1Blackmer also alleges that he is unlawfully incarcerated

and raises various claims of ineffective assistance of counsel

and prosecutorial misconduct. To the extent he challenges the

fact or duration of his confinement, his claims may only be

brought in a habeas corpus petition. See Preiser v. Rodriguez,

411 U.S. 475, 488-90 (1973)(holding that a prisoner cannot use a

Section 1983 action to challenge the fact or duration of his

confinement). He has raised identical claims in a habeas corpus

petition currently pending before this Court. See Blackmer v.

Warden, Northern New Hampshire Correctional Facility, 05-340-PB. 

2The complaint names William Wrenn, Commissioner of the

NHDOC, and the following NCF employees: Larry Blaisdell, Warden;

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Blackmer

v. Civil No. 06-cv-158-PB

Northern New Hampshire

Correctional Facility

O R D E R

Pro se plaintiff Paul Blackmer has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that defendants have

denied him meaningful access to the courts and interfered with

his mail in violation of his federally protected rights (document

no. 1).1 Seeking injunctive and monetary relief, he brings this

action against officers and employees of the New Hampshire

Department of Corrections (“NHDOC”) and the Northern New

Hampshire Correctional Facility (“NCF”).2

Case 1:06-cv-00158-JM Document 9 Filed 09/20/06 Page 1 of 7
Ms. Poulin, Media Generalist; and corrections officers/employees

Dennis Cox, Ms. Dolan, R. Gosselin and Daniel Millis.

2

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I order Blackmer

to amend his complaint to demonstrate whether and to what extent

he has exhausted the claims raised in his complaint. He has also 

filed motions to amend the complaint and a motion to “enhance the

record” (document nos. 6-8). To the extent Blackmer seeks to

amend his complaint, his motions are granted.

Standard of Review

In reviewing a pro se complaint, this Court must construe

the pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d

8, 15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97,

106 (1976)), treating all well-pleaded factual allegations as

true and drawing all reasonable inferences in the litigant’s

favor, see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)

(explaining that all “well-pleaded factual averments,” not bald

assertions, must be accepted as true). This review ensures that

Case 1:06-cv-00158-JM Document 9 Filed 09/20/06 Page 2 of 7
3

pro se pleadings are given fair and meaningful consideration. 

See Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Discussion

Blackmer brings this action pursuant to Section 1983, which 

creates a cause of action against those who, acting under color

of state law, violate federal law. See 42 U.S.C. § 1983; Parratt

v. Taylor, 451 U.S. 527, 535 (1981); Rodriguez-Cirilo v. Garcia,

115 F.3d 50, 52 (1st Cir. 1997). The Prison Litigation Reform

Act (“PLRA”) provides:

No action shall be brought with respect to prisons

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)(emphasis added).

As the Supreme Court has recently held in Woodford v. Ngo,

__ U.S. __, 126 S. Ct. 2378, 2382 (2006), “A centerpiece of the

PLRA’s effort ‘to reduce the quantity . . . of prisoner suits’ is

an ‘invigorated’ exhaustion provision, § 1997e(a). Id. (quoting

Porter v. Nussle, 534 U.S. 516, 524 (2002)). Prisoners must

exhaust even where the relief sought cannot be granted in the

administrative process. Ngo, 126 S.Ct. At 2382-83. See also

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)(holding that an

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4

inmate’s perception that exhaustion would be futile does not

excuse him from the exhaustion requirement). “The PLRA attempts

to eliminate unwarranted federal-court interference with the

administration of prisons, and thus seeks to ‘affor[d]

corrections officials time and opportunity to address complaints

internally before allowing the initiation of a federal case.’”

Id. at 2387. 

However, the exhaustion requirement is not jurisdictional. 

Id. at 2387. “If administrative remedies are not available to an

inmate, then the inmate cannot be required to exhaust. Kaba v.

Stepp, 458 F.3d 678, 684 (7th Cir. 2006).” Therefore,

“[c]orrections officials concerned about maintaining order in

their institutions have a reason for creating and retaining

grievance systems that provide -- and that are perceived by

prisoners as providing -- a meaningful opportunity for prisoners

to raise meritorious grievances.” Ngo, at 2392. Because the

PLRA does not say when a process is available, courts must apply

the ordinary meaning of the term. See Kaba, 458 F.3d at 684

(citing Asgrow Seed Co. V. Winterboer, 513 U.S. 179, 187 (1995)). 

“In Ngo, the Supreme Court rejected the idea . . . that a process

becomes unavailable because the prisoner does not comply with the

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5

procedural rules and therefore cannot obtain relief, and required

courts to look at the reason why the administrative process is

unavailable.” Kaba, 458 F.3d at 684 (quoting Ngo, 126 S.Ct. at

2387, 2392-93)). “Thus, when the prisoner causes the

unavailability of the grievance process by simply not filing a

grievance in a timely manner, the process is not unavailable but

rather forfeited.” Id. At 684. On the other hand, when prison

officials prevent inmates from using the administrative process,

that process becomes unavailable. Id. (citing Dale v. Lappin,

376 F.3d 652, 655 (7th Cir. 2004)(holding that where prison

officials failed to provide inmates with the necessary form to

file an administrative grievance, administrative remedies are not

available.”) and Brown v. Croak, 312 F.3d 109-111-12 (3d. Cir.

202)(holding that administrative remedies were unavailable where

prison officials erroneously told prisoner that he must wait

until the investigation was complete before filing a grievance)). 

Viewing the allegations in the light most favorable to

Blackmer, I cannot conclude that he has demonstrated exhaustion

of administrative remedies with regard to each claim raised in

his complaint. He filed the instant complaint on April 25, 2006

and alleges that at least some of the violations therein are

Case 1:06-cv-00158-JM Document 9 Filed 09/20/06 Page 5 of 7
6

ongoing and/or 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 Blackmer could not have

fully exhausted those claims through the prison administrative

grievance procedures prior to filing this action. Further,

although Blackmer alleges that Cox held a hearing on March 1,

2006 with regard to his denial of meaningful access to the courts

claim, there is no indication that he sought further

administrative review or fully pursued the administrative

grievance procedures available to him at the NCF. Thus, it is

not clear on the face of the complaint that he has attempted to

exhaust the administrative grievance procedures available to him,

as to certain claims, prior to filing this action. However, the

complaint does not exclude the possibility that he may have

exhausted other claims raised in his complaint. 

Conclusion

For the reasons stated above, it is not clear on the face of

the complaint whether or not Blackmer has exhausted each of the

claims raised in his complaint. Accordingly, I direct him to

amend his complaint within thirty days of the date of this order

to demonstrate, with specificity, whether and to what extent each

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7

claim has been exhausted through the administrative grievance

process. If he cannot demonstrate exhaustion for each claim, I

will recommend to the District Judge that the unexhausted claims

be dismissed without prejudice to refiling after they have been

properly exhausted through prison grievance procedures. 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 has failed to state a claim upon which relief might be

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

To the extent Blackmer seeks to amend his complaint, I grant

his motions to amend and motion to “enhance the record” (document

nos. 6-8).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 20, 2006

cc: Paul Blackmer, pro se

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