UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Christopher Robinson,

Plaintiff

v. Civil No. 09-cv-083-SM

Opinion No. 2010 DNH 076

Todd Gordon; Jason Riley;

and Hillsborough County,

Defendants

O R D E R

Plaintiff, Christopher Robinson, is currently an inmate at

the New Hampshire State Prison. At all times relevant to this

suit, however, he was a pre-trial detainee, held at the

Hillsborough County House of Corrections (also known as “Valley

Street Jail”). He brings this action seeking compensatory and

punitive damages, claiming he was the victim of various common

law torts and saying defendants violated his constitutionally

protected rights by using excessive force against him during an

incident that occurred in March of 2007. 

Defendants Todd Gordon, Jason Riley, and Hillsborough County

move for summary judgment as to all claims against them. For the

reasons set forth below, defendants’ motion is granted in part,

and denied in part. Gordon is entitled to summary judgment on

all claims. Plaintiff’s federal claims against the remaining

defendants are dismissed, without prejudice. His state common

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law claims, however, are remanded to the New Hampshire Superior

Court. 

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). 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). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Discussion

I. State and Federal Claims against Gordon. 

Plaintiff does not object to defendant Gordon’s motion for

summary judgment. See Plaintiff’s objection (document no. 26) at

para. 12 (“Plaintiff does not object to summary judgment for

Gordon.”) (emphasis in original). Accordingly, the claims

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against Gordon can be disposed of quickly. Summary judgment

shall be entered in Gordon’s favor. 

II. Federal Claims against Hillsborough County and Riley. 

42 U.S.C. § 1997e, as amended by the Prison Litigation

Reform Act of 1995 (“PLRA”), provides that: 

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) (emphasis supplied). The Supreme Court has

held that section 1997(e) requires an inmate to exhaust all

available administrative processes before filing a federal suit

that relates to the conditions of his or her confinement, even if

some or all of the relief the inmate seeks cannot be obtained

through the available administrative processes. Booth v.

Churner, 532 U.S. 731, 734 (2001) (“The question is whether an

inmate seeking only money damages must complete a prison

administrative process that could provide some sort of relief on

the complaint stated, but no money. We hold that he must.”). 

Subsequently, the Supreme Court made explicit that which was

implicit in Booth: the phrase “with respect to prison

conditions,” as used in the PLRA’s exhaustion provision,

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incorporates within its scope not just conditions generally

affecting the inmate population, but also discrete incidents

affecting only a single individual. 

[T]he PLRA’s exhaustion requirement applies to all

inmate suits about prison life, whether they involve

general circumstances or particular episodes, and

whether they allege excessive force or some other

wrong. 

Porter v. Nussle, 534 U.S. 516, 532 (2002). And, most recently,

the Court held that “the PLRA exhaustion requirement requires

proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (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 90-91

(footnote omitted). So, to properly exhaust available

administrative 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)).

The Valley Street Jail has adopted an inmate grievance

procedure, the details of which are set forth in the Inmate

Handbook. 

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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 format. Fill out an 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 designee has fifteen

(15) working days from receipt to review your grievance

and reply unless there are extenuating circumstances. 

Hillsborough County Department of Corrections Inmate Handbook

(document no. 23-3 ) at 20. According to David Dionne, Assistant

Superintendent of the Hillsborough County Department of

Corrections, “Request forms and ultimately, grievance forms are

available from any staff member, on any date and during any of

three shifts of employment. Should an inmate be unable to obtain

a request and/or grievance [form] from one particular officer,

there are multiple staff members an inmate would encounter on any

given day, from whom he could obtain the required documentation.” 

Affidavit of David Dionne (document no. 23-2)at para. 10. 

Plaintiff received a copy of the Inmate Handbook and was

familiar with the jail’s grievance procedure, having invoked it

several times. See Dionne affidavit at para. 5. Yet, with

regard to the alleged assault in March of 2007, he concedes that

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he did not file an inmate request form or an inmate grievance

form and, therefore, failed to exhaust available prison

administrative remedies. See Plaintiff’s objection at para. 14. 

Nevertheless, he asserts that he should be excused from the

PLRA’s exhaustion requirement, arguing that the grievance process

was, at least to him, “unavailable.” Specifically, he says that

following the alleged assault, he asked Corrections Officer

Antilus for a grievance form. But, says plaintiff, Antilus told

him he did not need one. 

Question: Did you ever file a grievance? 

Answer: I attempted to. I was denied that process. 

Q. Who denied that? 

A. I believe it was Officer [Antilus]. 

Q. How did he deny you the ability to file a

grievance? 

A. He said, You don’t need that.

Q. And what did you do? 

A. I accepted that. 

Q. Why? 

A. Because I had seen other circumstances and

situations when inmates angered certain

correctional officers, what the result of

that was. And I was content with accepting

no as an answer. 

