1Spencer has not named any individual defendants to her

action at this time. The narrative of her complaint names

correctional officers she claims engaged in retaliatory acts

against her, and she refers generally in her complaint to

constitutional violations committed by members of the medical

staff at the New Hampshire State Prison for Women.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Geraldine Spencer

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

State of New Hampshire

O R D E R

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,1 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 is before this Court for preliminary review to determine,

among other things, whether the complaint states any claim upon

Case 1:06-cv-00085-SM Document 8 Filed 05/10/06 Page 1 of 8
2

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 it does not demonstrate that Spencer has

administratively exhausted her claims prior to this action, the

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

might be granted. Accordingly, I order Spencer to amend her

complaint to demonstrate whether and to what extent she has

exhausted each of the claims raised in this action and to name

defendants to 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).

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3

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

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).

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4

Discussion

To the extent that plaintiff seeks redress for alleged

violations of her constitutional rights by any individual state

agency or employee, she 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. 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 

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5

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 her 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.” 

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

2002). 

If any grievance procedures exist at the defendant

institution, the plaintiff must utilize them before filing an

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

to provide the relief she 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. 

Case 1:06-cv-00085-SM Document 8 Filed 05/10/06 Page 5 of 8
2Spencer filed an addendum to her complaint on March 15,

2006 (document no. 5). I will consider both the March 3

complaint and the March 15 addendum, in the aggregate, to be the

complaint in this matter.

6

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

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

Spencer initially filed her complaint on March 3, 2006.2

Her complaint alleges claims dating back at least to 2003 and

continuing until the time of her filing this action. Spencer’s

complaint makes no mention of any effort at pursuing the

administrative grievance procedures available at the New

Hampshire State Prison for Women or the NHDC. It is not clear on

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

attempt to exhaust the claims raised in the complaint through

administrative grievance procedures available to her prior to

filing suit. However, the complaint does not exclude the

possibility that Spencer may have exhausted some or all of the

claims raised. 

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

or not plaintiff exhausted the administrative grievance

procedures available for any of the claims raised therein prior

to filing suit, I direct plaintiff to amend her complaint within

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

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7

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

to what extent that claim has been exhausted through the

administrative grievance process. Further, I direct Spencer to

amend her complaint to identify the individual or individuals

responsible for violating her constitutional rights for each of

the claims she raised in her complaint. Spencer must name

specific individuals and state with particularity what each

individual defendant did to violate her constitutional rights. 

If Spencer is not in possession of the names of medical care

providers at the New Hampshire State Prison for Women, she is

entitled to receive a copy of her medical records, which should

contain the names of the medical personnel responsible for her

care and treatment.

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. 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 

Case 1:06-cv-00085-SM Document 8 Filed 05/10/06 Page 7 of 8
3At 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.

8

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

granted);3 LR 4.3(d)(2)(A).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 10, 2006

cc: Geraldine Spencer, pro se

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