Peterson v. Roe

Peterson v. Roe                                CV—05—55—PB   12/18/06

                        UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW HAMPSHIRE



Warren E . Peterson

        v.                                  Case No. 05-cv-55-PB
                                            Opinion No. 

Jane Coplan, Former Warden
NH State Prison, Mary Ann
Wareing, former Dietician at
the NHSP, Christian Lanman, C.O.,
and Richard Caouette, C.O.



                            MEMORANDUM AND ORDER

        Warren E. Peterson, proceeding pro se, brings this 

 action against Jane Coplan, Former Warden NH State Prison,

Mary Ann Wareing,       former Dietician at the NHSP, Christian Lanman,

C.O., and Richard Caouette,       C.O. for alleged violations of his

Eighth Amendment rights.        Peterson,    an inmate incarcerated in

N H S P 's Concord, New Hampshire facility,      alleges that defendants

denied him adequate medical and mental health care and a medical

diet.        Peterson seeks monetary relief for defendants' alleged

past offenses.

        Defendants' have moved for summary judgment arguing that

Peterson failed to exhaust administrative remedies as is required
by the Prison Litigation Reform Act of 1995     ("PLRA").     42 U.S.C.

§ 1997e(a).    Peterson filed an objection claiming,      among other

things, that he properly exhausted all administrative remedies

available.

       In order to exhaust administrative remedies in this context,

a New Hampshire State Prison inmate challenging his conditions of

confinement must submit     (1) an inmate request slip,    (2) a

grievance to the Warden,     and (3) a grievance to the Commissioner.

Lafauci v. New Hampshire Dep't of Corrections. 

, 37-

38; Exh. 3.1    Defendants contend that Peterson failed to satisfy

step   (1) because he failed to include a substantive complaint in

his inmate request slip.      They also argue that Peterson failed to

satisfy step    (3) because he never filed a grievance with the

Commissioner.

       Peterson objects,   claiming that he satisfied all steps

required for exhaustion.     He has submitted documentation




     1 "The process is explained in the ■'Manual for Guidance of
Inmates, ' a copy of which is provided to all inmates upon their
arrival at the correctional facility.   It is also outlined in the
New Hampshire Department of Corrections Policy and Procedure
Directive ("PPD") 1.16, entitled ■'Complaints and Grievances by
Persons under DOC Supervision, ' another publication widely
available to inmates." Lafauci v. New Hampshire Dep't of
Corrections, 

.

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sufficient to show exhaustion as to steps           (1) and (2).   He has

also provided some documentary support for his claim that he

mailed his grievance to the Commissioner on September 18, 2002,

but that the prison mail service failed to deliver it.

     After reviewing the motions and supporting documents,             I have

determined that there is a genuine dispute of material fact that

precludes summary judgment on exhaustion grounds.            Because

failure to exhaust is a bar to Peterson's substantive claim,             I

decline to consider the merits of Peterson's substantive claim

prior to the resolution of the exhaustion issue.            Accordingly,     I

deny without prejudice defendants' motion for summary judgment

(Document No. 28) in its entirety and refer the case to the

Magistrate Judge for an evidentiary hearing to determine whether

Peterson properly exhausted his administrative remedies.

Specifically,   the Magistrate Judge shall determine whether

Peterson mailed a grievance to the Commissioner on September 18,

2002, as he claims.

     SO ORDERED.

                                             /s/Paul Barbadoro______
                                             Paul Barbadoro
                                             United States District Judge

December 18, 2006



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cc:   Warren E. Peterson, pro se
      Mary E Maloney, Esq




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