Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 09-1701

GARY DEWAYNE JOHNSON,

Plaintiff, Appellant,

v.

ROBERT THYNG, Unit Manager, NNHCF,

in his individual and official capacities,

Defendant, Appellee,

____________________

ANGELA POULIN, Law Librarian, NNHCF,

in her individual and official capacities, et al.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Selya and Boudin,

Circuit Judges.

Gary Dewayne Johnson on brief pro se.

Michael A. Delaney, Attorney General, and Danielle L. Pacik,

Assistant Attorney General, on brief for appellee.

March 18, 2010
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Per Curiam. Gary Dewayne Johnson appeals a district

court judgment that determined that the Prisoner Litigation Reform

Act ("PLRA"), 42 U.S.C. § 1997e(a), barred his 42 U.S.C. § 1983

claim against prison officer, Robert Thyng, because Johnson had

failed to exhaust all of his administrative remedies. We affirm.

I.

In 2007, Johnson was incarcerated at New Hampshire's

Northern Correctional Facility ("NCF"). That facility has a three

level grievance process, each level corresponding to review by an

increasingly higher office in the chain of command. The first

level of grievance is to the inmate's Unit Manager; the second

level is to the Warden; and the third level is to the Commissioner.

On May 31, Johnson, who was convicted of a sexual assault

on a minor, reported hearing "rumors" and threats like "When you

least expect it Johnson" and "Filthy pedophile watch your back."

Johnson filed a level one grievance, which said that, although he

felt safe on "C Block," he did not feel safe outside, in the "chow

hall", or in the hallway during "chow times."

On June 5, Johnson met with Officer Thyng and asked for

protective custody. According to Thyng, he informed Johnson that

he would need to be segregated from the other inmates; he would be

handcuffed for his own safety; and he would be brought to a

segregation unit pending administrative review. According to

Thyng, he also explained that, to obtain protective custody,
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Johnson would need to identify an inmate or inmates that he feared.

Johnson reported that, although he heard the stated remarks, he was

unable to identify any specific speaker because the remarks were

always made behind his back and in a crowded area. Thyng

determined that Johnson was not eligible for protective custody

status due to a lack of verifiable information that Johnson was in

danger of being physically harmed. Thereafter, Johnson signed a

statement that said: "I feel safe on C block, as I have been there

for the past year, and I wish not to move, and no pc [protective

custody] at this moment."

Johnson, however, claimed that Thyng first denied his

grievance and that, five minutes later, he was called back to

Thyng's office where, under "duress and threat of being

handcuffed," brought to "the tank," and losing his property, he was

forced to write and sign the statement about not desiring

protective custody status. On June 8, Johnson filed a level two

grievance with Warden Blaisdell, complaining that Thyng had coerced

that statement from him and reiterating his request for protective

status.

On June 10, Johnson was threatened by inmate Carl Bickham

in the chow hall. Johnson did not report this threat. On June 11,

while in the chow hall, Bickham assaulted Johnson. Johnson was

treated for a head laceration, a black eye, and a concussion.
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According to Johnson, he suffered a detached retina which has

required several surgeries and he continues to have problems.

In the wake of the assault, a protective custody board

was convened on June 12. Johnson indicated that he feared for his

safety as he believed that he was still susceptible to physical

harm by Bickham. The board determined that NCF would transfer

Bickham from NCF to the Concord state prison to serve punitive

segregation and request that Bickham not be returned to NCF. Due

to Bickham's transfer, the board determined that Johnson could

remain at NCF and denied protective custody status.

On June 13, Johnson filed an "emergency" grievance with

Commissioner Wrenn, contending that he had been assaulted on June

11 because of rumors that he suspected had been spread by staff and

that he feared retaliation by staff. When he submitted this

"emergency" grievance to Commissioner Wrenn on June 13, Johnson had

not yet received Warden Blaisdell's response to his June 8th second

level grievance. In his "emergency" grievance, Johnson asked the

Commissioner for "help for relief" but also specifically remarked

that "in no way will this grievance take the place of the actual

grievance that will be submitted to you upon my receiving response

from the warden and my [June 8th] second level grievance."

Subsequently on that same day, Warden Blaisdell responded to

Johnson's June 8th level two grievance, writing: "What is it that

you actually want? Do you want to [sic] PC? Transfer out of
The district court disposed of the other claims against other 1

defendants by way of summary judgment, leaving only the "failure to

protect" claim against Thyng. On appeal, Johnson raises no issues

with respect to the district court's resolution of his other

claims. Accordingly, we omit any description and discussion of

these other claims.

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state? If we have to PC you[,] that can be done if the criteria is

there."

On June 19, Commissioner Wrenn replied to Johnson's June

13th "emergency" grievance, stating "Since this will not take the

place of the actual grievance you will file after receiving a

response from the warden, I will wait for the actual grievance

before I reply."

Johnson never filed any further grievance with the

Commissioner.

II.

