UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dwayne M. Valerio

v. Civil No. 15-cv-248-LM Opinion No.

William Wrenn et al.1

O R D E R

Before the court is the defendants’ motion for summary

judgment (doc. no. 63), as to the sole claim remaining in this

case. Plaintiff Dwayne Valerio filed an objection (doc. no. 65)

to the motion. Defendants filed a reply (doc. no. 67) to the

objection, and Valerio filed a surreply (doc. no. 68).

Background2

I. Procedural History

The operative complaint in this matter is plaintiff’s

verified second amended complaint (doc. no. 57) (“SAC”), as

construed by the court’s November 29, 2017 Order (doc. no. 56)

approving the magistrate judge’s October 23, 2017 Report and

Recommendation (doc. no. 53) (“October 2017 R&R”). The sole

1The defendants against whom this case is presently pending are New Hampshire State Prison Corrections Officers John Marescia and Bruce Sauerheber. All of the claims asserted against any other defendant have been dismissed, and all of the other defendants have been dropped as parties.

2The facts set forth in this section are undisputed unless otherwise noted. claim pending in this case, as set forth in the October 17 R&R,

is as follows:

[Corrections Officers John Marescia and Bruce Sauerheber], on October 16, 2013, subjected Valerio to a visual body cavity strip search, in front of forty to fifty other inmates and a video camera that could be monitored remotely by prison officials, without a privacy screen, and in the absence of exigent circumstances, in violation of Valerio’s First Amendment right to freely exercise his religion, as it violates Valerio’s religious beliefs to be unclothed in the presence of other men.

October 2017 R&R, at 4.

II. Facts Underlying Claim

On October 16, 2013, Valerio attended an event at the New

Hampshire State Prison, where he is incarcerated, called the

Tailgate Revival, which Valerio describes as a Christian

religious event attended by forty to fifty prisoners and fifty

community volunteers. See SAC, 4-5 ¶ 14 (Doc. No. 57). After

the event, the community volunteers were escorted out of the

gym, and the inmates remained in the gym with ten corrections

officers (“COs”). See

at 5 ¶ 16 (Doc. No. 57).

In the SAC, Valerio set forth the following sworn facts

underlying his First Amendment claim, to which he swore in a

declaration made pursuant to

:

The COs . . . informed the inmates that they were stripping them out. The COs formed into three teams of three in which two performed a strip search each while one observed, which allowed for six inmates to be strip searched at the same time. These searches were conducted while the inmates being searched were

2 in plain view of each other and all the other inmates awaiting to be stripped searched [sic]. The Plaintiff was called over by [CO Marescia] and ordered to strip. Plaintiff requested a private search due to his religious convictions, which was denied. The search was conducted out in the open without the use of privacy screens and [in] direct view and proximity of the remaining forty (40) to fifty (50) inmates waiting to be searched.

at 5 ¶¶ 16-18 (Doc. No. 57). In the SAC, Valerio identified

CO Sauerheber as the officer who observed Valerio’s strip-

search. See

at 5 ¶ 19 (Doc. No. 57).

III. DOC Administrative Grievance Process

At the time the events underlying this case occurred, the

DOC employed a procedure for handling inmate grievances “through

which [inmates] seek formal review of an issue related to any

aspect of their confinement if less formal procedures have not

resolved the matter.” DOC Policy and Procedure Directive

(“PPD”) 1.16(I) (eff. May 1, 2012) (Doc. No. 21-2, at 4). The

DOC Manual for the Guidance of Inmates effective in October 2013

(“Inmate Manual”) states that before utilizing that

administrative grievance process, an inmate must “try to talk to

a staff member” about his or her complaint. Inmate Manual (Doc.

No. 21-1, at 8, 9). If an inmate does not receive a

satisfactory response after making an informal oral request, he

or she must then file an Inmate Request Slip (“IRS”) to an

appropriate prison official within thirty days of the date of

the incident giving rise to the complaint. See PPD

3 1.16(IV)(A)(1) (Doc. No. 21-2, at 5); Inmate Manual (Doc. No.

21-1, at 8). The next step is a written grievance to the warden

of the inmate’s institution within thirty days of the date of

the response the inmate received to his or her IRS. See PPD

1.16(IV)(B) (Doc. No. 21-2, at 6); Inmate Manual (Doc. No. 21-1,

at 9). An inmate dissatisfied with the Warden’s response may

utilize the last step of the grievance procedure by sending a

grievance to the DOC Commissioner within thirty days of the date

of the Warden’s response. See PPD 1.16(IV)(C) (Doc. No. 21-2 at

7); Inmate Manual (Doc. No. 21-1, at 9). The timeframes set

forth in PPD 1.16 are mandatory, as is the use of appropriate

forms at each stage of the grievance process. PPD

1.16(IV)(E)&(F) (Doc. No. 21-2, at 7, 8).

