1 Following the court’s approval of the Magistrate Judge’s

preliminary review of this matter, to which the plaintiff did not

object, all that remains of the plaintiff’s original complaint is

his claim that “defendants Biledeau and McGrath placed him in

harm’s way by recommending his transfer to the Hancock building,

and that defendants Marquis, Whittan, Cunningham, Cattell,

Crompton, and Wrenn, either directly, or indirectly as

supervisory prison officials, failed to protect him from harm

once he was on C-pod.” 

1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tony L. Ellison

v. Civil No. 07-cv-131-JL

Opinion No. 2009 DNH 017

New Hampshire Department

of Correction, et al.

O R D E R

The plaintiff, a state prison inmate, brought this action

under 42 U.S.C. § 1983 seeking monetary damages and equitable

relief. He alleges that the defendants, various New Hampshire

State Prison (NHSP) employees and administrators, endangered his

safety and then failed to protect him from other inmates.1 This

court has subject matter jurisdiction under 28 U.S.C. §§ 1331

(federal question) and 1343 (civil rights). 

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 1 of 15
2

Presently before the court is the defendants’ motion for

summary judgment asserting that the plaintiff failed to properly

exhaust his administrative remedies prior to filing suit, as

required by the Prison Litigation Reform Act, 42 U.S.C. §

1997e(a) (PLRA). After oral argument, and for the following

reasons, the defendants’ motion is granted. 

I. Applicable legal standard

Summary judgment is appropriate if, viewing the record in

the light most favorable to the non-moving party, “the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c); see Noonan v. Staples, Inc., 539

F.3d 1, 5 (1st Cir. 2008). A material fact is one that, under

the prevailing substantive law, affects the outcome of the case. 

See Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001). 

A genuine issue is one that is properly resolved only by a fact

finder because it is one that reasonably could be decided in

favor of either party. See id.

“[F]ailure to exhaust is an affirmative defense under the

PLRA.” Jones v. Bock, 549 U.S. 199, 216 (2007). The plaintiff 

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 2 of 15
2

 While a prisoner is not required to plead and prove

exhaustion in his complaint, “[n]othing in the Supreme Court’s

decision in Jones precludes a reviewing court from raising the

issue of exhaustion sua sponte.” Ghosh v. McClure, No. H-05-

4122, 2007 WL 400648, at *6 n.3 (S.D. Tex. Jan. 31, 2007); see

United States v. Del Toro-Alejandre, 489 F.3d 721, 723 (5th Cir.

2007); Okpala v. Drew, No. 06-16257, 2007 WL 2407040, at *1 (11th

Cir. Aug. 24, 2007). 

3

need not plead exhaustion in the complaint; rather, failure-toexhaust must be asserted2

 by and proven by the defendant. Id. 

II. Background 

At all times relevant to this complaint, the plaintiff, Tony

Ellison, was incarcerated at the New Hampshire State Prison in

Concord, New Hampshire having pled guilty to several counts of

felonious sexual assault. On September 12, 2006, Ellison and

another inmate got into a physical altercation during which

Ellison suffered a large laceration to the side of his face. 

Following the prison’s investigation into this matter, and

despite Ellison’s claim that he was the victim, Ellison was

charged with fighting as a disciplinary infraction under internal

prison rules. 

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 3 of 15
3 In the weeks and months following September 12, 2006,

Ellison filed numerous inmate request slips, many of which are

unrelated to the pending motion. The court will only address

those complaints that are related and relevant to this case.

4

On September 29, 2006, Ellison filed the first in a series

of inmate request slips regarding this incident.3

 In response to

the complaint raised in this slip, which disputed the severity of

the charge levied against him, see infra p. 9, the prison

downgraded Ellison’s charge to a lesser offense. He did not

appeal this decision. 

Ellison was tried before the NHSP disciplinary board on the

reduced charge and found guilty. On October 25, 2006, he filed

an inmate request slip purporting to appeal the hearing officer’s

guilty finding. This slip referenced an “attached argument” that

is not before the court, and there is no other evidence as to

what arguments were raised. Major Cunningham, a defendant in the

present case, denied the appeal because he “saw no due process

violations or excessive sanctions in regards to your D-report.” 

On November 9, 2006, Ellison filed another inmate request

slip purporting to appeal his guilty finding, this time to the

Warden. As part of his appeal, filed over eight weeks after the

alleged assault, Ellison notified the prison for the first time

of the factual basis underlying the constitutional claims he has

since asserted in this lawsuit. More specifically, Ellison

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 4 of 15
5

argued in this appeal that the Warden should “set aside this

guilty verdict and all its penalties” because, among other

reasons, prison employees unconstitutionally effectuated his

transfer to an area of the prison that housed inmates known to

pose a danger of violence to sexual offenders, and then failed to

adequately protect him from those inmates. The Warden affirmed

Ellison’s guilty finding, explaining that “after reviewing your

case, I have found no due process violations or excessive

sanctions.” 

