UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Albert Tito

v. Case No. 18-cv-025-SM Opinion No.

N.H. State Prison Warden, Michael Zenk, et al. 1

O R D E R

Before the court is the motion for summary judgment (Doc.

No. 135), filed by the defendants remaining in this case: New

Hampshire State Prison (“NHSP”) Warden Michelle Edmark, in her

official capacity; and former NHSP Warden Michael Zenk, NHSP

Sgt. Gary Lydick, and NHSP Corrections Officers (“COs”) Geoffrey

Boffitto, Jason Caruso, Farradon Young, Dominic Salce, and

Timothy Miller, in their individual capacities. 2 Also before the

court is defendants’ motion (Doc. No. 134), seeking to modify

the May 15, 2019 Order that granted in part and denied in part

an earlier motion regarding their answer.

The motion for summary judgment (Doc. No. 135) seeks

judgment as a matter of law on all of the remaining claims that

the plaintiff, Albert Tito, has asserted against the defendants,

1The claims against all other defendants named by Mr. Tito have been dismissed. See Nov. 27, 2018 Order (Doc. No. 104); Oct. 15, 2018 Order (Doc. No. 94).

2Michelle Edmark replaced Michael Zenk as the NHSP Warden in 2018. based on defendants’ contention that Mr. Tito did not exhaust

his NHSP grievance remedies before filing this action, as

required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e(a). Mr. Tito filed an objection to the motion for

summary judgment, in which he refers generally to the record

before this court. See Pl.’s Obj. to Mot. Summ. J. (Doc. No.

144), at 1. Defendants have filed a reply (Doc. No. 145)

arguing that plaintiff has failed to show either that there is a

triable question as to whether he properly exhausted the

generally available grievance remedies, or that the grievance

process was unavailable to him.

Background

Mr. Tito’s claims in this lawsuit, arising under

, relate to incidents that occurred while he was an NHSP

inmate, prior to his March 2018 transfer to the Northern New

Hampshire Correctional Facility (“NCF”), and his subsequent

release from custody in 2019. Mr. Tito asserts generally that

while he was at the NHSP, guards there singled him out for

harassment, abuse, and mistreatment, in violation of his First,

Eighth, and Fourteenth Amendment rights, and that the NHSP

Warden failed to protect him.

The defendants in their summary judgment motion (Doc. No.

135) seek judgment as a matter of law on the claims that remain

2 in this case, all arising under

. Those claims

are:

1. NHSP Sgt. Lydick and NHSP COs Young, Boffitto, and Caruso, violated Mr. Tito’s Eighth Amendment rights on November 9, 2017, in that, while Mr. Tito was complying with their orders, handcuffed with his hands behind his back, and outside the presence of other inmates:

a. Sgt. Lydick and COs Young, Boffitto, and Caruso forced Mr. Tito down to the floor, causing injuries;

b. COs Young and Boffitto, and/or the other officers, punched Mr. Tito in the face, causing pain, swelling, bruising, and lacerations on his face and scalp, blurred vision, and other injuries;

c. Sgt. Lydick drive-stunned Mr. Tito multiple times with a Taser pressed against his back and face, causing pain and injuries; and

d. CO Boffitto knelt on Mr. Tito’s back after the punching stopped, as Sgt. Lydick put him in leg shackles.

2. The NHSP Warden failed to protect Mr. Tito, in violation of the Eighth Amendment, in that:

a. NHSP Warden Zenk, with deliberate indifference to a substantial risk of serious harm to Mr. Tito, prior to November 9, 2017, failed to protect him from the officers involved in the November 9 incident; and

b. The NHSP Warden failed to protect Mr. Tito from those officers after November 9, 2017, with deliberate indifference to a substantial risk that officers would harm him again.

3. Sgt. Lydick and COs Young, Boffitto, and Caruso, retaliated against Mr. Tito for exercising his First Amendment rights, in that they participated in the November 9, 2017 use-of-force incident, in retaliation for Mr. Tito’s filing of a grievance on October 1, 2017.

