Yahtues v. Hillsborough County Department of Corrections, Superintendent et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Malachi I. Yahtues
v. 	Civil No. 16-cv-174-SM
Opinion No. 2018 DNH 192
David Dionne and
Willie Scurry
O R D E R
Before the court in this case are the following cross-
motions for summary judgment filed by defendants, Hillsborough
County Department of Corrections (“HCDC”) Superintendent David
Dionne and HCDC Capt. Willie Scurry, and plaintiff Malachi
Yahtues:
• 	“County Defendants’ Motion for Summary Judgment: ‘PLRA’
Lack of Exhaustion and Qualified Immunity (Doc. No. 130);
• 	“Plaintiff’s Partially Assented-to Motion to County
Defendant’s [sic] Preliminary Motion for Summary Judgment:
‘PLRA’ Lack of Exhaustion and Qualified Immunity and
Plaintiff’s Cross-Motion for Summary Judgment” (Doc. No.
138); and
• 	“Defendants David Dionne’s & Willie Scurry’s Motion for
Summary Judgment, Per FRCP 56” (Doc. No. 180).1
1The summary judgment record in this case also includes:
“Defendants David Dionne’s & Willie Scurry’s Objection to
Plaintiff’s Motion for Summary Judgment [#138]” (Doc. No. 175);
“Defendants’ Notice of Assent to Plaintiff’s Voluntary Non-Suit
of Designated Claims, if Entered ‘With Prejudice,’ Per FRCP
41(a)” (Doc. No. 143); “Defendants’ Response to Plaintiff’s
‘Statement of Undisputed Facts’ (Court Doc. No. 138-1)” (Doc.
No. 176); “Defendants’ Notice of Late Authority (Re: Qualified
Immunity, Court Doc. No. 130)” (Doc. No. 177); and “Plaintiff’s
Response to Defendant’s Notice of Late Authority (Re: Qualified
Immunity, Court Doc. No. 130)” (Doc. No. 179).
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Background
I. 	Procedural History – Claims Against HCDC Defendants
Yahtues, presently an inmate at the New Hampshire State
Prison, brought this 42 U.S.C. § 1983 action, alleging that the
defendants violated his federal Constitutional and statutory
rights and his rights under state law, when he was a pretrial
detainee at the HCDC from June 25, 2014 to August 1, 2016.
After conducting the preliminary review of plaintiff’s initial
complaint (Doc. Nos. 1, 12) pursuant to 28 U.S.C. § 1915(e)(2),
1915A(a) and LR 4.3(d)(2), the court found that Yahtues had
asserted claims alleging violations of:
(1) [Yahtues’s] Fourteenth Amendment right to adequate
medical and mental health care; (2) his Fourteenth
Amendment right to sanitary and safe conditions of
confinement; (3) his First, Sixth, and Fourteenth
Amendment right to meaningful access to the courts,
including access to legal resources; (4) his First
Amendment right of association; (5) his First
Amendment rights, and rights under the Religious Land
Use and Institutionalized Persons Act [RLUIPA], to
religious items, materials, and a religious diet; and
(6) his rights under state law implicated by the facts
and events that form[ed] the basis of the federal
claims asserted in the complaint.
June 21, 2016 Order (Doc. No. 13), at 2 (footnote omitted). 	The
court directed service of process upon Drs. Matthew J. Masewic
and Christopher Braga (the physicians who contracted with the
HCDC to provide medical care to its inmates) and the HCDC
defendants, namely, Dionne, Scurry, (former) HCDC Corrections
Officer Matthew Ritvo-Cabezas, and HCDC Health Services
Administrator Denise Ryan (now Hartley), “without prejudice to
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defendants’ filing of a motion to dismiss on any proper basis.”
Id.
Yahtues filed an amended complaint on October 7, 2016 (Doc.
No. 73). 	The magistrate judge conducted a preliminary review of
the amended complaint and determined that Yahtues had asserted
“fifteen numbered claims” in that amended complaint, and named
the same defendants identified in the first preliminary review,
with the exception of Dr. Braga.2 	Feb. 24, 2017 Order (Doc. No.