Then, on November 28, 2006, Ellison wrote a letter to the

Commissioner expressing his intent to sue the involved prison

employees if the prison did not overturn his disciplinary report,

amend its policies to better protect inmates, and punish those

NHSP staff members and administrators involved in this matter. 

The Commissioner upheld Ellison’s guilty finding. Dissatisfied

with the prison’s combined response to his grievances, Ellison

sued the defendants in this court. As stated earlier, see supra

note 1, preliminary rulings have pared down Ellison’s lawsuit to

his constitutional endangerment and failure to protect claims. 

III. Analysis 

Under the Prison Litigation Reform Act (PLRA), an inmate

cannot maintain a § 1983 civil rights action challenging the

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 5 of 15
6

conditions of his confinement if he did not first exhaust “such

administrative remedies as are available.” 42 U.S.C. § 1997e(a). 

Moreover, the PLRA requires “proper exhaustion,” which means that

the inmate must comply with all of the prison’s “deadlines and

other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81,

90-91 (2006); see also Acosta v. U.S. Marshals Serv., 445 F.3d

509, 512 (1st Cir. 2006) (“To exhaust remedies, a prisoner must

file complaints and appeals in the place, and at the time, the

prison's administrative rules require”) (quoting Pozo v.

McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). In Woodford,

the Supreme Court explained the rationale behind the proper

exhaustion requirement:

The benefits of exhaustion can be realized

only if the prison grievance system is given

a fair opportunity to consider the grievance. 

The prison grievance system will not have

such an opportunity unless the grievant

complies with the system’s critical

procedural rules. A prisoner who does not

want to participate in the prison grievance

system will have little incentive to comply

with the system’s procedural rules unless

noncompliance carries a sanction. . . . For

example, [if noncompliance carried no

sanction] a prisoner wishing to bypass

available administrative remedies could

simply file a late grievance without

providing any reason for failing to file on

time. If the prison then rejects the

grievance as untimely, the prisoner could

proceed directly to federal court. And

acceptance of the late grievance would not

thwart the prisoner’s wish to bypass the

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 6 of 15
7

administrative process; the prisoner could

easily achieve this by violating other

procedural rules until the prison

administration has no alternative but to

dismiss the grievance on procedural grounds. 

We are confident that the PLRA did not create

such a toothless scheme. 

548 U.S. at 95 (emphasis added); see also Jones, 549 U.S. at 219

(noting that the benefits of exhaustion include "allowing a

prison to address complaints about the program it administers

before being subjected to suit, reducing litigation to the extent

complaints are satisfactorily resolved, and improving litigation

that does occur by leading to the preparation of a useful

record”). Thus, “an untimely or otherwise improper grievance,

even though appealed through all steps of a grievance procedure,

does not fulfill the PLRA exhaustion requirement.” Farthing v.

Ryan, No. 07-13225, 2008 WL 5377942, at *3 (E.D. Mich. 2008).

 Under the NHSP’s three-level grievance policy, an inmate may

“seek formal review of an issue related to any aspect of [his]

confinement,” but is required to follow the policies, procedures,

and deadlines for doing so, as set forth in the prison’s Policy

and Procedure Directive (PPD) 1.16 and the New Hampshire State

Prison Inmate Manual. At the first level, the grievance

procedure is set in motion if the aggrieved inmate files an

inmate request slip within 30 days of the “date on which the

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 7 of 15
4 Prior to filing a formal written complaint, the policy

expects but does not require inmates to endeavor to resolve an

issue through informal measures. See PPD 1.16 at (I).

8

complained of event occurred.”4 Id. at (IV)(A)(1) (Level 1). 

But inmates are warned that "[t]he timeframes set out in this

policy are mandatory” and that "failure to comply with these

timeframes might impact [the inmate’s] right to pursue any other

legal remedy.” Id. at (IV)(E) (emphasis in original). 

