1The District Judge found the resolution of this factual

dispute necessary to his determination of whether or not

Peterson’s administrative remedies had been properly exhausted.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Warren E. Peterson

v. Civil No. 05-cv-055-PB

Donna Roe, et al.

O R D E R

 Defendants filed a motion for summary judgment arguing that

Peterson has failed to exhaust administrative remedies as

required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42

U.S.C. § 1997e(a). Plaintiff has objected claiming, among other

things, that he properly exhausted all available administrative

remedies. 

The District Judge issued an Order (document no. 41)

directing that I determine whether or not Peterson mailed a

grievance to the office of the Commissioner of the New Hampshire

Department of Corrections (“DOC”) on September 18, 2002. An

evidentiary hearing was held on February 1, 2007 where both

parties produced evidence on that question.1
2The parties agree that a grievance must first be submitted

to a Unit Manager or other individual responsible for resolving

the issue on an Inmate Request Slip, and that if the inmate is

not satisfied with the resolution obtained, he may appeal the

decision to the Warden, and that an inmate dissatisfied with the

2

The United States Supreme Court has recently affirmed that

the failure to exhaust under the PLRA is an affirmative defense

that must be plead and proved by the defendant. Jones v. Bock,

549 U.S. ___ (Jan. 22, 2007), 2007 WL 135890, *11. Defendant

introduced the testimony of John Vinson, legal counsel to the

Commissioner of the DOC as to the general procedures in place for

recording and responding to inmate correspondence, including

grievances, that arrive at the Commissioner’s office. Vinson and

his assistant, Patton Carter, both testified credibly that they

conducted an exhaustive search of every piece of inmate

correspondence that had arrived in the Commissioner’s office

between 1999 and 2006, and that they did not find the September

18, 2002 grievance that Peterson alleges he sent.

That finding, however, does not end the inquiry. Peterson

testified that he complied with the grievance procedures outlined

in Policy & Procedure Directive 1.16, which governs inmate

grievance procedures, in that, on September 18, 2002, Peterson

sent a third tier grievance2 to the Commissioner’s office through
Warden’s resolution must, in most cases, appeal by filing a third

tier grievance with the DOC Commissioner. 

3

the prison’s internal mail system. In support of this assertion

Peterson testified that he has a specific memory of placing his

correspondence to the Commissioner into the internal prison mail

system on September 18, 2002 because it was a very emotional

issue for him, and he can recall the actions he took to pursue

redress of his complaints. Peterson further testified that he

retained a copy of his September 18, 2002 correspondence on which

he, contemporaneously with sending the grievance, made a note

indicating that the document was sent to the Commissioner on that

date. Finally, Peterson testified that he maintained a log of

most of his actions in pursuing grievances, and that while the

log did not reflect his September 18, 2002 mailing, it did

reflect that he requested the grievance form to file with the

Commissioner’s office from his Unit Manager on September 17,

2002. 

Peterson then testified credibly that the internal mail

system at the prison is notoriously unreliable. Peterson

provided anecdotal testimony as well as documentation of numerous

examples of problems with the internal mail system. Accordingly,
3I make no determination as to the precise contours of the

claims exhausted as such determination is outside the scope of

the purpose of the February 1, 2007 hearing.

4

while I believe the testimony of Vinson and Carter that the

September 18, 2002 grievance never arrived in the Commissioner’s

office, I find that testimony alone to be inadequate to meet the

defendant’s burden to prove that no such grievance was ever

mailed, given the frequency and severity of difficulties with the

internal prison mail. Moreover, as Peterson was credible in his

recounting of the events concerning the September 18, 2002

correspondence, I find that Peterson’s testimony that the

grievance was mailed to the Commissioner on that date is

sufficient to defeat the defendant’s proof. Accordingly, I find

that Peterson did, on September 18, 2002, mail his grievance to

the Commissioner.3

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 2, 2007

cc: Warren E. Peterson, pro se

Mary Maloney, Esq.