UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Stile

v. Case No. 15-cv-494-SM Opinion No.

Strafford County Department of Corrections, Bruce Pelkie, Jake Collins, Tracey Warren, Robert Farrell, Laura Noseworthy, and Christopher Brackett

O R D E R

Before the court is defendants’ (first) motion for summary

judgment (Doc. No. 74), which seeks judgment as a matter of law

on the four claims that have been allowed to proceed in this

action. In their motion, defendants argue that plaintiff, James

Stile, failed to exhaust the available administrative remedies

at the Strafford County House of Corrections (“SCHC”) from

January 2013 through June 2015 when he was in pretrial

detention, warranting summary judgment pursuant to the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, as to each of

the claims remaining in this action.

Although Stile did not file a timely objection to the

instant motion, Stile objected to defendants’ (second) motion

for summary judgment, in a filing he entitled, “Plaintiff’s

Response to Motion for Summary Judgment” (Doc. No. 85)

(hereinafter “Stile Decl.”). That filing ends with Stile’s

1 declaration, signed upon pains of perjury, that the matters

asserted in Document No. 85 are true to the best of his

knowledge. This court considers the record before the court

relevant to defendants’ (first) summary judgment motion to

include the pertinent exhibits to defendants’ (second) summary

judgment motion (Doc. No. 83), as well as the factual matters

declared to be true in Document No. 85.

Summary Judgment Standard

“Summary judgment is warranted if ‘there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Luceus v. Rhode Island,

(1st Cir. 2019) (quoting Fed. R. Civ. P. 56(a)).

Where the party moving for summary judgment bears the burden of

proof on an issue, that party “must provide evidence sufficient

for the court to hold that no reasonable trier of fact could

find other than in its favor.” Am. Steel Erectors, Inc. v.

Local Union No. 7, Int’l Ass’n of Bridge, Structural, Ornamental

& Reinforcing Iron Workers,

(1st Cir. 2008); see

also Asociación de Suscripción Conjunta del Seguro de

Responsabilidad Obligatorio v. Juarbe-Jiménez,

, 50

n.10 (1st Cir. 2011) (once defendant moving for summary judgment

on affirmative defense produces “conclusive” evidence to

2 establish defense, burden shifts to plaintiff to show that

defense does not apply).

As to issues on which the nonmoving party bears the burden

of proof, the party moving for summary judgment must first

identify the portions of the record that show the absence of any

genuine issue of material fact; then the burden shifts to the

nonmoving party to demonstrate, by reference to materials of

evidentiary quality, that a trier of fact could reasonably

resolve that issue in the nonmoving party’s favor. Flovac, Inc.

v. Airvac, Inc.,

(1st Cir. 2016). The

nonmoving party’s failure to make the requisite showing as to

issues upon which it bears the burden of proof “entitles the

moving party to summary judgment.”

Claims

Four claims remain in this action:

(1) a Fourteenth Amendment procedural due process claim arising from Stile’s placement in disciplinary segregation on “D-Pod” upon his arrival at the SCHC, without prior notice and a hearing;

(2) a First Amendment free exercise claim arising from Stile’s alleged lack of access to weekly religious services while he was housed on D-Pod;

(3) a claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), also arising from Stile’s alleged lack of access to weekly religious services while on D-Pod; and

3 (4) a Fourteenth Amendment inadequate medical care claim arising from the alleged withholding of the appropriate dosage of a prescription breathing medication, known as Advair, for two years while Stile was in pretrial detention at the SCHC.

See Aug. 2, 2017 R&R (Doc. No. 61), at 1-2 (listing claims),

approved by Sept. 1, 2017 Order (Doc. No. 62).

Discussion

I. PLRA Exhaustion

Defendants argue that, as to each of the remaining claims,

Stile did not exhaust the grievance procedures that were

generally available at the SCHC, which warrants an order

granting their motion for summary judgment on those claims. The

PLRA provides, in pertinent part, 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). The PLRA’s exhaustion requirement is

designed to “afford[ ] corrections officials time and

opportunity to address complaints internally before allowing the

initiation of a federal case.” Porter v. Nussle,

,

524–25 (2002).

