asking for permission to use a

telephone in another area because the telephone available to him

was broken. On November 2 2 , Gebo submitted a request slip asking

the director of classifications if he could be transferred to

3 Gebo’s file also has request slips submitted by him during 2010.

7 another state. On November 2 7 , he asked to speak with the unit

manager, identified as Craig Thyng, apparently about getting

property returned to him from another unit. On December 6, Gebo

wrote to the director of classifications, saying that it was

“imperative” that he talk to her about his classification status.

He stated that he had been assaulted twice, that he could not be returned to general population because of the gangs, and that the

secure housing unit was not supposed to be used as a form of

protective custody. He asked to be transferred to a county jail.

On December 8 , 2009, a protection review board was held to

consider Gebo’s classification, and the board recommended that

Gebo be put in protective custody. The classification was

approved on December 1 0 , 2009, with the notation that Gebo would

remain in the secure housing unit pending an out of state

transfer. Gebo was eventually transferred to Merrimack County House of Corrections and later to the state prison in Concord

where he is being held in protective custody.

The process for administrative review of inmate issues is

provided in a document titled “Grievances and Complaints by

Persons under DOC Supervision” PPD 1.16 (May 1 5 , 2007) (“PPD

1.16"). The first level of review requires an inmate to submit a

request slip to the lowest level staff person with authority to

address the issue. A response to a request slip is to be

8 provided to the inmate within fifteen working days. The first

step, filing a request slip, may be waived only “when the inmate

can demonstrate that using the process is likely to result in

identifiable risk of harm to their [sic] physical safety or

psychological well-being.” Id. IV(A)(4). The second step

requires the inmate to submit a grievance form to the warden within thirty days after receiving a response to a request slip.

The third step is a grievance to the commissioner.

Thyng, Morin, and McFarland testified to different versions

of the review process. Thyng also testified that the procedure

provided by PPD 1.16 had been changed by a memorandum from the

Commissioner of the Department of Corrections. Under the changed

procedure, officers were required to give grievance forms to all

inmates who asked for them. Thyng testified that not all prison

officers followed the Commissioner’s direction.

Findings of Fact

1. Gebo asked to be placed in protective custody after he was

assaulted on September 2 , 2009, and his request was denied.

2. Gebo completed an inmate request form in which he asked to

meet with Thyng for an explanation of why his request for

protective custody was denied.

9 3. Gebo put the inmate request form into the appropriate box on

September 3 , 2009.

4. Gebo did not receive a response to the inmate request form.

5. Following the assault on September 5 , 2009, Gebo went to the

control center, known as the bubble, and asked to speak with

Thyng but was told that Thyng was not available. 6. Gebo spoke to Sergeant Morin about his safety concern, and

she said she would call Thyng.

7. Gebo did not receive a response from that conversation.

8. At a classification review held on September 1 7 , 2009, Gebo

asked for protective custody but was told that the review board

could not make that decision.

9. The same day Gebo talked to Morin again about his situation,

and Morin suggested that he talk to Sergeant McFarland.

10. Gebo asked McFarland for a grievance form, but McFarland said Gebo had to wait for a response to the inmate request slips

before he could have a grievance form.

11. A review board granted Gebo protective custody status in

December of 2009.

12. PPD 1.16 provided the official administrative procedure for

inmates to seek review of issues, although the procedures may

have been amended by memoranda from the Commissioner.

13. During the fall of 2009, the officers at NCF did not all

10 follow the same procedure for administrative review of inmate

issues and did not necessarily follow the procedure as it is

provided in PPD 1.16.

14. Thyng, Morin, and McFarland have no memory of the events

involving Gebo in September of 2009 and no memory of whether Gebo

submitted inmate request slips asking for a meeting with Thyng to discuss his need for protective custody.

15. No request slips from Gebo, dated in September of 2009 and

asking for a meeting with Thyng about protective custody, were

found in the prison files.

Ruling

Thyng contends that Gebo cannot maintain his suit because he

did not exhaust the administrative remedies provided by PPD 1.16.

Gebo acknowledges that he did not complete the three-step process

provided by PPD 1.16 but argues that he was prevented from doing

so by Thyng’s failure to respond to his request slips. Thyng

contends that Gebo did not file any request slips that asked for

a meeting with Thyng to discuss protective custody and contends

that even if such slips were filed and he received no response,

Gebo should have sought a waiver from the request slip step or

filed a grievance.

