UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Katon Lang,

Plaintiff

v. Civil No. 07-cv-66-SM

Opinion No. 2008 DNH 014

Todd Gordon, individually;

David Archambault, individually;

Ronald Potter, individually;

Chad Pinciaro, individually;

and James O’Mara, individually

and as Superintendent of the

Hillsborough County Department

of Corrections,

Defendants

O R D E R

Katon Lang, formerly a pre-trial detainee at the

Hillsborough County House of Corrections (“HC HOC”) has sued in

five counts, two of which assert federal constitutional claims

brought pursuant to 42 U.S.C. § 1983. Before the court is a

motion filed by defendants Todd Gordon and David Archambault,

seeking dismissal of the federal claims against them for failure

to meet the exhaustion requirement of the Prisoner Litigation

Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Plaintiff objects. 

For the reasons given, defendants’ motion to dismiss is denied.

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The Legal Standard

While defendants have filed a motion to dismiss, both

parties present matters outside the pleadings. Accordingly,

defendants’ filing shall be treated as a motion for summary

judgment. See FED. R. CIV. P. 12(d); see also Scott v. Gardner,

287 F. Supp. 2d 477, 485 (S.D.N.Y. 2003) (“If nonexhaustion is

not clear from the face of the complaint, a defendant’s motion

should be converted, pursuant to Rule 12(b), to one for summary

judgment limited to the narrow issue of exhaustion . . . .”);

Collins v. Goord, 438 F. Supp. 2d 399, 412 (S.D.N.Y. 2006)

(“district courts have converted motions to dismiss to summary

judgment without notice to determine exhaustion in PLRA cases

where, as here, both parties submitted materials outside the

pleadings and it is apparent that the plaintiff will not be taken

by surprise by such conversion”).

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c). “The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’” Dávila

v. Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12

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(1st Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386

F.3d 5, 7 (1st Cir. 2004)). When ruling on a party’s motion for

summary judgment, the court must view the facts in the light most

favorable to the nonmoving party and draw all reasonable

inferences in that party’s favor. See Torres-Negron v. Merck &

Co., 488 F.3d 34, 39 (1st Cir. 2007) (citing Rodríguez v.

SmithKline Beecham, 224 F.3d 1, 5 (1st Cir. 2000)). 

Background

Katon Lang was a pre-trial detainee in the Hillsborough

County House of Corrections from September 14, 2006, through

February 9, 2007. In his complaint, he alleges that on September

25, correctional officers Todd Gordon, David Archambault, and

Richard Potter: (1) sprayed his bedding with pepper spray during

a routine cell search; (2) sprayed him with pepper spray when he

tried to push his contaminated bedding out of his cell; and (3)

rushed into his cell and beat him. (Compl. ¶¶ 11-18). He also

alleges that several days later, correctional officer Chad

Pinciaro told him that if he ever complained about the events of

September 25, he would never get out of the HC HOC punitive

segregation unit. (Id. ¶ 19.)

Case 1:07-cv-00066-SM Document 19 Filed 01/24/08 Page 3 of 9
1 Unaccountably, defendants’ memorandum of law quotes from a

different version of the HC DOC Inmate Handbook than the one

quoted in O’Mara’s affidavit. Neither version, however, was

appended to defendants’ memorandum, notwithstanding defendants’

reference to the handbook as an attachment to the memorandum. 

4

While Lang was incarcerated in the HC HOC, inmates there had

the benefit of the following grievance policy promulgated by the

Hillsborough County Department of Corrections (“HC DOC”):

If you have a grievance concerning any matter related

to your confinement, a grievance procedure is available

to you. The following are the steps of the grievance

procedure:

 • Step 1: Informal resolution. You must make a 

genuine attempt to seek an informal resolution of

your problem with the staff member concerned.

 • Step 2: The second step is initiated using the

Inmate Request Form stating your problem and

suggested remedy. Submit the form to your Unit

Officer. Most request forms will be answered

within seven (7) working days of receipt.

 • Step 3: If you are dissatisfied with the response

to your Inmate Request Form, you may file an

Inmate Grievance Form. The Captain or his

designee has fifteen (15) working days from

receipt to review your grievance and reply unless

there are extenuating circumstances.

(Defs.’ Mot. to Dismiss, Ex. 1 (O’Mara Aff.) ¶ 2.)1 The inmate

grievance form asks for five types of information: (1) the date

the form is filled out; (2) the inmate’s name; (3) the inmate’s

CCN; (4) the inmate’s housing unit; and (5) a “[b]rief

description of [the] grievance (includ[ing] where and when).” 

(Pl.’s Obj., Ex. 1.)

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In early December, Lang filed an inmate grievance form which

stated, in the “brief description” section:

On unit 2B on the night of September 25-26 officers put

OC spray on my bedding during a cell search. Officer

Potter slammed my face against the back wall while I

was kneeling in the proper position, causing a large

cut on the side of my face. Later Officer Pinciaro

threatened me if I ever complained about these events

saying he would make me “stay in the hole forever.” 

These actions violated my constitutional rights.