The “PLRA exhaustion requirement requires proper

exhaustion,” Woodford v. Ngo,

(2006), which

4 means using all the steps that the prison grievance system makes

available, and doing so in conformity with the agency’s

deadlines and other critical procedural rules,

. “[I]t

is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Jones v. Bock,

(2007).

There is one exception to the exhaustion rule -

administrative remedies must, in fact, be “available” to the

prisoner. Ross v. Blake,

(2016).

Circumstances in which a remedy may be considered unavailable

include when “it operates as a simple dead end — with officers

unable or consistently unwilling to provide any relief to

aggrieved inmates,”

; when prison officials “thwart

inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation,”

;

and when “rules are ‘so confusing that . . . no reasonable

prisoner can use them,’”

(citations omitted).

Claims for which a plaintiff has not exhausted his available

administrative remedies are subject to dismissal. See Medina-

Claudio v. Rodríguez-Mateo,

(1st Cir. 2002).

Failure to exhaust available administrative remedies is an

affirmative defense on which defendants bear the burden of

proof. See Jones,

; Albino v. Baca,

(9th Cir. 2014) (en banc). At the summary judgment

5 phase, defendants bear the initial burden of showing that

plaintiff failed to exhaust all of his generally available

administrative remedies. See Hubbs v. Suffolk Cty. Sheriff’s

Dep’t,

(2d Cir. 2015); Albino,

.

Then, “the burden shifts to the prisoner to come forward with

evidence showing that there is something in his particular case

that made the existing and generally available administrative

remedies effectively unavailable to him,” Albino,

; see also Tuckel v. Grover,

(10th Cir.

2011).

II. Grievance Procedures

While Stile was at the SCHC, the Strafford County

Department of Corrections (“SCDOC”) had an Inmate Grievance

Procedure which was “the only approved method of addressing

grievances, conditions of confinement complaints or

mistreatment.” SCDOC Operational Guidelines, Inmate Grievance

Procedure (rev. May 19, 2009) (“Op. Guidelines”) (Ex. A, Attach.

1 to Decl. Gwen Weisgarber (“Weisgarber Decl.”)) (Doc. No. 74-3,

at 2); see also SCDOC Inmate Handbook (rev. Aug. 12, 2011) (Ex.

B, Attach. 1 to Weisgarber Decl.) (“2011 Inmate Handbook”) (Doc.

No. 74-4, at 4); SCDOC Inmate Handbook (rev. Mar. 31, 2013) (Ex.

B, Attach. 2 to Weisgarber Decl.) (“2013 Inmate Handbook”) (Doc.

6 No. 74-4, at 11). 1

“The [grievance] procedure is provided to inmates in the

Inmate Handbook,” Stile v. Dubois, No. 17-cv-406-JD,

,

, at *4,

, at *2

(D.N.H. Apr. 8, 2019); each Handbook in the record states that

it is a posted rule that inmates must follow. See 2011 Inmate

Handbook (Doc. No. 74-4, at 4); 2013 Inmate Handbook (Doc. No.

74-4, at 11). All inmates receive a copy of the Inmate Handbook

shortly after they arrive at the SCHC, and Inmate Handbooks are

available in the SCHC housing units. See Weisgarber Decl.

¶¶ 14-15 (Doc. No. 74-2, at 3).