The NHSP advises incoming inmates of its administrative

grievance procedure by “issu[ing] to all inmates upon their

arrival at the NHSP a copy of the [Inmate Manual].” May 19,

2016 Decl. of Bonnie Johnson Theriault (“Theriault Decl.”) ¶ 6

(Doc. No. 21-1, at 3). In addition to describing the grievance

process, the Inmate Manual advises inmates where IRSs and

grievance forms may be obtained, directs inmates to PPD 1.16.,

and states “The Complaint and Grievance process and its

timeframe are mandatory and must be followed explicitly.”

Inmate Manual (Doc. No. 21-1, at 9). It is undisputed that

Valerio, like other inmates, received a copy of the Inmate

Manual upon his arrival at the NHSP.

4 IV. Valerio’s Exhaustion Efforts

The parties agree that Valerio did not follow the

exhaustion procedures set forth in PPD 1.16, in that he did not

file an IRS, did not file a grievance to the Warden, and did not

file a grievance to the Commissioner concerning his complaint

that his First Amendment right to freely exercise his religion

had been abridged by the post-Tailgate Revival strip search.

Instead of following those procedures, Valerio complained about

the October 2013 Tailgate Revival strip search using the process

for Prison Rape Elimination Act (“PREA”) administrative

complaints, set forth in PPD 5.19, the DOC’s policy concerning

procedures for addressing “prison sexual assault, sexual

victimization and staff sexual misconduct aimed at [DOC

inmates].” To that end, on February 2 and 3, 2015, Valerio

wrote two letters (doc. nos. 31-6, 31-7) to the New Hampshire

Attorney General (“NH AG”), which he copied to the DOC Victim

Services Office (“VSO”), and on March 26, 2015, he sent a letter

(doc. no. 31-8) to the VSO. In each of those letters Valerio

asserted that he had suffered “sexual victimization” during the

October 2013 post-Tailgate Revival strip search because the

defendants’ conduct constituted “voyeurism,” as defined in an

attachment to the PPD 5.19. See PPD 5.19, Att. 5 (Doc. No. 31-

4, at 15).

Defendants do not dispute that Valerio wrote three letters

to the NH AG and the VSO in February and March 2015 alleging

5 that he had been subject to sexual victimization. Further, it

is undisputed that Valerio did not mention in any of the letters

that the strip search violated the First Amendment, his right to

exercise his religion, or otherwise violated his religious

beliefs.

Discussion

Defendants move for summary judgment arguing that Valero

did not properly exhaust his available administrative remedies

for his First Amendment religious freedom claim, as he did not

utilize the grievance process outlined in PPD 1.16.

I. Summary Judgment Standard

Summary judgment is warranted where “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); see also

Xiaoyan Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). “An issue is ‘genuine’ if it can be resolved in favor of

either party, and a fact is ‘material’ if it has the potential

of affecting the outcome of the case.” Xiaoyan Tang,

(internal quotation marks and citations omitted). To

obtain summary judgment, “the moving party must affirmatively

demonstrate that there is no evidence in the record to support a

judgment for the nonmoving party.” Celotex Corp. v. Catrett,

(1986). Once the moving party makes the

6 required showing, “‘the burden shifts to the nonmoving party,

who must, with respect to each issue on which [it] would bear

the burden of proof at trial, demonstrate that a trier of fact

could reasonably resolve that issue in [its] favor.’” Flovac,

Inc. v. Airvac, Inc.,

(1st Cir. 2016)

(citation omitted). “This demonstration must be accomplished by

reference to materials of evidentiary quality,” and that

evidence must be “‘significantly probative,’” and “more than

‘merely colorable.’”

(citations omitted). The nonmoving

party’s failure to make the requisite showing “entitles the

moving party to summary judgment.”

II. PLRA Exhaustion Requirements

The exhaustion provision of the PLRA, 42 U.S.C. § 1997e(a),

states 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.” Requiring inmates to exhaust

administrative remedies before bringing suit in federal court

“allows prison officials an opportunity to resolve disputes

concerning the exercise of their responsibilities before being

haled into court.” Jones v. Bock,

(2007).

The Supreme Court has held “that the PLRA exhaustion

requirement requires proper exhaustion.” Woodford v. Ngo, 548

, 93 (2006). “[P]roper exhaustion” refers to “using all

steps that the agency holds out, and doing so properly (so that

the agency addresses the issues on the merits).”

