UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Stile

v. Civil No. 17-cv-406-JD Opinion No.

David Dubois, et al.

O R D E R

James Stile, who is a federal prisoner proceeding pro se

and in forma pauperis, brought suit against the Strafford County

Sheriff and deputies in the Sheriff’s office, Strafford County,

the Strafford County Administrator, the Strafford County

Department of Corrections (“SCDC”) Superintendent and officers,

and the United States Marshals Service in the District of Maine

and individual marshals. His claims arose from an incident that

occurred in September of 2014, while Stile was a pretrial

detainee held at the Strafford County Department of Corrections

awaiting trial in the District of Maine. He alleges claims for

violation of the Fourteenth Amendment under

and

state law claims.

The SCDC, Bruce Pelkie, Robert Farrell, and Robert Hayden

move for summary judgment on the ground that Stile did not

exhaust the administrative remedies that were available to him.

Stile did not object to the defendants’ motion but filed his own motion for summary judgment on the issue of exhaustion. The

SCDC defendants object to Stile’s motion.

Standard of Review

Summary judgment is appropriate when the moving party

“shows that there is 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). “[A] fact is material if it has the

potential of affecting the outcome of the case.” Leite v.

Bergeron,

(1st Cir. 2018) (internal quotation

marks omitted). “A genuine issue of material fact only exists

if a reasonable factfindiner, examining the evidence and drawing

all reasonable inferences helpful to the party resisting summary

judgment, could resolve the dispute in that party’s favor.”

Town of Westport v. Monsanto Co.,

(1st Cir.

2017) (internal quotation marks omitted); Flood v. Bank of Am.

Corp.,

(1st Cir. 2015).

The same standard applies on cross motions for summary

judgment. The court determines whether either moving party is

entitled to judgment as a matter of law. Wells Real Estate Inv.

Tr. II, Inc. v. Chardon/Hato Rey P’ship, S.E.,

(1st Cir. 2010).

2 Background

Stile’s claims arise from the circumstances and events that

occurred on September 5, 2014, when he was taken from his cell

at the SCDC and transported to Maine for a hearing in his

criminal case. At that time, Stile was a federal pretrial

detainee who was in the custody of the SCDC pursuant to an

agreement with the United States Marshals Service. Stile

alleges that the officers involved in moving and transporting

him used excessive force in violation of his Fourteenth

Amendment right to due process.

Discussion

The SCDC defendants move for summary judgment on the

federal claims under

against them, asserting

that Stile failed to exhaust his administrative remedies through

grievance procedures at the jail with respect to the transport

incident in September of 2014. Stile moves for summary judgment

on the ground that the defendants’ answers to interrogatories

show that grievance procedures were not available or show that a

material factual dispute exists as to whether they were

available.

A prisoner cannot bring claims under § 1983 to challenge

the conditions of his confinement unless he has exhausted

available administrative remedies. 42 U.S.C. § 1997e(a). To

3 satisfy that requirement, a plaintiff must properly use all of

the steps provided. Woodford v. Ngo,

(2006). A

plaintiff’s failure to exhaust administrative remedies is an

affirmative defense. Jones v. Bock,

(2007).

A. SCDC Grievance Procedure

The SCDC defendants filed a copy of the Operational

Guideline, 3.6.04, Inmate Grievance Procedure, that was in

effect from 2013 to 2015 while Stile was a detainee at the SCDC.

See Aff. Gwen Weisgarber, Captain, SCDC, Doc. 36-2; Doc. 36-3.

They also filed a copy of the Inmate Handbook that was in effect

at that time. Stile acknowledges that the SCDC had a three-part

grievance procedure while he was detained there.

The grievance procedure is mandatory for an inmate to

receive a remedy. The procedure is provided to inmates in the

Inmate Handbook. Doc. 36-4. An inmate may make a verbal

informal complaint to a staff member within seven days of

discovering a grievable issue. Doc. 36-4, at 10. For any

condition or issue that requires action or a remedy, an inmate

must file a formal written grievance on a grievance form within

fourteen days of the issue or incident. Id. at 11. The inmate

will be provided an inmate grievance form by a staff member.