At all relevant times, the SCDOC grievance procedure had

three steps. The first step requires an inmate to “file a

written formal grievance” with the Unit Officer, “within two

weeks of discovery of a grievable issue.” 2011 Inmate Handbook

1The Inmate Grievance Procedure that was in effect at the start of Stile’s SCHC detention in January 2013 was twice revised before his February 2015 transfer out of the SCHC, see Weisgarber Decl. ¶ 5 (Doc. No. 74-2, at 1), but not in a way that has a bearing on any issues before this court. This Order cites the earliest applicable version of the Inmate Grievance Procedure, except as otherwise indicated. The Inmate Handbook provided to SCHC inmates was revised four times while Stile was at the SCHC, see Weisgarber Decl. ¶ 12 (Doc. No. 74-2, at 2-3). The August 12, 2011 and March 31, 2013 handbook revisions are cited in this Order; the later revisions in the record do not differ materially from the March 31, 2013 revision. Compare 2013 Inmate Handbook (Doc. No. 74-4, at 11), Inmate Grievances ¶ 16, with SCDOC Inmate Handbooks (rev. July 5, 2013 & rev. Dec. 4, 2013) (Ex. B, Attachs. 3 & 4 to Weisgarber Decl.) (Doc. No. 74-4, at 14-18; 20-66). 7 (Doc. No. 74-4, at 4); 2013 Inmate Handbook (Doc. No. 74-4, at

11). At that point,

[t]he 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.

Dubois,

, at *5,

, at

*2; see also Op. Guidelines, ch. 3.6.04, Proc. B, ¶ 3(e); 2011

Inmate Handbook, Inmate Grievances ¶ 11(d).

The second step of the grievance procedures involves an

appeal of the shift supervisor’s decision (or lack of a

response). The Inmate Handbook in effect prior to March 31,

2013 stated that the appeal had to be submitted to the

“appropriate Assistant Superintendent.” See 2011 Inmate

Handbook, Inmate Grievances ¶ 15. The Inmate Handbooks in

effect after that date required inmates to submit their appeals

to the “Lieutenant – Operations and Security,” who is further

identified in each Inmate Handbook as Lt. Chris Brackett. The

grievance procedures at all relevant times required that officer

to respond to the inmate in writing within five business days.

See Op. Guidelines, ch. 3.6.04, Proc. B, ¶ 7; see also 2011

Inmate Handbook, Inmate Grievances ¶ 15(b); 2013 Inmate

Handbook, Inmate Grievances ¶ 16(b).

8 The third step of the grievance process is further review

by a Grievance Committee. A Grievance Committee is convened if

the inmate is not satisfied with the response to his initial

grievance appeal, and the inmate requests further review within

five business days. Op. Guidelines, ch. 3.6.04, Proc. B, ¶ 8;

2011 Inmate Handbook, Inmate Grievances ¶ 17; 2013 Inmate

Handbook, Inmate Grievances ¶ 18. In most cases, the Grievance

Committee’s decision is final; inmates may not appeal to the

Superintendent, although the Superintendent may override the

Grievance Committee’s decision. See Op. Guidelines, ch. 3.6.04,

Proc. B, ¶ 8; see also 2011 Inmate Handbook, Inmate Grievances

¶ 18(b); 2013 Inmate Handbook, Inmate Grievances ¶ 19.

The grievance procedure “[t]ime limitations are mandatory,”

and “[i]f an inmate misses a deadline during the process, the

grievance will be considered dropped,” 2011 Inmate Handbook,

Inmate Grievances ¶¶ 1(b), 1(c); 2013 Inmate Handbook, Inmate

Grievances ¶¶ 1(b), 1(c). The pertinent Inmate Handbooks

further provide that inmates who fail to get a response within

the required time frame may “proceed to the next level.” 2011

Inmate Handbook, Inmate Grievances ¶ 1(d); 2013 Inmate Handbook,

Inmate Grievances ¶ 1(d). Officers are required to place each

grievance and appeal in the inmate’s “Booking Folder.” Op.

Guidelines, ch. 3.6.04, Proc. B, ¶¶ 6(a), 7(c), 12(a).

9 III. Stile’s Exhaustion Efforts

Defendants move for summary judgment on all of Stile’s

remaining claims, on the basis of an affirmative defense of PLRA

exhaustion, asserting that Stile did not exhaust his available

remedies at all levels of the SCHC grievance process.

Defendants have filed documents comprising Stile’s Booking

Folder. The documents they have filed, pertinent to Stile’s

claims, do not include any grievance appeals, which is evidence

that such appeals were never filed by Stile.

