UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anthony Cabrera,

Plaintiff

v. Civil No. 07-cv-40-SM

Opinion No. 2008 DNH 015

Ryan LeVierge, individually;

Matthew Poulicakos, individually;

and James M. O’Mara, Jr.,

individually and as Superintendent

of the Hillsborough County

Department of Corrections,

Defendants

O R D E R

Anthony Cabrera, 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

defendants’ motion to dismiss plaintiff’s federal claims 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 is denied.

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

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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

(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 &

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

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

Background

Anthony Cabrera entered the Hillsborough County House of

Corrections on December 26, 2005, as a pre-trial detainee. He

was transferred on January 10, 2006, to the Merrimack County

House of Corrections where he remained until early February, when

he was transferred to the New Hampshire State Prison, where he

currently resides. 

In his complaint, Cabrera alleges that on December 26,

correctional officers LeVierge and Poulicakos pushed him against

the wall of his cell, took him to the floor, beat him, and kicked

him, and, in the process, gave him a severe facial cut, broken

nose, ruptured eardrum, and other injuries. (Compl. ¶¶ 9-10.) 

He also alleges that during the course of his incarceration: (1)

he was left naked for several days; (2) his cell was kept

unusually cold; (3) he lost significant weight because he was

deprived of adequate food; and (4) he was not given prescribed

medications in a timely manner. (Id. ¶ 14.)

When Cabrera was incarcerated in the HC HOC, inmates there

had the benefit of the following grievance procedure:

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If you have a grievance concerning any matter relating

to your confinement, a grievance procedure is available

to you. The first step of the grievance procedure is

an informal resolution. You must make a genuine

attempt to seek an informal resolution of your problem

with the staff member concerned. The second step will

normally be done in the Request Form format. Fill out

an Inmate Request Form stating your problem and

suggested remedy. Submit the form to your Unit

Officer. All request forms will be answered within

seven (7) working days of receipt. If you are

dissatisfied with the response to your Inmate Request

Form, you may file an Inmate Grievance Form to a

Captain or his designee, within 48 hours of receipt of

your Request Form response. The Captain or his

designee has fifteen (15) working days from receipt to

review your grievance and reply.

(Defs.’ Add’m/Attach. (document no. 18), at 15.) As defendants

concede, “the only time limitation [in the process described

above is] that the inmate [must] file his grievance within 48

hours of a reply to his request form, the second step of the 3

part process.” (Defs.’s Reply, at 7; see also id. at 9.) 

During the fifteen days of his incarceration at the HC HOC,

Cabrera did not file any grievances, (Defs.’ Mot to Dismiss, Ex.

1 (O’Mara Aff.) ¶ 6), although he did file one request form,

seeking paper and envelopes (id.).

By letter dated September 28, 2006, Attorney Michael Sheehan

submitted an inmate grievance form, on Cabrera’s behalf, to

Captain David Dionne of the Hillsborough County Department of

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Corrections (“HC DOC”). (Pl.’s Obj., Ex. 5, at 1.) The “brief

description” section of the grievance form stated: “On December

26, 2006, I was assaulted by Sgt. LeVierge and CO Poulicakos

while in my cell on Unit 1A. This assault was without cause and

constituted a violation of my constitutional rights. I write to

ask that you investigate this matter and take appropriate

corrective action.” (Id. at 2.) Shortly thereafter, Carolyn M.

Kirby, legal counsel for Hillsborough County, returned the

grievance form to Attorney Sheehan, stating in her cover letter: 

Enclosed please find the “grievance” you forwarded

to Captain Dionne at the Hillsborough County Department

of Corrections on behalf of your client, Anthony

Cabrera.

I am returning the grievance to you as it does not

conform to the procedure set forth in the HCDOC inmate

handbook which, in any event, is no longer available to

your client as he is not in the custody of the HCDOC. 

In the future, please direct all correspondence to

my clients through counsel.