Johnson, who had filed a § 1983 action in the federal

district court prior to the assault, amended that action to include

a claim that, in violation of the Eighth Amendment, Thyng had

intentionally failed to protect Johnson from a known risk to his

safety by Thyng's June 5th refusal of his request for protective

custody. After a one-day bench trial, the district court 1

concluded that this "failure to protect" claim was barred by a

failure to exhaust administrative remedies, as required by PLRA as

a condition precedent to suit.

PLRA provides:
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No action shall be brought with

respect to prison conditions under

section 1983 of this title, or any

other Federal law, by the 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). We review, de novo, the dismissal of

Johnson's § 1983 claim for failure to comply with PLRA's exhaustion

requirement. Acosta v. United States Marshals Serv., 445 F.3d 509,

512 (1st Cir. 2006).

Exhaustion is mandatory, Woodford v. Ngo, 548 U.S. 81, 85

(2006), and "has a decidedly procedural emphasis," Booth v.

Churner, 532 U.S. 731, 739 (2001). That is, what must be exhausted

is the process, not the form of relief. Id. "All 'available'

remedies must [] be exhausted; those remedies need not meet federal

standards; nor must they be 'plain, speedy, and effective.'"

Porter v. Nussle, 534 U.S. 516, 524 (2002). A prisoner must

exhaust administrative remedies before a complaint under § 1983

will be entertained even where the relief sought cannot be granted

by the administrative process. Booth v. Churner, 532 U.S. at 734.

To properly exhaust administrative remedies, a prisoner

must complete the prison grievance procedures. Jones v. Bock, 549

U.S. 199, 218 (2007). "[I]t is the prison's requirements, and not

the PLRA, that define the boundaries of proper exhaustion." Id.
We need not address Johnson's contention that Thyng 2

interfered with his filing of his level two grievance with the

warden. For purposes of determining whether Johnson had complied

with the exhaustion requirement, the district court made several

assumptions in Johnson's favor. First, there was some dispute as

to whether Johnson used the proper grievance form. Johnson

asserted that he used an "inmate request" form because Thyng would

not give him a grievance form and threatened to retaliate against

him. The district court accepted Johnson's contention as true for

purposes of its analysis and further accepted, for purposes of

analysis, that the fact that the grievance was filed on a request

form, rather than a grievance form, was not determinative of

whether Johnson had complied with the exhaustion requirement.

Second, the court accepted Johnson's version of the facts regarding

his compliance with the first and second levels of the grievance

procedure and, so, assumed, in Johnson's favor, that he had

complied with the grievance process through level two. We, too,

make these same assumptions in Johnson's favor.

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III.

Thyng argues that Johnson failed to exhaust his

administrative remedies because he never completed the third level

of the process by filing his grievance with the Commissioner.

Johnson does not dispute that he did not complete the third level

of the grievance process by filing his grievance with the

Commissioner. Instead, he argues that the third level of NCF's 2

grievance process is not mandatory. His theory is that an optional

level of administrative review need not be exhausted, that he has

exhausted any mandatory component of the prison grievance system,

and, therefore, he has complied with PLRA's requirement of

exhaustion as a condition precedent to filing suit.

In support of his claim that the third level of NCF's

grievance process is not mandatory, Johnson relies on what he views
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as permissive language in two documents: (1) the N.H. Department of

Corrections Policy and Procedure Directive ("PPD") 1.16 IV C, says,

in relevant part, "If an inmate is not satisfied with the

Warden/Director's response, he/she may file an appeal using the

grievance form, to the Commissioner's office" (emphasis added) and

(2) NCF's Inmate Manual Section D.3, says, in relevant part, "if

the Warden has not solved the problem with his/her response, a

final grievance form may be sent to the Commissioner of

Corrections" (emphasis added).

Whatever the merits of Johnson's contention that level

three of the prison grievance process is optional, rather than

mandatory, PLRA, nonetheless, speaks in terms of requiring that all

"available" remedies be exhausted. See 42 U.S.C. § 1997e(a) ("No

action shall be brought ... until such administrative remedies as

are available are exhausted"); Porter v. Nussle, 534 U.S. at 524

("All 'available' remedies must [] be exhausted."). A level three

grievance directed to the Commissioner was "available," even if not

mandatory. And, Johnson concedes he did not file one.

The emerging case law rejects Johnson's theory that an

optional level of administrative review need not be exhausted for

purposes of PLRA. For example, the Sixth Circuit in Owens v.

Keeling, 461 F.3d 763 (6th Cir. 2006), concluded that the

permissive language authorizing an appeal -- the prisoner "may
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appeal" a classification action -- is irrelevant to the

consideration of the exhaustion issue.

"Although a remedy must be

'available' in order for a prisoner

to be required to pursue it to

exhaust his claim, ... this does not

mean that the prison must require

the prisoner to exhaust his remedies

for the remedy to be 'available.'

Generally, the prisoner would be

free to choose not to exhaust his

remedies; he would only be required

to do so if he wants to file a

complaint regarding the matter in

federal court."

Id. at 770 n.4 (emphasis in the original; citations omitted). The

Third Circuit concluded similarly in an unpublished decision.

