UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joshua Burns

v. Civil No. 19-cv-007-LM Opinion No.

P FNU Croteau, et al.

ORDER

Plaintiff Joshua Burns, an incarcerated prisoner represented by counsel,

brings this civil rights action against Corporal Jason Croteau, Sergeant Dwayne

Sweatt, and an unspecified number of Doe defendants. All defendants are

corrections officers employed by the New Hampshire Department of Corrections

(the “DOC”) at the Northern Correctional Facility for Men in Berlin, New

Hampshire (“NCF Berlin”), and all are sued in their individual capacities only.

Burns alleges that after he refused to obey an inappropriate order, Croteau and

Sweatt beat him severely, causing serious injury. He further alleges that the Doe

defendants failed to intervene to protect him. Arising out of that incident, Burns

asserts Croteau’s and Sweatt’s liability under

for violation of his

Eighth Amendment right to freedom from excessive force while incarcerated, and

under New Hampshire common law for assault and battery. In addition, Burns

asserts the Doe defendants’ liability under Section 1983 for failure to intervene.

Defendants move for summary judgment, arguing that Burns failed to

exhaust his administrative remedies before bringing this action, thus depriving this court of authority to consider his claims under the Prison Litigation Reform Act (the

“PLRA”). Burns objects, arguing that he exhausted the administrative procedures

available to him. Burns submitted a grievance of the incident but did not use the

required form. In addition, he did not pursue the grievance procedure through its

second and third steps, as is mandatory under the administrative process.

Although Burns argues that proper exhaustion of the procedures was impossible

both because he did not understand them and because he was transferred to a non-

DOC facility a few days after the incident occurred, as a matter of law these issues

did not render the administrative procedures effectively unavailable. The court

therefore agrees with defendants that Burns failed to exhaust available

administrative remedies as required under the PLRA.

THE PRISON LITIGATION REFORM ACT

Under the Prison Litigation Reform Act, incarcerated plaintiffs must exhaust

all available administrative remedies before bringing any federal action in respect

to prison conditions. 42 U.S.C. § 1997e(a). For purposes of the PLRA, a civil rights

action arising out of an isolated episode of unlawful misconduct by prison officials

constitutes a challenge to prison conditions. See Porter v. Nussle,

(2002). Under the PLRA, federal courts lack discretion to consider any claim

challenging prison conditions unless the exhaustion requirement has been satisfied,

without regard to whether the remedy sought in the federal action was available

under the institution’s administrative procedure. See

at 524 (citing Booth v.

2 Churner,

, 740 n. 5 (2001)). Requiring inmates to exhaust

administrative remedies before suing 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).

“[I]t is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.”

. The Supreme Court has specified that

“the PLRA exhaustion requirement requires proper exhaustion” of all

administrative procedures in use at the prison. Woodford v. Ngo,

(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 original). The Woodford court reasoned that to

require less than complete and proper exhaustion, including compliance with

deadlines and all procedural requisites, would permit prisoners to render the PLRA

exhaustion requirement “wholly ineffective.”

. That is, prisoners could

default in the performance of administrative requirements and then claim

exhaustion by virtue of their own procedural default. See

Notwithstanding the foregoing, prisoners are only required to exhaust those

administrative remedies that are effectively available to them. A prisoner who fails

to follow a prison’s administrative grievance procedure through to its final step has

nevertheless exhausted available administrative remedies where: (1) remedies are

functionally unavailable because prison officials are “unable or consistently

unwilling to provide any relief to aggrieved inmates;” (2) the administrative

3 procedure is too confusing, baroque, or flawed to be navigated to completion by a

reasonable prisoner; or (3) prison officials thwart prisoners’ efforts to exhaust

available administrative remedies “through machination, misrepresentation, or

intimidation.” Ross v. Blake,

(2016) (citing Booth,

).

