UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Christopher Polansky

v. Civil No. 13-cv-458-JL Opinion No.

Ann Marie McCoole

MEMORANDUM ORDER

This civil rights action turns squarely on the requirement

of the Prison Litigation Reform Act (PLRA), see 42 U.S.C.

§ 1997e(a), that an inmate exhaust the Department of

Corrections’s formal grievance process prior to seeking recovery

under

in federal court. By his Amended

Complaint, the plaintiff, Christopher Polansky, seeks to recover

for damages he allegedly suffered as a result of inadequate

medical care during a one-month stay in the Residential Treatment

Unit (RTU) at the New Hampshire State Prison for Men in Concord.

He asserts an Eighth Amendment civil rights claim under

and state-law claims for negligence and negligent

infliction of emotional distress. This court has subject-matter

jurisdiction under

(federal question) and 1367

(supplemental jurisdiction).

The sole defendant in this case, Ann Marie McCoole, a

registered nurse and Nursing Coordinator employed by the New

Hampshire Department of Corrections, moves for summary judgment, see Fed. R. Civ. P. 56, on Polansky’s Eighth Amendment claim that

she provided inadequate medical care during his stay at the RTU.

After hearing oral argument, and for the reasons set forth below,

the court concludes that Polansky failed to exhaust the

administrative remedies available to him before filing this

action, as the PLRA requires. The court therefore grants summary

judgment in favor of the defendant and dismisses Polansky’s

Eighth Amendment claim. Having done so, the court declines to

exercise supplemental jurisdiction over the remaining state-law

negligence claims.

(c)(3).

I. Applicable legal standard

Summary judgment is appropriate where “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). To defeat such a motion, the party

opposing summary judgment “must set forth specific facts showing

that a genuine issue of material fact exists as to each issue

upon which she would bear the ultimate burden of proof at trial.”

Torres-Negron v. Merck & Co.,

(1st Cir. 2007)

(quotations omitted). An issue is “genuine” if it may reasonably

be resolved in either party’s favor at trial, and “material” if

2 it has the capacity to sway the outcome under applicable law.

Vineberg v. Bissonnette,

(1st Cir. 2008)

(quotations omitted). In performing these calculations, the

“court must scrutinize the record in the light most flattering to

the party opposing the motion, indulging all reasonable

inferences in that party’s favor.” Mulvihill v. Top-Flite Golf

Co.,

(1st Cir. 2003). Where, as here, the party

seeking summary judgment also bears the burden of proof at

trial,1 the court will not grant summary judgment unless, based

on the record taken in this light, no reasonable jury could find

for the nonmoving party. See E.E.O.C. v. Union Independiente de

la Autoridad de Acueductos y Alcantarillados de P.R.,

(1st Cir. 2002); Winnacunnet Coop. Sch. Dist. v. Nat'l

Union Fire Ins. Co. of Pittsburgh,

(1st Cir.

1996).

II. Background

The following background summary, drawn from the complaint

and the documents submitted in support of defendant’s motion for

summary judgment and plaintiff’s opposition thereto, takes the

1 As further discussed infra, the defendant has asserted the affirmative defense of failure-to-exhaust under 42 U.S.C. § 1997e(a). She carries the burden of proving this defense at trial. Jones v. Bock,

(2007).

3 approach described above and draws all reasonable inferences in

Polansky’s favor.

While incarcerated in the New Hampshire State Prison for Men

in Concord, Polansky requested a transfer to the that facility’s

RTU so that he could attend counseling and group therapy

sessions. During his month-long stay in the RTU, between August

21, 2012, and September 20, 2012, Polansky was housed in the

RTU’s Secure Psychiatric Unit (SPU) infirmary. The defendant was

a Psychiatric Unit Nurse Coordinator there at that time.

As a paraplegic confined to a wheelchair, Polansky relied on

equipment to move himself between his wheelchair and other

surfaces, such as his bed. During the majority of his stay in

the RTU, the facility provided a trapeze unit over Polansky’s

bed, which allowed him to change positions using his arms alone,

and a slide board, along which he could slide from one surface to

another. As a result of spending a significant amount of time in

a wheelchair, Polansky suffered from decubitus, pressure sores,

and ulcers. Upon arriving at the RTU, he told the prison staff

that using a slide board would exacerbate those conditions and

injure him further. He requested a Hoyer lift instead.2 A Hoyer

2 A Hoyer lift, or sling lift, is a floor crane used to transfer a patient between two surfaces (e.g., a bed and a wheelchair) using a sling. See Santos v. Sunrise Med., Inc.,

, 589 & n.1 (1st Cir. 2003).

