Bellemare v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Henry Bellemare
v. 	Civil No. 18-cv-661-JL
Michelle Edmark, New Hampshire State Prison
Warden; Sgt. FNU Deniene; Cpl. FNU Provost;
and Corrections Officer FNU Colpas
REPORT AND RECOMMENDATION
Before the court for preliminary review, pursuant to 28
U.S.C. § 1915A(a) and LR 4.3(d)(1), is a complaint (Doc. No. 1),
filed by Henry Bellemare, an inmate at the New Hampshire State
Prison for Men (“NHSP”). 	A request for preliminary injunctive
relief set forth in the complaint has been referred to the
magistrate judge for a hearing, if necessary, and a report and
recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). 	See July
27, 2018 Order.
Background
Bellemare asserts claims arising under the Eighth and
Fourteenth Amendment, relating to the July 13, 2018 conduct of
two transport officers, Corrections Officer Colpas and Cpl.
Provost. 	Bellemare alleges he reported the incidents alleged in
the complaint to Lt. James Brown in person, who stated, in a
same-day reply to a July 20, 2018 inmate request slip, that
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Bellemare and Brown had spoken about the incident on July 15,
2018, and that Brown had since filed an incident report up the
chain of command. 	Bellemare asserts he filed a grievance about
the matter, and a copy of an incomplete grievance form, dated
July 20, 2018, is attached to the complaint.
Discussion
I. 	Preliminary Review
A. 	Standard
The court conducts a preliminary review of inmate
complaints. 	See 28 U.S.C. § 1915A(a); LR 4.3(d)(1).
Disregarding any legal conclusions, the court takes as true the
factual content in the pleading and inferences reasonably drawn
therefrom, and considers whether plaintiff has stated a claim to
relief. 	Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st
Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Claims may be dismissed if, among other things, the complaint
fails to state a claim upon which relief may be granted, the
court lacks jurisdiction, or a defendant is immune from the
relief sought. 	See 28 U.S.C. § 1915A(b); LR 4.3(d)(1)(A).
B. 	Exhaustion Requirement
Under the Prison Litigation Reform Act of 1995 (“PLRA”), 42
U.S.C. § 1997e(a), “[n]o action shall be brought with respect to
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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). 	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).
Failure to exhaust is an affirmative defense. 	See Ramos v.
Patenaude, 640 F.3d 485, 488 (1st Cir. 2011). 	Dismissing an
action on the basis of an affirmative defense, such as PLRA
exhaustion, is permissible if the facts alleged in the
complaint, or matters susceptible of judicial notice,
conclusively establish the elements of the affirmative defense.
See Gray v. Evercore Restructuring LLC, 544 F.3d 320, 324 (1st
Cir. 2008).
The DOC employs a three-level procedure for handling inmate
grievances. 	See DOC Policy and Procedure Directive (“PPD”)
1.16(III)(E); see also Hart v. Goulette, No. 16-CV-028-PB, 2018
WL 1310010, at *1, 2018 U.S. Dist. LEXIS 41878, at *3 (D.N.H.
Jan. 23, 2018) (D.N.H. Jan. 23, 2018), R&R adopted in part, No.
16-CV-28-PB, 2018 U.S. Dist. LEXIS 40665, 2018 WL 1307643
(D.N.H. Mar. 13, 2018). 	The first step is an inmate request
slip (“IRS”). 	PPD 1.16(IV)(A)(1); Hart, 2018 WL 1310010, at *1,
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2018 U.S. Dist. LEXIS 41878, at *3. 	The second and third steps
are grievances, which are subject to thirty-day deadlines. 	PPD
1.16(IV)(B)&(C)(1); Hart, 2018 WL 1310010, at *1, 2018 U.S.
Dist. LEXIS 41878, at *3-*4. 	The timeframes and uses of
appropriate forms are mandatory. 	PPD 1.16(IV)(E)&(F); Hart,
2018 WL 1310010, at *1, 2018 U.S. Dist. LEXIS 41878, at *4.
Bellemare appears to have filed a timely IRS relating to
the incidents described in the complaint. 	He also alleges he
filed a grievance. 	A grievance form dated July 20, 2018, is
attached to the complaint. 	See Doc. No. 1-1, at 13. 	It is not
clear whether that grievance was submitted to the NHSP warden or
the DOC commissioner. 	Blank spaces on the grievance attached to
the complaint indicate that no response had been received before
Bellemare placed the complaint in the mail. 	The timeline of
events alleged in the complaint and the attached incomplete
grievance demonstrate that Bellemare has not exhausted his
claims at all levels of the DOC grievance system. 	Accordingly,
this action should be dismissed, without prejudice, because it
was filed before Bellemare exhausted his DOC remedies.
II. 	Requests for Preliminary Injunctive Relief
Bellemare seeks preliminary injunctive relief, including an
order enjoining defendants from transferring him or taking any
other action against him, in retaliation for his filing of
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grievances and this case. 	“‘A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public
interest.’” 	Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015)
(citation omitted). 	Irreparable harm and the likelihood of
success weigh most heavily in the analysis. 	Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008); Voice of the Arab
World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st
Cir. 2011). 	The burden of proof is on the movant. 	See Esso
Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
Bellemare has failed to demonstrate a likelihood of success
on the merits, as he has not demonstrated that he has exhausted
his claims through the DOC grievance process, before he filed
this action, rendering the matter subject to dismissal.
Furthermore, Bellemare has not alleged any facts suggesting that
he is likely to suffer irreparable harm in the absence of a
preliminary injunction. 	Accordingly, Bellemare’s request for
preliminary injunctive relief should be denied.
Conclusion
For the foregoing reasons, this action should be dismissed,
without prejudice, and his requests for preliminary injunctive
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relief should be denied. 	Any objection to this report and
recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file a specific
written objection to this 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).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 30, 2018
cc: 	Henry Bellemare, pro se
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