UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Glenn

v. Civil No. 06-cv-99-PB

Hillsborough County Department

of Corrections, et al.

O R D E R

Before the Court is Charles Glenn’s pro se and in forma

pauperis complaint brought pursuant to 42 U.S.C. § 1983. Glenn

alleges that the defendants, the Hillsborough County Department

of Corrections (“HCDC”), and numerous employees of the HCDC, the

New Hampshire State Prison (“NHSP”), and the Office of the New

Hampshire Attorney General have violated his federal and state

constitutional rights to due process, adequate medical and mental

health care, exercise, privacy, sufficient food, humane prison

conditions, equal protection, and to not be subjected to illegal

search and seizure. The matter is before this Court for

preliminary review to determine, among other things, whether the

complaint states 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). Because I find that the

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complaint does not at this time state any claim upon which relief 

might be granted, I order Glenn to amend his complaint to

demonstrate whether and to what extent he has exhausted each of

the claims raised in this action.

Standard of Review

Under this court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation advising the district

judge whether the action, or any portion thereof, should be

dismissed because:

(i) the allegation of poverty is untrue, the action 

is frivolous, malicious, or fails to state a claim 

upon which relief may be granted, or seeks monetary 

relief from a defendant who is immune from such 

relief under 28 U.S.C. § 1915A(b); or 

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

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if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the petitioner and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Discussion

To the extent that plaintiff seeks redress for alleged

violations of his constitutional rights by any individual state

or county agency or employee, he attempts to state a claim under

42 U.S.C. § 1983, which creates a cause of action against those

who, acting under color of state law, deprive individuals of “any

rights, privileges or immunities secured by the Constitution and

laws” of the United States. See 42 U.S.C. § 1983; Parratt v.

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Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by

Daniels v. Williams, 474 U.S. 327 (1986); Rodriguez-Cirilo v.

Garcia, 115 F.3d 50, 52 (1st Cir. 1997). 

An action brought pursuant to § 1983 alleging a violation of

constitutional rights based on prison conditions must be

exhausted through a prison’s administrative grievance procedures

prior to the filing of the action:

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). This exhaustion requirement “applies to

all inmate suits about prison life, whether they involve general

circumstances or particular episodes.” See Porter v. Nussle, 534

U.S. 516, 532 (2002). 

The adequacy of the prison grievance procedures available to

an inmate to address his specific claims is not relevant to the

question of exhaustion. Exhaustion through prison administrative

grievance procedures is required even if some or all of the

relief desired by the inmate is not available through that

process. Booth v. Churner, 532 U.S. 731, 734 (2001). “There is

no ‘futility exception’ to the . . . exhaustion requirement.” 

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

2002). 

If any grievance procedures exist at any of the defendant

institutions, the plaintiff must utilize them before filing an

action in this court, regardless of the ability of that process

to provide the relief he seeks. Acosta v. U.S. Marshals Serv.,

___ F.3d ___, 2006 WL 1008047 *4 (1st Cir. 2006); (citing MedinaClaudio, 292 F.3d at 36 for the proposition that § 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.”)); see also Dullen v.

Cheshire County, Civ. No. 05-cv-139-PB; 2006 WL 995131 *3 (D.N.H.

Apr. 14, 2006); 2006 DNH 44 *3.

Glenn initially filed his complaint on March 14, 2006. In

that complaint, Glenn states that at least some of the violations

he alleges were ongoing and continued until the time of his

filing. It appears, therefore, that at least as to the

violations alleged to have occurred at the time of filing, that

Glenn could not have had time to exhaust those claims through the

HCDC or NHSP’s administrative grievance procedures prior to

filing this action. Further, Glenn’s complaint makes no mention

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of any effort at pursuing the administrative grievance procedures

available at either the HCDC or the NHSP. It is not clear on the

face of the complaint, therefore, that plaintiff has made any

attempt to exhaust the administrative grievance procedures

available to him prior to filing suit for the claims raised in

the complaint. However, the complaint does not exclude the

possibility that Glenn may have exhausted some of the claims

raised in his complaint. 

Because it is not clear on the face of the complaint whether

or not plaintiff has exhausted the administrative grievance

procedures available for any of the claims raised in his

complaint, I direct plaintiff to amend his complaint within

thirty days of the date of this Order to demonstrate, with

specificity, for each claim raised in the complaint, whether and

to what extent that claim has been exhausted through the

administrative grievance process. If plaintiff cannot

demonstrate exhaustion for any or all of the claims raised, I

will recommend to the District Judge that any claim not exhausted

be dismissed without prejudice to refiling after those claims are

properly exhausted through prison grievance procedures. See 42

U.S.C. § 1997e(c)(1) (requiring the Court to dismiss a prison

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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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conditions action sua sponte if the Court is satisfied that the

plaintiff has failed to state a claim upon which relief might be

granted)1; LR 4.3(d)(2)(A).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 4, 2006

cc: Charles Glenn, pro se

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