Widi v. Strafford County et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v. Civil No. 13-cv-536-SM
Strafford County et al.
REPORT AND RECOMMENDATION
In this action, plaintiff David J. Widi, Jr., alleges that
he was subjected to the excessive use of force on November 19,
2010, in violation of his Eighth and Fourteenth Amendment rights
and his rights under state law, while he was a federal pretrial
detainee, incarcerated at the Strafford County Department of
Corrections (“SCDC”). Before the court is defendants’ motion
for summary judgment (doc. no. 25), in which they assert that
Widi failed to exhaust his administrative remedies concerning
the events that form the basis for this lawsuit. Widi objects
(doc. nos. 31 and 33).1 The summary judgment motion has been
referred to the undersigned magistrate judge for a Report and
1Together with his objection to defendants’ motion for
summary judgment, Widi filed a cross-motion for summary judgment
(doc. no. 32) in this matter, to which defendants have objected.
Widi’s motion for summary judgment is addressed in a separate
Report and Recommendation issued on this date.
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Recommendation. See LR 72.1.
Summary Judgment Standard
“Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.” Ponte v. Steelcase Inc., 741 F.3d
310, 319 (1st Cir. 2014) (internal quotation marks and citation
omitted); see also Fed. R. Civ. P. 56(a). 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 Cnty., 736 F.3d 23, 29
(1st Cir. 2013) (citation omitted). “The nonmovant may defeat a
summary judgment motion by demonstrating, through submissions of
evidentiary quality, that a trialworthy issue persists.”
Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9
(1st Cir. 2012) (internal quotations and citation omitted).
Background
On November 19, 2010, Widi was a federal pretrial detainee
at the SCDC. On that date, Widi and an officer on his unit had
a verbal disagreement. As a result, Widi was placed in
handcuffs and transported to a cell in the SCDC booking area.
Although the parties dispute many aspects of what happened
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in the booking area, they agree that while in a cell in that
area, Widi was sprayed with “pepper spray,” otherwise known as
Oleoresin Capsicum (“O.C.”) spray. They further agree that
after the incident, Widi remained in the same clothing,
unshowered, for a number of days.
Widi states that he was eventually moved out of the booking
area and allowed to shower and change his clothing on November
27, 2010. Widi further states that, on December 2, 2010, he was
transferred out of the SCDC to an out-of-state correctional
facility.
The parties disagree as to whether Widi took any action to
exhaust his administrative remedies concerning the November 19,
2010, events prior to his transfer. Widi states that he filed a
grievance on November 29, 2010, but was transferred out of the
SCDC before he received a response. Defendants claim that Widi
did not file any grievance at the SCDC concerning the incident.
The parties agree that once discharged from the SCDC, Widi did
not take any further action to exhaust his administrative
remedies with respect to the events of November 19, 2010.
Discussion
I. Exhaustion
According to the Prison Litigation Reform Act of 1995
(“PLRA”), “[n]o action shall be brought with respect to prison
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conditions under section 1983 of this title . . . 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). Claims for which
administrative remedies have not been exhausted are subject to
dismissal. See Medina-Claudio v. Rodríguez-Mateo, 292 F.3d 31,
36 (1st Cir. 2002). “[F]ailure to exhaust is an affirmative
defense under the PLRA.” Jones v. Bock, 549 U.S. 199, 216
(2007); see also Ramos v. Patnaude, 640 F.3d 485, 488 (1st Cir.
2012). As such, it “must be raised and proved by the defense.”
Cruz Berríos v. González-Rosario, 630 F.3d 7, 11 (1st Cir. 2010)
(citing Jones, 549 U.S. at 216). Finally, “the PLRA's
exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also
Cruz Berríos, 630 F.3d at 11.
“[T]he PLRA exhaustion requirement requires proper
exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). “[A]
prisoner must file complaints and appeals in the place, and at
the time, the prison’s administrative rules require.” Acosta v.
U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006) (citation
omitted).
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Under certain circumstances a prisoner’s failure to exhaust
may be excused. “If, in fact, there was no pertinent additional
relief obtainable through the grievance process, further
exhaustion might be excused.” Johnson v. Thyng, 369 F. App’x
144, 149 (1st Cir. 2010) (citing Booth v. Churner, 532 U.S. 731,
736 (2001) (administrative remedies remain “available,” and must
be exhausted, where the administrative process provides the
authority to take some action in response to grievance)). An
inmate’s transfer to another correctional facility may excuse
exhaustion if the transfer renders the administrative procedures
at the prison unavailable. See Johnson, 369 F. App’x at 149.