Davis v. Warman, 49 Fed. Appx. 365, 367-68 (3d. Cir. 2002).

District courts, as well, in unpublished decisions, have rejected

the argument that permissive language in a prison grievance

procedure means that that procedure falls outside PLRA's exhaustion

requirement. See, e.g., Warren v. Fort Dodge Corr. Facility, 2009

WL 1473955, at *3 (N.D. Iowa May 27, 2009); Braimah v. Shelton,

2005 WL 1331147, at *3 (D. Neb. May 20, 2005); Hope v. Velasco,

2004 WL 417198, at *2 (N.D. Ill. Feb. 23, 2004).

Any reliance on an earlier published district court

opinion, In re Bayside Prison Litigation, 190 F.Supp.2d 755, 771-72

(D. N.J. 2002), for a contrary position is unwarranted in light of

that court's subsequent disavowal of its conclusion as "clearly
At the bench trial, Johnson's explanation for his failure to 3

complete the third level of grievance was somewhat different. He

explained there that, because he had already been assaulted, he

believed that filing that level of grievance would be futile. The

district court rejected that rationale on the basis of Booth v.

Churner, 532 U.S. at 741 n.6 (rejecting a "futility" exception and

holding that PLRA mandates exhaustion despite the fact that the

grievance process could not provide the inmate with money damages)

and Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir.

2002) (holding that inmate must exhaust administrative remedies at

the first prison facility even if transferred to a different

facility).

Defendant Thyng argues that Johnson's current explanation,

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erroneous." In re Bayside Prison Litigation, No. 97-cv-05127, slip

op. at 8-9 (D. N.J. June 9, 2004).

Thus, even assuming that Johnson has correctly

characterized the third level of NCF's grievance process as

optional, and not mandatory, a level three grievance directed to

the Commissioner was an "available" remedy for purposes of PLRA

exhaustion. Johnson's concession that he did not file one dooms

his § 1983 claim.

Johnson proffers an additional theory in support of his

contention that he has complied with PLRA's requirement of

exhaustion as a condition precedent to filing suit. Johnson points

out that the prison transferred his assailant, Bickham, to another

prison facility before the conclusion of the administrative

grievance process. According to Johnson, since he achieved a

favorable outcome, he did not need to appeal the Warden's decision

to the Commissioner and his "available" remedies were, therefore,

exhausted. If, in fact, there was no pertinent additional relief 3
i.e., that he was "satisfied" with the prison's response of

transferring Bickham, was not raised in the district court and is,

therefore, waived. As Johnson is pro se, we may grant him some

leeway as to whether his current claim of being "satisfied" by the

transfer is but another way of describing the circumstances in the

wake of the assault. In any event, we need not rely on the waiver

argument as, for the reasons stated in the text, Johnson's

contention lacks merit.

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obtainable through the grievance process, further exhaustion might

be excused. See Booth v. Churner, 532 U.S. at 736 (holding that

administrative remedies remain "available" and must be exhausted so

long as the administrative process has authority to take some

action in response to a complaint, even if not the remedial action

the inmate demands) (emphasis added); Brown v. Valoff, 422 F.3d

926, 934-35 (9th Cir. 2005) (concluding that Booth made clear that

exhaustion is not required when no pertinent relief can be obtained

through the administrative process) (emphasis added).

Johnson's current claim of being satisfied with the

prison transfer of Bickham, however, conflicts with the record. For

example, on June 13, two days after the assault by Bickham, Johnson

wrote to Thyng stating that, even though Bickham had been sent to

another facility, he did not feel safe because of "ongoing threats

and rumors from Mr. Bickum [sic] friends and other inmates."

Johnson's district court filings, as well, contradict Johnson's

current contention that he was satisfied with the transfer of

Bickham. On July 17, Johnson wrote to the district court,

contending that he was "still afraid for [his] life." And, in
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response to Thyng's motion for summary judgment, Johnson claimed

that, at the protective custody board when he was informed that

Bickham had been transferred, he responded: "What about the other

inmates that are after me or have heard the rumors? What about

[Bickham's] brother that [sic] lives on D-Block?" It is evident

that, contrary to Johnson's current assertion, he was not satisfied

with the prison transfer of Bickham. And, in any event, Bickham's

transfer to a different facility did not constitute the only

available relief, such that the administrative process could

provide no other pertinent relief. Given that Johnson persisted in

claiming the existence of threats from other inmates, the level

three of the grievance process was available to provide a remedy to

relieve those threats, apart from the transfer of Bickham.

Johnson's failure to exhaust this level of the grievance process

precludes his current federal court claim. See Ruggiero v. County

of Orange, 467 F.3d 170, 177 (2d Cir. 2006) (dismissal of § 1983

action affirmed for failure to exhaust where inmate's transfer to

another prison, while arguably providing him with relief by

separating him from officers who allegedly mistreated him, did not

provide him with all of the relief available to him, since a formal

grievance might have resulted in developing policies and procedures

pertaining to the grievance of disciplining the officers).
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IV.

The judgment of the district court, entered on May 8,

2009, is affirmed.