4 lift arrived in the state warehouse during the week of September

11, 2012, and was set up for Polansky’s use on September 19,

2012. While waiting for the Hoyer lift, Polansky used the slide

board to move between his wheelchair and other surfaces. The

resulting friction led to open sores, about which Polansky

complained to the prison staff. Separately, Polansky also

complained of constipation that resulted in bowel blockage.

Polansky submitted two Inmate Request Slips relating to his

request for a Hoyer lift and his bowel blockage during his stay

at the RTU.3 Specifically, on September 13, 2012, Polansky

submitted an Inmate Request Slip addressed to a staff doctor,

complaining that his “buttocks [were] pretty much shredded from

using a slide board” asked for an examination and informing the

staff that he had not “had a [bowel movement] now since 09-03-

12.” Plaintiff’s Ex. A-2. He was told to speak to a nurse to

schedule an examination with a provider.

On September 18,

2012, Polansky submitted another Inmate Request Slip, this time

directed specifically to McCoole, asking for the Hoyer lift and

for additional remedies for his bowel blockage. Plaintiff’s Ex.

A-3. The RTU staff made the Hoyer lift available to Polansky the

3 Polansky also filed at least five other Inmate Request Slips during his stay at the RTU, but does not contend that they concern these issues, nor do they appear to do so. See Defendant’s Ex. B-1 at 1-3, 5, 7.

5 next day. Polansky Aff’t ¶ 10. He left the RTU one day later,

on September 20, 2012.

After leaving the RTU, Polansky continued to file additional

Inmate Request Slips complaining of pain and sores he claims were

caused by using the slide board during his RTU stay. Plaintiff’s

Exs. A-4 (September 23, 2012), A-5 (September 24, 2012), A-6a

(October 8, 2012), and A-6b (October 8, 2012). He also

complained about the quality of the prison’s water. Plaintiff’s

Exs. A-8 (January 31, 2013) and A-9 (February 5, 2013). After a

slew of Inmate Request Slips cataloging various complaints,

Polansky filed two second-level grievances in early 2013. The

first addressed his concerns about the quality of the water,

Plaintiff’s Ex. A-11, and the second a previously undocumented

concern about the conduct of the mail room staff, Plaintiff’s Ex.

A-12.

Polansky commenced this action on October 16, 2013. After a

year and several amendments to his complaint, Polansky obtained

counsel4 and, on November 10, 2014, filed the operative Amended

4 Neither the Constitution nor any statute entitled Polansky to counsel in this action. In light of the proceedings in this action and Polansky’s prior sojourns in this District, the court determined that the interests of justice would be served by his having counsel. After contacting several legal aid agencies who were, unfortunately, unwilling or unable to take on Polansky’s case, the court appointed Matthew Cairns, Esq. from its roster of volunteer pro bono counsel, the Pro Bono Volunteer Attorney

6 Complaint5 asserting a single claim under the Eighth Amendment

and two state law negligence claims against McCoole in her

official and personal capacities. McCoole moved for summary

judgment on her affirmative defense that Polansky failed to

exhaust his administrative remedies before bringing a suit in

this court contesting prison conditions as required by the PLRA.

III. Analysis

The defendant’s motion for summary judgment turns on whether

Polansky exhausted his available administrative remedies. The

exhaustion provision of the PLRA prohibits a prisoner from

bringing any action “with respect to prison conditions under [

], or any other Federal law, . . . until such

administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). Such a requirement “allows prison officials

an opportunity to resolve disputes concerning the exercise of

their responsibilities before being haled into court” which “has

the potential to reduce the number of inmate suits, and also to

improve the quality of suits that are filed by producing a useful

administrative record.” Jones,

.

Panel. The court appreciates Attorney Cairns’ advocacy on Polansky’s behalf in this action. 5 Document no. 66.

7 The PRLA “requires proper exhaustion,” which means that an

inmate taking advantage of the grievance process must comply with

all of the prison’s “deadlines and other critical procedural

rules.” Woodford v. Ngo,

(2006); see also Acosta

v. U.S. Marshals Serv.,

(1st Cir. 2006) (citing

Pozo v. McCaughtry,

(7th Cir. 2002)).

