UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Stephen Miner

v. Civil No. 06-cv-242-JD

Opinion No. 2008 DNH 038

Grafton County Department

of Corrections, Superintendent

Glenn Libby, et al.

O R D E R

Stephen Miner, proceeding pro se and in forma pauperis,

brought suit against Superintendent Glenn Libby, Grafton County

Department of Corrections ("GCDC"), Officers Jason Reed and

Michael Dunn, and Captain Ronald LaFond. Following preliminary

review, Miner's claim under the Americans with Disabilities Act

("ADA") and his claims under 42 U.S.C. § 1983 were allowed. The

defendants move for summary judgment, contending that Miner did

not exhaust his administrative remedies as is required under 42

U.S.C. § 1997e(a). Miner objects to summary judgment.

Standard of Review

Summary judgment is appropriate when “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

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

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

When the party moving for summary judgment also bears the burden

of proof at trial, summary judgment will not be granted unless no

reasonable jury could find for the nonmoving party. See E.E.O.C.

v. Union Independiente de la Autoridad de Acueductos y

Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002);

Winnacunnet v. National Union, 84 F.3d 32, 35 (1st Cir. 1996).

In opposing summary judgment, "an adverse party may not rest

upon the mere allegations or denials of [his] pleading, but [his]

response, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine

issue for trial." Fed. R. Civ. P. 56(e). A statement that is

signed under the penalties of perjury is also competent evidence

to oppose summary judgment. Goldman, Antonetti, Ferraiuoli,

Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st

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Cir. 1993). In this district, memoranda submitted in support of

and in opposition to summary judgment must include a statement of

material facts with appropriate record citations, and all

properly supported material facts in the moving party's factual

statement are deemed to be true unless they are properly opposed

by the adverse party. LR 7.2(b).

Background

Superintendent Libby filed an affidavit and exhibits in

support of the defendants' motion for summary judgment. Miner

did not submit an affidavit, a sworn statement, or any evidence

to support his opposition to summary judgment. Therefore, the

statements in Libby's affidavit are taken as true and provide the

background information presented here.

Miner was incarcerated at the GCDC as a pretrial detainee

from May 24, 2006, until July 25, 2006, when he was transferred

to the New Hampshire State Prison. He alleges that he lacks a

right hip joint, making his right leg four inches shorter than

his left leg. He wears a homemade orthopedic shoe, which is a

shoe with flipflops glued to the bottom to make a bigger sole,

and uses a cane.

Miner received a copy of the GCDC rules and regulations

during the intake process. That document explains that grievance

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forms can be requested from the unit officer who will forward the

grievance to the officer in charge for review by the captain. 

The document also describes the rules and disciplinary process

used in the facility. 

Miner filed grievance forms dated May 30, June 12, and July

2. The May 30 grievance addressed conduct by Officer Clark, who

is not a defendant in this suit, and the issue raised is

unrelated to the claims in this suit. On June 12, Miner

complained about the food in his housing unit, which is not a

claim raised in this suit and the officer involved is not a

defendant here. On July 2, Miner wrote that while he was

brushing his teeth, one broke, and he sought a dental

appointment. Again, that issue is not raised in his complaint. 

Miner filed no grievance forms that address the claims he raises

here.

An incident report dated June 4, 2006, charges Miner with

flooding the handicap cell, where he was housed, by flushing a

pair of pants down the toilet. During the same incident, Miner

swore at the officer who was helping him clean his cell and threw

a urine-soaked wad of toilet paper at the camera in his cell,

blocking its view. He was put into lockdown status pending

review. Following the review, the report was included in Miner's

file, but he was not disciplined. 

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On June 13, Miner refused to cooperate while the nurse was

administering his medications and an officer was checking his

mouth to be sure he swallowed the medication. He also pressed

against the officer and suggested that she check his rectal area. 

He refused to obey when she told him to step back. The officer

had Miner removed to the disciplinary block. 