Claims that have not been exhausted are subject to dismissal. See Medina-

Claudio v. Rodríguez-Mateo,

(1st Cir. 2002). Defendants bear the

burden to show both that administrative remedies were available and that the

prisoner failed to exhaust them. See, e.g., Fuqua v. Ryan,

(9th

Cir. 2018). If defendants make that showing, the burden shifts to the prisoner to

come forward with evidence showing that the existing and generally available

administrative remedies were effectively unavailable to him. See

The First Circuit has not addressed whether factual issues regarding

exhaustion are the province of the judge or the jury. However, all the circuit courts

that have considered the question have held that it is for the court rather than a

jury to resolve such issues. See, e.g., Albino v. Baca,

(9th

Cir. 2014) (“disputed factual questions relevant to exhaustion should be decided by

the judge, in the same manner a judge rather than a jury decides disputed factual

questions relevant to jurisdiction and venue”); see also Lee v. Willey,

(6th Cir. 2015); Small v. Camden Cty.,

(3rd Cir. 2013); Messa

v. Goord,

(2nd Cir. 2011); Dillon v. Rogers,

(5th

Cir. 2010); Pavey v. Conley,

(7th Cir. 2008) (en banc); Bryant v.

4 Rich,

(11th Cir. 2008). The court agrees that it may

appropriately, and indeed must, resolve any material factual disputes bearing on

the question of exhaustion for purposes of defendants’ motion. If these questions

were left for a jury to decide, inmate litigants could circumvent the gatekeeper

function of the PLRA and bring cases in federal court without first exhausting

administrative remedies, simply by asserting that such remedies were unavailable.

At summary judgment, to prevail on the affirmative defense of failure to

exhaust, prison officials must show that no factfinder could reasonably conclude

that plaintiff exhausted available remedies before filing suit. See Polansky v.

McCoole, Case No. 13–cv–458–JL,

, at *3 (D.N.H. Jan. 20, 2016).

BACKGROUND

The following facts are drawn from the record. Where the material facts are

disputed, the court has resolved the disputes under the applicable legal standard as

stated below.

I. The Incident of April 27, 2016

On April 27, 2016, while Burns was an inmate at NCF Berlin, defendant

Sweatt ordered Burns to perform “extra duty cleaning the walls.” Burns refused,

stating that he had performed his extra duty obligations on the previous day.

Sweatt responded by striking him with a bottle containing cleaning fluid, throwing

5 rags in his face, and demanding Burns’s obedience. Burns did not comply with

Sweatt’s order, but rather returned to his housing unit.

A short time thereafter, Croteau and Sweatt entered the unit and began

searching other inmates’ cells, stating that they would “keep trashing everyone’s

shit” until Burns agreed to perform extra duty as ordered. Burns continued to

refuse the officers’ order. Sweatt ordered Burns to stand and face the wall so he

could be cuffed, and Burns complied. Sweatt seized Burns’s body and threw him

face-first into the wall, then placed Burns in handcuffs while twisting his arms

painfully. Sweatt and Croteau then escorted Burns to a holding cell, where they

asked him questions. Burns did not respond to any of the questions. Angered by

Burns’s silence, Sweatt and Croteau threw Burns against the wall and then to the

floor, all while he was still cuffed and unable to use his arms to protect himself. He

suffered severe injury to his right arm and shoulder. Sweatt and Croteau then held

Burns down with their knees on his back, while staff members unknown to Burns

removed his socks, shorts, and undergarments, leaving him naked from the waist

down. At no time during the incident did Burns resist the officers or attempt to

defend himself.

Some time thereafter, Burns was permitted to report to medical to be seen for

the injury to his right arm and shoulder. Medical staff gave Burns a sling for his

arm.

6 II. The Administrative Remedy Program at NCF Berlin

The DOC maintains an administrative remedy program (the “Grievance

Process”) at NCF Berlin “through which inmates/residents seek formal review of an

issue related to any aspect of their confinement. . . .” DOC Policy and Procedure

Directive (“PPD”) 1.16(I), eff. July 30, 2015 (doc. no. 21-4). The Grievance Process is

intended to facilitate resolution of any issue concerning conditions of confinement,

including mistreatment or abuse by corrections officers. The Process “provides a

three tiered system for filing a grievance that includes an appeal process.” PPD

1.16(III)(F).

