1 Rocheleau was employed as a nurse and Cook was the

Director of Operations when Dullen was incarcerated at CCHOC. 

Dullen’s claims against the other defendants were dismissed in

prior rulings. See Orders dated July 26, 2005 (Doc. No. 13) and

April 4, 2006.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Patrick E. Dullen

v. Case No. 05-cv-139-PB

Cheshire County, et al.

MEMORANDUM AND ORDER

Pro se plaintiff Patrick Dullen brings this action pursuant

to 42 U.S.C. § 1983, alleging that he was denied adequate medical

and dental care while incarcerated at the Cheshire County House

of Corrections (CCHOC). The parties have filed cross-motions for

summary judgment. Dullen contends that he is entitled to

judgment as a matter of law on the undisputed facts. Defendants

Carol Ann Rocheleau and Robin Cook seek dismissal of the case on

the basis that Dullen failed to exhaust his administrative

remedies prior to filing suit.1 Because I agree that Dullen

failed to meet the exhaustion requirement, I grant defendants’
-2-

motion and deny Dullen’s motion.

I. BACKGROUND

A. Dullen’s medical and dental care

Dullen, a federal prisoner, was incarcerated at CCHOC from

April 29 to July 27, 2004. Affidavit of Robin L. Cook (“Cook

Aff.”) ¶ 6. When Dullen arrived at CCHOC, the nursing staff took

his medical history and made an assessment of his condition. 

Affidavit of Carol Anne Rocheleau, R.N. (“Rocheleau Aff.”) ¶ 6. 

Dullen complained of headaches, left upper arm pain and weakness

and/or numbness due to a 2002 motor vehicle accident. Id. ¶ 5. 

Dullen was taking several medications and claimed during the

assessment that he was entitled to more medication than the

federal marshals brought to the jail with him. Id. ¶ 6. 

After reviewing Dullen’s medical records, Doctor Barry Stern

ordered a new spinal MRI because one year had passed since

Dullen’s previous MRI. Id. ¶ 9. After the MRI was performed on

May 14, Stern referred Dullen to a neurologist and prescribed

Ultracet for his headaches. Id. ¶ 13. Dullen visited the

neurologist on May 27. Id. ¶ 19. Based on the neurologist’s

report, Stern advised Dullen that more medication would not make
-3-

him feel better until he had surgery. Id. ¶ 36. Stern also

recommended that Dullen be transferred to a facility with neurosurgical treatment capability. Id. Stern and Rocheleau then met

with Cook and the CCHOC superintendent to advise them of these

recommendations. Id. Dullen also visited a neurosurgeon for a

neuro-spinal surgical examination on July 23, shortly before he

was transferred to another facility. Id. ¶ 52. 

Regarding Dullen’s dental care, he visited a dental office

in late June 2004 to have his lower denture relined. Id. ¶¶ 31,

42. The dentist advised that relining would not be effective and

that Dullen needed a new set of dentures. Id. ¶ 42. The dental

office later told CCHOC staff that they would not provide further

treatment to Dullen or any other inmate due to the effect that

Dullen’s presence had on other patients. Cook Aff. ¶ 21.

Dullen was transferred to the Franklin County House of

Corrections in Massachusetts on July 27, 2004, where he was 

incarcerated when he filed the current action. 

B. Inmate grievance procedure

The Cheshire County Department of Corrections Inmate Manual,

which is provided to every inmate at CCHOC, sets forth the

following inmate grievance procedure:
-4-

Should you experience a situation where you feel that you

have been unfairly treated or denied rights that you are

entitled under the rules and regulations of this facility,

you must put into writing the following:

Your name, the date, and your housing unit

Nature of the grievance

Dates and times of occurrence

Names of individuals involved

Narrative of the incident

This grievance must be submitted to the Director of

Operations. All grievances will be reviewed. Written

responses will be returned if warranted.

Pl.’s Compl. Attach. 8; Cook Aff. ¶ 11. 

According to Dullen’s inmate records, he did not file any

formal grievances under the procedure outlined above during his

incarceration at CCHOC. Cook Aff. ¶ 9. Dullen sent a number of

handwritten notes to CCHOC staff concerning various issues,

including the variety of meals and requests to train other

inmates on the computer. Id. In one such note, dated June 3,

2004, Dullen stated: “I have some issues I need to have

addressed. I have tried twice to address these issues. I do not

believe in grievances as most situations can usually be settled

by 2 adults talking.” Id.