(Id., Ex. 6.) Attorney Sheehan responded:

I received your letter of October 10 which

“return[ed] the grievance to [me] as it does not

conform to the procedure set forth in the HCDOC inmate

handbook.” Please advise how the grievance did not

adhere to the procedure so I may correct the error.

Despite your opinion that the process “is no

longer available to [Mr. Cabrera] as he is not in the

custody of the HCDOC,” the courts are requiring inmates

to exhaust administrative remedies even when common

sense circumstances suggest otherwise. Specifically,

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1 Defendants do not specifically request dismissal with

prejudice, but given their adoption of the position stated by

Attorney Kirby in her letter to Attorney Sheehan, it seems safe

to assume that is what they seek, rather than dismissal without

prejudice.

6

some courts have required inmates to exhaust remedies

in facilities they have left (such as Mr. Cabrera

here).

Therefore, I am obligated to continue to try to

properly exhaust HCDOC remedies unless you will

stipulate that any HCDOC remedy is no longer

“available” to Mr. Cabrera, as that term is defined in

the PLRA, and that you will not raise “failure to

exhaust” HCDOC internal remedies as a defense to any

civil claim he may bring.

(Id., Ex. 7.) Attorney Sheehan received no response. (Id., Ex.

8 (Sheehan Aff.).) 

This action followed. Count I asserts an excessive force

claim based upon the incident that allegedly took place on

December 26, while Count V asserts a claim based upon the general

conditions of plaintiff’s confinement, including allegations

concerning such things as lack of clothing, the temperature of

his cell, inadequate nutrition, and the failure to provide him

with prescription medications in a timely manner.

Discussion

Defendants move to dismiss,1 arguing that plaintiff failed

to exhaust the administrative remedies available to him. 

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Specifically, they argue that plaintiff did not grieve either the

alleged assault or the conditions of his confinement before he

was transferred out of the HC HOC and that his attorney’s attempt

to file a grievance on his behalf, approximately ten months

later, was ineffective because: (1) the grievance form that

plaintiff’s attorney mailed to Capt. Dionne had not been issued

to plaintiff by the HC DOC, but was obtained from some other

source; (2) the form was submitted by someone other than

plaintiff himself; and (3) plaintiff was not an HC HOC inmate at

the time the form was submitted. Stated more simply, defendants’

argument is this: plaintiff had administrative remedies available

to him while he was incarcerated in the HC HOC, but forfeited

those remedies, and his right to seek relief in court, by failing

to invoke the HC DOC grievance procedure before he was

transferred to another correctional facility. Defendants’

position is not supported by the applicable law.

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). More specifically:

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The PLRA does not require the exhaustion of all

administrative remedies, but only those that are

“available” to the inmate. 42 U.S.C. § 1997e(a). To

be “available” under the PLRA, a remedy must afford

“the possibility of some relief for the action

complained of.” Booth v. Churner, 532 U.S. 731, 738,

(2001). . . . “Without the possibility of some relief,

the administrative officers would presumably have no

authority to act on the subject of the complaint,

leaving the inmate with nothing to exhaust.” Booth,

532 U.S. at 736 n.4.

Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (parallel

citations omitted).

In Woodford v. Ngo, the Supreme Court explained “that the

PLRA exhaustion requirement requires proper exhaustion.” 126 S.

Ct. 2378, 2387 (2006). “Proper exhaustion demands compliance

with an agency’s deadlines and other critical procedural rules

because no adjudicative system can function effectively without

imposing some orderly structure on the course of its

proceedings.” Id. at 2386 (footnote omitted). “To exhaust

remedies, a prisoner must file complaints and appeals in the

place, and at the time, the prison’s administrative rules

require.” Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st

Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th

Cir. 2002)).

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

PLRA.” Jones v. Bock, 127 S. Ct. 910, 921 (2007). Once that

defense has been asserted,

a three-part inquiry is appropriate in cases where a

prisoner plaintiff plausibly seeks to counter

defendants’ contention that the prisoner has failed to

exhaust available administrative remedies as required

by the PLRA, 42 U.S.C. § 1997e(a). Depending on the

inmate’s explanation for the alleged failure to

exhaust, the court must ask whether administrative

remedies were in fact “available” to the prisoner.