The inmate gives the completed grievance form to the Unit

Officer, and the inmate will be provided with a copy of the

4 grievance, if requested. The Unit Supervisor will resolve the

grievance if possible, but otherwise the duty shift supervisor

will address the grievance. The shift supervisor will address

the grievance within five business days, return the original to

the inmate, and place a copy in the inmate’s Booking Folder.

Doc. 36-4, at 11.

If the inmate is not satisfied with the shift supervisor’s

response, he must submit the grievance to the “Lieutenant-

Operations and Security” or his designee within five business

days. Id. The Lieutenant will respond in writing within five

business days, and a copy will be placed in the Booking Folder.

Id.

At the third step, if the inmate is still not satisfied

with the response, within five business days he must request a

further administrative remedy. Id. at 12. A Grievance

Committee would then be convened, with members designated by the

Superintendent “on an as-needed basis.” Id. An inmate may

appear before the Committee. The Committee’s decision will be

in writing and the inmate will sign the decision to show that he

was notified of it. A copy will be filed in the inmate’s

Booking Folder. Id.

5 B. Grievance of the September 5, 2014, Incident

Stile acknowledges in his motion for summary judgment that

“there is a grievance procedure [at SCDC] and that he did not

use it fully” to file a grievance pertaining to the September 5,

2014, incident. Doc. 52, at 5. The grievance logs and copies

of grievances that Stile and the defendants submit show that

Stile filed many grievances during the relevant period but none

that complained about the SCDC defendants’ actions during the

September 5, 2014, incident.

On September 5, 2014, Stile filed a grievance at 8:00 am

stating that officers brought him to booking without giving him

medication and without providing him with denture adhesive. On

September 8, the reply was that the officers “reported an

altercation in booking & then transport prior to being

medicated.” Doc. 36-5, Ex. C, at 118. Stile wrote at the

bottom: “Lie—Review Video.”1

Stile filed several grievances during the late evening of

September 5, which show that he was in “medical”. At 11:20 pm,

Stile filed a grievance about the food he was given to take with

him for the court appearance and about his lack of dentures

during the court appearance. Id. at 119. The response states

1 While that grievance addresses some events that occurred when Stile was removed from his cell for transport to Maine, it does not raise the issues that he alleges in his claims against the SCDC defendants in Claims 1 and 6.

6 that Stile refused to meet with the officer about his grievance

and notes that he filed thirteen grievances between September 4

and September 7, 2014.

Stile filed another grievance at 11:31 pm that he was not

given his prescribed medication at 4:30 pm when he returned to

the jail from court. Id. at 120. The response on September 8

was that the officer discussed the matter with the medication

staff. Also on September 5 at 11:31 pm, Stile requested that he

have access to Catholic services on Saturday morning, and access

was allowed. At 11:50 pm, Stile complained about the lights

being on, which was preventing him from sleeping. Id. at 122.

The next day, September 6, Stile filed a grievance about

not being able to participate in his defense for his criminal

case because of restrictions imposed on him. Id. at 123. The

response says that he was being provided with access to the law

library and that he had been provided with a pen. He filed

another grievance the same day about Officer Farrell and

requesting more law library time to research issues for his

criminal trial. The complaint about Farrell was forwarded to a

supervisor and the law library issue was answered the same day,

stating that Stile “was in fact given opportunity when it became

available.” Id. at 124.

On Sunday, September 7, Stile complained about the number

and quality of his pillows. He also complained about the

7 orthopedic specialist who apparently examined Stile and provided

an opinion that Stile disputed. Id. at 125-28.

Later on September 7, Stile filed a grievance that

referenced the transport from SCDC to court. Stile first

demanded a medical test that is redacted. He also asked the

SCDC to “Call USMS [United States Marshals Service] and insist

that I am transported to Court not as if I am a piece of

Samsonite Luggage but as a human being who is suffering from an

[redacted] not yet diagnosed and that improper transport and

assault like what ocurred [sic] here Sept. 5, 2014 could cause

me to become paralyzed.” 2 Id. at 129. That grievance was

forwarded to “Medical (Tracy)” on the same day. Id.