96), at 1. 	Concluding that one or more cognizable claims for
relief were stated in that amended complaint, the court deemed
that pleading to be the operative complaint and directed
defendants to answer or otherwise respond, “without prejudice to
defendants’ ability to file a motion to dismiss on any proper
basis.” 	Id.
After holding a preliminary pretrial conference, the
magistrate judge issued a scheduling order (Doc. No. 124) in
this case, providing separate deadlines for two types of summary
judgment motions, setting a November 15, 2017 deadline for the
filing of summary judgment motions based on exhaustion and
immunity, and a May 21, 2018 deadline for the filing of other
2After preliminary review was conducted of the initial
complaint, Yahtues filed an assented-to motion (Doc. No. 42)
seeking to drop Dr. Braga as a defendant from this case, which
the court granted. 	See Aug. 1, 2016 Order. 	In February 2018,
plaintiff and defendant Dr. Masewic jointly filed a stipulation
dismissing the claims against Dr. Masewic with prejudice. 	See
Feb. 23, 2018 Stipulation (Doc. No. 165), at 1. 	The court
approved that stipulation. 	See Feb. 23, 2018 Order.
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summary judgment motions. 	See June 2, 2017 Order (Doc. No.
124), at 2.
On November 15, 2017, the HCDC defendants filed a motion
for summary judgment (Doc. No. 130), requesting the following
relief:
1. 	That “this honorable court conduct the
preliminary review not applied earlier in this case.” 	Nov.
15, 2017 Cty. Defs.’ Prelim. Motion for Summ. J. (Doc. No.
130), at 1;
2. 	That the court grant summary judgment in the HCDC
defendants’ favor as to the plaintiff’s “mental health
based deliberate indifference theorem [sic]” and the claims
asserted against defendant Ritvo-Cabezas, on the basis that
plaintiff had failed to exhaust his administrative remedies
as to those claims, as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e (“PLRA”), id.; and
3. 	That the court find “the defendants are entitled
to the application and protection of qualified immunity,”
as to each of the claims asserted against them, id.
On December 21, 2017, Yahtues filed a cross-motion for
summary judgment (Doc. No. 138).3 	In that motion, Yahtues sought
summary judgment in his favor on the claims in this case, and
asked the court to allow him to voluntarily dismiss certain
claims and defendants from this action, as follows:
Plaintiff request [sic] the dismissal of the following
claims:
a) Against defendant Ryan and [Ritvo-Cabezas];
b) Concerning poor ventilation;
3Yahtues’s December 21, 2017 filing was also docketed
separately as an objection to the defendants’ motion for summary
judgment. 	See Doc. No. 139.
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c) In reference to typing up legal materials via type-
writer;
d) In respects [sic] to stressful living conditions;
e) In respects [sic] to lies and bad conduct by
officer’s [sic];
f) In respects [sic] to back ailments;
g) In respects [sic] to serving the plaintiff
repetitive meals;
h) In respects [sic] to the [HCDC] giving out
information to inmates for visiting schedule;
i) In respects [sic] to threats by officer’s [sic].
Dec. 21, 2017 Pltf.’s Obj. to Defs.’ Motion for Summ. J. and
Pltf.’s Cross-Motion for Summ. J. (Doc. No. 138), at 1-2.
Yahtues followed that request for voluntary dismissal with
the following:
Claims the plaintiff wishes to defend in respects
[sic] to this action:
a) Qualified Immunity;
b) Denial of Law Library and Legal Assistant – Access
to the Courts [in restricted housing unit and 2-B max
segregation units];
c) Denial of Religious Practices;
d) Contaminated Kosher Food got the Plaintiff Sick;
e) Bio-Hazard Soiled/Filthy Sheets, Blankets and
Undergarments;
f) Missing/Loss Mail[.]
Id. at 2 (footnote omitted). 	Notwithstanding his request to
dismiss certain claims, Yahtues’s objection/cross-motion for
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summary judgment asserted the validity of each of the claims
addressed in the defendants’ motion.