(citation

omitted) (emphasis in original). “[I]t is the prison’s

requirements, and not the PLRA, that define the boundaries of

proper exhaustion.” Jones,

.

The PLRA also requires that “[a]ll ‘available’ remedies

must . . . be exhausted.” Porter v. Nussle,

,

(2002) (citation omitted). An inmate must exhaust all of the

remedies available to him or her, whether those remedies are

optional or mandatory under the prison’s grievance process. See

Johnson v. Thyng,

(1st Cir. 2010)

(“[t]he emerging case law rejects [plaintiff]’s theory that an

optional level of administrative review need not be exhausted

for purposes of PLRA” (citing cases)).

Claims for which administrative remedies have not been

exhausted are subject to dismissal. Medina-Claudio v.

Rodríguez-Mateo,

(1st Cir. 2002).

The defendants bear the burden to show an administrative remedy was available and that [plaintiff] failed to exhaust it. If the defendants make this showing, the burden shifts to the prisoner to come forward with evidence showing there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.

Fuqua v. Ryan,

(9th Cir. 2018) (internal

quotation marks and citation omitted). “‘Because failure to

8 exhaust is an affirmative defense that the defendants must plead

and prove, the ultimate burden of proof remains with the

defendants.’”

(quoting Jones,

).

III. Analysis

The questions before the court are whether the PPD 1.16

procedures were available to Valerio, and whether his letters

complaining about the post-Tailgate Revival strip search

constituted proper exhaustion of all of the administrative

remedies available to Valerio, with regard to Valerio’s First

Amendment Free Exercise claim. The court need not, and does

not, consider whether the actions taken by Valerio were

sufficient to exhaust a claim of sexual victimization under

PREA, as no such claim is pending before the court.3

A. Alternative Means

Valerio asserts that because he satisfied the process

outlined in PPD 5.19 for filing a complaint concerning sexual

victimization, he exhausted the First Amendment claim as that

claim arose out of the same event which gave rise to his alleged

sexual victimization. Notifying the defendants of a complaint

by means other than the grievance process, however, does not

3Valerio raised such a claim in this matter, but the claim was dismissed as PREA does not provide for a private right of action. See May 3, 2016 Order (Doc. No. 18) (approving Apr. 1, 2016 R&R (Doc. No. 15)).

9 satisfy the PLRA exhaustion requirement. See Rachel v. Troutt,

No. 18-6053, ___ F. App’x ___,

, at *3,

, at *6 (10th Cir. Mar. 7, 2019) (citation

omitted); see also Jernigan v. Stuchell,

(10th Cir. 2002) (“the doctrine of substantial compliance does

not apply” in context of PLRA exhaustion). Moreover, Valerio’s

letters about sexual victimization did not raise any issues

about potential religious freedom claims. Accordingly, the

letters did not suffice to exhaust his First Amendment claim as

a grievance must alert prison officials to the nature of the

wrong or problem at issue to facilitate its resolution. See

Reyes v. Smith,

(9th Cir. 2016) (citing

Jones,

).

B. Ambiguity, Reasonable Notice, and Availability

Valerio, while not disputing he received an Inmate Manual

prior to the October 2013 strip search, has argued in an earlier

stage of this case that the Inmate Manual itself was unclear as

to whether his complaints about the October 2013 strip search

could be the type of complaints covered by the grievance

process, as he did not know then what his rights were and thus

could not conclude if his claims were covered by the grievance

procedures. See Obj. to Mot. to Dismiss (Doc. No. 31).

Liberally construed, Valerio’s objection to the instant motion

10 for summary judgment raises the same argument, which the court

addresses on the merits for the first time here.

The undisputed facts in this case show that Valerio did not

comply with any of the PPD requirements set forth in PPD 1.16,

relating to inmate request slips, grievances, and the time

limits for filing complaints. The mere existence of an

administrative remedy process, however, does not indicate that

the process was available to the inmate. In Ross v. Blake,

(2016), the Court noted three types of

circumstances in which an administrative remedy, “although

officially on the books,” could be deemed unavailable, thus

defeating a defense of a failure to exhaust under the PLRA. One

of those categories identified by the Court is relevant to this

court’s consideration of plaintiff’s argument here:

specifically, when a grievance procedure exists, “but no

ordinary prisoner can discern or navigate it.”4

An inmate who is kept in the dark about grievance

procedures may in some circumstances succeed in showing that the

procedures are effectively unavailable. “Remedies that are not

4The three types identified by the Court in Ross are: (1) when the grievance procedure “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it”; and (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake,

(2016). There is no evidence to suggest that the first or third type of circumstance applies in his case.