Whether an inmate has properly exhausted available remedies
may be resolved on summary judgment. See Albino v. Baca, 747
F.3d 1162, 1172 (9th Cir. 2014) (en banc). Defendants bear the
initial burden of showing that plaintiff failed properly to
exhaust all generally available administrative remedies. See
id. Then “the burden shifts to the prisoner to come forward
with evidence showing that there is something in his particular
case that made the existing and generally available
administrative remedies effectively unavailable to him.” Id.
The ultimate burden of persuasion remains with the defendant.
See id.
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II. Analysis
The initial question the court must consider, therefore, is
whether there were administrative procedures available to Widi,
and if so, whether he properly exhausted them, in accordance
with the SCDC grievance policy.2 That policy provides for a
grievance procedure that is the exclusive means by which an
inmate may grieve conditions of confinement or mistreatment by
SCDC employees. See Doc. No. 25-3 at 2. The policy generally
provides seven days after the discovery of a grievable issue for
the inmate to make a “verbal/informal initial grievance.” Id.
at 3. The policy further provides fourteen days from the date
of discovery of a grievable issue to file a formal written
grievance. Id. The policy also states, however, that
“[g]rievances by discharged inmates are not considered valid for
the purposes of an administrative remedy.” Id.
Defendants assert that Widi took no steps to formally
grieve that incident as required by SCDC policy. Widi, among
other things, responds that: 1) he informally grieved the
incident to appropriate parties in accordance with the grievance
policy of the SCDC; 2) he filed a timely formal grievance three
2Defendants have attached the “Strafford County Department
of Corrections Operational Guidelines” § 3.6.04, “Inmate
Grievance Procedure” (Sept. 15, 2008), to their motion for
summary judgment. See Doc. No. 25-3. Plaintiff has not
disputed that this is the operative grievance policy.
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days prior to his transfer out of the SCDC, but did not receive
any response; and 3) upon his transfer, the SCDC grievance
procedures became unavailable to him, and thus, he was relieved
of any obligation he may have had to formally grieve the
November 19, 2010, incident.
On the day of the incident, Widi verbally complained to
SCDC Capt. Bruce Pelkie about being sprayed “for no reason.”
See Doc. No. 33-6 (“Information Report of Bruce Pelkie), at 1.
Widi further states that on November 29, 2010, he obtained a
grievance form, and filed a formal written grievance. While
defendants deny the existence of the formal written grievance,
the court, at this time, need not resolve that dispute.
Widi states that he was transferred out of the SCDC to an
out-of-state correctional facility on December 2, 2010, thirteen
days after the November 19, 2010, incident. The SCDC grievance
policy clearly states that “[g]rievances by discharged inmates
are not considered valid for the purposes of an administrative
remedy.” Doc. No. 25-3, at 3. The defendants do not dispute
that Widi was discharged from SCDC custody on December 2, 2010.
Accordingly, as of that date, which was before Widi’s formal
written grievance was due pursuant to the SCDC grievance policy,
the SCDC’s administrative remedies became unavailable to Widi,
as they were no longer “valid for the purpose[] of an
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administrative remedy.” Id.
As discussed above, prisoners need only exhaust what
administrative remedies are “available” to them in order to
satisfy the PLRA. Because the SCDC’s administrative grievance
procedures became unavailable to Widi before the expiration of
the time for initiating a written grievance, his transfer
alleviated any obligation to utilize the SCDC grievance
procedures to satisfy the requirements of the PLRA.
The court finds that defendants have not met their burden
to demonstrate that Widi failed to exhaust the administrative
grievance procedures available to him. Defendants’ summary
judgment motion (doc. no. 25), therefore, should be denied,
without prejudice to defendants’ ability to seek summary
judgment on any other appropriate basis, in accordance with the
deadlines set by the court in this matter.3
Conclusion
For the foregoing reasons, the district judge should deny
the defendants’ motion for summary judgment (doc. no. 25). Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R.
3In an Order issued on this date, the court vacates the
November 5, 2014, scheduling order (doc. no. 18) and directs the
parties to confer and propose new deadlines in this case.
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Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
June 18, 2015
cc: David J. Widi, Jr., pro se
Corey M. Belobrow, Esq.
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