UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Kenneth Hopkins

v. Civil No. 06-cv-96-JD

Jane Coplan, et al.

O R D E R

Kenneth Hopkins, who is incarcerated at the New Hampshire

State Prison, alleges federal and state claims against employees

of the prison. The defendants move for summary judgment on the

grounds that Hopkins did not exhaust his available administrative

remedies as required under 42 U.S.C. § 1997e, that evidence is

lacking to support his Eighth Amendment claim against defendant

Craig Edsall, that he failed to state any claim against three of

the defendants, and that he cannot prove libel. Hopkins 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

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

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

Case 1:06-cv-00096-JD Document 13 Filed 08/06/07 Page 1 of 12
1The defendants present Hopkins's allegations from his

complaint as the pertinent "facts" for summary judgment, along

with references to testimony given by Corrections Officers

Christopher Turcotte and Craig Edsall during a preliminary

injunction hearing in February of 2004 and an affidavit from

legal counsel for the Department of Corrections, showing that

Hopkins did not file grievances on the subjects alleged in his

complaint between 1995 and June of 2004. Cf. Fed. R. Civ. P.

56(e). Hopkins filed his affidavit to support his version of

events.

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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

Background1

Hopkins was an informant during an internal investigation of

staff misconduct at the prison in 1992. He contends that prison

staff were fired as a result of the investigation and that

although he was promised anonymity, the staff was aware of his

participation in the investigation. He also contends that after

the investigation and firings, he was moved away from the New

Hampshire State Prison to protect him from the staff and spent

six years in a Massachusetts prison. He was transferred back to

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the New Hampshire State Prison in October of 1998.

Hopkins contends that false disciplinary reports were lodged

against him beginning when he returned to the New Hampshire State

Prison. In December of 2001, Hopkins states, Corrections Officer

Christopher Turcotte moved him to a cellblock with more

aggressive inmates without justification. He complained to the

prisoner counselor, the unit manager, and other corrections

officers about being placed in that cellblock. When he asked

Corrections Officer Paul LaFlamme about being moved back to his

previous cellblock, Hopkins states that LaFlamme forced him to

confront Turcotte with his request and then LaFlamme supported

Turcotte's decision despite acknowledging that there was no

reason for him to have been moved. A few minutes after that

meeting, Hopkins's cellmate was called to the office. When that

cellmate returned to the cell, he screamed that Hopkins was a

"rat" who had reported that the cellmate had been bullying,

harassing, and extorting from other inmates. Turcotte testified

that he did not remember those circumstances. 

On January 5, 2002, an altercation occurred involving the

cellmate, Hopkins, and others. Hopkins was severely beaten and

sustained serious injuries. On January 11, 2002, Corrections

Officer Leitner wrote a disciplinary report for the January 5

incident, charging Hopkins with being involved in a one-on-one

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fight. Hopkins pled not guilty to the charge. He contends that

the hearing on January 14 was a sham and that Corrections

Officers Thibeault and Morin knew that he had not been involved

in a one-on-one fight but instead that he had been beaten by

several inmates. He was found guilty of fighting and required to

pay for his own medical expenses. Hopkins appealed the guilty

finding to Major Shaw and then to the Warden and, after receiving

no response, he appealed to the Commissioner and again received

no response. 

As a result of the beating, Hopkins had facial bruising, a

broken wrist, blurred vision, and post-concussion symptoms. He

visited the prison infirmary several times. Hopkins states that

on February 5, 2002, Dr. David Friedman, a physician working at

the prison, accused him of being a whiner and refused to see him. 

On April 2, Hopkins was admitted to the prison infirmary for

observation because of neurological symptoms. He underwent

emergency brain surgery on April 4 after a CT scan showed a

subdural hematoma. 

On December 3, 2003, Corrections Officer Dunnack moved

Hopkins to the Special Housing Unit ("SHU"). Hopkins states that

soon after he arrived he began experiencing abdominal pain and

asked Officer Edsall to call a nurse. Hopkins states that Edsall

watched him writhe in pain but refused to call a nurse. Edsall

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testified at a prior hearing that Hopkins complained of a stomach

ache around 3:30 p.m. and asked to see a nurse. Edsall said that

he notified the sergeant when Hopkins became agitated and was

told that the nurse would come at normal sick call between five

and six p.m. 