When he arrived in the disciplinary block, Miner was ordered

to remove his shoes for inspection. He refused and swore at the

officers. One of the officers told Miner that he would be

sprayed if he did not give them his shoes. In response, Miner

threw his shoes, including his homemade orthopedic shoe, at the

officers, hitting one of them. 

Disciplinary reports were written for both incidents, and a 

hearing was held on June 15 on the charges. Miner pled guilty to

using obscene, abusive, or profane language and was found guilty

of refusing to comply with simple orders and of throwing his

shoes at officers. He was assigned to lock down status for seven

days for the first incident and another seven days for the second

incident. He did not appeal that decision. 

Miner filed his complaint in this case on July 3, 2006. 

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Discussion

Miner alleges that he has a disabling physical condition and

that the defendants violated the ADA by failing to provide him

with adequate accommodation for his disability, which would

include housing him in an appropriately equipped cell and

allowing him to use his cane and his orthopedic shoe. Under §

1983, Miner alleges that by denying him his cane and orthopedic

shoe, the defendants deprived him of his right to equal

protection, that he was denied all access to personal hygiene

products and showers for five days in administrative segregation

in violation of the Fourteenth Amendment, that he was denied due

process prior to punishment, and that he was subjected to

unreasonable strip searches. The defendants assert, supported by

the affidavit of Superintendent Libby, that Miner failed to file

grievances related to any of his claims.

Section 1997e(a) requires prisoners to exhaust all available

administrative remedies before bringing a claim under federal law

that challenges prison conditions. The exhaustion requirement

applies to claims under the ADA as well as claims under § 1983. 

Porter v. Nussle, 534 U.S. 516, 524 (2002); Woodford v. Ngo, 548

U.S. 81, 126 S. Ct. 2378, 2383 (2006); O'Guinn v. Lovelock Corr.

Ctr., 502 F.3d 1056, 1058 (9th Cir. 2007). Exhaustion under §

1997e(a) is an affirmative defense, and defendants who prove a

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failure to exhaust are entitled to have unexhausted claims

dismissed. Jones v. Bock, 127 S. Ct. 910, 921, 923-26 (2007);

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

2002). 

In this case, the defendants provide Libby's affidavit that

Miner filed only three grievances while he was incarcerated at

GCDC. Those grievances are unrelated to the claims in Miner's

complaint. Although Miner states in his objection that he did

file grievances and that he discussed his grievances with Libby

and LaFond, he failed to provide an affidavit or sworn statement

to support his allegations. In addition, Miner's statements

about his grievances, even if they were properly supported, are

too vague to oppose the defendants' evidence.

Miner states generally that he filed "the required

Grievances." He also states that he "made a note of one

grievance" and quotes the contents of his note. Miner's "note,"

however, only says that he was "exhausting," that he met with

Libby on two occasions about unspecified grievances, and that he

handed grievances to Officer Devine and was assured that they

were submitted. Miner also states that cassettes could show the

content of his meetings with LaFond but offers no insight into

what those meetings were about.

 

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None of Miner's statements provide any information about the

subject matter addressed in his grievances. It is undisputed

that Miner filed three grievances on topics unrelated to the

claims in his complaint. Therefore, his statements about

grievances, even if properly supported, do not provide evidence

that he filed grievances on the subject matter of the claims

raised here. 

In the absence of properly supported facts showing a dispute

as to whether Miner filed the required grievances, the defendants

have provided conclusive evidence that Miner did not exhaust his

available administrative remedies. Therefore, the defendants are

entitled to summary judgment on all claims.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 24) is granted. The clerk of

court shall enter summary judgment in favor of the defendants on

all claims and close the case.

SO ORDERED.

___________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 19, 2008

cc: Brian J.S. Cullen, Esquire

Donald E. Gardner, Esquire

Donald L. Smith, Esquire

Stephen Miner, pro se

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