Skinner v. Cunningham, et a l . CV-00-239-B 02/28/02
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Skinner
v. Civil No. 00-CV-239-B
Opinion No. 2002 DNH 054
Michael Cunningham et al
MEMORANDUM AND ORDER
In this civil action, plaintiff James Skinner sues a number
of persons employed at the New Hampshire State Prison ("NHSP")
for alleged violations of rights secured him by the Eighth and
Fourteenth Amendments to the United States Constitution. See 42
U.S.C. § 1983. In his four-count complaint, Skinner, a former
NHSP inmate who presently is incarcerated at MCI-Cedar Junction
in South Walpole, Massachusetts, seeks both damages and
injunctive relief shielding him from contact with the named
defendants in the event that he is transported to New Hampshire
for purposes of attending court appearances in this matter.
Defendants have moved to dismiss or, in the alternative, for
summary judgment on each of Skinner's claims. Defendants make a
threshold argument that all of the claims should be rejected
pursuant to a provision of the Prison Litigation Reform Act of
1995 ("PLRA"), 42 U.S.C. § 1997e(a), that requires administrative
exhaustion of any prisoner "action . . . brought with respect to
prison conditions under section 1983." Defendants contend that
Skinner failed to exhaust available administrative remedies by
pressing his claims in NHSP's "Administrative Grievance Scheme."
See LaFauci v. New Hampshire Dep't of Corrections, No. 99-253-M,
2001 WL 1570932, at … 2-3 (D.N.H. Oct. 31, 2001) (unpublished
order) (detailing the three-level "administrative scheme through
which inmates may seek to have various complaints addressed and
resolved"). Alternatively, defendants argue that no reasonable
trier of fact could find that Skinner's constitutional rights
were violated. Defendants' merits arguments are problematic, but
their exhaustion argument is convincing. I therefore grant
defendants' motion insofar as it is premised on this argument.
I.
On July 24, 1998, Skinner killed fellow inmate Eric
Balagot during a fight in a NHSP exercise yard. Skinner was
indicted for murder and, in May 1999, was tried before a jury in
Merrimack County Superior Court. Skinner claimed self defense,
took the stand, and testified that the fight was started by
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Balagot - a known white supremacist.1 The jury deadlocked and
the judge declared a mistrial. In January 2000, Skinner was
tried for murder a second time. Skinner again claimed self
defense and again testified that Balagot started the fight by
attacking him. This time, the jury unanimously acquitted Skinner
of the murder charge and all lesser charges.
Following his acquittal, Skinner brought this action. In
Count I, Skinner alleges that the defendants named therein
violated the Eighth Amendment by exhibiting deliberate
indifference to his physical safety. In support of this claim,
Skinner points to the decision to transfer Balagot to the Special
Housing Unit ("SHU"), where Skinner and two other known white
supremacists were housed, despite (1) a prior warning from a
member of the NHSP's prison investigations unit to the defendants
who approved the transfer that uniting Balagot with the white
supremacists already housed in SHU could result in Balagot
assaulting inmates of color at the others' behest, and (2)
knowledge on the part of all named defendants that SHU residents
would be together in the exercise yard without either supervision
1Skinner is African American.
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or monitoring. In Count II, Skinner alleges that the defendant
named therein violated the Fourteenth Amendment's Due Process
Clause by indefinitely postponing Skinner's disciplinary hearing
and keeping him in punitive segregation following the death of
Balagot. In Count III, Skinner alleges that the defendants named
therein violated the Eighth Amendment by assaulting, terrorizing,
and harassing him over a ten-month period. In Count IV, Skinner
seeks the injunctive relief described in the first paragraph of
this memorandum and order.
II.
As previously noted, defendants have moved for dismissal or,
in the alternative, summary judgment because, inter alia, Skinner
did not exhaust his administrative remedies with respect to the
claims asserted in Counts I-III. Skinner makes two replies.
First, Skinner contends that he did, in effect, exhaust
administrative remedies with respect to his claims by filing a
number of inmate request slips and sending letters (several of
which did not prompt a response) to various NHSP officials which
"adequately place[d] defendants on notice of plaintiff's
complaints, and the facts supporting those complaints."
Plaintiff's Objection to Defendants' Motion to Dismiss or, in the
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Alternative, for Summary Judgment ("Plaintiff's Objection"), 5 5,
at 5. Because Skinner did not receive a response to a several of
these missives, the argument proceeds, he was excused from
pursuing his complaints through the second and third stages of
NHSP's administrative scheme. Second, Skinner asserts that his
claims fall outside the exhaustion requirement of 42 U.S.C. §
1997e(a) because (1) they seek money damages from individual
officials and NHSP's administrative process purportedly does not
provide for an award of such damages,2 and (2) they are not
claims "with respect to prison conditions" within the meaning of
the statute. See Nussle v. Willette, 224 F.3d 95, 99-106 (2d
Cir. 2000) (holding that a prisoner claim arising out of a single
or momentary assault or application of excessive force is not an
"action . . . with respect to prison conditions" subject to
exhaustion under § 1997e(a)).