Failure to exhaust administrative remedies is an affirmative

defense. Jones,

. To prevail on summary

judgment, then, the defendant must show that no reasonable jury

could find that Polansky exhausted the administrative remedies

available to him before commencing this action. And she has done

so here.

1. The DOC grievance process

The New Hampshire Department of Corrections has promulgated

administrative remedies in the form of an official, three-step

grievance process. That procedure is set forth in the DOC Policy

and Procedure Directive (PPD) 1.16, which the defendant has

attached to her motion as Exhibit G. As this court has

previously described the process:

PPD 1.16 requires an inmate make an initial attempt -- albeit an informal one -- to resolve any issue with the staff member involved. If that fails, a three-level grievance procedure is set in motion with the filing of

8 a written complaint -- known as an inmate request slip (IRS) -- with the lowest level staff member authorized to deal with the issue in question. The IRS must be filed within 30 days of the underlying incident or it will be rejected as untimely. Once filed, prison officials are required to conduct an appropriate investigation of the issues raised and provide a written response to the inmate within 15 days.

At the second level, an inmate dissatisfied with the prison’s response may pursue further administrative remedies by submitting a “grievance form” to the Warden. The inmate is afforded 30 days from the receipt of the response to appeal to the Warden, who then has 30 days to conduct any necessary investigation and make a decision.

The third and final level of the grievance procedure enables the inmate to appeal the Warden’s decision to the Commissioner of Corrections. Any appeal to the Commissioner must be filed within 30 days of the Warden’s response and the Commissioner in turn has 30 days to decide. The Commissioner’s decision is final. See PPD 1.16, at 3–4; Inmate Manual, § D. Until the Commissioner has responded to the grievance, the inmate has not fully exhausted all of his or her administrative remedies.

Perfetto v. New Hampshire State Prison,

.

The defendant here argues that Polansky’s suit must be

dismissed because Polansky has not properly exhausted his

available administrative remedies with respect to his claims that

McCoole failed to provide him with adequate medical care by

“forcing him to use a physically injurious slideboard and an

unsanitary toilet/shower seat, and to endure prolonged

constipation and bowel obstruction . . . .” Amended Compl. ¶ 31.

9 The court agrees. As explained more fully below, see infra Part

II.3, the evidence -- even taken most generously in Polansky’s

favor -- demonstrates that Polansky never availed himself of the

third tier of the DOC’s grievance policy with respect to injuries

arising from use of the slide board or his bowel issues. Nor

does the evidence admit the inference that he engaged the

administrative grievance process at all with respect to his

complaint about an unsanitary toilet and shower seat. His

failure to fully and properly exhaust the administrative remedies

available to him is fatal to his request for judicial relief.

2. Polansky’s access to the grievance process

The first question the court must address is whether the

grievance process described above was available to Polansky. He

contends that it was not. The PLRA makes clear that an inmate

need only exhaust those remedies “as are available.” 42 U.S.C.

§ 1997e(a). As this court has previously observed, giving the

language of the PLRA its plain and ordinary meaning,

“‘[a]vailable’ means accessible or capable of being possessed or

used.” Knowles v. New Hampshire Dep't of Corr. Comm'r,

(D.N.H. 2008). The evidence before the court

clearly shows that Polansky frequently complained through the

grievance process. For example, the court has reviewed some

10 eighteen Inmate Request Slips submitted by Polansky between

August 20, 2012, and April 10, 2013,6 and two phase two grievance

forms, submitted February 26, 2013, and March 8, 2013.

Polansky’s frequent use of the grievance system undercuts his

various arguments that he lacked effective access to that system.

First, Polansky argues that he was unable to access the

grievance system because he “failed to consistently receive

responses to his Inmate Request Slips.” Plaintiff’s Mem. at 8.

However, the evidence here demonstrates that Polansky received a

response to all but one of the Inmate Request Slips submitted as

evidence in support of or opposition to defendant’s motion.7 See

Plaintiff’s Exs. A-1 through A-10; Defendant’s Ex. B-1. Polansky

received responses to both of the Inmate Request Slips filed

during his RTU stay that addressed the issues raised in this

lawsuit, see Defendant’s Exs. A-2 and A-3, as well as those filed

afterward, see, e.g., Defendant’s Exs. A-4 and A-5. The

frequency of Polansky’s requests and the high rate of response

indicates not, as Polansky contends, that he lacked access to the

6 Polansky filed fourteen of these during the two-month period between August 20, 2012 and October 24, 2012. 7 The solitary Inmate Request Slip to which Polansky alleges he never received a response -- and the court draws that inference in his favor -- was his February 5, 2013 IRS submitted to Warden Gerry on the subject of the prison’s water quality. See Plaintiff’s Ex. A-9.