11 reasonably communicated to inmates may be considered unavailable

for exhaustion purposes.” Small v. Camden Cty.,

(3d Cir. 2013); Goebert v. Lee Cty.,

(11th Cir. 2007) (“If we allowed jails and prisons to play hide-

and-seek with administrative remedies, they could keep all

remedies under wraps until after a lawsuit is filed and then

uncover them and proclaim that the remedies were available all

along.”). Cf. Ramirez v. Young,

(7th Cir.

2018) (“[t]he PLRA does not excuse a failure to exhaust based on

a prisoner’s ignorance of administrative remedies, so long as

the prison has taken reasonable steps to inform the inmates

about the required procedures”).

Pointing to the following language in the Inmate Manual --

“If at any time you feel you have a legitimate complaint . . .”

-- Valerio has asserted that the Inmate Manual did not

reasonably apprise him of the availability of the administrative

remedies set forth in PPD 1.16 because the prison did not

explain what would constitute a “legitimate complaint,”

appropriately raised through the grievance process.5 See Obj. to

Mot. to Dismiss (Doc. No. 31) (quoting Inmate Manual (Doc. No.

21-1, at 8). One problem with Valerio’s argument about the lack

5Under the section heading, “Problem Solving Steps,” the Inmate Manual states, in part, that “[i]f at any time you feel that you have a legitimate complaint because you have been wrongly treated or are not receiving fair responses from your unit staff members or other staff members, you have a right to file a complaint.” Inmate Manual at 13 (Doc. No. 21-1, at 8).

12 of clarity in the phrase, “legitimate complaint,” however, is

that the term does not appear in isolation. The phrase is

clarified by the words that follow it, specifically, an inmate

might have a “legitimate complaint” because he suffered wrongful

treatment or received an unfair response from prison staff

members. See Inmate Manual at 13 (Doc. No. 21-1, at 8). In

other words, “legitimate” complaints can arise from staff

misconduct.

Further clarification comes from the remaining context.

Under the heading of “Problem Solving Steps,” the Inmate Manual

summarizes the steps required by PPD 1.16 and refers inmates

seeking “complete information” to review PPD 1.16, which the

Inmate Manual states may be found in a DOC library. Doc. No.

21-1, at 8, 9. PPD 1.16, in turn, broadly states that it

applies to all inmates “for issues that arose during their

confinement,” PPD 1.16(II), and that “the request slip, and

grievance system provide methods for persons to complain about

matters which seem to impinge on their rights or to redress

wrongs,” PPD 1.16(III)(D) (Doc. No. 21-2, at 4). That section

notifies inmates that if an inmate request is found to contain

false information, disciplinary sanctions may be imposed, see

PPD 1.16(III)(D) (Doc. No. 21-2, at 5), which suggests that

the qualifier, “legitimate,” in the Inmate Manual, distinguishes

between complaints based on facts and those based on falsehoods,

and does not limit the type of issues covered by PPD 1.16.

13 In Ross v. Blakely, the Supreme Court clarified that courts

must apply objective standards in considering whether a lack of

clarity in the grievance procedures could be grounds for

avoiding PLRA exhaustion. See

(“when a

remedy is . . . essentially ‘unknowable’—so that no ordinary

prisoner can make sense of what it demands—then it is also

unavailable,” but “[w]hen an administrative process is

susceptible of multiple reasonable interpretations, Congress has

determined that the inmate should err on the side of

exhaustion.” (citation omitted)). When viewed in that light,

Valerio’s arguments about the lack of clarity are unavailing;

evidence of ambiguity in a phrase in the Inmate Manual, taken

out of context, and evidence of Valerio’s uncertainty about the

type of claims that could be grieved under PPD 1.16, taken

together, do not come close to showing that the grievance

procedures communicated to him by the Inmate Manual and PPD 1.16

were “essentially ‘unknowable’” under Ross.

The undisputed facts demonstrate that the procedures

outlined in PPD 1.16 were available to Valerio. Valerio

concedes that he did not use that process to exhaust his claims.

Accordingly, the defendants have shown they are entitled to

summary judgment on their PLRA exhaustion defense.

14 Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (doc. no. 63) is GRANTED. The Clerk is

directed to enter judgment and close this case.

SO ORDERED.

____________________________ Landya McCafferty United States District Judge

March 25, 2019

cc: Dwayne M. Valerio, pro se Seth Michael Zoracki, Esq.

15