A. Exhaustion of Procedural Due Process Claim

1. First Level Grievances as to D-Pod Placement

On January 18, 2013, three days after his placement in D-

Pod, Stile filled out an Inmate Grievance Form, for the stated

purpose of exhausting the SCDOC grievance process, complaining

in pertinent part about his lack of information as to: why he

was brought to the SCHC, his placement on D-Pod at the SCHC

without an explanation, and whether and when he would be

released from D-Pod into the general inmate population:

I make this grievance as a matter [unreadable 2] and a procedural process in preparation to future action to show I exhausted the grievance process. I arrived on 1/15/13 without any understanding of why I was brought here. I, since my arrival, have not had a phone call nor any access

2Several words in the first sentence of the court’s copy of the January 18, 2013 Inmate Grievance Form are unreadable. See Doc. No. 83-3 at 2. 10 to law materials to aid in my pending legal matters. Also no access to my lawyer or family. I am in Max without explanation and no indication as to whether I will enter into population and have full privileges. Please allow me to know what my itinerary is.

Doc. No. 83-3, at 2. Corrections Officer (“C.O.”) Brown’s

January 19, 2013 response to Stile’s request states, in

pertinent part:

For legal materials, [and] law library access you need to submit a request to Asst. Superintendent Collins. In Max you have the ability to write your attorney, [and] attorney visits are allowed. As to being in Max Housing, the Superintendent has 7 days to notify you in writing, and Classifications has 30 days to classify you to a unit. I have sent a copy to the Supervisor, so they are aware. . . . Request slips for Classifications [and] Asst. Super. Collins given to Inmate w/this form.

Doc. No. 83-3, at 2.

Stile followed up on C.O. Brown’s response by using an

inmate request slip (“IRS”), dated January 22, 2013, see Doc.

No. 83-3, at 1, to ask Classifications why and how long he would

remain on the SCHC D-Pod:

I am in Max for 7 days now with no communications from administration as to why nor how long I will remain in Max or this facility. Please advise.

See Doc. No. 83-3, at 1. Sgt. Noseworthy’s January 23, 2013

response states: “You are there per the [U.S. Marshals].” Id.

2. Grievance Appeals as to D-Pod Placement

Pointing to the absence of a written record in the Booking

Folder that Stile pursued any grievance appeal of his D-Pod

11 placement, defendants argue that Stile did not properly exhaust

his available grievance procedures on that claim. Stile’s

response is two-pronged. He maintains both that he filed an

appeal to Assistant Superintendent Collins which was never

answered, and he contends that he requested a Grievance

Committee thereafter, but none was convened. See Stile Decl.

(Doc. No. 85, at 3). 3 Stile further avers that he took those

steps before January 30, 2013, when he placed a pleading in the

prison mail system, later docketed as the petition for writ of

habeas corpus in Stile v. Pelkie, No. 1:13-cv-00071-PB (D.N.H.).

See id. (ECF No. 1, at 25); see also Plf.’s Obj. (Doc. No. 85,

at 3).

Stile has not filed any document purporting to be a missing

grievance appeal of his procedural due process claim. Nor has

he specified what that missing grievance appeal stated. Neither

Stile’s January 18, 2013 Inmate Grievance Form nor his January

3 In Stile v. Pelkie, No. 1:13-cv-00071-PB (D.N.H.), which Stile placed in the prison mail system on January 30, 2013, see Pelkie, Pet. for Writ of Habeas Corpus (ECF No. 1, at 25), Stile included an “Exhibit Index,” listing the exhibits he attached that concern efforts he undertook to exhaust administrative remedies relating to the same procedural due process claim he raises in this case. Notably, Stile listed his January 18, 2013 Inmate Grievance Form and January 22, 2013 IRS, but he did not list any later-filed SCDOC grievance appeal. See Pelkie, Pet. for Writ of Habeas Corpus (ECF No. 1, at 5). The list of exhibits ends with references to those January 2013 first-level grievances. Id.