Defendants filed a “Notice of Assent to Plaintiff’s
Voluntary Non-Suit of Designated Claims, if Entered ‘With
Prejudice,’ Per FRCP 41(a)” (Doc. No. 43). 	In that notice,
defendants noted that “the plaintiff’s requests for dismissal
and continued prosecution do not track all specific gravamen
[sic] from the court orders.” 	Jan. 9, 2018 Defs.’ Notice (Doc.
No. 143), at 3 n.2.
On January 29, 2018, defendants filed a “Stipulation
(Clarification) of Claims being Pursued Against Hillsborough
County and Its Employees” (Doc. No. 149), in which defendants
stated, “Plaintiff has filed pleadings indicating his desire to
forego/withdraw certain defendants and claims from this
litigation. 	In response, counsel for the county defendants
corresponded with Mr. Yahtues to clarify the defendants and
claims he desires to pursue and those he has elected to forego.”
Jan. 29, 2018 Stipulation (Doc. No. 149), at 1. 	The stipulation
then essentially reproduces the list, set forth above as ‘Claims
the plaintiff wishes to defend in respects [sic] to this
action,’ as “the claims and defendants which Mr. Yahtues has
identified as the claims/theorem he is now pursuing, as to the
county defendants.” 	Id. 	That stipulation identifies the
defendants against whom Yahtues asserts these claims as “only
Hillsborough County, Superintendent David Dionne and Captain
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Willie Scurry,” states that plaintiff agreed to dismiss, with
prejudice, the claims he had asserted against Denise Ryan
(Hartley) and Ritvo-Cabezas, and to drop those defendants from
this action. 	Id. at 2. 	That stipulation did not address the
status of claims asserted in the amended complaint (Doc. No. 73)
that Yahtues had neither sought to voluntarily dismiss, nor
identified as claims he “wishe[d] to defend.”4 	Doc. No. 138, at
2. 	This court approved that stipulation. 	See Apr. 5, 2018
Order.
II. 	Claims Presently Pending Against HCDC Defendants
The following claims are the claims presently pending in
this action, as they were asserted in the amended complaint
(Doc. No. 73),5 and have not been dismissed by either the court,
4In their objection (Doc. No. 175) to plaintiff’s cross-
motion for summary judgment, filed after the stipulation was
approved, defendants Dionne and Scurry identify certain claims
asserted against them in the amended complaint (Doc. No. 73), as
“abandoned.” 	Some of those claims were explicitly dismissed in
the stipulation, but some claims identified as “abandoned” were
not addressed at all in the Stipulation or in Yahtues’s request
to dismiss claims from this case.
5After conducting preliminary review of Yahtues’s initial
complaint, the court found that Yahtues had alleged both First
Amendment and RLUIPA claims alleging denials of Yahtues’s right
to practice his religion at the HCDC. 	Although, in his amended
complaint (Doc. No. 	73), Yahtues does not mention RLUIPA,
Yahtues affirmatively stated that he intended to litigate his
claims relating to his religious practices, and nothing in the
amended complaint indicates that Yahtues intended to proceed
only on a First Amendment claim while foregoing the related
RLUIPA claim the court had already recognized in this matter.
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the plaintiff’s request for voluntary dismissal, or the parties’
stipulation:
1. 	HCDC Superintendent David Dionne, as the individual in
charge of the HCDC, the supervisor of HCDC correctional and
medical staff, and who is responsible for reviewing all
administrative appeals, violated Yahtues’s rights, when
Yahtues was a pretrial detainee at the HCDC, between June
25, 2014 and August 1, 2016, as follows:
a. 	Dionne violated Yahtues’s First, Sixth, and
Fourteenth Amendment due process rights to
meaningfully access the courts when Yahtues was housed
in segregation in the HCDC Restricted Housing Unit
(“RHU”), or in Unit 2B/Maximum Security, by refusing
to grant plaintiff’s grievances and/or refusing to
alter HCDC policies, resulting in:
i. 	The denial of Yahtues’s physical access to
the HCDC law library and to the assistance of a
person trained to conduct legal research;
ii. 	The denial of adequate access to legal
materials caused by allowing plaintiff to obtain
such materials through a “page” system, in which
Yahtues could receive copies of legal documents
only by making a written request for the specific
document; and
iii. The denial of adequate opportunities to
contact the attorney representing him in his
criminal case.