. . . .

3 7. COs Salce, Young, and Miller violated Mr. Tito’s Fourteenth Amendment right to equal protection by maliciously singling him out for different treatment, in that, when Mr. Tito was in the NHSP Special Housing Unit (“SHU”) on Pending Administrative Review (“PAR”) status, those officers allowed his cellmate, Alfred Nyoni, to have out-of-cell time to shower, use the phone, and recreate, while denying the same opportunities to Mr. Tito.

. . . .

11. COs violated Mr. Tito’s Fourteenth Amendment right to equal protection by maliciously targeting him for different treatment than every other SHU inmate, in that:

a. CO Salce issued Mr. Tito an ill-fitting gown without Velcro, and a soaked mattress without a cover, when Mr. Tito was on suicide watch in SHU for two days in August 2017; and

b. SHU guards, including CO Salce, denied Mr. Tito’s requests for a change of clothes over sixteen days in September 2017.

See Oct. 15, 2018 Am. R&R (Doc. No. 93), approved by Nov. 27,

2018 Order (Doc. No. 104).

Summary Judgment Motion (Doc. No. 135)

I. 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)). If

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

4 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).

Rule 56(c) provides that a party asserting that a fact

either cannot be or is genuinely disputed “must support the

assertion” by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1); see also Fed. R. Civ. P. 56(c)(1)(B)

advisory committee’s notes (2010) (“a party who does not have

the trial burden of production may rely on a showing that a

party who does have the trial burden cannot produce admissible

evidence to carry its burden as to the fact”).

This court’s local rules require a party moving for summary

judgment to “incorporate a short and concise statement of

material facts, supported by appropriate record citations, as to

which the moving party contends there is no genuine issue to be

tried.” LR 56.1(a). “All properly supported material facts set

forth in the moving party’s factual statement may be deemed

admitted unless properly opposed by the adverse party.” LR

56.1(b). As Mr. Tito is proceeding pro se, his pleadings are

5 construed liberally. See Erickson v. Pardus,

(2007) (per curiam).

II. PLRA Exhaustion

Defendants have moved for summary judgment based on their

contention, in support of an affirmative defense, that Mr. Tito,

having filed this lawsuit while still incarcerated, failed to

exhaust his administrative remedies as required by the PLRA.

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 exhaustion requirement applies in

this case because Mr. Tito was an NHSP inmate at the time he

filed the pleading that started this case, even though he has

since been released. See Ojo v. Hillsborough Cty. Dep’t of

Corr., No. 12-cv-204-SM,

,

, at *8,

, at *3 (D.N.H. May 7, 2014) (“The

plain language of the PLRA indicates that the exhaustion

requirement applies to inmate plaintiffs but does not apply to

former prisoners or others who are not confined or incarcerated

when they file suit.”).

6 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

“requires proper exhaustion,” Woodford v. Ngo,

(2006), which means an inmate must use all of the steps that the

prison grievance system makes available in its administrative

grievance process, and do so in conformity with the prison’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 rule requiring that a

prisoner exhaust all of the administrative remedies provided by

the prison, that is, “a prisoner need exhaust only ‘available’

administrative remedies,” Ross v. Blake,

(2016); remedies that were not in fact “available” need not be

exhausted.

III. NHSP Grievance Procedures

The New Hampshire Department of Corrections (“DOC”) Policy

and Procedure Directive (“PPD”) 1.16 establishes a three-step

grievance process that DOC inmates must use to seek formal

review of complaints concerning the conditions of their

confinement. See PPD 1.16 Sect. I, III (Doc. No. 135-3); see

7 also Decl. of Joan Jepson ¶ 5 (Doc. No. 135-2). PPD 1.16 states

that the timeframes set out in the policy and the use of

appropriate forms are “mandatory,” that untimely requests and

grievances will be dismissed, and that grievances that are not

on the correct form will be returned unanswered. See PPD 1.16

Sect. IV(E), IV(F).

