UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Warren Picard,

Plaintiff

v. Civil No. 05-cv-234-SM

Opinion No. 2006 DNH 141

Hillsborough County Department

of Corrections, et al.,

O R D E R

Plaintiff, a former inmate at the Hillsborough County House

of Corrections (“HCHC”), brings this action seeking damages for

what he claims were violations of his rights under the First,

Eighth, and Fourteenth Amendments to the Constitution. See

generally 42 U.S.C. § 1983. Following dismissal of several of

plaintiff’s claims, two remain. In the first, plaintiff says

defendants employed excessive force against him while they were

transporting him between cells on May 8, 2005 (count two). Next,

plaintiff alleges that, in response to certain litigation he

pursued against them years earlier, defendants retaliated against

him, in violation of his First Amendment rights (counts two and

three). 

Defendants move for summary judgment, asserting that there

are no genuine issues of material fact and that they are entitled

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to judgment as a matter of law. Plaintiff has not objected. For

the reasons set forth below, defendants’ motion is granted. 

Standard of Review

When ruling on a party’s 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.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Intern’l Ass’n of

Machinists & Aero. Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Here, because plaintiff has failed to file an objection to

defendants’ motion for summary judgment, the court will take as

admitted the factual statements recited in defendants’ memorandum

and supporting affidavits. See Local Rule 7.2(b)(2) (“A

memorandum in opposition to summary judgment shall incorporate a

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short and concise statement of material facts, supported by

appropriate record citations, as to which the adverse party

contends a genuine dispute exists so as to require trial. All

properly supported material facts set forth in the moving party’s

factual statement shall be deemed admitted unless properly

opposed by the adverse party.”). See also McCrory v. Spigel, 260

F.3d 27, 31 (1st Cir. 2001) (“Although we view the evidence in

the light most favorable to the nonmovant, as to any essential

factual element of its claim on which the nonmovant would bear

the burden of proof at trial, its failure to come forward with

sufficient evidence to generate a trialworthy issue warrants

summary judgment to the moving party.”) (citations and internal

quotation marks omitted). 

Discussion

I. Administrative Exhaustion.

The undisputed material facts of record demonstrate that

plaintiff failed to exhaust available HCHC administrative

remedies prior to filing this suit under 42 U.S.C. § 1983. Such

administrative exhaustion is a prerequisite to prisoner

litigation under the Prison Litigation Reform Act, which provides

that: 

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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 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). See also Booth v. Churner, 532 U.S. 731

(2001); Porter v. Nussle, 534 U.S. 516 (2002); Woodford v. Ngo,

126 S. Ct. 2378 (2006). 

Having failed to properly exhaust available administrative

remedies, plaintiff is statutorily barred from pursuing this

litigation. Defendants are, then, entitled to judgment as a

matter of law as to the remaining counts of plaintiff’s complaint

(i.e., counts two and three). 

II. Plaintiff’s Constitutional Rights were not Violated.

Even if plaintiff had properly exhausted available

administrative remedies, his complaint would fair no better. The

undisputed material facts of record demonstrate that, as a matter

of law, defendants did not employ excessive force when moving

plaintiff between cells on May 8, 2005. See generally Hudson v.

McMillian, 503 U.S. 1 (1992); Whitley v. Albers, 475 U.S. 312

(1986). The record also reveals that plaintiff was not the

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victim of any unconstitutional retaliation in response to his

having exercised his right of access to the courts.

Conclusion

For the foregoing reasons, defendants’ motion for summary

judgment (document no. 27) is granted. Plaintiff failed to

properly exhausted available administrative remedies and,

therefore, he is precluded from pursuing this litigation relating

to the conditions of his confinement. Moreover, even if he had

properly exhausted his claims, they would fail on the merits. 

The Clerk of Court shall enter judgment in accordance with

this order and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

December 14, 2006

cc: Warren Picard, pro se

Carolyn M. Kirby, Esq.

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

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