Hart v. Goulette et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. 	Civil No. 16-cv-028-PB
Ryan Goulette; Page Kimball;
Eric Barbaro; Paul Cascio;
Michael Dube, Jr.; Dr. Linda
DeLorey; and Brendan Luba
REPORT AND RECOMMENDATION
In an endorsed order dated February 22, 2018, Judge
Barbadoro remanded this case, directing this magistrate judge to
consider defendants’ objection to the Report and Recommendation
that was issued on January 23, 2018, doc. no. 83. 	Based upon
defendants’ objection, their unopposed motion for summary
judgment, doc. no. 69, should be granted in full.
Document no. 83 recommended granting defendants’ motion as
to Claims 14(a) and 17, but denying it as to Claim 12. 	That
recommendation was based upon deficiencies in the evidence
defendants produced in support of their argument that Kenneth
Hart had not exhausted the administrative remedies available to
him with respect to his claim that Eric Barbaro and Michael Dube
violated his rights under the Eighth Amendment to the United
States Constitution by using a taser on him on April 15, 2012.
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As noted in the previous Report and Recommendation, defendants
produced evidence that Hart went through the first two levels of
the three-level grievance procedure employed by the New
Hampshire Department of Corrections (“DOC”), but did not produce
satisfactory evidence that Hart failed to complete the process
by filing with the Commissioner of the DOC a timely appeal the
Warden’s May 14, 2012, denial of his level-two grievance.
Defendants’ objection solves that problem. 	Attached to
their objection, defendants have produced an affidavit by Leslie
Bartlett to which she attached every correspondence directed by
Hart to the Office of the DOC Commissioner from April 15, 2012,
through December 31, 2012. 	None of those submissions is a
timely appeal of the Warden’s denial of Hart’s level-two
grievance. 	Because it is undisputed that Hart never filed a
level-three appeal with the Commissioner, Barbaro and Dube are
entitled to judgment as a matter of law on Claim 12.
Accordingly, defendants’ motion for summary judgment, doc. no.
69, should be granted in full, and defendants DeLorey, Luba, and
Dube should be dropped from the case.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
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Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 23, 2018
cc: 	Kenneth Hart, pro se
Seth Michael Zoracki, Esq.
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