The first step in the grievance process requires an inmate

to send an Inmate Request Slip (“IRS”) to the “appropriate

staff” member, generally an officer or other staff member

subordinate to the Warden, within thirty calendar days of the

date of the incident. PPD 1.16 Sect. IV(A). The Warden may

waive the first-level IRS requirement if the inmate asks for a

waiver within thirty days of the incident and demonstrates that

complying with the first-level IRS requirement “is likely to

result in identifiable risk of harm to [the inmate’s] physical

safety or psychological well-being.” PPD 1.16 Sect. IV(A)(4).

The second step in the grievance procedure is an appeal of

the response to the first-level IRS. That appeal must be

addressed to the Warden, using a Grievance Form. PPD 1.16 Sect.

IV(B). An inmate must submit an appeal to the Warden “within 30

calendar days” from the date of the response to the first level

IRS, PPD 1.16 Sect. IV(B)(1), unless the Warden has granted an

extension, PPD 1.16 Sect. IV(B)(4).

8 The third step in the grievance process is an appeal of the

Warden’s decision to the DOC Commissioner’s Office, using a

Grievance Form. See PPD 1.16 Sect. IV(C). The Commissioner’s

Office must receive that appeal “within 30 calendar days of the

date of the [Warden’s] response,” although the Commissioner may

grant an extension of that time period. PPD 1.16 Sect.

IV(C)(1), IV(C)(4).

IV. Defendants’ Burden as to Exhaustion Defense

The failure to exhaust available prison grievance remedies

is an affirmative defense as to which defendants bear the burden

of proof. See Jones,

; Albino v. Baca,

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

phase, defendants bear the initial burden of showing that

plaintiff failed to exhaust generally available administrative

remedies. See Hubbs v. Suffolk Cty. Sheriff’s Dep’t,

(2d Cir. 2015); Albino,

; Tuckel v.

Grover,

(10th Cir. 2011) (defendants

initially “bear the burden of asserting and proving that the

plaintiff did not utilize administrative remedies”). 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

9 also Tuckel,

. See generally Asociación de

Suscripción Conjunta del Seguro de Responsabilidad Obligatorio

v. Juarbe-Jiménez,

, 50 n.10 (1st Cir. 2011) (after

defendant moving for summary judgment on affirmative defense

produces “conclusive” evidence to establish defense, burden

shifts to plaintiff to show that defense does not apply).

To establish their entitlement to summary judgment on their

affirmative failure-to-exhaust defense, as to each of the claims

that remain in this case, defendants have the initial burden of

demonstrating, by reference to documents (as specified in Rule

56(c)), that Mr. Tito did not follow the steps required by PPD

1.16 with respect to each of his claims. Defendants’ summary

judgment submissions consist of a motion and a memorandum that

includes a statement of facts and arguments, accompanied by a

copy of PPD 1.16 (Doc. No. 135-3) and other records that

defendants assert they produced to Mr. Tito, consisting of: an

October 1, 2017 IRS and the Warden’s November 2, 2017 response

(Doc. No. 135-4); and two IRSs including responses (Doc. Nos.

135-5, 135-7) and a “speed memo” from the Warden addressed to

Mr. Tito (Doc. No. 135-6), all of which post-date November 9,

2017. Those exhibits are authenticated by another exhibit to

the summary judgment motion, the Declaration of Joan Jepson

(Doc. No. 135-2), an assistant to the DOC Commissioner, who

identifies each of those records as true and correct copies of

10 what they appear to be. Nothing in Ms. Jepson’s declaration,

however, states that the records she authenticates represent the

universe of pertinent grievance records in the DOC files

relating to the November 9, 2017 incident. Nor does her

declaration aver any facts relating to Mr. Tito’s grievance

efforts concerning any other claims at issue in the motion for

summary judgment.

