Cotoni v. Hollins et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Matthew Cotoni
v. 	Case No. 1:23-cv-00271-SM-AJ
Christopher Hollins
REPORT AND RECOMMENDATION
Plaintiff Matthew Cotoni (“Cotoni”), who is incarcerated at
the New Hampshire State Prison for Men (“NHSP”) and is
proceeding pro se, brought this action pursuant to 42 U.S.C. §
1983 against Christopher Hollins (“Hollins”), a chef at NHSP.
Cotoni claims that Hollins intentionally shut a door on Cotoni’s
head when Cotoni refused to leave the lunch line. 	Cotoni
alleges that Hollins used excessive force in violation of the
Eighth Amendment. 	Hollins moves for summary judgment (Doc. No.
36), arguing that Cotoni failed to exhaust available
administrative remedies. 	Cotoni objects (Doc. No. 39). 	The
motion is before the court for a recommended disposition
pursuant to Local Rule 72.1. 	For the reasons explained below,
the court recommends granting Hollins’ motion.
Summary Judgment Standard
Summary judgment is appropriate where the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
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Fed. R. Civ. P. 56(a). 	“A dispute is ‘genuine’ if the evidence
‘is such that a reasonable jury could resolve the point in the
favor of the non-moving party[.]’” 	Taite v. Bridgewater State
Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021) (quoting
Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018)).
“[A] fact is ‘material’ if it ‘has the potential of affecting
the outcome of the case[.]’” 	Id. (quoting Pérez-Cordero v. Wal-
Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)). 	When ruling
on a motion for summary judgment, the court must “view[ ] the
entire record ‘in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences
in that party's favor.’” 	Winslow v. Aroostook Cty., 736 F.3d
23, 29 (1st Cir. 2013) (quoting Suarez v. Pueblo Int'l, Inc.,
229 F.3d 49, 53 (1st Cir. 2000)). 	Because Cotoni is proceeding
pro se, his filings are construed liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L.Ed.2d 1081
(2007).
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 other than in its favor.” 	Am. Steel Erectors,
Inc. v. Loc. Union No. 7, Int'l Ass'n of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.
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2008). 	The burden then “shifts to the nonmovant to establish
that a genuine material dispute exists.” 	Harley-Davidson Credit
Corp. v. Galvin, 807 F.3d 407, 411 (1st Cir. 2015). 	To defeat
summary judgment, “the nonmoving party must ... ‘set forth
specific facts showing that there is a genuine issue for
trial[.]’” 	Carrozza v. CVS Pharmacy, Inc., 992 F.3d 44, 56-57
(1st Cir. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)).
Background
I. 	Cotoni’s Claims
The court derives the following facts from Cotoni’s
complaint (Doc. No. 1). 	On December 3, 2020, Hollins, the chef
at NHSP, refused to serve Cotoni lunch. 	Hollins stated that
Cotoni had already been served lunch. 	Cotoni replied that
Hollins was mistaken and showed Hollins his identification.
Hollins’ supervisor, Scott Patridge, overheard the exchange and
told Hollins, “Just slam the door on his head.” 	Doc. No. 1 at
2. 	Hollins then shut the door on Cotoni’s head. 	Id. 	Cotoni
had previously suffered a head injury that resulted in a plate
in his head. 	He alleges that the plate dislodged as a result of
Hollins’ conduct. 	Cotoni continues to have serious physical
issues related to the incident.
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Following preliminary review, the court determined that
Cotoni stated claims for excessive force in violation of the
Eighth Amendment.1 	See R&R (Doc. No. 5).
II. 	The NHDOC’s Grievance Policy
The New Hampshire Department of Corrections has established
a three-tiered system by which inmates may request a formal
review of issues related to any aspect of their confinement.
The regulations governing those grievance procedures are set
forth in New Hampshire's Administrative Rules. 	See N.H. Code
Admin. R. Cor. (“Cor.”) 313.01, et seq. 	As a preliminary
matter, an inmate must attempt to resolve any issues or
complaints informally, at the lowest level possible. 	See id. at
313.03(a) and 313.04(d). 	If that is unsuccessful, the inmate
may begin the grievance process by filing a written complaint
(typically in the form of an inmate request slip) to the
highest-level authority within a housing unit or work area
within 30 days from the event being reported. 	Cor. 313.04(d),
(f). 	The recipient or appropriate staff member then
investigates the inmate's complaint and, within 15 days of
1 The court also determined that Cotoni stated Eighth
Amendment medical care and First Amendment retaliation claims
with the caveat that Cotoni needed to identify the relevant
defendants and amend his complaint. 	See R&R (Doc. No. 5) at 6–
7. 	Cotoni did not amend his complaint to add the necessary
defendants. 	Therefore, those additional claims are not
actionable.
