UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Geraldine Spencer

v. Civil No. 06-cv-085-SM

State of New Hampshire

REPORT AND RECOMMENDATION

Before the Court is Geraldine Spencer’s pro se and in forma

pauperis complaint (document no. 1) brought pursuant to 42 U.S.C.

§ 1983. Spencer alleges that the defendants, employees of the

New Hampshire Department of Corrections (“NHDC”) have violated

her constitutional rights to due process and adequate medical

care, vision care, and mental health care. She further alleges

that the defendants have conspired to retaliate against her for a

previous lawsuit she filed against employees of the NHDC. The

matter initially came before this Court for preliminary review to

determine, among other things, whether the complaint stated any

claim upon which relief might be granted. See United States

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). 

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Upon my initial review of the file, I determined that the

complaint did not demonstrate that Spencer had administratively

exhausted her claims through the NHDC’s grievance process prior

to bringing this action, and that accordingly, the complaint did

not at that time state any claim upon which relief might be

granted. On May 10, 2006, I issued an Order directing Spencer to

amend her complaint to demonstrate whether and to what extent she

had exhausted each of the claims raised in this action prior to

filing her complaint, and to name individual defendants to this

action within thirty days of the date of the Order. 

On May 19, 2006, we received the Order back from the New

Hampshire State Prison for Women (NHSPW), where Spencer had been

incarcerated, with the notation that Spencer had been released. 

The NHSPW provided the Clerk’s Office with an alternative address

in Nashua, New Hampshire. On May 19, 2006, the Order was resent

to the Nashua address and not returned. No further

correspondence or pleadings were received from Spencer until July

19, 2006, when Spencer wrote to the Court advising that she had

not heard any response regarding her complaint. She provided the

NHSPW as her return address.

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On July 25, 2006, Chief Deputy Clerk Daniel Lynch wrote to

Spencer at the NHSPW and advised her of the Court’s May 10, 2006

Order, and the efforts that had been made to send her a copy of

that Order. The letter suggested to Spencer that her immediate

attention to this Court’s May 10, 2006 Order was required if she

intended to pursue the matter. Chief Deputy Clerk Lynch enclosed

another copy of this Court’s May 10, 2006 Order with his letter. 

As of this date, no additional pleadings have been filed. The

July 25, 2006 letter to Spencer at the NHSPW has not been

returned and no additional correspondence or pleadings from

Spencer have been filed.

Because Spencer has failed to file any pleading

demonstrating that she exhausted the administrative grievance

procedures available to her prior to filing this action, I

recommend that the complaint be dismissed without prejudice to

refiling after her claims are properly exhausted. See 42 U.S.C.

§ 1997e(c)(1) (requiring the Court to dismiss a prison conditions

action sua sponte if the Court is satisfied that the plaintiff

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1At least one federal appeals court has found that the

failure to allege exhaustion in the complaint does not constitute

failure to state a claim, as the prisoner bears no obligation to

plead exhaustion. Anderson v. XYZ Corr. Health Servs., Inc., 407

F.3d 674, 681 (4th Cir. 2005). The Anderson Court held, however,

that a reviewing court may raise the exhaustion issue sua sponte

where, the plaintiff inmate is given a chance to respond prior to

the case being dismissed. Id. at 682-83.

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has failed to state a claim upon which relief might be granted);1

LR 4.3(d)(2)(A).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 3, 2006

cc: Geraldine Spencer, pro se

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