They agree that the nurse came during normal sick call,

which Hopkins says was around six p.m. Edsall said that he did

not see Hopkins again until the nurse arrived when Hopkins was

doubled over and his demeanor was different than at the time of

his initial complaint of a stomach ache. They agree that Hopkins

was immediately taken to the infirmary. Hopkins states that he

had to be catheterized to remove 1100 cc of urine, which was the

cause of his pain. He was then hospitalized outside of the

prison for two weeks.

In January of 2004, Hopkins brought suit against the prison

employees and officials involved in the events he alleges here. 

In March, the court granted the defendants' motion for summary

judgment, concluding that Hopkins had not exhausted his

administrative remedies as required under 42 U.S.C. § 1997e(a). 

With the assistance of counsel, on May 27, 2005, Hopkins filed a

grievance to address the issues he raised in his federal

complaint, along with more recent issues. The unit manager

responded that he was "not sure what your request is." Hopkins

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appealed to the Warden, who responded "[m]ost of the issues in

your grievance are very old, some more than 10 years. As these

are certainly beyond the grievance time frames and most cannot be

specifically verified, I assume you included them for a

historical perspective from your point of view." Def. Ex. E at

5. The Warden then addressed the issue that he deemed to be

timely which was "your claim that you are inappropriately housed

on the second floor of the Hancock Building due to your medical

condition and in violation of a written medical directive from

Dr. Englander." Id. The Warden referred that issue to the

prison medical department, and Nurse Timulty reported that

Hopkins's records showed no urgent need for a lower level but

suggested that he be moved to the prison in Berlin, which is on

one floor. That decision was appealed to the Commissioner, and

in response Hopkins was notified that "[n]either the Warden nor

this office will interfere with medical decisions." Id. at 2.

On February 27, 2006, Hopkins moved for leave to file an

amended complaint in his original federal suit, which was denied.

Instead, the proposed complaint was docketed as a new complaint,

which initiated this suit.

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Discussion

As stated in his objection to the motion for summary

judgment, Hopkins alleges that Officer Turcotte retaliated

against him in violation of the First Amendment because he had

helped in an investigation of misconduct by prison staff in 1992. 

He alleges that Officers Leitner, Thibeault, and Morin retaliated

against him, in violation of the First Amendment, by writing and

approving a false disciplinary report against him and denying his

requests to obtain evidence in his defense. He alleges that

certain prison administrators and officials were aware of the

retaliation against him and failed to take reasonable measures to

insure his safety in violation of the Eighth Amendment. He also

alleges that Officer Edsall violated his Eighth Amendment rights

by being deliberately indifferent to his serious medical needs. 

He brings state law libel claims against Corrections Officers

Topham and Turcotte, contending that they falsely told another

inmate that Hopkins was a "rat." He alleges a state law claim

against Dr. David Friedman, contending that he violated his duty

to exercise due care in treating Hopkins's injuries. 

Incarcerated litigants are required by the Prison Litigation

Reform Act to exhaust administrative remedies that are available

before filing a federal action challenging prison conditions. 42

U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). 

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Exhaustion is mandatory, even when the relief sought by the

prisoner is not available through the administrative process. 

Booth v. Churner, 532 U.S. 731, 734-739 (2001). In addition, §

1997e(a) requires proper exhaustion, meaning that a prisoner must

satisfy all of the grievance process's procedural requirements. 

Woodford v. Ngo, 126 S. Ct. 2378, 2387-88 (2006).

In his previous federal case, Kenneth Hopkins v. Jane

Coplan, et al., Civil No. 04-30-SM,, the court held that

Hopkins's informal complaints about the beating incident on

January 5, 2002, and his appeals of the disciplinary process did

not satisfy the requirements of § 1997e(a). See Op. No. 2005 DNH

038 (D.N.H. Mar. 16, 2005), docket no. 76. Hopkins did not

appeal that decision. Instead, he filed an amended complaint in

that case, after judgment was entered, that was docketed as a new

case, nunc pro tunc. Hopkins's renewed argument here, that his

objections and appeals in the disciplinary proceeding complied

with § 1997e(a), directly contradicts the prior order and is

barred by res judicata. See Maher v. GSI Lumonics, Inc., 433

F.3d 123, 126 (1st Cir. 2005) ("Under the federal law of res

judicata, a final judgment on the merits of an action precludes

the parties from relitigating claims that were raised or could

have been raised in that action.").