b. 	Dionne denied Yahtues’s right to humane
conditions of confinement, in violation of the
Fourteenth Amendment Due Process Clause, with regard
to the HCDC’s providing Yahtues with: used underwear
soiled with urine, fecal matter, blood, semen, and
vaginal secretions, resulting in Yahtues developing
“jock itch,” bedding soiled with urine, fecal matter,
blood, semen, and vaginal secretions; and used
footwear, resulting in Yahtues developing a foot
fungus, by:
i. 	Refusing to change HCDC policy with regard
to the provision of used underwear and footwear;
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ii. 	Failing to ensure bedding was properly
laundered after receiving notice of the
inadequacy of the HCDC’s laundry procedures; and
iii. Ignoring and/or denying Yahtues’s request to
provide Yahtues with new unused underwear and
footwear.
2. 	HCDC Captain Willie Scurry, in charge of HCDC
operations and programs, violated Yahtues’s rights, when
Yahtues was a pretrial detainee at the HCDC, between June
25, 2014 and August 1, 2016, as follows:
a. 	On numerous occasions, Scurry violated Yahtues’s
First, Sixth, and Fourteenth Amendment due process
rights to meaningfully access the courts when he:
i. 	Failed to adequately address Yahtues’s
grievances seeking legal supplies, access to the
law library, and/or legal assistance; and
ii. 	Failed to provide a remedy on the numerous
occasions when the HCDC lost or misplaced
Yahtues’s outgoing legal mail.
b. 	Scurry violated plaintiff’s rights under the
First Amendment Free Exercise Clause and RLUIPA by:
i. 	Failing to provide Yahtues with “proper”
Kosher meals on numerous occasions;
ii. 	Providing Yahtues with rotten or spoiled
Kosher food;
iii. Denying Yahtues’s grievances requesting
religious headwear (a “kufi”) and a prayer rug,
on the basis that those items “are not part of
[Yahtues’s] religion”;
iv. 	Denying Yahtues the ability to celebrate the
Jewish holiday of Passover in both 2015 and 2016,
by failing to provide Yahtues with items
necessary to observe the religious requirements
of that holiday; and
v. 	Denying Yahtues a Torah in RHU.
c. 	Scurry ignored Yahtues’s request to have a Torah
in RHU because inmates in RHU are only allowed to have
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New Testament Bibles, in violation of the First
Amendment’s Establishment Clause and the Fourteenth
Amendment’s Equal Protection Clause.
3. 	Defendants Dionne and Scurry, acting with deliberate
indifference, failed to ensure that Yahtues was provided
with proper treatment for Yahtues’s serious medical and
mental health needs, in violation of Yahtues’s Fourteenth
Amendment due process rights.
4. 	Defendants Dionne and Scurry endangered Yahtues’s
health and safety by failing to prevent Yahtues from being
served spoiled food on a number of occasions, in violation
of Yahtues’s Fourteenth Amendment due process rights.
Discussion
I. 	Preliminary Review
In their first summary judgment motion, defendants request
that “this honorable court conduct the preliminary review not
applied earlier in this case.” 	Doc. No. 130, at 1. 	The court
notes that the Magistrate Judge conducted a preliminary review
of the amended complaint in this case that was consistent with
28 U.S.C. § 1915A(a) and LR 4.3(d)(2). 	See Feb. 24, 2017 Order
(Doc. No. 96). 	After conducting the preliminary review, the
magistrate judge found that Yahtues had asserted one or more
cognizable claims for relief and directed that the amended
complaint be served on the defendants “without prejudice to
defendants’ ability to file a motion to dismiss on any proper
basis.” 	Id. at 1. 	Accordingly, the defendants’ first motion
for summary judgment (Doc. No. 130) is denied to the extent it
seeks an initial preliminary review of the amended complaint.