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receiving the complaint, responds by granting relief, denying
relief, or referring the inmate to the staff member who can
address the complaint. 	Cor. 313.04(l). 	If dissatisfied with
that response, the inmate may, within 15 days of receiving it,
escalate the complaint by filing a Level I Grievance. 	Cor.
313.04(n) and 313.05(c).
Level I Grievances must be directed to the appropriate
warden, director, or administrator. 	Cor. 313.05(d). 	The
warden, director, or administrator investigates the issue if
needed, responds within 30 days of receiving the grievance, and
communicates the outcome to the prisoner in writing. 	Cor.
313.05(l) and (q). 	After obtaining a written response to the
Level I Grievance, the prisoner can escalate the issue a final
time by submitting it to the Commissioner as a Level II
Grievance. 	Cor. 313.06. 	The Level II Grievance undergoes the
same process as the Level I Grievance and the Commissioner must
respond to the inmate's complaint in writing within 30 calendar
days of receipt. 	Cor. 313.06(k), (n), and (o).
III. Cotoni’s Exhaustion Efforts
On December 3, the day of the incident, Cotoni told three
NHSP corrections officers about Hollins’ conduct. 	Doc. No. 39
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at 1.2 	Cotoni attended sick calls where he reported what
happened. 	Id.
On December 4, 2020, Cotoni submitted an inmate request
slip complaining that “[t]he kitchen staff closed the sliding
door on [his] head and it popped [his] plate out of place.”
Doc. No. 36-1 at 1. 	A staff member responded three days later,
stating that Cotoni was seen for a sick call on December 4, and
advising him to utilize sick call if his condition did not
improve. 	Id. 	The staff member did not respond to Cotoni’s
statement that the injury was caused by an NHSP kitchen staff
member. 	Id.
In January 2021, Cotoni pleaded guilty to going through the
lunch line twice. 	Doc. No. 36-4 at 2. 	The record of Cotoni’s
disciplinary proceeding presently before the court does not
reveal whether Cotoni mentioned Hollins’ assault during the
disciplinary hearing. 	See id.
Cotoni continued submitting inmate request slips describing
pain and concerns about his injury. 	Doc. No. 36-1 at 2–18, 22,
26, 33–34. 	At times, he would reference the cause of the
2 The court incorporates the facts as set forth in Cotoni’s
objection. 	Cotoni concludes in his objection “that it is true
as written, under oath,” followed by his signature. 	That
language is sufficient to render the objection a sworn statement
for purpose of supporting his opposition to Hollins’ motion for
summary judgment, as required by Federal Rule of Civil Procedure
56(c)(4). 	See 28 U.S.C. § 1746.
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injury. 	Id. at 2 (March 7, 2021), 3 (March 14, 2021), 5 (March
31, 2021), 10 (September 18, 2021), 11 (October 9, 2021), 16
(November 5, 2022), 26 (February 7, 2023), 33 (April 30, 2023).
In April 2021, Cotoni submitted a Level I Grievance related
to this incident. 	Doc. No. 39 at 2. 	He states that this
grievance went missing.3 	Id. 	He does not specify when or how
the grievance went missing or whether the Warden ever received
or responded to the grievance.
Cotoni submitted inmate request slips to obtain kitchen
staff members’ names and badge numbers. 	Doc. No. 36-1 at 19
(January 27, 2023), 21 (January 30, 2023). 	In response to his
first request, a staff member responded that he did not have
“any idea who [Cotoni] [was] talking about.” 	Id. at 19. 	In
response to the second, a staff member told Cotoni that the NHSP
time clock system changed in May 2021, rendering the information
unobtainable. 	Id. at 21. 	He also submitted requests for the
inmate handbook, which he stated he had never been provided.
Id. at 23. 	NHSP staff responded that the handbook could be
accessed on Cotoni’s tablet. 	Id.
3 This grievance was not included in the record provided by
Hollins. 	Cotoni’s attestation, however, aligns with an inmate
request slip he submitted on April 11, 2021 requesting two
grievance forms, see Doc. No. 36-1 at 7, and a February 6, 2023
inmate request slip he submitted stating that he had recently
filed a second grievance, as he never received a response to his
first grievance, see id. at 25.
