UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bryan Bernard a/k/a

Joseph Vaillancourt,

Plaintiff

v. Civil No. 07-cv-327-SM

Opinion No. 2009 DNH 001

William L. Wrenn, Bruce W.

Cattell, Tim Moquin,

Christopher Shaw, and

Todd Ash,

Defendants

O R D E R

After preliminary review by the magistrate judge (document

no. 7), which review was approved on March 20, 2008 (document no.

11), this case consists of one claim, brought pursuant to 42

U.S.C. § 1983. Plaintiff Bryan Bernard asserts that defendants

violated his Eighth Amendment rights by crushing him four times

with electronic doors while he was incarcerated in the secured

housing unit at the New Hampshire State Prison (“NHSP”). Before

the court is defendants’ motion for summary judgment, in which

they argue that plaintiff cannot proceed with his claim because

he has failed to exhaust the administrative remedies available to

him, as required by the Prison Litigation Reform Act (“PLRA”), 42

U.S.C. § 1997e. Plaintiff objects. Defendants’ motion for

summary judgment is necessarily granted. 

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1 That disposition was recommended in the magistrate judge’s

preliminary review, to which plaintiff did not object.

2

Plaintiff’s principal argument in opposition to summary

judgment is that defendants’ motion relies upon the PLRA, while

he brought his claims under the Americans With Disabilities Act

(“ADA”). That argument misses the point.

First, plaintiff’s ADA claim was dismissed on March 20,

2008.1 So, this is not an ADA case. Second, even if plaintiff

had an ADA claim, it would be subject to the PLRA. See O’Guinn

v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060-61 (9th Cir. 2007)

(“The plain language of the PLRA, as well as Supreme Court and

Ninth Circuit precedent, lead us to conclude that exhaustion is

required for ADA . . . claims.”); Jones v. Smith, 109 Fed. Appx.

304, 307 (“The plain language of [42 U.S.C.] § 1997e(a) requires

prisoner actions under ‘any’ federal law to meet the exhaustion

requirement, and we thus decline Plaintiff’s invitation to exempt

ADA suits.”); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)

(applying PLRA exhaustion requirement to prisoner’s ADA claim);

Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 442-43

(S.D.N.Y. 2004) (dismissing prisoner’s ADA claim for failure to

exhaust); see also Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374,

376-77 (7th Cir. 2000) (holding that PLRA physical-injury

requirement, 42 U.S.C. § 1997e(e), applies to ADA claims brought

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3

by prisoners); Davis v. District of Columbia, 158 F.3d 1342,

1348-49 (D.C. Cir. 1998) (same); but see Parkinson v. Goord, 116

F. Supp. 2d 390, 398-99 (W.D.N.Y. 2000) (holding that PLRA

exhaustion requirement did not apply to ADA claims).

Defendants move for summary judgment on plaintiff’s Eighth

Amendment claim on grounds that plaintiff has not satisfied the

PLRA exhaustion requirement. Under the PLRA:

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). Moreover, the PLRA requires “proper

exhaustion,” Woodford v. Ngo, 548 U.S. 81, 93 (2006), defined as

“compliance with an agency’s deadlines and other critical

procedural rules,” id. at 90. “[F]ailure to exhaust is an

affirmative defense under the PLRA.” Jones v. Bock, 549 U.S.

199, 216 (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. Rodriguez-Mateo,

292 F.3d 31, 36 (1st Cir. 2002). 

The incidents at issue allegedly took place on April 11,

April 16, and June 22, 2005. Plaintiff alleges a fourth

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incident, but does not indicate when it occurred. The NHSP

employs a three-step process for the resolution of inmate

complaints. See Knowles v. N.H. Dep’t of Corr., 538 F. Supp. 2d

453, 458 (D.N.H. 2008). 

Defendants have shown that with regard to the incidents on

April 11 and 16, plaintiff skipped the first and third steps in

the NHSP complaint process, and that with regard to the incident

on June 22, he skipped the second and third steps. Defendants’

evidence includes affidavits from NHSP employees in which they

testify that they were unable to locate inmate request forms

(step one), grievance forms (step two), or appeals to the

Commissioner (step three), in the institutional files where such

documentation is normally maintained. 

In his objection to summary judgment, plaintiff asserts that

he did exhaust his remedies. As for the lack of documentation in

NHSP files, plaintiff agrees that there is none. That is so, he

says, because rather than returning the institutional copies of

the triplicate inmate request and grievance forms he submitted,

he kept both the yellow copy he was instructed to retain and the

white copy he was instructed to return for filing in his offender

record. While plaintiff asserts, in his objection to summary

judgment, that he possesses documentation showing that he

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exhausted his administrative remedies, he has produced neither

the documents he claims to have nor any other evidence that he

has satisfied the PLRA exhaustion requirement. That is not

enough to overcome defendants’ properly supported summary

judgment motion. See Torres-Negron v. Merck & Co., 488 F.3d 34,

39 (1st Cir. 2007) (explaining the burden of production that must

be carried by a party opposing summary judgment).

Because the undisputed factual record demonstrates that

plaintiff has not exhausted his administrative remedies,

defendants are entitled to dismissal of plaintiff’s claims. See

Medina-Claudio, 292 F.3d at 36. Accordingly, defendants’ motion

for summary judgment (document no. 18) is granted. The clerk of

the court shall enter judgment in accordance with this order and

close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 6, 2009

cc: Bryan Bernard, pro se

Nancy J. Smith, Esq.

John Vinson, NH DOC

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