12 22, 2013 IRS refers to a lack of prior notice or a hearing

preceding his D-Pod placement; rather, those documents record

Stile’s concerns that he did not know why he was on D-Pod, and

whether and when he would be released. In the absence of a

sworn statement or other evidence as to what Stile’s (second

grievance step) appeal stated, a reasonable fact finder could

not conclude, without undue speculation, that Stile’s appeal

expanded the scope of his first level grievances to cover the

due process claim he raises in this lawsuit, namely, that his

placement on D-Pod violated his procedural due process rights to

prior notice and a hearing. The evidence that Stile filed a

grievance appeal on or before January 30, 2013, therefore, does

not raise a genuine material issue as to whether he properly

exhausted the second step of the SCDOC grievance process with

respect to the procedural due process claim at issue in this

case. And there is no evidence that the second step of that

process was not available to Stile. Accordingly, the court

grants defendants’ motion for summary judgment on Stile’s

failure to exhaust available grievance procedures as to the

procedural due process claims raised in this action, relating to

Stile’s placement on D-Pod without prior notice and a hearing.

B. Exhaustion of Free Exercise and RLUIPA Claims

13 Defendants highlight the absence of any record of grievance

appeals in Stile’s Booking Folder as evidence that Stile did not

properly exhaust all available remedies on his First Amendment

free exercise and RLUIPA claims that arose while Stile was in D-

Pod. Stile has not responded to defendants’ exhaustion

arguments relating to those claims, and the 235 numbered pages

of grievances that have been filed here do not include any

grievance appeal of Stile’s religious freedom claims. Stile has

not argued that any pertinent grievance appeal he filed is

missing from this court’s record. Nor has he argued that the

second step grievance procedures were unavailable to him, with

respect to those claims. There is an absence of a genuine issue

of material fact on those matters. For that reason, the court

grants defendants’ motion for summary judgment based on Stile’s

failure to exhaust properly the available SCDOC appellate

grievance procedures, as required by the PLRA (Doc. No. 74) with

respect to his claims asserting RLUIPA and First Amendment Free

Exercise Clause violations.

C. Exhaustion of Advair Claim

Defendants argue that Stile also failed to exhaust all

available remedies on his Fourteenth Amendment claim, relating

to his alleged need for double the dose of Advair given to him

for two years prior to January 30, 2015.

14 1. First-Level Advair Grievances

There is evidence that Stile filed a number of first-level

grievances relating to Advair, see Decl. of Tracy Warren

(“Warren Decl.”) ¶ 10 (Doc. No. 83-5, at 2), but there are no

copies of such grievances that this court has been able to

identify in Stile’s Booking Folder. Stile’s (unsworn) Complaint

alleges that he began to complain to the Medical Department “on

paper” about the strength of his Advair prescription sometime

around January 3, 2015, 4 and defendants have not argued that

Stile failed to file a proper first-level grievance on that

issue. Assuming, therefore, without deciding, that there is

enough evidence to raise a triable issue as to whether Stile

filed a pertinent first-level grievance challenging the adequacy

of his Advair prescription, this court turns to the dispositive

question here: whether Stile properly filed a grievance appeal

of that issue.

2. Advair Grievance Appeals

4See Compl. ¶ 156 (Doc. No. 1, at 89) (“it has been more than three weeks that the Plaintiff has told medical (on paper) that the Advair is the wrong dose and that is why he is probably having difficulty breathing”); Warren Decl. ¶ 10 (“Stile filed grievances to the medical department relating to Advair”); Warren Decl. ¶ 15 (“Shortly before his grievance regarding the odor from the Advair dispenser,” Stile “had questioned” the strength of his prescribed “Advair dosage”). 15 Citing the absence of any appeals in Stile’s Booking

Folder, defendants have argued that Stile did not appeal the

substance of his Fourteenth Amendment Advair claim. Stile

maintains in his declaration, signed as true under pains of

perjury, that he submitted such an appeal to “Assistant

Superintendent Jake Collins” and then requested but did not

receive further Grievance Committee review:

Plaintiff did follow grievance procedures and did appeal to Assistant Superintendent Jake Collins but was never provided a “Grievance Committee.” In fact, Plaintiff was shipped out of SCDOC on February 5, 2015 or February 7, 2015, just after his last request for Grievance Committee.