At the second level of the grievance policy, an inmate

dissatisfied with the prison’s response to his complaint may (and

thus must, to properly exhaust under the PLRA and Woodford)

appeal that response to the Warden of the facility. See id. at

(IV)(B) (Level 2). Each appeal must be submitted on a separate

"grievance form” and attached to “[a] copy of the [prison’s]

level one response.” Id. The policy warns inmates that "[t]he

use of the appropriate form”--an example of which is attached to

the grievance policy--“is mandatory.” Id. at (IV)(F) (emphasis

in original). At the third and final level, the policy permits

(and thus requires, in order to properly exhaust under the PLRA

and Woodford) an inmate who is still dissatisfied with the

prison’s response, after having timely raised his issue at the

first and second levels of the grievance process, to appeal the

Warden’s decision to the Commissioner of the Department of

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 8 of 15
9

Corrections. See id. at (IV)(C) (Level 3). The policy again

reminds inmates that an appeal must be filed on an appropriate

“grievance form.” Id.

Ellison argues that he properly complied with the prison’s

grievance policy “with the first step being [the IRS he filed

with] the Head of Security Major Cunningham.” (Pl.’s Opp’n to

Mot. for Summ. J. ¶2). He goes on to claim that he “appealed his

case through all the proper channels of the chain of Command

within the N.H.S.P.” beginning with the appeal he filed with the

Warden, followed by the “[t]hird and final step” of appealing to

the Commissioner. (Id.). 

The undisputed facts in this case establish that Ellison

failed to properly exhaust the administrative remedies that were

available to him. Although he unquestionably complained about

and appealed issues that arguably encompassed the issue before

the court in this federal lawsuit, his complaints and appeals did

not constitute “proper exhaustion” under the PLRA as interpreted

by the Supreme Court. See Woodford, 548 U.S. at 90; Jones, 549

U.S. at 218 (“it is the prison’s requirements, and not the PLRA,

that define the boundaries of proper exhaustion”). As of

September 12, 2006, the “date on which the complained of event

occurred,” Ellison had 30 days to file a first level inmate

request slip apprising the prison of what he believed to be the

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 9 of 15
5 While Ellison filed a multitude of inmate request slips in

the weeks and months following his altercation with another

inmate, this complaint is the only one that was timely filed and

addressed the alleged assault.

10

constitutional issue regarding his confinement. See PPD 1.16

(IV)(A)(1). He failed to do so. Indeed, Ellison conceded at

oral argument that he did not bring his constitutional claims to

the prison’s attention until November 9, 2006. 

In the only timely filed complaint regarding the September

12, 2006 incident, filed on September 29, 2006, Ellison wrote:5

I was served today 092906 with an A-Ticket

for an Assault on another inmate. How can

this be when I never struck the other inmate,

other than to push him off of me after I had

already been struck down once. Then I was

struck down again to which my head was split

open. At most this should be a B-Ticket for

mutual combat. But this doesn't even hold

water. Is this A-Ticket a retaliatory ticket

for the questioning of the integrity of the

staff involved in this incident from the

beginning with the move from South Unit to

HNK? Or that I questioned the integrity of

Unit Manager Mr. Marquis? When he made the

statement as to that it is my fault I was

beaten up for my coming to prison. It amazes

and bewilders me that for my being beaten up

for being a sex offender and I'm being

charged with the assault.

But this complaint--even allowing a broad, liberal reading of its

last sentence--merely contested the propriety of the charge that

was brought against him, and does not make any claim that prison

employees knowingly housed him with dangerous inmates and then

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 10 of 15
6

 While not raised by Ellison, the court recognizes that a

prison that considers the substance of an untimely filed

complaint and decides it on the merits may arguably be deemed to

have waived its right to argue a failure-to-exhaust defense. See

Patel v. Fleming, 415 F.3d 1105, 1111 (10th Cir. 2005); Pozo, 286

F.3d at 1025 (noting that a prison’s acceptance of an untimely

complaint “makes the filing ‘proper’ for purposes of state law

and avoids exhaustion, default, and timeliness hurdles in federal

court”); Ellis v. Vadlamudi, 568 F. Supp. 2d 778, 785 (E.D. Mich.

2008) (equating waiver to the procedural default doctrine

utilized in habeas cases). But such waiver applies only to those

portions of an untimely complaint that the prison considered and

decided on the merits. See Patel, 415 F.3d at 1111 (holding that

prison did not waive its failure-to-exhaust defense where it

rejected the inmate’s untimely complaint on procedural, as

opposed to substantive, grounds). Here, while the Warden and the

Commissioner considered the untimely inmate request slips Ellison

filed, they rejected his purported appeals on the basis that they

found no due process violations or excessive sanctions attendant

to his disciplinary hearing. There is no evidence that the

11

failed to protect him. See PPD 1.16 (IV)(A) (“A request slip

must contain sufficient detail to allow for investigation”). 

As already mentioned, Ellison believes that he fulfilled

“the first step” in the proper exhaustion of his claims in an

inmate request slip that he submitted on October 25, 2006. But

even if there was any evidence that this slip asserted the claims

at bar in this suit--which there is none--he failed to file the

slip until well after the 30 day window for doing so had expired. 