Abney v. McGinnis, 380 F.3d 663 [(2d Cir. 2004)]. The

court should also inquire as to whether the defendants

may have forfeited the affirmative defense of nonexhaustion by failing to raise or preserve it, Johnson

v. Testman, 380 F.3d 691 [2d Cir. 2004)], or whether

the defendants’ own actions inhibiting the inmate’s

exhaustion of remedies may estop one or more of the

defendants from raising the plaintiff’s failure to

exhaust as a defense, Ziemba [v. Wezner], 366 F.3d

[161,] 163 [(2d Cir. 2004)]. If the court finds that

administrative remedies were available to the

plaintiff, and that the defendants are not estopped and

have not forfeited their non-exhaustion defense, but

that the plaintiff nevertheless did not exhaust

available remedies, the court should consider whether

“special circumstances” have been plausibly alleged

that justify “the prisoner’s failure to comply with

administrative procedural requirements.” Giano v.

Goord, 380 F.3d 670 [(2d Cir. 2004)] (citing Berry v.

Kerik, 366 F.3d 85, 88 (2d Cir. 2003); Rodriguez

order).

Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). When a

plaintiff making a claim based upon prison conditions fails to

exhaust his administrative remedies, without a valid excuse for

that failure, the defendant is entitled to dismissal of the

unexhausted claims in the complaint. See Medina-Claudio v.

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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 which called for dismissal of entire complaint

containing exhausted and unexhausted claims).

Here, the undisputed factual record demonstrates that during

the fifteen days plaintiff spent in the HC HOC, he did not

utilize the HC DOC grievance procedure to seek redress for either

the December 26 incident or the general conditions of his

confinement. The record also demonstrates that by the time

plaintiff’s counsel, Attorney Sheehan, attempted to invoke the HC

DOC grievance procedure on his behalf – by filing an inmate

grievance form with Capt. Dionne – that procedure was no longer

available to plaintiff, and had been unavailable since the date

of his transfer out of the HC HOC. That is, as the HC DOC

construes its own procedures, plaintiff was no longer able to

take advantage of those procedures, given his transfer.

It is well established that “a prisoner must file complaints

and appeals in the place, and at the time, the prison’s

administrative rules require,” Acosta, 445 F.3d at 512 (citation

omitted), and that “a prisoner [cannot] satisfy the Prison

Litigation Reform Act’s exhaustion requirement . . . by filing an

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untimely or otherwise procedurally defective administrative

grievance or appeal,” Woodford, 126 S. Ct. at 2382.

In this case, however, and notwithstanding defendants’

reference to plaintiff’s “lack of a timely grievance,” (Defs.’

Mot. to Dismiss, at 10), the grievance was not untimely because

the jail’s procedures do not impose a time limit. Defendants

concede that the HC DOC procedures place no time limit upon the

initiation of a grievance.

The question remains, however, whether plaintiff’s grievance

was procedurally defective for some other reason. If so, and

defendants properly rejected it, then plaintiff’s claim must be

dismissed for failure to exhaust. See Woodford, 126 S. Ct. at

2386-87; Acosta, 445 F.3d at 512. But, if plaintiff’s grievance

was not procedurally defective, and Attorney Kirby’s rejection of

it rendered administrative remedies unavailable, then plaintiff

is excused from the exhaustion requirement. See Abney, 380 F.3d

at 667 (“[d]efendants may . . . be estopped from raising nonexhaustion as an affirmative defense when prison officials

inhibit an inmate’s ability to utilize grievance procedures . . .

[and] exhaustion may be excused where prison officials otherwise

prevent [an inmate] from seeking his administrative remedies”)

(citations omitted).

Case 1:07-cv-00040-SM Document 22 Filed 01/24/08 Page 11 of 15
2 Superintendent O’Mara testified that “[p]er our procedure,

an inmate must use a request form in order to obtain a formal

grievance form (each of which bears an identifying control

number),” (O’Mara Aff. ¶ 4), but in their reply brief, defendants

state, without citation to the record, that “request and

grievance forms . . . are present and available on every housing

unit at the jail,” (Defs.’ Reply, at 7). 