11 system, but that his access was adequate and that he was a

frequent participant.

At oral argument, Polansky cast a new light on this

position. He had inadequate access to the administrative

grievance process, he contended, because the process would take

too much time to address the complaints at issue here -- that is,

that the system fails in emergency medical situations. However,

the administrative process provides a safety valve for emergency

situations. The first step of the process is “waivable where an

inmate can demonstrate that using the process ‘is likely to

result in an identifiable risk of harm to their physical safety

or psychological well-being.’” Knowles,

(quoting PPD 1.16(IV)(A)(4)). A direct approach to the warden,

bypassing the Inmate Request Slip level, would require Polansky

to have sought a waiver. PPD 1.16(IV)(A)(4). There is no

evidence that he did so here.

Polansky’s second argument, that the Inmate Requests Slips

were inconsistently available to him, see Plaintiff’s Mem. at 8,

is equally unavailing for much the same reason. The defect in

Polansky’s complaint here, as described in greater detail below,

is not his failure to submit an Inmate Request Slip cataloging

his complaints of insufficient medical care; it is his failure to

12 continue along the next two steps of the grievance process before

filing this action.8 See, infra, Part III.3. Any alleged lack

of Inmate Request Slips fails to explain that discrepancy. And,

as discussed supra, the evidence shows that Polansky had access

to Inmate Request Slips and employed them to complain about the

conditions that he has raised in this lawsuit.9 His August 10,

2012, complaint about the staff’s lack of response to prior

Inmate Request Slips, which he filed before his move to the RTU

on August 20, 2012, see Plaintiff’s Mem. at 7; Plaintiff’s Ex. A-

1, sheds no light on the question of whether Polansky was able to

exhaust his administrative remedies in seeking redress for the

alleged defects in his care during his RTU stay.

Finally, invoking the imbalance of power between inmates and

prison staff, Polansky contends that the grievance system was

unavailable to him because McCoole and Warden Gerry actively

discouraged him from using the system. See Plaintiff’s Mem. at

8. Specifically, Polansky alleges that McCoole informed him that

8 Indeed, Polansky’s only arguable second-level grievance related to the issues raised in this case was actually submitted on an Inmate Request Slip addressed to Warden Gerry rather than the proper level two grievance form. See Polansky Aff’t ¶ 15; Plaintiff’s Ex. A-8. 9 Notably, when Polansky used an Inmate Request Slip to complain of a dearth of Inmate Request Slips, the staff responded by agreeing to increase the number of slips ordered for the unit. Plaintiff’s Ex. A-13.

13 he would be “taken care of as far as the bowel blockage and the

Hoyer Lift, so long as [he] ‘didn’t rock the boat’ or ‘be

unreasonable’.” Polansky Aff’t ¶ 6. He took this to mean his

concerns would be addressed if he avoided complaining about them.

Id. Similarly, he took the Warden’s response to his March 8,

2013 grievance about contaminated water and mailroom malfeasance,

see Plaintiff’s Ex. A-12, in which the Warden directed him to

file an Inmate Request Slip rather than raising the issue for the

first time in a grievance, as a deterrent to using the grievance

system at all. Because of this discouragement, Polansky argues,

the grievance system was effectively not available to him.

Polansky’s participation in the system again cuts against

him. As explained supra, whether the system was “available” to

him turns on whether he was able to access or use it. Knowles,

. And, as this court explained in Knowles,

in light of Polansky’s consistent employment of the system,

“[t]here is no question that the three-level grievance procedure

set forth in the Inmate Manual and promulgated by the DOC at PPD

1.16 was literally ‘available’ to the plaintiff.”