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In the interest of screening the prisoner complaint to
remove claims that fail to state a claim upon which relief can
be granted, pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(2),
this court notes that Yahtues asserted his claims challenging
the conditions of his pretrial confinement against Dionne and
Scurry under both the Eighth and Fourteenth Amendments.
Yahtues’s claims concerning the conditions of his pretrial
confinement arise under the Fourteenth Amendment Due Process
Clause. 	See Bell v. Wolfish, 441 U.S. 520, 535 (1979).
Accordingly, Yahtues’s Eighth Amendment claims relating to his
pretrial confinement are dismissed, leaving only his Fourteenth
Amendment claims, as identified in this Order.
II. 	PLRA Exhaustion of Inadequate Mental Health Claims
Defendants seek, in their first motion for summary judgment
(Doc. No. 130), judgment as a matter of law as to Yahtues’s
“mental health based deliberate indifference theorem [sic]” on
the basis that Yahtues failed to exhaust such claims through the
HCDC’s administrative grievance procedure prior to filing this
action, as required by the PLRA, 42 U.S.C. § 1997e(a).
A. 	Summary Judgment Standard
Summary judgment is warranted where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a); see also
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Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016). 	“An issue is ‘genuine’ if it can be resolved in favor of
either party, and a fact is ‘material’ if it has the potential
of affecting the outcome of the case.” 	Xiaoyan Tang, 821 F.3d
at 215 (internal quotation marks and citations omitted). 	“A
party moving for summary judgment must identify for the district
court the portions of the record that show the absence of any
genuine issue of material fact.” 	Flovac, Inc. v. Airvac, Inc.,
817 F.3d 849, 853 (1st Cir. 2016). 	Once the moving party makes
the required showing, “‘the burden shifts to the nonmoving
party, who must, with respect to each issue on which [it] would
bear the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in [its] favor.’” 	Id.
(citation omitted). 	“This demonstration must be accomplished by
reference to materials of evidentiary quality, and that evidence
must be more than ‘merely colorable.’” 	Id. (citations omitted).
B. 	PLRA Standard
The PLRA, 42 U.S.C. § 1997e(a), states that “[n]o action
shall be 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 Supreme Court has held “that the PLRA
exhaustion requirement requires proper exhaustion.” 	Woodford v.
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Ngo, 548 U.S. 81, 93 (2006). 	“Proper exhaustion” refers to
“using all steps the agency holds out, and doing so properly (so
that the agency addresses the issues on the merits).” 	Id.
(citation omitted) (emphasis in original). 	“[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). 	A plaintiff’s
failure to exhaust administrative remedies is an affirmative
defense as to which the defendants bear the burden of proof.
See Jones, 549 U.S. at 216.
C. 	HCDC Grievances and Yahtues’s Mental Health Claims
According to Dionne’s sworn statement, attached to the
defendants’ first motion for summary judgment as an exhibit, at
the HCDC:
All grievances are initiated by submission of a
request form and such forms must be provided to the
floor sergeant/supervisor; this supervisor provides
the inmate with the number-controlled grievance form
(and follows up with the inmate if it is not returned)
and receives such back (to avoid any claims that
officers preclude inmates from submitting grievances);
only supervisors [Sergeants or Lieutenants]
investigate the issues set forth in grievances (but
are not permitted to conduct investigations from
grievances that involve them directly) and such
results are forwarded to the Captain and ultimately to
me, the Superintendent, per chain of command (though
appeals of grievances are not, as I understand,
required by law; nevertheless, I review all of these
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to keep advised of issues arising at the jail). 	A
copy of all grievances are [sic] permanently kept in
the inmate’s file.
