1The following defendants were named in Hemingway’s initial

filing: Theresa Lantz, Commissioner of the Cheshire Correctional

Institute in Connecticut, New Hampshire State Prison (“NHSP”)

Warden Bruce Cattell, the Commissioner of the New Hampshire

Department of Corrections and NHSP correctional officer Bonnie

Johnson. The United States District Court for the District of

Connecticut, where this action was initially filed in February of

2005, dismissed Lantz from the action and transferred the case to

this Court on March 7, 2006.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Irving Hemingway

v. Civil No. 06-cv-110-JD

Theresa Lantz, et al.1

REPORT AND RECOMMENDATION

Before the Court is Irving Hemingway’s pro se and in forma

pauperis complaint brought pursuant to 42 U.S.C. § 1983. 

Hemingway alleges that while he was incarcerated at the New

Hampshire State Prison (“NHSP”), that his Eighth and Fourteenth

Amendment rights to due process and to not be subjected to cruel

and unusual punishment were violated. Specifically, Hemingway

alleges that he was sexually abused by NHSP correctional officer

Bonnie Johnson, and that he was beaten and threatened by other

officers as a result of a falling out with Johnson. The matter

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is before this Court for preliminary review to determine, among

other things, whether the complaint states any claim upon 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 the complaint does not at this time state any

claim upon which relief might be granted, I recommend to the

District Judge that this matter be dismissed.

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).

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

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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).

Discussion

To the extent that plaintiff seeks redress for alleged

violations of his constitutional rights by any individual state

or county agency or employee, he attempts to state a claim under

42 U.S.C. § 1983, which creates a cause of action against those

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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

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 his 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

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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 he 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.

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

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

In Hemingway’s complaint, he concedes that he did not

exhaust his administrative remedies for fear of retribution from

the New Hampshire corrections officers. However, given that he

filed this action from Connecticut, Hemingway offers no reason

why he could not have filed a grievance with the NHSP from the

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2At 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. To the extent the

plaintiff can demonstrate exhaustion, he has the right to do so

in an objection to this Report and Recommendation.

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safety of that state. Further, § 1997e does not provide for an

exception to the exhaustion requirement based on a plaintiff’s

fear of retribution for filing a grievance. Courts may not read

exceptions into the exhaustion requirement that were not supplied

by Congress in § 1997e. Booth, 532 U.S. at 741 n.6. 

By Hemingway’s own admission, he did not utilize or exhaust

the administrative grievance procedures available to him prior to

filing suit. Accordingly, I recommend to the District Judge that

this complaint be dismissed without prejudice to refiling after

the claims contained therein 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

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

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

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Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 5, 2006

cc: Irving Hemingway, pro se

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