Even

taking Polansky at his word that he was unable to obtain the full

sum of Inmate Requests Slips to which he was entitled and that

McCoole encouraged him not to “rock the boat,” his continued

filing of Inmate Request Slips -- including complaints on the

14 subject of this action -- demonstrates that the “the grievance

process was nonetheless always ‘available’ to him in the sense

that the means to take advantage of it were available to him

frequently enough to comfortably meet all of its procedural

requirements and deadlines.” Perfetto,

. Nothing

in the record suggests that Polansky was dissuaded from filing

grievances “to a degree that effectively made administrative

remedies unavailable to him.” Id. at 17-18.

For these several reasons, even viewed in the light most

favorable to Polansky, the record leaves no question that the

three-level administrative grievance process was available to him

and that he took regular advantage of it.

3. Polansky’s failure to exhaust administrative remedies

Having established that the DOC had an administrative

grievance process in place that was available to Polansky, the

court now turns to the question of whether Polansky exhausted his

available remedies. It concludes that he did not.

As described above, the three-step grievance process allows

for an aggrieved inmate to attempt to resolve a complaint by

filing an Inmate Request Slip. If the administration’s response

to that request is unsatisfactory, an inmate may file a level two

15 grievance, bringing the issue to the Warden’s attention. If the

Warden’s resolution of the issue fails to satisfy the inmate, he

may appeal that decision to the Commissioner of Corrections.

This process is “highly formalized and standardized, with

specific time frames and mandatory standardized forms. . . .

[U]se of these forms and observance of these deadlines is

required for ‘proper exhaustion.’” Knowles,

(citing Woodford,

)).

Even under the most generous reading of Polansky’s various

submissions, the record contains no indication that he ever

appealed those issues to the Commissioner of Corrections. At

best, Polansky may have filed a level 2 grievance on the issues

raised in this lawsuit. He addressed an Inmate Request Slip to

Warden Gerry on January 31, 2013, in which he complained that

wounds sustained while using the slide board may have become

infected due to the prison’s water, which to Polansky appeared

dirty and contaminated. Polansky Aff’t ¶ 15; Plaintiff’s Ex. A-

9. He alleges that this Inmate Request Slip was intended to

serve as a level 2 grievance to the Warden. Polansky Aff’t ¶ 15.

The court is skeptical that an Inmate Request Slip submitted in

this context should be construed as a second-level grievance due

to Polansky’s misapprehension when Polansky in fact filed second-

16 level grievances on other matters, which strongly suggests he had

knowledge of the process and was able to abide by it. See

Plaintiff’s Exs. A-11 and A-12. Even if the court considered

this Inmate Request Slip as such a grievance, however, the court

discerns no evidence to suggest that he raised any appeal to the

Commissioner of Corrections -- let alone one related to the

issues involved in this litigation. Absent any such evidence,

the court concludes that no reasonable question of material fact

remains as to whether Polansky exhausted his available

administrative remedies. The defendant is, therefore, entitled

to judgment as a matter of law that Polansky failed to satisfy

the PLRA’s exhaustion requirement before commencing this suit.

See Celotex Corp. v. Catrett,

(1986).

IV. State-law claims

The court having disposed of Polansky’s federal claim on

summary judgment, only his state-law negligence claims against

McCoole remain. Where “the district court has dismissed all

claims over which it has original jurisdiction,” it “may decline

to exercise supplemental jurisdiction” over remaining state law

claim.

(c)(3). Under these circumstances, where

the federal claim is dismissed before trial, the balance of

factors that the court considers when deciding whether to retain

17 supplemental jurisdiction over state law claims -- such as

judicial economy, convenience, fairness, and comity -- will

generally point toward relinquishing the claims to the state

court.

at 350 n.7. Accordingly, the court “declin[es] to

exercise [supplemental] jurisdiction over the remaining state-law

claims,” Carnegie-Mellon Univ. v. Cohill,

(1988), and dismisses them.

V. Conclusion

The undisputed facts in this case establish that the DOC’s

grievance policy was available to Polansky and that he failed to

properly exhaust those administrative remedies. Although he

unquestionably complained about the issues currently before the

court, his complaints did not constitute “proper exhaustion”

under the PLRA. Accordingly, defendant’s motion for summary

judgement10 on her failure-to-exhaust affirmative defense is

GRANTED. The plaintiff’s Eighth Amendment claim is dismissed

without prejudice for his failure to exhaust administrative

remedies. His state-law claims are also dismissed. The clerk

shall enter judgment accordingly and close the case.

10 Document no. 77.

18 SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: January 20, 2016

cc: R. Matthew Cairns, Esq. Lynnmarie C. Cusack, Esq.

19