See Aff. of HCDOC Supt. David Dionne (Doc. No. 130-2) (“Dionne
Aff.”) (Doc. No. 130-2), at 2. 	Dionne personally reviews and
implements the HCDC’s administrative grievance procedures. 	See
Dionne Aff. at 1. 	In his affidavit, Dionne explains that “[t]he
rules, documents and time frames governing [HCDC policies and
procedures] are spelled out in the inmate handbook that is given
to each detainee or inmate” when the inmate enters the jail, and
that Yahtues received a copy of the HCDC inmate handbook. 	Id.
at 1.6
According to Dionne’s affidavit, Yahtues used the HCDC’s
administrative grievance system to file seventy-four grievances
while he was detained at that facility, and that all such
grievances were filed in Yahtues’s institutional file and
retained by the jail. 	See id. at 2. 	Defendants argue that
although Yahtues “articulated varied complaints on a number of
topics and certain individuals, he did not identify deprivation
of mental health care . . . in his submissions.” 	Defs. Motion
for Summ. J., Memo. of Law (Doc. No. 130-1), at 6; see also
Dionne Aff. at 2 (“I note that there are no grievances . . .
regarding inadequate or improper mental health care. 	From my
6Neither the handbook nor the documentation that Yahtues
received the handbook are appended to Dionne’s affidavit.
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perspective, Mr. Yahtues failed to utilize our administrative
grievance processes as to these particular claims.”).
Dionne’s affidavit does not include as an attachment, in
support of that statement, all of the seventy-four grievances
Yahtues filed in support of that statement. 	Rather, appended to
Dionne’s affidavit is “a list of [Yahtues’s] grievances . . .
showing 74 grievances and listing the division involved, the
allegations and outcome.” 	Dionne Aff. at 2. 	The list itself,
however, is not sworn to, and neither defendants’ motion nor
Dionne’s affidavit states who compiled the list, or what
information was used to compile the list. 	Yahtues asserts that
he in fact exhausted the administrative remedies available to
him as to his mental health claims, see Doc. No. 138, at 1, and
there is documentary evidence in the record that contradicts
Dionne’s assertion that Yahtues did not do so.
Attached to another filing in this case is a copy of HCDC
Inmate Grievance Form (“IGF”) No. 16-00092 (Doc. No. 48-6),
completed by Yahtues on August 31, 2015. 	IGF 16-00092 is on the
list of grievances appended to Dionne’s affidavit. 	See Doc. No.
13-5, at 1. 	The list indicates that the “Allegation Topic” of
the grievance is “Grieving classification to max,” and includes
no other information as to the contents of that grievances. 	Id.
In the section of IGF 16-00092 in which the grieving inmate is
to write a “[b]rief description of grievance (include where and
when),” Yahtues wrote the following:
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I have mantel [sic] issues that have cause me money
[sic] problems throughout my life And when I first
came to the segregation, July 28, 2015, Due to these
issues, refer to Disciplinary Report #15-1279, I was
then evaluated by mental health Doctor, let off
suicide watch and placed in RHU (Restricted Housing
Unit) and then seen by the officer who handles
classifications (Pronounced Bōu-WĂ) (Note I cant spell
his name) This ofc doesn’t [sic] Disciplinary hearings
and works under ofcr Raymond who is the head of
classification. 	I was told by ofcr (Bōu-WĂ) that I
will be placed in 2B Max and that my placement would
not be a “punishment.” 	Around and about, 8-19-21-
2015, Ofcr Raymond came into this unit 2B and when I
asked him to please place me in population, he
responded with, “You can’t behave in population, your
[sic] being punished for your behavior.” 	I explained
to him from the distance of my cell (cell #2119) and
he was roughly 10-12 ft away from me, that I have
mental issues I cannot control and this jail doesn’t
help me with medications, etc. and I was told I
wouldn’t be punished. 	Mr. Raymond ignored me and
exited the Unit. 	I should be released to population.
This is cruel and unusual punishment. 	I’ve been
housed numerous times in segregation because I suffer
From Bi-polar, schizophrenia, personality disorder,
etc. 	And this jail won’t help me. 	Now I’m also being
punished by being placed in an extended stay in
segregation. 	This issue has caused me mental,
emotional and physical distress.
Doc. 48-6, at 1-2. 	On the portion of IGF 16-00092 titled
“Captain’s action,” an unidentified officer responds to Yahtues
as follows:
As cited in your inmate handbook (pg. 17) under
section titled: Grievance Procedure – “All decisions
made by the county correctional facility’s
classification department or disciplinary hearings
officer cannot be appealed through the grievance
procedure. 	Based on, but not limited to, your
criminal charges, bail and forty-nine (49) misconducts
(to include numerous serious and major violations) you
are currently classified to the max unit. 	I have
forwarded a copy of this grievance to HAS Ryan (Health
Services) as you referenced medical concerns within
the body of this grievance.
