Duane L . Fox v . Strafford County DOC 11-CV-295-SM 11/7/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Duane Leroy Fox, Plaintiff

v. Case N o . 11-cv-295-SM Opinion N o .

Superintendent, Strafford Count Dept. of Corrections, et a l . , Defendants

O R D E R

Duane Fox is a former pretrial detainee, who had been housed

at the Strafford County House of Corrections. He brings this

action seeking compensation for alleged violations of his

Fourteenth Amendment rights. See generally

.

Specifically, he says the numerous individually named corrections

officers knew that he was uniquely vulnerable to attack because

he is homosexual and suffers from post-traumatic stress disorder.

Nevertheless, says Fox, those officers were deliberately

indifferent to his security needs and, as a consequence, he was

repeatedly sexually assaulted by another inmate over the course

of several days.1

1 Because Fox was a pretrial detainee at the time of the alleged incidents that give rise to his complaint, his claims are governed by the Fourteenth, rather than the Eighth, Amendment. See Ruiz-Rosa v . Rullan,

5 0 , 155 (1st Cir. 2007); Surprenant v . Rivas,

, 18 (1st Cir. 2005). Defendants deny violating any of Fox’s constitutional

rights. And, because they say Fox failed to exhaust available

prison administrative remedies, defendants assert that his claims

are barred by the Prison Litigation Reform Act. On that ground,

defendants move for summary judgment. For the reasons discussed,

that motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

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

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted).

2 This case is somewhat atypical in that Fox has failed to

object to the pending motion for summary judgment.2 Accordingly,

the court accepts as admitted the factual statements recited in

that motion, as supported by the attached exhibits. See Local

Rule 7.2(b)(2) (“All properly supported material facts set forth

in the moving party’s factual statement shall be deemed admitted

unless properly opposed by the adverse party.”). See also Puerto

Rico Am. Ins. C o . v . Rivera-Vazquez,

(1st Cir.

2010) (discussing Puerto Rico’s analog to Local Rule 7.2(b)(2),

also known as the “anti-ferret rule,” and holding that, “This

type of rule is aimed at enabling a district court to adjudicate

a summary judgment motion without endless rummaging through a

plethoric record. Given this root purpose, we have held with a

regularity bordering on the monotonous that parties ignore the

strictures of an ‘anti-ferret’ rule at their peril.”) (citations

omitted).

Importantly, however, Fox’s failure to object does not

automatically entitle defendants to judgment in their favor. The

2 The court’s docket includes an entry indicating that mail sent to M r . Fox was returned as undeliverable. A subsequent entry documents a conversation between court staff and an official at the Inmate Records Division of the House of Corrections, who reported that Fox was released from custody and left no forwarding address. Despite his ongoing obligation to notify the court of any change of address, see Local Rule 83.6(e), Fox has failed to provide the court will his current mailing address or other contact information.

3 court must still determine whether the uncontested facts

presented by defendants, when viewed in the light most favorable

to Fox, entitle defendants to judgment as a matter of law. See,

e.g., Stonkus v . City of Brockton Sch. Dep’t,

7 , 102

(1st Cir. 2003).

Discussion

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 1997(e) requires an inmate to exhaust all

available administrative processes before filing a federal suit

that relates 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,

3 1 , 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.”).

4 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,

incorporates 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, most recently,

the Court held that the PLRA exhaustion requirement requires

“proper exhaustion.” Woodford v . Ngo,

1 , 93 (2006).

“Proper exhaustion demands compliance with an agency’s deadlines

and other critical procedural rules because no adjudicative

system can function effectively without imposing some orderly

structure on the course of its proceedings.”

(footnote omitted). S o , 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 . United States Marshals

Serv.,

(1st Cir. 2006) (quoting Pozo v .

McCaughtry,

(7th Cir. 2002)).

5 Claims of the sort advanced by Fox are precisely the type

that must be properly exhausted through available prison

administrative processes before they may be pursued in federal

court. However, the undisputed facts of record reveal that he

failed to properly exhaust those claims. Specifically, the

record evidence establishes that:

1. The Strafford County House of Corrections has a multi-tiered administrative grievance process that is applicable to all claims relating to inmate life, conditions of confinement, and allegations of constitutional violations;

2. That grievance process is explained in the Inmate Handbook;

3. Fox was provided with a copy of the Inmate Handbook; and

4. A review of the House of Corrections’ inmate records revealed that Fox did not file a single inmate grievance during the course of his incarceration.

See Affidavit of Bruce Pelkie (document n o . 6 5 - 2 ) , at paras. 2-

10.

Because Fox failed to properly exhaust available prison

administrative remedies relating to the claims advanced in this

case, and because nothing in the record suggests that this is one

of the rare and exceptional cases in which compliance with those

exhaustion requirements might properly be excused, see, e.g.,

6 Hemphill v . New York,

8 0 , 686 (2d Cir. 2004); Gibson v .

Weber,

(8th Cir. 2005), Fox cannot pursue his

claims that defendants violated his Fourteenth Amendment rights

by deliberately failing to adequately protect him from other

inmates.

Conclusion

Plaintiff failed to properly exhaust available

administrative remedies prior to filing his federal claims.

Defendants are, therefore, entitled to judgment as a matter of

law on all claims advanced in Fox’s amended complaint.3

Defendants’ motion for summary judgment (document n o . 65) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J. McAuliffe yfTv^ .; J- ^ J o -i- -, -i- ^ ^ r^ -; ,-, -i- ^ Jnited States District Judge

November 7, 2013

3 Typically, if there were still time for Fox to pursue his administrative remedies, the court would simply dismiss his constitutional claims without prejudice. But, the record in this case establishes that the time for pursuing those administrative claims lapsed long ago. See Affidavit of Bruce Pelkie at para. 15.

7 Duane L . Fox, pro se Corey M . Belobrow, Es

8