At the first level, an inmate must file a grievance using an Inmate Request

Slip within thirty days after the date of the incident giving rise to the complaint.

See PPD 1.16(IV)(A)(1). The Inmate Request Slip must be “addressed to the lowest

level staff person with the authority to address the issue raised.” PPD

1.16(IV)(A)(3). The appropriate staff member will respond to an Inmate Request

Slip within fifteen days after it is received. If an inmate can demonstrate that use

of an Inmate Request Slip would result in an “identifiable risk of harm” to the

inmate’s safety or well-being, the inmate may seek a waiver in order to proceed

directly to the second level of the system. PPD 1.16(IV)(A)(4). The inmate must

request such a waiver from the NCF Berlin Warden within thirty days after the

date of the incident giving rise to the complaint.

At the second level of the Process, an inmate must file a grievance directed to

the Warden on a Grievance Form. See PPD 1.16(IV)(B). The level two grievance

7 must be filed within thirty days after the inmate receives a response to the initial

Inmate Request Slip. The Warden will respond to a level two grievance within

thirty days after it is received, subject to a fifteen-day extension. An inmate

dissatisfied with the Warden’s response may proceed to the third step of the system

by addressing a Grievance Form to the DOC Commissioner within thirty days of the

date of the Warden’s response. See PPD 1.16(IV)(C).

The timeframes for filing grievances at all three levels of the Process are

“mandatory.” PPD 1.16(IV)(E). Failure to file a grievance within the mandatory

timeframe will result in summary dismissal of the grievance as untimely. However,

if “an inmate can demonstrate a valid reason for delay,” the inmate can request an

extension of an applicable time limit. PPD 1.16(IV)(H).

The Inmate Request Slips and the Grievance Forms are “carbonless triplicate

forms.” PPD 1.16(IV)(F). Filling out one of the forms generates three copies: one to

be retained by Offender Records, one to be retained by the responding official, and

one to be returned to the filing inmate. Use of the appropriate form is mandatory at

each level of the three-tiered system. Any grievance filed by a DOC inmate “will be

returned unanswered” if submitted on the wrong form.

Inmates housed at any facility other than a DOC facility who wish to grieve

an incident that occurred at a DOC facility like NCF Berlin must use the same

three-tiered system available to NCF Berlin inmates, including its mandatory

timeframes. See PPD 1.16(IV)(G)(3). Such inmates may request Inmate Request

Slips or Grievance Forms from Offender Records. See PPD 1.16(IV)(I). However,

8 an instruction printed on the back of the Inmate Request Slip form states that

inmates housed at a facility other than a DOC facility “may use stationery rather

than Inmate Request Slips.” Doc. no. 21-2, at 6; see also doc. no. 26-1, ¶ 10, Exh. B.

It is the “normal and routine practice” to provide inmates with copies of an

“inmate handbook” when they first come into DOC custody. Doc. no. 21-2, at 4. In

addition, NCF Berlin maintains copies of the inmate handbook and of PPD 1.16 at

its law library. See

Inmates may view those materials at the law library or may

request copies by filing an Inmate Request Slip and paying a copying fee.

III. Burns’s Efforts to Grieve the Incident of April 27, 2016

Burns claims he did not receive a copy of the inmate handbook when he came

into custody at NCF Berlin. However, his deposition testimony establishes that he

had reasonable working knowledge of how to use the Grievance Process, and he

concedes that he used it regularly. See Burns Depo., 17:2-22:19, 28:23-29:4, 36:8-22,

39:16-21, 54:8-55:7. As of April 27, 2016, Burns had spent in excess of eight years

in custody at various DOC facilities, including both NCF Berlin and the State

Prison for Men in Concord, NH. During that time, he filed “a lot” of grievances on

Inmate Request Slips, and he understood their purpose and how to fill them out.

See

Burns successfully pursued and obtained his requested remedies through

the Grievance Process on at least some occasions. See id., 39:16-21. He learned how

to use the administrative remedy program in part “just from being” in DOC

9 facilities, id.,-19:5, and in part from reading the instructions on the backs of the

forms, see id., 22:15, 28:14-22.