Skinner's first argument - that he has in effect exhausted
his claims - is not persuasive. In support of his objection to
defendants' motion, Skinner has submitted copies of memoranda
2In fact, NHSP Warden Jane Coplan has submitted an
uncontradicted affidavit stating that the Department of
Corrections can settle claims involving monetary damages for less
than $500.
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from the Office of the Commissioner of the Department of
Corrections notifying inmates, prior to the events giving rise to
this case, that they must strictly comply with the procedural
requirements of the grievance scheme and that they should proceed
to the next step in the administrative process if they fail to
receive a response to an initial complaint in the allotted time
frame. See August 26, 1997 and January 16, 1998 Intra-Department
Memoranda, Exhibit 12(b) to Plaintiff's Objection. Skinner
clearly did not comply with these directives, as the record
contains no evidence that he ever filed, or attempted to file,
with the Warden or Commissioner a formal grievance over the
events underlying his claims. See LaFauci, No. 99-253-M, 2001 WL
1570932, at *3 (noting that the second and third steps of NHSP's
administrative grievance scheme requires the filing of "grievance
forms" with the Warden and, if the prisoner is dissatisfied with
the Warden's response, with the Commissioner).3 Nor does the
record reflect any attempt by NHSP officials to dissuade Skinner
from pursuing administrative remedies. Skinner's situation is
3Indeed, the record does not reflect that Skinner ever
attempted to contact the Commissioner directly. Skinner merely
sent the Commissioner copies of two letters that were addressed
to and sought relief from other NHSP officials.
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thus materially different from that of the prisoner in the case
he cites in support of his de facto exhaustion argument. See
Miller v. Tanner, 196 F.3d 1190, 1194 (11th Cir. 1999) (prisoner
effectively exhausted his administrative remedies, despite the
putative availability of unexhausted administrative appeal
rights, when his grievance form was rejected by memorandum
informing him "[w]hen any grievance is terminated at the
institutional level you do not have the right to appeal. The
above listed grievance[s] is closed."); see also Powe v. Ennis,
177 F.3d 393, 395 (5th Cir. 1999) (deeming prisoner to have
exhausted a claim to which prison officials failed to respond
because he pressed it at both steps of a two-step administrative
grievance process and waited to file his lawsuit until after the
time afforded for a response had lapsed).
Skinner's second argument - that he is not required to
exhaust because he is seeking relief not provided in NHSP's
grievance scheme and/or because this is not an "action . . . with
respect to prison conditions" - also lacks merit. Last year, the
Supreme Court unanimously held that prisoners are obliged to
exhaust even those claims that seek forms of relief not available
in the administrative process. See Booth v. Churner, 121 S. C t .
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1819, 1822-25 (2001) (holding that, so long as the prison's
grievance process is capable of providing some form of relief,4
42 U.S.C. § 1997e(a) requires administrative exhaustion even
where the prisoner seeks relief that is not available in the
administrative scheme). And just days ago, the Supreme Court
unanimously rejected the narrow construction the Second Circuit
afforded the phrase "action . . . with respect to prison
conditions" in Nussle. See Porter v. Nussle, No. 00-853, 2002 WL
261683, at *10 (U.S. Feb. 26, 2002) (reversing Nussle and holding
that "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.").
4Skinner does not deny that he could have secured some form
of relief on his claims had he pressed them in the NHSP
administrative process. See Booth, 121 S. C t . at 1824
(indicating that exhaustion would not be required if no form of
relief were available) . Nor does he asset that his March 27,
2000 transfer back to MCI-Cedar Junction interfered with his
opportunity to exhaust his claims in the NHSP administrative
process. C f . Nitz v. French, No. 01-C-0229, 2001 WL 747445, at
*3 (N.D. 111. July 2, 2001) (memorandum opinion and order)
(observing that an inmate transferred prior to being afforded an
opportunity to appeal his grievance had exhausted available
administrative remedies because "he had received all the 'relief'
that administrative procedures could give").
Ill.
Because Skinner was required to exhaust his claims but has
not done so, I grant defendants' motion to dismiss or, in the
alternative, for summary judgment [document no. 11]. The Clerk
is directed to enter judgment accordingly and to close the case
SO ORDERED.
Paul Barbadoro
Chief Judge
February 28, 2002
cc: Michael J. Sheehan, Esq.
Andrew B. Livernois, Esq.
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