Alternatively, Hopkins contends that his grievance filed in

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2The copy of PPD 1.16 provided by the defendants shows that

its effective date was April 1, 2005, and also shows that it is

"DATED" October 1, 2002. Hopkins, however, does not dispute that

the effective date of the thirty-day time deadline was October 1,

2002, and the court has previously noted that date. See LaFauci

v. N.H. Dep't of Corrs., et al., Civil No. 99-cv-597-PB, 2005 DNH

029 *20 n.9 (D.N.H. Feb. 23, 2005). Even if the effective date

of the deadlines were April 1, 2005, however, Hopkins's grievance

was filed more than thirty days after that date.

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May of 2005 and then appealed to the Warden and the Commissioner

satisfies § 1997e(a). He argues that because no time limit for

filing grievances existed in December of 2001 and January of

2002, his grievance as to claims arising from the beating

incident and the subsequent disciplinary process are not subject

to the time restrictions that were added in October of 2002. He

also argues that the defendants waived the affirmative defense of

§ 1997e(a) by responding to the merits of his grievance without

asserting that it was untimely. 

The defendants rely on New Hampshire Department of

Corrections Policy and Procedure Directive ("PPD") 1.16 and have

provided a copy in support of their motion for summary judgment.

The defendants represent that PPD 1.16 was amended, effective

October 1, 2002, to add a thirty-day time limit for filing

grievances.2 Pursuant to PPD 1.16,III,G, Hopkins was required to

file grievances based on any incidents that occurred prior to

October 1, 2002, within thirty days of that date. As of the

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October 1, 2002, amendments, the deadlines imposed by PPD 1.16

were mandatory. PPD 1.16,IV,E.

Hopkins does not address the time limit imposed on claims

existing as of October 1, 2002, or dispute that claims based on

incidents after October 1, 2002, are barred by the time limit. 

Therefore, Hopkins's grievance, filed on May 23, 2005, was

untimely and does not satisfy the requirements of § 1997e(a). 

Alternatively, Hopkins argues that the defendants waived the

affirmative defense provided by § 1997e(a) by responding to his

May 2005 grievance on the merits. Hopkins is correct that

exhaustion, as required by § 1997e(a), is an affirmative defense. 

Jones v. Bock, 127 S. Ct. 910, 921 (2007); Acosta v. U.S.

Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006). Courts have

held that as an affirmative defense exhaustion may be waived

under certain circumstances. See Johnson v. Testman, 380 F.3d

691, 695 (2d Cir. 2004).

In this case, however, Hopkins has not shown that the

defendants waived the exhaustion requirement by responding to his

May 2005 grievance on its merits. The complaint that supported

that grievance included the claims at issue in this case but also

included a myriad of other grievances including an issue that had

arisen that month as to whether Hopkins's medical condition

required that he be housed where he did not have to use stairs. 

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The initial response from the unit manager said only that he did

not understand Hopkins's request. The Warden stated that except

for complaints about being housed on the second floor, Hopkins's

complaint was not timely. The Commissioner responded to the

Warden's decision about Hopkins's medical need for special

housing. As such, none of the responses addressed any of the

issues that are the bases for Hopkins's claims in this case.

Because Hopkins did not exhaust his claims through the

prison procedure in a timely manner, he has not satisfied the

requirements of § 1997e(a). Therefore, the defendants are

entitled to summary judgment on all claims.

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Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 10) is granted. The clerk of

court shall enter judgment in favor of the defendants on the

ground that the plaintiff failed to exhaust administrative

remedies as required under 42 U.S.C. § 1997e(a) and close the

case.

SO ORDERED.

/s/Joseph A.DiClerico, Jr.

 Joseph A. DiClerico, Jr.

United States District Judge

August 6, 2007

cc: Michael J. Sheehan, Esq.

Andrew B. Livernois, Esq.

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