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Id. at 1. 	The form then indicates that Dionne further responded
to Yahtues in writing, stating “Inmate is classified to max. 	He
will be reviewed. 	No further action required.” 	Id.
Yahtues’s grievance, submitted on IGF 16-00092, plainly
complains that he suffers from serious mental health problems,
and that the HCDC is not providing him with help for those
problems. 	Further, the description of IGF 16-00092 in the
unsworn list of Yahtues’s grievances (Doc. No. 130-5), given the
lack of indicia of the accuracy of its contents, is insufficient
to dispute Yahtues’s sworn statement, which is supported by
documentary evidence, that he properly exhausted his mental
health claims through the HCDC’s administrative grievance
procedure. 	Accordingly, defendants have failed to meet their
burden on their PLRA defense. 	Defendants’ motion for summary
judgment (Doc. No. 130) is thus denied, in part, to the extent
it argues that Yahtues failed to exhaust his claims alleging he
was denied adequate mental health care at the HCDC.
III. Summary Judgment Motions (Doc. Nos. 130, 138, 180)
The parties’ motions for summary judgment (Doc. Nos. 130,
138, 180) have been rendered moot, in part, to the extent they
concern claims that differ from those that have been identified
by the court in this Order as remaining in this case. 	This
court declines to address the merits of the parties’ remaining
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arguments in their motions for summary judgment (Doc. Nos. 130,
138, and 180) at this time, as this Order includes the first
comprehensive list of the claims remaining in this case, as
identified by the court. 	This court anticipates that the
parties may disagree with the court’s identification of the
pending claims and may seek to file motions to amend or motions
for judgment on the pleadings in advance of proceeding on
motions for summary judgment, or they may conclude that they
must undertake additional discovery as to those claims.
Furthermore, the summary judgment record at this time is
voluminous and will likely be substantially reduced once the
parties remove from their briefs materials relating only to the
claims mooted by the court’s identification of the claims
remaining in this action. 	Therefore, in the interests of
justice, judicial efficiency, and fairness to the parties, the
pending summary judgment motions are generally denied, except as
otherwise noted in this Order, without prejudice to the parties’
ability either to file new motions for summary judgment, or to
renew their previously-filed motions for summary judgment.
IV. 	Pretrial Schedule Revisions
Counsel for defendants and plaintiff shall exchange
proposed revisions to the pretrial schedule in this case,
setting out new deadlines for (a) filing responses to the
court’s identification of the pending claims in this case as set
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forth in this Order; (b) conducting any further discovery
necessary in this case; and (c) filing dispositive motions in
this matter. 	Proposed revisions to the pretrial schedule
prepared by the parties shall be filed no later than twenty-one
days after the date of this Order.
Conclusion
For the foregoing reasons, the claims that remain at issue
in this case are those numbered in this Order as Claims 1-4,
including subparts, above. 	The pending summary judgment motions
(Doc. Nos. 130, 138, 180) are DENIED, IN PART, AS MOOT, to the
extent that they seek judgment as a matter of law as to any
claims other than those identified in this Order. 	Defendants’
first motion for summary judgment (Doc. No. 130) is DENIED, IN
PART, to the extent it seeks summary judgment on their PLRA
exhaustion defense as to Yahtues’s mental health care claims.
The summary judgment motions (Doc. Nos. 130, 138, 180) are
otherwise generally DENIED, without prejudice, for reasons
stated in this Order.
The parties shall exchange proposed revisions to the
pretrial schedule and shall file their proposed revisions no
later than twenty-one days after the date of this Order. 	The
clerk’s office is directed to schedule a case management
conference before the Magistrate Judge to be held within forty-
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five days after the date of this Order, after which the court
will issue a new scheduling order in this case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 21, 2018
cc: 	Malachi I. Yahtues, pro se
John A. Curran, Esq.
Peter A. Meyer, Esq.
Sarah S. Murdough, Esq.
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