Burns attempted to grieve the incident of April 27, 2016. Because his injury

prevented him from writing, he recruited the assistance of another inmate to write

the grievance while Burns dictated. With the other inmate’s assistance, Burns

described the incident in detail, and requested an investigation. See doc. no. 21-6 at

5-11.

Burns did not submit his grievance on an Inmate Request Form, as is

appropriate at the first level of the grievance process, but rather on a Grievance

Form, the form appropriate for use at the second and third levels of the process.

See id. There is no indication in the record that Burns requested or received a

waiver of the Inmate Request Slip level of the process. However, Burns knew where

to find Inmate Request Slips and that they were easily obtainable. See Burns

Depo., 51:2353:2.

The Grievance Form that Burns submitted bears the handwritten date “April

27, 2016,” and is stamped “Received” as of May 2, 2016. The Grievance Form does

not specify an addressee, as is required under the Grievance Process. Burns never

received any response to the Grievance Form of April 27, 2016. The parties dispute

whether Burns grieved the incident on an Inmate Request Slip prior to submitting

the Grievance Form. Defendants offer the testimony of Kevin Stevenson, the DOC

Supervisor of Offender Records, that he searched Burns’ offender file and

determined that the sole grievance Burns submitted in connection with the incident

10 was the Grievance Form of April 27, 2016. See Doc. 26-1, ¶¶ 11-12. However,

Burns testified to the contrary, albeit somewhat equivocally, at his deposition.

Upon being asked whether he filed an Inmate Request Slip before filing the April

27, 2016 Grievance Form, Burns initially responded, “I don’t remember. I could

have quite possibly.” Burns Depo., 41:16-17. Upon being asked the same question

immediately thereafter in slightly different terms, Burns testified as follows:

A I believe I did. Q You did? A Yes, to Lieutenant McFarland. I never received a response.

Id., 41:21-42:1.

The court finds that, despite his testimony, Burns did not submit a grievance

of the incident on an Inmate Request Slip prior to submitting his Grievance Form.

First, as noted, defendants have proffered plausible evidence that Burns did not

submit a grievance of the incident on an Inmate Request Slip. See Doc. 26-1, ¶¶ 11-

12. Second, it appears on the face of Burns’s testimony that his recollection is

imperfect. Burns rapidly changed his testimony from not remembering whether he

filed an Inmate Request Slip to affirming that he did, with almost no intervening

passage of time. See Burns Depo., 41:16-42:1. Third, Burns had previously testified

to the circumstances in which he transcribed his grievance, and he recognized the

Grievance Form as the form he had used for that purpose. See id., 29:15-30:12.

Fourth, the Grievance Form does not reference any prior grievance, and it describes

the incident as having just occurred. See doc. no. 21-6 at 5-11. Fifth, as Burns

testified, filling out an Inmate Request Slip generates three copies, see Burns Depo.,

11 19:12-20:5, one of which is to be retained by the inmate at the time he submits the

Slip, see PPD 1.16(IV)(F). However, Burns does not suggest that he ever possessed

any such copy. Sixth and finally, Burns’s testimony is facially implausible, in that

the timeframe is too compressed for events to have occurred as he describes them.

According to his testimony, before filing the Grievance Form, he first filed a similar

grievance on an Inmate Request Slip to which he received no response. See Burns

Depo., 42:1. But the Grievance Form bears the handwritten date April 27, 2016 and

is stamped received as of May 2, 2016. There was simply insufficient time for

Burns to have submitted a level-one grievance on the correct form and waited for a

response that was not forthcoming before he filed the Grievance Form that is in the

record. On these facts, no finder of fact could reasonably conclude that Burns filed a

grievance of the incident on an Inmate Request Slip prior to filing the Grievance

Form.

On May 2, 2016, Burns was transferred to the Carroll County Correctional

Facility (the “County Jail”)1 for his own safety pending investigation of the incident.

While Burns was housed at the County Jail, he had access to and utilized mail

services. However, Burns did not file or mail any further grievances regarding the

incident of April 27, 2016 while he was housed at the County Jail.

