Crocco v. Cheshire County Department of Corrections, Superintendent et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Crocco
v. Civil No. 19-cv-882-LM
Opinion No. 2022 DNH 073 P
Richard Van Wickler, et al.
O R D E R
In this Eighth Amendment prison conditions case, defendants Barnes
Peterson, Sergeant Michael Ouellette, Captain Michael Thompson, Major James
Erwin, and Sergeant McKim Mitchell previously moved for summary judgment on
the ground that plaintiff Joseph Crocco,1 a former inmate at the Cheshire County
Department of Corrections, failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The
court denied defendants’ motion on the ground that, if certain factual disputes were
resolved in Crocco’s favor, a reasonable jury could find that the administrative
grievance procedure at the Cheshire County Department of Corrections was
unavailable to Crocco during the potentially relevant time periods. Doc. no. 40 at 7.
Defendants now move to reconsider the court’s denial of their motion for
summary judgment. Doc. no. 41. Defendants alternatively move for an evidentiary
hearing on their PLRA affirmative defense in the event the court denies their
1 Crocco is represented pro bono by appointed counsel.
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motion for reconsideration. Crocco objects. For the following reasons, the court
denies defendants’ motion for reconsideration but grants their motion for an
evidentiary hearing.
I. Motion for reconsideration
To prevail on a motion for reconsideration, the movant must demonstrate a
manifest error of fact or law or put forth newly discovered evidence. See LR 7.2(e);
Disaster Sols., LLC v. City of Santa Isabel, P.R., 21 F.4th 1, 7 (1st Cir. 2021).
Defendants do not assert that they have newly discovered evidence. Defendants
contend that the court misapprehended the applicable law and relevant facts and
erred in “implicitly concluding that the PLRA exhaustion defense was an issue to be
decided by a jury.” Doc. no. 41-1 at 9. Crocco objects, arguing that the court
correctly analyzed the issues and that the fact disputes related to his exhaustion
defense should be decided by a jury.
Defendants have not demonstrated that the court’s order denying their
motion for summary judgment was based on a manifest error of fact or law.
Furthermore, the court did not rule that the material factual disputes identified
therein would be decided by a jury or the court. The court did not analyze that
question and it made no ruling—implicit or otherwise—beyond relating the
summary judgment standard and finding that defendants failed to carry their
burden to show they were entitled to summary judgment on the affirmative defense
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of PLRA exhaustion. For those reasons, defendants’ motion for reconsideration
(doc. no. 41) is denied.
II. Motion for evidentiary hearing
Contained within defendants’ motion for reconsideration is an alternative
request that the court hold an evidentiary hearing to resolve the factual disputes
underlying their PLRA exhaustion defense. Crocco objects to that request,
asserting that the Supreme Court cautioned in Jones v. Bock, 549 U.S. 199 (2007),
that courts should treat PLRA exhaustion as they would any other affirmative
defense. Therefore, Crocco asserts, the court should leave resolution of factual
disputes as a matter to be resolved by a jury at trial because that is what the court
would do if it were addressing any other affirmative defense.
“The First Circuit has not addressed whether factual issues regarding
exhaustion are the province of the judge or the jury. However, all the circuit courts
that have considered the question have held that it is for the court rather than a
jury to resolve such issues.” Burns v. Croteau, 561 F. Supp. 3d 164, 168 (D.N.H.
2020) (McCafferty, C.J.) (collecting cases); see also Rowell v. Hillsborough Cnty.
Dep’t of Corrs., No. 19-cv-419-JL, 2021 WL 4896972, at *1 (D.N.H. Sept. 23, 2021),
report and recommendation approved sub nom., Rowell v. Vissa, 2021 WL 4895950,
at *1 (Oct. 20, 2021); Czekalski v. Hanks, No. 18-cv-592-PB, 2020 WL 7231358, at
*11-12 (D.N.H. Dec. 8, 2020). Cases holding that courts should resolve factual
disputes for PLRA exhaustion defenses post-date the Supreme Court’s decision in
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Jones v. Bock. For example, the Ninth Circuit analogized PLRA exhaustion to
personal jurisdiction and venue, among other defenses, and held that the court may
resolve disputed factual issues notwithstanding Jones. See Albino v. Baca, 747 F.3d
1162, 1170 (9th Cir. 2014) (“We conclude, consistent with Jones . . . that exhaustion
is analogous to subject-matter jurisdiction, personal jurisdiction, venue, and
abstention, in that all these matters are typically decided at the outset of litigation.
. . . [A]ll four [other circuits that have addressed the question] allow resolution by
the judge of disputed factual issues.”). For those reasons, the court finds that an
evidentiary hearing is the appropriate way to resolve the factual disputes about the
defendants’ PLRA exhaustion defense.
Accordingly, the court will schedule an evidentiary hearing after which it will
resolve the pending factual disputes and issue a ruling on the merits of defendants’
PLRA exhaustion affirmative defense. Crocco requests an opportunity to conduct
discovery before any evidentiary hearing. The parties are directed to confer and set
a reasonable schedule to complete discovery related to exhaustion in advance of an
evidentiary hearing. The parties shall file a status report on or before June 27,
2022. The status report shall (1) notify the court that they have agreed on
discovery and (2) propose to the court agreed-upon dates for the evidentiary
hearing.
Finally, the court appointed Attorney Geoffrey M. Gallagher of Sulloway and
Hollis, PLLC, to represent Crocco pro bono “for the limited purpose of representing
him on defendants’ motion for summary judgment[.]” Doc. no. 31 at 1. The court
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proceedings related to defendants’ motion for summary judgment have concluded.
The court, however, finds that it is in the interest of justice for Attorney Gallagher
to continue representing Crocco through the evidentiary hearing ordered herein.
See LR 83.7. Attorney Gallagher’s representation of Crocco shall continue under
the same terms as the court’s initial appointment order, doc. no. 31.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 15, 2022
cc: Counsel of Record
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