Dullen also submitted numerous written requests to the

medical department, often seeking additional medication and/or a
-5-

consultation with Doctor Stern. In one such correspondence,

Dullen wrote: “I am still having severe headaches. There are

also a couple of issues I would like to discuss with you. I

don’t believe in grievances, because I believe people as adults

should be able to talk.” Rocheleau Aff. ¶ 24. Rocheleau

forwarded this request to the CCHOC superintendent. Id.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248.

In ruling on a motion for summary judgment, I construe the

evidence in the light most favorable to the nonmovant. See

Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001). The
2 Dullen failed to respond to defendants’ arguments and

instead asserts that defendants violated his rights to privacy

and patient confidentiality when they accessed his medical

records and inmate file to prepare their affidavits. See

Rebuttal to Def.’s Mot. for Summ. J. at 4-6. Dullen’s argument

that these actions provide a basis for denying defendants’ motion

is without merit because he waived his right to confidentiality

in those records by filing suit against CCHOC and its staff. See

Woods v. Goord, No. 01CV03255, 2002 WL 731691, at *11 (S.D.N.Y.

2002) (“It is settled law that release of an inmate’s medical

records in defense of litigation does not violate any right of

the inmate when he has filed suit against prison officials.”).

-6-

party moving for summary judgment “bears the initial

responsibility of . . . identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Once the moving party has met its burden, the burden

shifts to the nonmovant to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing Celotex,

477 U.S. at 323; Anderson, 477 U.S. at 249). 

III. ANALYSIS

Defendants argue that Dullen’s claims should be dismissed

because he failed to exhaust his administrative remedies.2 The
-7-

Prison Litigation Reform Act of 1995 (“PLRA”) provides, in

relevant part, that “[n]o action shall be brought with respect to

prison conditions under section 1983 . . . 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). The PLRA’s

exhaustion requirement “applies to all inmate suits about prison

life, whether they involve general circumstances or particular

episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). A

prisoner’s failure to exhaust results in dismissal of the case. 

Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 36 (1st Cir.

2002) (Section 1997e(a) “clearly contemplates exhaustion prior to

the commencement of the action as an indispensable requirement. 

Exhaustion subsequent to the filing of suit will not suffice.”). 

Here, the administrative remedy available to Dullen was the

filing of a grievance in accordance with the procedure outlined

in the inmate manual. Dullen claims that this procedure is

inadequate because the jail does not provide grievance forms and

an inmate is not guaranteed a response to any grievance

submitted. Compl. Summation ¶ 3. In notes sent to CCHOC staff,

Dullen also indicated that he did not “believe in” filing
-8-

grievances. Rocheleau Aff. ¶ 24; Cook Aff. ¶ 9. Nonetheless,

the First Circuit has held that “there is no ‘futility exception’

to the PLRA exhaustion requirement.” Medina-Claudio, 292 F.3d at

35 (quotation omitted). 

Dullen also alleges that he in fact submitted several

grievances “and received no answers to many of them.” Compl.

Summation ¶ 3. To support this claim, Dullen submitted copies of

two handwritten notes that he sent to Cook concerning his dental

care. Pl.’s Compl. Attach. 3-4. These notes were not in the

form of a grievance but rather inquired whether a dental

appointment had been scheduled for Dullen. Cook also

acknowledged receiving numerous handwritten notes from Dullen

concerning a variety of issues; however, none of these were in

the required format outlined in the inmate manual. Cook Aff. ¶

9. This evidence, taken in the light most favorable to Dullen,

is simply insufficient to demonstrate that he complied with the

CCHOC grievance procedure prior to filing suit in this court. 

Accordingly, Dullen’s claims against Rocheleau and Cook for

denial of adequate medical and dental care must be dismissed. 

See Medina-Claudio, 292 F.3d at 36. 
-9-

IV. CONCLUSION

For the reasons set forth above, defendants’ Motion for

Summary Judgment (Doc. No. 41) is granted and Dullen’s Motion for

Summary Judgment (Doc. No. 34) is denied. The clerk is

instructed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

April 14, 2006

cc: Patrick Dullen, pro se

John A. Curran, Esq.