11 As was discussed in the prior order, because exhaustion

under § 1997e(a) is an affirmative defense, it may be subject to

equitable considerations such as tolling, estoppel, and waiver.

See, e.g., Amador v . Andrews,

9 , 103 (2d Cir. 2011);

Casanova,

n.3 (1 st Cir. 2002). In addition,

§ 1997e(a) requires exhaustion of only “such administrative remedies as are available.” If prison officials make

administrative remedies unavailable by misconduct, mistake, or

inaction, the exhaustion requirement is obviated. See, e.g.,

Beaton v . Tennis,

, at *2 (3d Cir. Jan. 3 1 , 2012)

(unpublished decision); Tuckel v . Grover,

(10th Cir. 2011); Moore v . Bennette,

1 7 , 725 (4 th Cir.

2008); Macias v . Zenk,

7 , 44-45 (2d Cir. 2007); Kaba v .

Stepp,

7 8 , 684-85 (7 th Cir. 2006); Perfetto v . N.H.

State Prison, Warden,

, at *6 (D.N.H. Apr. 8 , 2008). In particular, remedies are not available if prison

officials fail to respond to a properly filed form or refuse to

provide forms to an inmate who requests them. Sapp v . Kimbrell,

(9th Cir. 2010) (citing cases).

Gebo properly submitted a request slip addressed to Thyng by

putting the request slip in the appropriate box on September 3 ,

12 2009.4 Gebo received no response. Gebo then asked Morin for

help, and she referred him to McFarland who told him he could not

have a grievance form until he received a response to his request

slip.5 Because neither Thyng nor anyone else responded to the

request slip or slips and Gebo was told he could not have a

grievance form until he received a response, prison officials

made administrative remedies unavailable.6 See, e.g., Moore,

(“[A]n administrative remedy is not considered to

have been available if a prisoner, through no fault of his own,

was prevented from availing himself of i t . ” ) ; Kaba,

(“[W]hen prison officials fail to provide inmates with the

forms necessary to file an administrative grievance,

administrative remedies are not ‘available.’”); Dole v . Chandler,

0 4 , 810-11 (7th Cir. 2006) (holding that when prison

officials were responsible for mishandling a complaint inmate did

4 Gebo may also have submitted a second request slip after the assault that occurred on September 5 . 5 McFarland may also have required inmates to file a request slip for a grievance form. 6 Under PPD 1.16(IV)(A)(5), prison officials were supposed to respond to a request slip within fifteen “working days” after receiving i t . Assuming “working days” do not include weekends, the response time for Gebo’s slip filed on September 3 , 2009, would have expired on September 2 4 , 2009. Gebo testified, however, that the prison officers at NCF told inmates that they would get responses within seven days, which would have made the deadline September 1 4 .

13 not fail to exhaust); Russo v . Honen,

(D. Mass. 2010) (failure to provide grievance form makes remedy

unavailable); Braxton v . Ross,

, at *1 (D. Mass.

Apr. 2 7 , 2010) (“[A] prison’s failure to comply with its own

procedures (such as failing to timely respond to a grievance) may

excuse a failure to exhaust.”). Gebo is not required to exhaust unavailable remedies.

To the extent Thyng argues that Gebo should have filed a

grievance to address his safety concerns, that procedure would be

contrary to the three-step process provided in PPD 1.16. In

addition, as noted above, McFarland refused Gebo’s request for a

grievance form, making that remedy unavailable. Thyng also

argues that Gebo should have applied for a waiver under PPD 1.16

IV(A)(4). As the court decided in the prior order, PPD 1.16

IV(A)(4) does not apply to the circumstances in this case and, therefore, does not provide an alternative remedy that Gebo

should have pursued.

Thyng did not carry his burden of showing that Gebo failed

to exhaust available administrative remedies. Therefore, Gebo’s

suit is not barred by § 1997e(a).

14 Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 35) is denied.

SO ORDERED.

VjJoseph United __ a ____ Di ico, c __ Judge June 7, 2012

cc: James Spencer Culp, Esquire Theodore M. Lothstein, Esquire Nancy J. Smith, Esquire

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