At 12:02 pm on September 7, Stile stated that he did not

want to see “your P.A.” because Stile disagreed with his opinion

and believed the P.A. was incompetent. At 12:05 pm, Stile asked

that the medical unit prioritize the use of the law computer for

those, such as Stile, who had pro se cases. On September 8,

Stile complained that Tracy Warren in the medical department

asked him about his wounds, which Stile interpreted to mean that

there was no report of his injuries from September 5, 2014.

2 As stated, the grievance addressed only the conditions during transport, which according to Stile’s complaint was done by deputies of the Strafford County Sheriff’s Office. Claim 2.

8 Warren responded that his wounds were properly documented and

that she was trying to talk with Stile about them. Id. at 132.

Stile filed a grievance on September 9 that responded to

the answer he received to a prior grievance about medical sick

call. He stated that Warren lied in her response to him and was

incapable of reading the doctor’s report. Warren’s response the

same day was “addended plan being sent.” Id. at 133. Stile

then filed a grievance that had to do with his reports about his

smoking, and Warren responded, “What are you grieving here?”

Id. at 134. Stile filed fourteen more grievances on September 9

that appear to challenge his medical treatment and argue with

Warren’s responses. He continued to file grievances about

medical care on September 10.

On September 11, Stile filed a grievance about his glasses,

which were provided to him. He then filed many more grievances

about his medical care and his access to medications. The

grievances about medical care continue on September 12, along

with a grievance about holes in his socks. None of the many

grievances filed thereafter and through September 28, 2014,

addressed the September 5, 2014, incident.

The references to the September 5 incident in the

grievances filed on September 5 and 7 did not exhaust the

administrative procedure. As Stile acknowledges, he did not

9 appeal those grievances.3 Therefore, Stile did not exhaust his

administrative remedies for the § 1983 claims against the SCDC

defendants that arose from the September 5, 2014, incident.

C. Available Remedies

Stile contends that his failure to exhaust the SCDC

administrative procedures, with respect to the September 5

incident, was not his fault. Instead, he argues, the lack of

exhaustion was “through thwarting of the process by the

Defendants.” Doc. 52, at 5.

1. Standard

An inmate is required to exhaust available remedies, and

available remedies means the remedies that are “capable of use

for the accomplishment of a purpose” and remedies that are

“accessible or may be obtained.” Ross v. Blake,

(2016) (internal quotation marks omitted). The

Supreme Court has identified “three kinds of circumstances in

which an administrative remedy, although officially on the

books, is not capable of use to obtain relief.”

.

The first circumstance occurs when “an administrative

procedure . . . operates as a simple dead end—with officers

3 As is noted above, the cited grievances do not address the claims brought here.

10 unable or consistently unwilling to provide any relief to

aggrieved inmates.”

For example, the first circumstance

would exist when “a prison handbook directs inmates to submit

their grievances to a particular administrative office—but in

practice that office disclaims the capacity to consider those

petitions.”

Another example would be “if administrative

officials have apparent authority, but decline ever to exercise

it.”

The second circumstance occurs when “an administrative

scheme might be so opaque that it becomes, practically speaking,

incapable of use.”

An administrative procedure is opaque

if “no ordinary prisoner can discern or navigate” the process.

The third circumstance occurs “when prison administrators

thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.”

.

2. Application

The exhibits submitted by Stile and the SCDC defendants

show that Stile filed more than two hundred grievances. The

SCDC defendants represent, and Stile does not dispute, that he

did not file appeals of any of his grievances. Stile contends

that the SCDC grievance procedure was unavailable to him because

the SCDC had no standing Grievance Committee. He cites no

11 situation where he appealed a grievance and was denied a hearing

before a Grievance Committee.

In addition, Stile accuses the SCDC of being sloppy in

administering the grievance procedures and needing training. He

states that for purposes of this case the SCDC defendants

provided him with 235 grievances that he filed while he was held

at SCDC and that he reviewed 168 of those grievances. He

contends that 127 of his grievances were “‘incorrect’ because of

staff error.” Doc. 52 at 7. He provides no explanation or

evidence about what error occurred.

Stile also states that the grievances show that he asked

for copies of his grievances that were not provided. The single

cited grievance, however, was answered: “C/O Garcia states he

was never given any physical grievances just verbal.” Doc.