See PPD 1.16 (IV)(A)(1). By failing to bring these claims to the

prison’s attention in a timely manner, as dictated by the

prison’s policy, he failed to follow the “deadlines and other

critical procedural rules” necessary for PLRA exhaustion.6 See

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 11 of 15
prison either considered or decided Ellison’s endangerment and

failure to protect claims; therefore, the court finds that the

defendants did not waive their failure-to-exhaust defense with

respect to those claims. 

12

Woodford, 548 U.S. at 90; see also Tauer v. Werholtz, No.

05-3196, 2006 WL 446069, at *3 (10th Cir. 2006) ("a time-barred

grievance is not considered exhausted”); Pozo, 286 F.3d at 1023

("unless the prisoner completes the administrative process by

following the rules the state has established for that process,

exhaustion has not occurred”). 

Even assuming, arguendo, that Ellison filed a timely inmate

request slip grieving his constitutional claims, none of his

appeals before the court were filed on the required forms. See

PPD 1.16 (B), (C) (notifying inmates that appeals must be filed

on grievance forms, as opposed to inmate request slips, both of

which are attached to the policy itself); see also Farthing, 2008

WL 5377942, at *3 (dismissing complaint where plaintiff failed to

use the appropriate forms called for under the prison’s grievance

policy). This is not merely the elevation of form over

substance; use of the proper form facilitates the correctional

administrators’ assessment and analysis of an appeal’s content,

and apprises them of the events and prior grievance and complaint

procedures it arises from and to which it relates back. Because

these untimely filed, improperly submitted complaints and appeals

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 12 of 15
13

did not constitute proper exhaustion under the PLRA and Woodford,

548 U.S. at 90, the defendants are entitled to judgment as a

matter of law. 

The court will briefly touch upon two other arguments raised

by Ellison. First, he argues that any mistakes he made in

exhausting his claims should be excused because “[a]s a Sui Juris

Plaintiff representing himself and not being educated in the law”

he “cannot be held to want of form.” (Pl.’s Opp’n to Mot. for

Summ. J. ¶1). But as the 7th Circuit Court of Appeals has

pointed out, “the PLRA does not permit liberalized standards for

pro se plaintiffs on the theory of ‘substantial compliance’ with

exhaustion requirements.” Conway v. Thurmer, No. 01-2837, 2002

WL 1370051, at *2 (7th Cir. June 24, 2002); see also Woodford,

548 U.S. at 103 (noting that an inmate’s argument that “requiring

proper exhaustion is harsh for prisoners, who generally are

untrained in the law and are often poorly educated . . .

overlooks the informality and relative simplicity of prison

grievance systems”). Since the vast majority of claims subject

to the PLRA exhaustion requirement are brought by pro se

plaintiffs, excusing them from the requirements would be

tantamount to eliminating it altogether. Second, Ellison argues

that he should not be held to the strict requirements of the

grievance policy because “the very Grievance forms needed are in

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 13 of 15
7

 The record shows that Ellison filed at least 22 inmate

request slips in the year following September 12, 2006. 

14

the possession and control of the very Unit Managers in which the

Plaintiff was Grieving. He felt his safety was in jeopardy.” It

is true that in situations where an inmate believes that filing a

first level grievance may subject him to harm, the policy allows

him to skip the request slip process and immediately file an

emergency grievance with the Warden. See PPD 1.16(IV)(A)(4);

Inmate Manual, § D(3). But notwithstanding the fact that an

inmate must apply for, and be granted, a waiver before filing an

emergency grievance, see PPD 1.16 (IV)(A)(4), this exception does

not help Ellison here. As Ellison conceded at oral argument, he

was in fact able to obtain and file numerous inmate request slips

soon after the incident underlying his complaint, including three

in the 30 days following his altercation,7 and he makes no claim

that he had any difficulty obtaining them. 

V. Conclusion

Even after reviewing the record in the light most favorable

to Ellison, the court discerns no evidence to suggest that he

properly exhausted his administrative remedies with regard to the

claims involved in this litigation. See Woodford, 548 U.S. at

90. The defendants’ motion for summary judgment (document no.

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 14 of 15
15

55) on their failure-to-exhaust defense is therefore granted. 

Ellison’s claims are dismissed without prejudice. All other

pending motions are denied as moot. The clerk shall enter

judgment accordingly and close the case. 

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Date: February 19, 2009

cc: Tony L. Ellison, pro se

Danielle Leah Pacik, Esq.

Case 1:07-cv-00131-JL Document 72 Filed 02/19/09 Page 15 of 15