Doc. No. 85, at 6.

While such evidence could raise a factual question as to

whether or not Stile appealed to “Assistant Superintendent

Collins,” and could form the basis of an argument that the third

step of the process (Grievance Committee review) was not in fact

available to Stile on his Advair claim, those issues are not

material for purposes of this court’s disposition of the (first)

motion for summary judgment. The Inmate Handbook at the

relevant time, see, e.g., 2013 Inmate Handbook, specified that

the officer to whom inmates were required to appeal was the

“Lieutenant – Operations and Security,” a position the Inmate

Handbook states was held by (then) Lt. Chris Brackett. While

the SCDOC operational guidelines continued to provide after

March 31, 2013 that inmates must submit grievance appeals to the

16 “appropriate” Assistant Superintendent, it is undisputed that

the position of the “appropriate” Assistant Supervisor was

vacant at that time. See generally Weisgarber Decl. ¶ 9

(because of personnel vacancy, duties of Assistant

Superintendent-Operations and Security were transferred to

Lieutenant). Jake Collins, listed in the 2013 Inmate Handbook

as “Assistant Superintendent of Education and Programs,” did not

have the duty of receiving and responding to grievance appeals.

See Weisgarber Decl. ¶ 9; 2013 Inmate Handbook (listing SCDOC

officers and their job titles); Doc. No. 74-4, at 23 (same).

Rather, the undisputed evidence indicates that those duties were

transferred to the “Lieutenant – Operations and Security,” the

officer to whom the 2013 Inmate Handbook clearly and

unequivocally directs inmates to file their grievance appeals.

See Weisgarber Decl. ¶ 9. In the absence of any evidence that

Stile submitted an appeal to the correct officer designated by

the Inmate Handbook, 5 and lacking evidence -- or any developed,

persuasive argument -- that the second step of the grievance

process was otherwise unavailable to Stile, the court grants

defendants’ motion for summary judgment on the Advair

prescription claim. See generally Woodford,

5 Cf. Ross,

(“When an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion.”). 17 (“[p]roper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules”); Sango v.

Miniard, No. 1:14-cv-344,

, at *13-

14,

, at *5 (W.D. Mich. Feb. 8, 2016) (inmate who

mailed grievance to wrong office did not properly exhaust

available grievances), R&R adopted, No. 1:14-CV-344,

,

(W.D. Mich. Mar. 16, 2016);

Crane v. Deluna, No. 1:03-cv-06339-YNP PC,

,

, at *8 (E.D. Cal. Sep. 22, 2009) (inmate

who appealed to wrong office and missed grievance appeal

deadline did not properly exhaust available grievances).

IV. Remaining Pending Motions

This Order granting defendants’ (first) motion for summary

judgment (Doc. No. 74) effectively moots defendants’ (second)

motion for summary judgment (Doc. No. 83), which seeks judgment

as a matter of law on each claim for reasons other than PLRA

exhaustion. This Order also moots plaintiff’s pending motion to

reopen discovery (Doc. No. 86), as that motion seeks leave to

conduct further discovery on the merits of plaintiff’s claims.

Conclusion

For the foregoing reasons, the court directs as follows:

18 1. The court GRANTS defendants’ (first) motion for

summary judgment based on the affirmative defense of PLRA

exhaustion (Doc. No. 74);

2. The court DENIES AS MOOT defendants’ (second) motion

for summary judgment (Doc. No. 83) and plaintiff’s motion to

reopen discovery on the merits of his claims (Doc. No. 86).

3. The clerk’s office is directed to enter judgment and

close this case.

SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

September 20, 2019

Cc: Corey M. Belobrow, Esq. James Stile, pro se

19