Cullen v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Allan Cullen
v. 	Civil No. 16-cv-537-SM
NH DOC Commissioner
William Wrenn
REPORT AND RECOMMENDATION
Allan Cullen, who appears pro se, is currently being
incarcerated by the New Hampshire Department of Corrections
(“DOC”) at the Northern New Hampshire Correctional Facility
(“NCF”) in Berlin, New Hampshire. 	Through the vehicle of 42
U.S.C. § 1983, he claims that the DOC’s “one-tote policy” for
the storage of legal materials in an inmate’s cell at NCF
violates his federal constitutional rights to: (1) equal
protection;1 and (2) access to the courts. 	Before this
magistrate judge for a report and recommendation is respondent’s
motion for summary judgment, to which plaintiff objects. 	For
the reasons that follow, defendant’s motion for summary judgment
should be granted.
1 Plaintiff’s equal protection claim rests on allegations
that exceptions to the one-tote policy are available to inmates
at the New Hampshire State Prison in Concord but not to NCF
inmates.
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Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” 	Walker v.
President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777,
782 (1st Cir. 2011); citing Fed. R. Civ. P. 56(a)). 	When a
court considers a motion for summary judgment, “[t]he evidence .
. . must be viewed in the light most favorable to the nonmoving
party . . . and all reasonable inferences must be taken in that
party’s favor.” 	Harris v. Scarcelli (In re Oak Knoll Assocs.,
L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing Desmond v.
Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir. 1994)).
To defeat summary judgment, “[t]he non-moving party . . . must
‘produc[e] specific facts sufficient to deflect the swing of the
summary judgment scythe.’” 	Xiaoyan Tang v. Citizens Bank, N.A.,
821 F.3d 206, 215 (1st Cir. 2016) (quoting Mulvihill v. Top-
Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003)).
Background
The facts recited in this section are undisputed. 	At all
times relevant to this matter, Cullen was an inmate at NCF. 	His
claims arise from NCF’s enforcement of its one-tote policy, and
its refusal to allow him a second tote to store his legal
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materials.
With respect to inmate complaints about conditions of
confinement, the DOC employs a three-step grievance procedure
which involves: (1) directing an inmate request slip (“IRS”) “to
the lowest level staff person with the authority to address the
issue raised,” Def.’s Mot. Summ. J., Ex. A, Attach. 1 (doc. no.
25-2), at 2; (2) appealing an unfavorable response to an IRS by
directing a Grievance Form to the Warden, see id. at 3-4; and
(3) appealing an unfavorable response from the Warden by
directing a Grievance Form to the office of the Commissioner of
the DOC, see id. at 4-5.
On October 25, 2016, Cullen directed an IRS to Rob Roy, of
the New Hampshire State Prison (“NHSP”) recreation department in
Concord,2 to make the following request: “Order second legal
tote. 	Please note first tote split down side – can still be
used as second [indecipherable] tote.” 	Def.’s Mot. Summ. J.,
Ex. A, Attach. 2 (doc. no. 25-3), at 39. 	Three days later,
Cullen received the following response from a staff member in
the recreation department: “Done.” 	Id.
Then, on November 30, Cullen filed a second IRS to make
this request:
Attached is copy of request slip approving second
legal tote. 	On 11-29-16 I went to recreation to pick
2 It is not clear why an NCF inmate in Berlin would direct
an IRS to someone working at the NHSP in Concord.
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up second tote. 	I was told I was only allowed one by
Mr. Griffin. 	I would like to know why Berlin inmates
are allowed one tote while Concord inmates are allowed
two or more. 	Could you please find out why.
Id. at 43 of 44. 	On December 6, 2016, Cullen received the
following response from Lieutenant McFarland: “For starters you
should have asked me 1 st. 	NCF only allows 1 legal [tote] because
of space in the cell.” 	Id.
According to the DOC’s grievance procedure, Cullen had 30
calendar days from the day on which Lt. McFarland responded to
his IRS to file a Grievance Form with the Warden. 	On December
21, 2016, while the time to file a Grievance Form with the
Warden was still running, Cullen filed the complaint that
initiated this case. 	Furthermore, between January 1, 2016, and
July 17, 2017, Cullen did not file any Grievance Forms with the
Warden. 	See Def.’s Mot. Summ. J., Ex. B (doc. no. 25-4) ¶ 3.
Discussion
Defendant argues that he is entitled to judgment as a
matter of law on plaintiff’s claims because plaintiff has not
satisfied the exhaustion requirement imposed by the federal
Prison Litigation Reform Act. 	Defendant is correct.