52-2, at 1. He also does not explain what prejudice he

experienced due to a lack of copies. Therefore, Stile has not

shown that the SCDC officers thwarted his efforts to file

grievances by failing to provide copies.

He cites a grievance that he filed in January of 2015 about

other grievances not being answered. That grievance was

referred to Lieutenant Brackett. The documents submitted show

that he received answers to his many grievances. His request in

January of 2015 that officers have remedial training in handling

12 grievances was noted as not being a grievance, and Stile was

told to file a request.

Stile’s unsupported criticisms of the SCDC grievance

procedures do not show that administrative remedies were

unavailable to him.

D. Result

Stile did not properly exhaust the § 1983 claims he alleges

against the SCDC defendants. As a result, those claims must be

dismissed. The § 1983 claims against the SCDC defendants, with

reference to the claims listed in the court’s order issued on

February 5, 2019, document no. 54, are Claims 1(a), 6(a), and

6(b).

Conclusion

For the foregoing reasons, the SCDC defendants’ motion for

summary judgment (document no. 36) is granted. Stile’s motion

for summary judgment (document no. 52) is denied.

The claims that remain in this case are the following:

1. SCDC corrections officers Farrell and Hayden used excessive force against Stile, in that Farrell and Hayden shackled and handcuffed Stile, and then dragged him to the SCDC garage sallyport on September 5, 2014: b. rendering Farrell and Hayden liable to Stile for the intentional torts of assault and battery, under state law; and

13 c. rendering Strafford County vicariously liable to Stile under state law for the SCDC officers’ tortious conduct.

2. Defendants SCSO Deputies Clement and Dossett used excessive force against Stile, in that they operated the van on September 5, 2014 in a manner intending to make Stile (while handcuffed and shackled) bounce against the van walls, causing Stile to suffer pain and physical injuries: a. rendering Clement and Dossett liable to Stile for violating Stile’s Fourteenth Amendment right to due process, under

; b. rendering Clement and Dossett liable to Stile for (i) negligence; or (ii) the intentional torts of assault and battery, under state law; and c. rendering Strafford County vicariously liable to Stile under state law for the SCSO deputies’ tortious conduct.

6. SCDC Superintendent Pelkie (i.) authorized Farrell and Hayden to shackle, handcuff, and then drag Stile to the SCDC sallyport on September 5, 2014, and (ii.) failed to train Farrell and Hayden relating to the use of shackles and handcuffs: c. rendering Pelkie liable to Stile for negligence, under state law; and d. rendering Strafford County vicariously liable to Stile under state law for Pelkie’s tortious conduct.

7. Strafford County Sheriff David Dubois (i.) maintained a fleet of unsafe transport vans; and (ii.) failed to train defendants Clement and Dossett relating to the safe transport of detainees in the SCDC vans: a. rendering Dubois liable to Stile for violating Stile’s Fourteenth Amendment due process rights, under

; b. rendering Strafford County liable to Stile for violating Stile’s Fourteenth Amendment due process rights, under

; c. rendering Dubois liable to Stile for negligence under state law; and d. rendering Strafford County vicariously liable to Stile under state law for Dubois’s tortious conduct.

14 9. Strafford County and the United States Marshals Service for the District of Maine entered an agreement to house federal pretrial detainees at the Strafford County Department of Corrections and to provide transportation to detainees, including Stile, for medical and court appointments. Stile was an intended third-party beneficiary of that agreement. Strafford County and the Marshals Service breached the agreement when Stile was transported by officers who were not trained or not properly trained in a cargo van that lacked appropriate safety protections and minimum comforts and did not comply with the requirements of state and federal law, which caused Stile to be injured.

10. United States Marshals Service officers, Alex Patnode, Dean Knightly, and Randy Ossinger, signed the agreement with Strafford County for housing and transporting federal pretrial detainees and were grossly negligent in failing to inspect and ensure that the transportation provided by Strafford County was safe and complied with the agreement. Their gross negligence resulted in Stile being injured while being transported by officers or employees of the Strafford County Department of Corrections, rendering the United States liable under the Federal Tort Claims Act,

.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

April 8, 2019

cc: James Stile, pro se Corey M. Belobrow, Esq. Brian J.S. Cullen, Esq. Michael T. McCormack, Esq.

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