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On October 26, 2022, Cotoni filed a grievance form
complaining of NHSP’s failure to properly attend to his injuries
and pain. 	Id. at 35. 	Paula Mattis responded, telling Cotoni
that she had asked the Chief Medical Officer to review the
matter. 	Id.
On January 29, 2023, Cotoni submitted an inmate request
slip to Warden Michelle Edmark complaining that Hollins had
slammed his head in the sliding door. 	Id. at 20. 	Warden Edmark
responded, stating that grievances related to kitchen staff were
properly addressed to the Director of Administrative Services,
not the warden. 	Id. 	She told Cotoni that if he had filed a
grievance and did not get a response, he should have followed up
in a timely manner or gone to the Commissioner. 	Id.
On January 31, 2023, Cotoni filed a grievance form
explaining the assault, apparently to someone in the prison’s
administration. 	Id. at 38. 	Cotoni received a response to that
grievance from Heather Cornock on March 11, 2023, which did not
mention or reference Cotoni’s discussion of the December 3, 2020
incident set forth in his grievance. 	Id.
On February 6, 2023, Cotoni submitted an inmate request
slip to Major Stefanek complaining about Hollins’ conduct and
his resultant injuries and pain. 	Id. at 25. 	He also asserted
that Hollins’s conduct was a violation of his Eighth Amendment
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right to be free from unusual punishment. 	Id. 	He stated that
he had been writing about this issue for two years and recently
wrote a second grievance because there was nothing done in
response to his first. 	Id. 	Warden Edmark responded, stating
that there was no record of a staff member slamming a sliding
door on his head. 	Id. 	She said there was a “d-report” from
December 3, 2020 to which Cotoni pleaded guilty. 	Id. 	She told
Cotoni that the incident was three years old and outside the
window to grieve but that she would review it further. 	Id.
In February 2023, Cotoni submitted inmate request slips to
the Commissioner complaining of Hollins’ assault, the lack of
response to his complaint, and his continued pain. 	Id. at 27–
30. 	On March 14, 2023, Michael Todd from Professional Standards
responded, asking Cotoni to provide the date of the incident.
Id. at 30. 	Todd stated, “[t]his is a very serious accusation
and we would like to look into it further.” 	Id.
On May 15, 2023, Cotoni filed this action.4 	See Doc. No. 1.
Analysis
Hollins argues that he is entitled to summary judgment
because Cotoni failed to satisfy the Prison Litigation Reform
4 In his motion, Hollins states that Cotoni submitted a
grievance on April 18, 2023 to the Warden grieving Hollins’
conduct for “the first time.” 	See Mot. (Doc. No. 36) ¶ 17.
Hollins cites Exhibit B pages 10 through 13. 	Those pages of the
exhibit, however, do not contain an April 2023 grievance.
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Act (“PLRA”) exhaustion requirement before filing this action.
In particular, Hollins asserts that Cotoni failed to timely
comply with the NHDOC’s three-level grievance process.
The exhaustion provision of the PLRA provides that “[n]o
action shall be brought with respect to prison conditions under
[42 U.S.C. § 1983], 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); Cruz Berrios v. Gonzales-
Roserio, 630 F.3d 7, 11 (1st Cir. 2010) (“[The] exhaustion
requirement applies to allegations of physical violence by
prison guards.”). 	As explained by the Supreme Court, this
provision requires “proper exhaustion” of administrative
remedies, which “means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the
issues on the merits).” 	Woodford v. Ngo, 548 U.S. 81, 84, 126
S. Ct. 2378 (2006) (emphasis in original). 	“[T]o properly
exhaust administrative remedies prisoners must ‘complete the
administrative review process in accordance with the applicable
procedural rules’ – rules that are defined not by the PLRA, but
by the prison grievance process itself.” 	Jones v. Bock, 549
U.S. 199, 218, 127 S. Ct. 910 (2007) (quoting Woodford, 548 U.S.
at 88, 126 S. Ct. 2378). 	Accordingly, “[p]roper exhaustion
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demands compliance with [the prison's] deadlines and other
critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on
the course of its proceedings.” 	Woodford, 548 U.S. at 90-91,
126 S. Ct. 2378 (footnote omitted).
“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought in
court.” 	Jones, 549 U.S. at 211, 127 S. Ct. 910. 	Additionally,
“[p]risoners must ... exhaust administrative remedies even where
the relief sought — monetary damages — cannot be granted by” the
prison's specific administrative process. 	Woodford, 548 U.S. at
85, 126 S. Ct. 2378. If a prisoner fails to exhaust his
administrative remedies before filing suit, any unexhausted
claims must be dismissed. 	See Ramirez v. Collier, 595 U.S. 411,
421, 142 S. Ct. 1264 (2022) (ruling that prisoner could not
proceed with claims brought under federal law if he failed to
exhaust all available administrative remedies); Medina-Claudio
v. Rodríguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002) (holding
that dismissal was appropriate because “Congress clearly made
the exhaustion of administrative remedies a necessary antecedent
to filing a claim in federal court” under the PLRA).