Burns was transferred back to NCF Berlin on June 10, 2016. After his

return to NCF Berlin, unspecified prison staff members advised him that he needed

to wait until he received a response to his initial grievance “from the warden” before

1 The County Jail is not a DOC facility.

12 he could file any further grievance or appeal. Id., 38:13-18, 44:20-45:1. For that

reason, Burns did not file a second- or third-level grievance in connection with the

incident.

DISCUSSION

It is undisputed that Burns did not pursue all three levels of the DOC

Grievance Process to completion. The question for the court is whether the

procedures of the Grievance Process were effectively available to Burns under the

applicable circumstances.

Burns argues, first, that the DOC procedures were effectively unavailable to

him because he did not receive an inmate handbook when he first arrived at NCF

Berlin. However, “[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.” Ramirez v.

Young,

(7th Cir. 2018) (citing Chelette v. Harris,

,

688 (8th Cir. 2000)). Here, even assuming Burns did not receive an inmate

handbook upon arrival, it is undisputed that NCF Berlin made copies of the

Grievance Process available to inmates at its law library and that its standard

procedure was to provide copies of the inmate handbook (containing a description of

the Process) to new inmates upon their arrival at the institution. See doc. no. 21-2,

at 4. Moreover, Burns had a reasonable working understanding of the Grievance

Process, had filed numerous grievances on Inmate Request Forms, and had on at

13 least some occasions successfully pursued the process to completion. See Burns

Depo., 17:2-22:19, 28:23-29:4, 36:8-22, 39:16-21, 54:8-55:7. Thus, any failure to

provide Burns with a copy of the inmate handbook could not have rendered the

procedures of the Grievance Process unavailable to him. See Ramirez,

.

In the alternative, Burns argues that the Grievance Process was effectively

unavailable to him while he was housed at the County Jail. But “[t]he fact that [an

inmate] happened to be a prisoner in various locations, and under the custody of

different officials, does not affect his obligation to exhaust his administrative

remedies before filing suit.” Medina-Claudio v. Rodriguez-Mateo,

(1st Cir. 2002); see also Joslin v. Hampshire Cty. House of Corr., Case No. 11-

30175-KPN,

, at *8 (D. Mass. Feb. 28, 2013) (transfer to a

different facility does not relieve an inmate of the obligation to exhaust

administrative remedies available at the former institution). And Burns could have

pursued the DOC Grievance Process while housed at the County Jail either by

requesting the appropriate forms from Offender Records, see PPD 1.16(IV)(I) (doc.

no. 21-4, at 5), or by writing a letter on ordinary stationery addressed to an

appropriate staff member or the Warden at NCF Berlin, see doc. no. 21-2, at 6, doc.

no. 26-1, ¶ 10, Exh. B. Burns’s temporary transfer to the County Jail did not render

the DOC Grievance Procedures effectively unavailable to him.

Third and finally, Burns argues that the Grievance Process became

unavailable to him after his return to NCF Berlin from the County Jail, when he

14 was told by an unidentified staff member not to file any follow-up to his initial

grievance until he received a response to it. See Burns Depo., 38:13-18, 44:20-45:1.

However, the court need not address this argument. This is so because even on the

assumption that the Grievance Process became unavailable to Burns after he

received that advice, he still defaulted procedurally before that occurred by filing

his initial grievance on the incorrect form and by failing to specify an addressee on

that grievance. See PPD 1.16(IV)(A)(1) (doc. no. 21-4, at 2); PPD 1.16(IV)(F) (doc.

no. 21-4, at 5). These procedural defaults deprive this court of authority to consider

Burns’s claims. See Woodford,

.

The evidence establishes that the procedures outlined in PPD 1.16 were

available to Burns at all material times, and that he did not pursue those

procedures either properly or to exhaustion. Accordingly, defendants have

established their entitlement to summary judgment on their PLRA exhaustion

defense.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment (doc.

no. 21) is granted. The Clerk is directed to enter judgment and close this case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge November 6, 2020 cc: Counsel of Record.

15