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“When determining whether an administrative remedy is

available, courts ‘should be careful to look at the applicable

set of grievance procedures.’” Abney, 380 F.3d at 668 (quoting

Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)). While

defendants’ position regarding the procedures for obtaining

inmate grievance forms is somewhat difficult to determine,2 it is

undisputed that the HC DOC grievance procedure, as described in

the HC DOC inmate handbook: (1) does not require that an inmate

use a request form prior to submitting a grievance form; it

merely provides that “[t]he second step will normally be done in

the Request Form format;” (2) does not place a time limit on the

initiation of inmate grievances; (3) does not bar the submission

of grievance forms that have not been issued and bates stamped by

jail officials; (4) does not bar grievances from inmates who have

been transferred or released; and (5) does not bar the submission

of a grievance on an inmate’s behalf by an authorized agent, like

legal counsel. Thus, nothing in the procedures, as formalized,

would seem to prohibit an inmate from filing a grievance after he

is transferred or released from the HC HOC.

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3 Specifically, O’Mara described the deficiencies in

plaintiff’s grievance form in the following way:

The letter [from Attorney Sheehan] included one of our

form grievances. However, all of our grievances are

bates-stamped with control numbers to ensure that we

can monitor distribution and return. Further, the

request forms seeking grievance forms will be returned

to inmates and will reference the control number. 

There is no record in Cabrera’s institutional file of

his requesting or being provided a grievance form. 

Therefore, we are unaware where Attorney Sheehan

obtained this form. Additionally, the form he used

seems to show a three-hole punch in the left margin,

something that would not be present on the forms we

number and provide to inmates. The timing, manner of

submission, Cabrera’s absence from our institution and

the lack of the control numbers all deviate from our

grievance process.

(O’Mara Aff. ¶ 8.)

13

The HC DOC grievance procedure does call for inmate

grievance forms to be submitted “to a Captain or his designee,”

and Attorney Sheehan did, in fact, mail plaintiff’s grievance to

Capt. Dionne. To be sure, Superintendent O’Mara’s affidavit

refers to various procedures with which plaintiff did not comply

when submitting his grievance form,3 but because none of those

procedures are described in the inmate handbook, or in any other

iteration of HC DOC rules and regulations to which plaintiff had

actual or constructive access, plaintiff’s assertedly defective

submission is fundamentally different from the grievance at issue

in Woodford (which was submitted after the expiration of a duly

promulgated time limit). Woodford, 126 U.S. at 2382. 

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In other words, unlike the plaintiff in Woodford, who caused

administrative remedies to be unavailable, by failing to comply

with established procedural rules, id., the most that can be said

about Cabrera is that he ran afoul of alleged procedural rules

that he had no way of knowing about. Defendants’ reliance upon

undisclosed rules to reject plaintiff’s grievance form

necessarily estops them from relying upon plaintiff’s failure to

exhaust those remedies as a defense. On this factual record, it

is plain that Cabrera is not the kind of plaintiff that inspired

the Second Circuit to explain that “allowing prisoners to bypass

administrative procedural rules with impunity would subvert

Congress’s desire to “afford[ ] corrections officials time and

opportunity to address complaints internally before allowing the

initiation of a federal case.” Giano, 380 F.3d at 677-78

(quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)) (footnote

omitted). The exhaustion requirement is meant to facilitate

resolution of disputes at an early stage, in both parties’

interest. Prison facilities are not required to make

administrative remedies available, but if they do, then inmates

are obliged to pursue them as a condition of bringing suit. For

obvious reasons, however, inmates cannot be expected to meet

procedural requirements that are undisclosed, and, where they do

fail to meet undisclosed requirements, prison officials will not

be heard to complain about failure to exhaust.

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Conclusion

For the reasons given, defendants’ motion to dismiss

(document no. 10) 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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