Judge McCafferty has recently described the operation of
the PLRA exhaustion requirement:
Under the Prison Litigation Reform Act of 1995
(“PLRA”), 42 U.S.C. § 1997e(a), “[n]o action shall be
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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.” 	The PLRA
requires “proper exhaustion.” 	Woodford v. Ngo, 548
U.S. 81, 84 (2006). 	“[I]t is the prison’s
requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” 	Jones v. Bock, 549
U.S. 199, 218 (2007). 	Claims for which administrative
remedies have not been exhausted are subject to
dismissal. 	Medina–Claudio v. Rodríguez–Mateo, 292
F.3d 31, 36 (1st Cir. 2002).
Peterson v. Wrenn, No. 14-cv-432-LM, 2017 WL 401189, at *10
(D.N.H. Jan. 30, 2017). 	More specifically, the language of 42
U.S.C. § 1997(e)(a) “clearly contemplates exhaustion prior to
the commencement of the action as an indispensable requirement.”
Medina-Claudio, 292 F.3d at 36 (emphasis in the original).
Thus, “[e]xhaustion subsequent to the filing of suit will not
suffice.” 	Id. (citing Booth v. Churner, 532 U.S. 731, 738
(2001)). 	Finally, “[f]ailure to exhaust is an affirmative
defense.” 	Peterson, 2017 WL 401189, at *10 (citing Ramos v.
Patenaude, 640 F.3d 485, 488 (1st Cir. 2011)).
At summary judgment, to prevail on an affirmative defense
of failure to exhaust, “the defendant must show that no
reasonable jury could find that [the plaintiff] exhausted the
administrative remedies available to him before commencing [his]
action.” 	Polansky v. McCoole, No. 13-cv-458-JL, 2016 WL 237096,
at *3 (D.N.H. Jan. 20, 2016). 	If the defendant carries his
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initial burden of showing that plaintiff failed to
exhaust all of his generally available administrative
remedies . . . “the burden shifts to the prisoner to
come forward with evidence showing that there
something in his particular case that made the
existing and generally available administrative
remedies effectively unavailable to him.”
Santiago v. N.H. Dep’t of Corr., Comm’r, No. 14–cv–100–JL, 2015
WL 5097782, at *3 (D.N.H. Aug. 27, 2015) (quoting Albino v.
Baca, 747 F.3d 1162, 1172 (9th Cir. 2014)).
Here, defendant has plainly carried his initial burden of
showing “that no reasonable jury could find that [Cullen]
exhausted the administrative remedies available to him before
commencing [his] action.” 	Polansky, 2016 WL 237096, at *3.
When Cullen commenced his suit, he had not even initiated the
second step in the DOC’s three-step grievance procedure, and the
deadline for doing so had not yet expired. 	Thus, he filed suit
to pursue a claim for which he had not exhausted the DOC’s
administrative remedies.
In both his objection to defendant’s motion for summary
judgment and his surreply, plaintiff suggests, but does not
fully develop, an argument that the DOC grievance procedure was
somehow unavailable to him. 	But he has produced no evidence to
create a trialworthy issue on unavailability. 	See Xiaoyan Tang,
821 F.3d at 215 (describing non-moving party’s obligation to
produce evidence to create trialworthy issue in order to avoid
summary judgment). 	In support of his surreply, Cullen has
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produced a number of request slips and Grievance Forms generally
related to the issue of access to his legal materials and his
desire for a second tote, most of them filed after he filed this
lawsuit. 	While those forms demonstrate that the relief Cullen
sought was unavailable, they do not show that the grievance
procedure was unavailable to him. 	More importantly, attempts to
use the DOC grievance procedure after plaintiff filed this
action are not evidence one way or the other on the question of
whether, at the time he filed this action, plaintiff’s failure
to exhaust the remedies available through the DOC grievance
procedure was excusable on grounds of unavailability.
Plaintiff also refers to legal material that was stolen
from him during a fire drill in September of 2017, including the
request slips from October and November of 2016 that are quoted
above. 	But he also says that the court provided him with copies
of those slips, and the rest of the allegedly stolen material
consists of request slips from 2017, i.e., after he filed this
action. 	Because plaintiff does not claim that he lacked access
to any material that would permit the court to determine that
the DOC grievance procedure was unavailable to him before he
filed this action, his allegations concerning stolen legal
material do nothing to preclude the court from ruling in
defendant’s favor on his affirmative defense of failure to
exhaust.
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Conclusion
For the reasons described above, plaintiff’s claims should
be dismissed, and defendant’s motion for summary judgment,
document no. 25, should be granted.
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
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
January 29, 2018
cc: 	Allan Cullen, pro se
Francis Charles Fredericks, Esq.
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