UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Jay Wolff

v. Civil No. 06-cv-321-PB

New Hampshire Department

of Corrections, et al.

O R D E R

Pro se plaintiff Charles Jay Wolff has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that he has been denied

religious dietary restrictions, including a Kosher diet, while

incarcerated at the New Hampshire State Prison (“NHSP”) (document

nos. 5 and 7). Named as defendants are the New Hampshire

Department of Corrections (“NHDOC”) and two NHSP employees, Gency

Morse and James Daley. Also filed is a motion for appointment of 

counsel (document no. 6).

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 Wolff to

amend his complaint to demonstrate whether and to what extent he

Case 1:06-cv-00321-PB Document 9 Filed 10/19/06 Page 1 of 9
1In the alternative, Wolff may file with this Court a

voluntary notice of dismissal pursuant to Fed. R. Civ. P. 41(a), 

which provides in relevant part:

[A]n action may be dismissed by the plaintiff without

order of court (i) by filing a notice of dismissal at

any time before service by the adverse party of an

answer or of a motion for summary judgment, whichever

first occurs, or (ii) by filing a stipulation of

dismissal signed by all parties who have appeared in

the action. Unless otherwise stated in the notice of

dismissal or stipulation, the dismissal is without

prejudice, except that a notice of dismissal operates

as an adjudication upon the merits when filed by a

plaintiff who has once dismissed in any court of the

United States or of any state an action based on or

including the same claim.

Fed. R. Civ. P. 41(a).

2

has exhausted the claims raised in his complaint.1 His motion

for appointment of counsel is denied without prejudice to it

being renewed at a later date should circumstances warrant

renewal.

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)

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

Discussion

I. Exhaustion of Administrative Remedies

Wolff 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

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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

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

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(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

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

Wolff, I cannot conclude that he has demonstrated exhaustion of

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administrative remedies with regard to each claim raised in his

complaint. He filed the instant complaint on August 29, 2006 and

alleges that at least some of the violations therein are 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 Wolff could not have fully

exhausted those claims through the prison administrative

grievance procedures prior to filing this action. While Wolff

has stated in correspondence that he “has completed [his]

grievance process” (document no. 3), there is no indication that

he sought administrative review or pursued the administrative

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

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

exhaust the administrative grievance procedures available to him

prior to filing this action. However, the complaint does not

exclude the possibility that he may have exhausted other claims

raised in his complaint. 

II. Appointment of Counsel

Wolff has filed a motion for appointment of counsel which,

construed liberally, alleges that in light of the legal

complexity of his case he cannot adequately represent himself

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(document no. 6). An indigent litigant must show that

exceptional circumstances exist to justify appointment of

counsel, such that without counsel the litigant most likely would

be unable to obtain due process of the law. See DesRosiers v.

Moran, 949 F.2d 15, 23-24 (1st Cir. 1991). “In determining

whether the circumstances are ‘exceptional,’ courts have

considered such factors as the merits of the case, the litigant’s

capability of conducting a factual inquiry, the complexity of the

legal and factual issues, and the ability of the litigant to

represent [himself].” Weir v. Potter, 214 F. Supp. 2d 53, 54 (D.

Mass. 2002)(citing Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir.

1986)).

While Wolff maintains that he is unable to represent himself

adequately, he has not demonstrated an inability to litigate or

other exceptional circumstances to justify the appointment of

counsel. He has filed a complaint in which he has sufficiently

presented his claims and alerted this Court to the federal

violations at issue. At this preliminary stage in the

proceedings, appointment of counsel does not appear to be

necessary. Having considered Wolff’s circumstances and the

applicable law regarding his rights to legal representation, I

deny his motion without prejudice to it being renewed at a later

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2In the alternative, Wolff may file with this Court a

voluntary notice of dismissal pursuant to Fed. R. Civ. P. 41(a),

as explained more fully above.

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date should circumstances warrant renewal.

Conclusion

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

the complaint whether or not Wolff 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

claim has been exhausted through the administrative grievance

process.2 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

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

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 19, 2006

cc: Charles Jay Wolff, pro se

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