A claim that a prisoner failed to exhaust administrative
remedies “is an affirmative defense under the PLRA[.]” 	Jones,
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549 U.S. at 216, 127 S. Ct. 910. 	Therefore, to prevail on his
motion for summary judgment, Hollins “must show that no
factfinder could reasonably conclude that plaintiff exhausted
available remedies before filing suit.” 	Burns v. Croteau, 561
F. Supp. 3d 164, 168 (D.N.H. 2020).
The record reflects that Cotoni attempted to resolve the
issue informally, at the lowest possible level. 	See Cor.
313.04(d). 	Cotoni spoke with three NHSP corrections officers on
the day of the alleged assault. 	He also attended sick calls
where he reported what happened.
Cotoni also submitted a timely formal complaint. 	The day
after the assault, he submitted an inmate request slip
explaining the incident, specifically stating that a staff
member closed a sliding door on his head, causing him injury.
His request constituted his first-level written complaint
regarding the assault. 	See Cor. 313.04.
In April 2021, over four months after the incident, Cotoni
submitted a Level I Grievance complaining about the incident.
The record is silent as to what response, if any, Cotoni
received. 	In October 2022, Cotoni submitted another grievance,
to which Paula Mattis responded that she asked for the Chief
medical Officer to review the matter. 	In January 2023, Cotoni
submitted an inmate request slip to the Warden complaining of
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Hollins’ assault, to which the Warden responded, redirecting
Cotoni to the Director of Administrative Services and telling
him that if he had previously filed a grievance and did not
receive a response, he should have followed up in a timely
manner or contacted the Commissioner.
Cotoni failed to file his Level I Grievances in a timely
manner under the rule. 	Level I Grievances must be filed within
15 days of the date of the response to the first written
complaint. 	Cor. 313.05(c). 	A NHSP staff member responded to
Cotoni’s December 4, 2020 inmate request slip on December 7,
2020. 	Accordingly, the deadline for him to file a Level I
Grievance was December 22, 2020. 	He waited until April 2021 to
file his first Level I Grievance. 	Because Cotoni did not comply
with the rule’s deadline, he did not properly exhaust his
administrative remedies. 	See Woodford, 548 U.S. at 90-91, 126
S. Ct. 2378 (footnote omitted) (“Proper exhaustion demands
compliance with [the prison's] deadlines and other critical
procedural rules”).
Even if the record supported Cotoni’s compliance with the
Level I Grievance timeliness requirement, a reasonable
factfinder could not conclude that he satisfied the Level II
Grievance requirement. 	In February 2023, Cotoni submitted
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inmate request slips to the Commissioner complaining, in part,
about Hollins’ assault.
Even if Cotoni’s Level I Grievance could be deemed timely,
however, Cotoni’s grievance to the Commissioner was untimely.
Level II Grievances must be filed within 15 days of the date of
the response to the Level I Grievance. 	Cor. 313.06(e).
Cotoni’s Level II Grievance was submitted over two years after
the relevant incident. 	Without record of the April 2021 Level I
Grievance, it is not known whether or when Cotoni received a
response to that grievance. 	However, it is indisputable that,
no matter when NHSP responded to the April 2021 grievance,
Cotoni received a response to his October 2022 Level I Grievance
on November 9, 2022. 	Accordingly, at the very least, he was
required to submit a Level II Grievance to the Commissioner by
November 24, 2022. 	He did not do so until February 2023. 	His
Level II Grievance, therefore, was not compliant with the rule’s
deadline.
The undisputed facts in the record demonstrate that Cotoni
did not properly exhaust his administrative remedies, because he
failed to file timely Level I and Level II grievances to appeal
the response he received to his written complaint. 	See
Woodford, 548 U.S. at 90-91. 	Accordingly, the district judge
should grant the defendants’ motion for summary judgment.
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Conclusion
For the foregoing reasons, the district judge should grant
Hollins’ motion for summary judgment (Doc. No. 36) and direct
the clerk to enter judgment and close this case. 	Any objections
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 specific written objections 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).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 9, 2025
cc: 	Matthew Cotoni, pro se
Counsel of Record
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