Q. If you had seen prior incidents that prompted

you to be afraid to file a grievance why did

you even ask for one? 

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A. Because I was hoping that maybe I was getting

an officer at the time that might actually

give me one. 

Plaintiff’s deposition (document no. 23-4) at 33-34. 

If, as plaintiff suggests, he was hoping to find a

corrections officer who “might actually give [him]” an inmate

request form or grievance form, he certainly could have (and

should have) asked another officer. He did not, suggesting that

he was not interested in exhausting available administrative

remedies. Of course, it is possible that he was genuinely

concerned that his efforts to obtain a request form might anger

Riley. But, even if those fears were genuine, plaintiff has

failed to point to sufficient evidence to suggest that they were

reasonable. 

There may well be circumstances under which prison officials

might be said to have denied an inmate access to the

administrative process by, for example, making a concerted and

coordinated effort to refuse him access to required forms or by

threatening physical violence should he pursue a grievance. See

generally Hemphill v. New York, 380 F.3d 680, 686-88 (2d Cir.

2004); Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005). The

situation described by plaintiff, however, is not one of them. 

Plaintiff was content to let the matter drop, without asking for

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a form from another officer, or grieving the alleged denial by

Antilus. That was his right. But that choice, on this record,

does not come close to excusing his failure to exhaust plainly

available administrative remedies.

Having failed to exhaust available administrative remedies,

plaintiff cannot pursue his claim that defendants violated his

constitutionally protected rights by using excessive force

against him (count six). See 42 U.S.C. § 1997e(a). But, because

it is unclear whether plaintiff is time-barred (or otherwise

precluded) from exhausting those administrative remedies now, the

court will dismiss his federal claim without prejudice to his

ability to re-file it if, or when, he fully complies with the

jail’s inmate grievance procedure. 

III. State Claims against Hillsborough County and Riley.

Having dismissed plaintiff’s federal claim, the court must

next determine whether it is appropriate to exercise supplemental

jurisdiction over his state law claims. Because plaintiff

originally filed this action in state court (defendants removed

the case, invoking this court’s federal question subject matter

jurisdiction), he asks the court to decline to exercise

supplemental jurisdiction over those state law claims and remand

the case to the state superior court. 

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As to the five remaining state law claims in plaintiff’s

complaint, the court declines to exercise its supplemental

jurisdiction. See generally 28 U.S.C. § 1367. Section 1367

provides that the court may decline to exercise supplemental

jurisdiction over a plaintiff’s state law claim when:

(1) the claim raises a novel or complex issue of State

law,

(2) the claim substantially predominates over the

claim or claims over which the district court has

original jurisdiction, 

(3) the district court has dismissed all claims over

which it has original jurisdiction, or 

(4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction. 

28 U.S.C. § 1367(c) (emphasis supplied). To assist district

courts, the Court of Appeals for the First Circuit has identified

the following additional factors that should be considered when

determining whether to exercise supplemental jurisdiction over

state law claims: (1) the interests of fairness; (2) judicial

economy; (3) convenience; and (4) comity. See Camelio v.

American Fed’n, 137 F.3d 666, 672 (1st Cir. 1998). With regard

to principles of fairness and comity, the Supreme Court has

observed:

Needless decisions of state law should be avoided both

as a matter of comity and to promote justice between

the parties, by procuring for them a surer-footed

reading of applicable law. Certainly, if the federal

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claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state

claims should be dismissed as well. 

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote

omitted). 

Given that the court has dismissed the sole federal claim in

plaintiff’s complaint, and taking into consideration plaintiff’s

expressed preference to litigate his state common law claims in

state court, the court declines to exercise supplemental

jurisdiction over the state law claims in counts one through five

of plaintiff’s complaint. 

Conclusion

Defendant Gordon is granted summary judgment as to all

claims advanced against him in plaintiff’s complaint. As to the

remaining defendants, plaintiff failed to properly exhaust

available administrative remedies prior to filing his federal

claim. Accordingly, that federal claim (count six) is dismissed,

without prejudice. See 42 U.S.C. § 1997e(a). The court declines

to exercise its supplemental jurisdiction over the remaining

claims in plaintiff’s complaint and the case shall be remanded to

state court. 

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Defendants’ motion to amend (document no. 23) is granted,

without objection from the plaintiff. Their motion for summary

judgment (document no. 20) is granted in part, and denied in

part, as discussed above. The Clerk of Court shall remand

plaintiff’s five state common law claims against Jason Riley and

Hillsborough County to the New Hampshire Superior Court,

Hillsborough County, Northern District. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

May 5, 2010

cc: Michael J. Sheehan, Esq.

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

Jonathan A. Lax, Esq.

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