Within the memorandum filed in support of defendants’

motion for summary judgment, defendants include a “Statement of

Undisputed Facts.” In that section, defendants assert that,

apart from the records filed as exhibits to their Motion for

Summary Judgment, “[n]o other IRS or grievance forms exist

within the 30 day period immediately following the November 9,

2017 use of force incident.” Defs.’ Mem. of Law in Supp. of

Mot. for Summ. J. (Doc. No. 135-1), at 6. Neither Ms. Jepson’s

declaration, nor any other evidence or document before this

court substantiates that assertion. See Fed. R. Civ. P.

56(c)(1)(A) (“[a] party asserting that a fact cannot be . . .

genuinely disputed must support the assertion by . . . citing to

particular parts of materials in the record”). Where there is

no support in the record for defendants’ assertion that there

are no other pertinent grievance records, an issue as to which

they bear both the initial burden of production and the ultimate

burden of persuasion, this court declines to decide at this

11 point whether the documents they filed with the summary judgment

motion, viewed in isolation, are deficient relative to PPD

1.16’s requirements. Cf. Hale v. Abangan, No. 3:15-cv-170-CWR-

FKB,

, at *13-14,

,

at *5 (S.D. Miss. Aug. 4, 2017) (where defendants’ summary

judgment motions were not properly supported by evidence

regarding facts asserted, and court doubted that grievance

records submitted to court were complete, those motions were

inadequate to establish deficiencies in inmate’s exhaustion

efforts), R&R approved,

,

(S.D. Miss. Sept. 6, 2017).

Similarly, defendants have argued -- without any

evidentiary support -- that Mr. Tito did not file any proper

IRSs or grievances relating to his remaining claims, and thus

failed to exhaust the prison’s grievance remedies with respect

to those claims. See, e.g., Defs.’s Mem. of Law in Supp. Of

Mot. for Summ. J. (Doc. No. 135-1), at 10 (“no first, second, or

third level inmate request slips or grievance forms exist

identifying known, pervasive violence or threats of violence

against the plaintiff”); Doc. No. 135-1, at 13 (“plaintiff never

filed a first step IRS, second step Grievance Form with the

Warden, or a third step Grievance Form” to DOC Commissioner

properly raising issues in Claims 7, 11(a), 11(b)). But

defendants have not supported those factual assertions and

12 conclusions by citation to the materials specified in Rule

56(c)(1)(A). Under those circumstances, with respect to this

matter on which they bear both the burden of production and the

burden of persuasion, defendants’ motion for summary judgment is

not properly granted. See Escobar v. Reid,

(D. Colo. 2009) (court declined to grant motion for

summary judgment on PLRA exhaustion defense where defendants

“failed to present any evidence or specific facts supporting

their affirmative defense, and instead, simply rest[ed] on the

conclusory assertions contained in their pleadings, the one

thing they may not do on a motion for summary judgment”), R&R

adopted,

.

If either party fails to properly support an assertion of

fact in moving for summary judgment, or in responding to such a

motion, the court may issue any appropriate order. See Fed. R.

Civ. P. 56(e). The court thus denies defendants’ motion for

summary judgment but qualifies that denial to make it without

prejudice. Defendants are granted leave to refile a similar

motion, by April 17, 2020, which provides appropriate support

for the assertions as to which they bear the burden of proof,

consistent with Rule 56, LR 56.1, and this Order. Mr. Tito’s

objection to such a motion -- which must also be supported by

appropriate record citations, documentary exhibits, and/or

13 affidavits or declarations under

-- is due by

May 15, 2020. 3 Defendants’ reply is due by May 29, 2020.

Motion to Modify Court Order (Doc. No. 134)

Defendants have moved to modify the May 15, 2019 Order,

which states that defendants “may limit the scope of their

answer” to certain pleadings and to specific parts of the

October 15, 2018 Amended Report and Recommendation (Doc. No. 93)

(“Amended R&R”). Defendants ask the court to modify that Order

to remove the statement indicating that the scope of their

answer may address any parts of the Amended R&R or its

identification of claims. Mr. Tito has not objected to the

motion to modify that Order.