(Id.) Lang’s grievance was duly processed. The section titled

“Captain’s action” contains the following notation:

Your bedding was not sprayed with OC Spray by Sergeant

Gordon. Your actions after the cell search and during

the officers[’] intervention caused Sergeant Gordon to

use his OC spray to control the situation. You[ ] were

decontaminated following the use of OC spray. Your

behavior and actions were still not normal and you were

placed in a safety cell for your safety. The

Officers[’] and supervisors[’] action[s] were proper. 

Your grievance is unfounded.

(Id.) This action followed.

Discussion

Defendants Gordon and Archambault move to dismiss the

federal claims against them, arguing that because plaintiff did

not mention their names in his grievance form, he has not

exhausted the administrative remedies he could have used to

address their conduct. And, in their reply to plaintiff’s

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objection to their motion to dismiss, Gordon and Archambault

further argue that the federal claims against all four defendants

should be dismissed because plaintiff’s own documentation

demonstrates that he did not engage in the first step of the

grievance procedure (informal resolution), and did not submit his

inmate grievance form within two days of receiving a response to

an inmate request form, as required by the HC DOC grievance

procedure. Neither argument is persuasive.

Under the exhaustion provision of the Prison Litigation

Reform Act:

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). “[F]ailure to exhaust is an affirmative

defense under the PLRA.” Jones v. Bock, 127 S. Ct. 910, 921

(2007). A defendant who demonstrates lack of exhaustion is

entitled to dismissal of the unexhausted claims in the

plaintiff’s complaint. See Medina-Claudio v. Rodríquez-Mateo,

292 F.3d 31, 36 (1st Cir. 2002); see also Jones, 127 S. Ct. at

923-26 (rejecting the Sixth Circuit’s “total exhaustion” rule

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which called for dismissal of entire complaint containing

exhausted and unexhausted claims). 

That plaintiff did not mention defendants Gordon and

Archambault by name in his inmate grievance form does not entitle

them to dismissal based upon failure to exhaust. As the United

States Supreme Court recently explained:

[T]o properly exhaust administrative remedies prisoners

must “complete the administrative review process in

accordance with the applicable procedural rules,” . . .

rules that are defined not by the PLRA, but by the

prison grievance process itself. Compliance with

prison grievance procedures, therefore, is all that is

required by the PLRA to “properly exhaust.” The level

of detail necessary in a grievance to comply with the

grievance procedures will vary from system to system

and claim to claim, but it is the prison’s

requirements, and not the PLRA, that define the

boundaries of proper exhaustion.

Jones, 127 S. Ct. at 922-23 (quoting Woodford v. Ngo, 126 S. Ct.

2378, 2384 (2006)). Here, as in Jones, the relevant grievance

procedure “does not require a prisoner to identify a particular

responsible party.” 127 S. Ct. at 922. Rather, the only

information expressly required in the “brief description” section

of the inmate grievance form is the place and time of the

incident or other matter being grieved. Plaintiff’s grievance

form in this case did say where (unit 2B) and when (“on the night

of September 25-26”) he claimed to have been assaulted by HC HOC

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2 Officer Gordon’s argument that plaintiff failed to exhaust

is particularly unpersuasive in light of the “Captain’s action”

notation on plaintiff’s grievance form that specifically

mentioned his actions on the night in question.

3 Among other things, defendants argue that the

documentation submitted by plaintiff does not show that he filed

his grievance form within two days of receiving a response to an

inmate request form. While the inmate handbook defendants quote

in their memorandum of law does impose such a time limitation,

the version of the inmate handbook quoted in O’Mara’s affidavit,

which appears to be the more recent version, includes no such

requirement.

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correctional officers. That was sufficient to grieve the entire

September 25 incident, including the conduct of any correctional

officer who may have participated in it.2 Accordingly, officers

Gordon and Archambault are not entitled to dismissal of the

federal claims against them. Cf. Collins v. Goord, 438 F. Supp.

2d 399, 412 (S.D.N.Y. 2006) (ruling that inmate plaintiff had

exhausted administrative remedies against three employees of

prison library not specifically named in filings generally

grieving library’s failure to provide him with certain materials

to which he claimed to have been entitled).

Defendants’ argument concerning plaintiff’s alleged failure

to complete all three steps of the grievance procedure is equally

unavailing.3 As noted above, failure to exhaust is an

affirmative defense. Thus, defendants bear the burden of proving

that plaintiff failed to properly complete the grievance

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procedure. Superintendent O’Mara, custodian of inmate files at

the HC HOC, filed an affidavit in this case, but in that

affidavit, he did not say that plaintiff had failed in any way to

follow the prescribed grievance procedure. Moreover, the

undisputed factual record demonstrates that plaintiff requested

and received a blank grievance form and that his grievance was

accepted, fully processed, and adjudicated on the merits. Final

administrative adjudication on the merits undercuts defendants’

argument that plaintiff’s grievance was procedurally defective.

Conclusion

For the reasons given, defendants’ motion to dismiss

(document no. 12) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 24, 2008

cc: Michael J. Sheehan, Esq.

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

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