The motion to modify (Doc. No. 134) is granted; the May 15,

2019 Order, which granted in part and otherwise denied

Defendants’ Motion to Waive Answer (Doc. No. 124), is vacated;

and the text listed in the Conclusion of this Order is

substituted for it.

3Mr. Tito’s objection (Doc. No. 144) to the summary judgment motion at issue lacks any supporting exhibits or references to specific, pertinent parts of the record, and instead baldly asserts that he has “established” that “[p]roper paperwork, and avenues to forward complaints were compromised by staff in the facility,” and that, “besides the IRS defense chose to outline, almost every complaint made by plaintiff in regards to all issues raised in each claim followed the proper procedure.” Pl.’s Obj. to Summ. J. Mot. (Doc. No. 144). Such factual allegations require evidentiary support for this court to take them into consideration in ruling on a motion for summary judgment on a claim-specific failure-to-exhaust defense.

14 Mootness of Injunctive Relief/Official Capacity Claims

In this action, Mr. Tito requested an order transferring

him to a different facility to protect him from threats to his

safety at the NHSP. Mr. Tito’s March 2018 transfer to NCF, and

his subsequent release in 2019, have mooted all of his requests

for injunctive relief. See Ford v. Bender,

(1st

Cir. 2014) (in the absence of claims for damages, “[a]

prisoner’s challenge to prison conditions or policies is

generally rendered moot by his transfer or release”). Mootness

provides a basis for this court, sua sponte, to grant judgment

for the defendants, as a matter of law, on all of Mr. Tito’s

claims for injunctive relief, which comprise the remaining

official capacity claims in this lawsuit. Cf. Anderson v.

Rehmer,

(2d Cir. 2017) (affirming sua

sponte dismissal of complaint seeking only injunctive relief, as

inmate’s “transfer to a new facility prevents him from seeking

either injunctive or declaratory relief against officials of his

prior facility”).

Accordingly, the court dismisses those claims, to the

extent they seek injunctive relief. The court further directs

that the current NHSP Warden be dropped as a defendant, as there

are no claims for damages asserted against her in this action.

The claims that survive this Order are the damages claims

15 asserted against former NHSP Warden Michael Zenk, NHSP Sgt. Gary

Lydick, and NHSP COs Geoffrey Boffitto, Jason Caruso, Farradon

Young, Dominic Salce, and Timothy Miller, in their individual

capacities.

Conclusion

For the foregoing reasons, the court orders as follows:

1. The defendants’ motion for summary judgment (Doc. No.

135) is DENIED, without prejudice.

2. Defendants are granted leave to refile a similar

summary judgment motion, by April 17, 2020, based on PLRA

exhaustion, which complies with the requirements of Rule 56 and

LR 56.1. Plaintiff’s objection to that motion, along with

plaintiff’s witness affidavits, declarations under

, or other exhibits to that objection, must be filed by

May 15, 2020. Defendants’ reply is due by May 29, 2020.

3. Defendants’ motion to modify the May 15, 2019 Order

(Doc. No. 134) is GRANTED. The May 15, 2019 Order -- granting

in part and otherwise denying Defendants’ motion to limit the

scope of their answer -- is hereby vacated, and the following

Order is substituted:

For reasons stated in defendants’ motion (Doc. No. 124) to limit the scope of their answer, the court grants in part the relief requested, and otherwise denies that motion (Doc. No. 124). The motion (Doc. No. 124) is granted in part, to the extent that defendants may limit the scope of their answer to the factual allegations in the initial

16 Complaint (Doc. No. 1) and Amended Complaint Part II (Doc. No. 6-1).

4. The court dismisses all of Mr. Tito’s official

capacity/injunctive relief claims and drops the current NHSP

Warden as a defendant.

SO ORDERED.

_______________________________ Steven J. McAuliffe United States District Judge

March 25, 2020

cc: Albert Tito, pro se Anthony Galdieri, Esq. Lawrence Edelman, Esq.

17