Palermo v. Edmark et al
///ORDER granting 26 Motion for Summary Judgment. Case is dismissed under Section 1997e(a). Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Civil No. 11-cv-506-JD
Opinion No. 2012 DNH 159
Michael Edmark, et al.
O R D E R
Christopher Palermo brings a civil rights action under 42
U.S.C. § 1983 against corrections officers at the New Hampshire
State Prison for Men, alleging that the officers attacked and
beat him on two occasions while he was incarcerated at the
Palermo’s counsel withdrew, effective July 10, 2012.
Palermo is now proceeding pro se.
The defendants move for summary judgment on the ground that
Palermo failed to exhaust available administrative remedies as
required by 42 U.S.C. § 1997e(a).
Palermo objects, arguing that
he raised the issues that form the basis for his claims in
correspondence to prison officials, during an investigatory
interview, and in a grievance that was denied as untimely filed.
Palermo also contends that he requested a grievance form that was
never provided to him.
The defendants filed a reply to address
Palermo’s version of events.
Standard of Review
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
A party opposing summary judgment “must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Material facts are “facts that might affect the outcome of the
suit under the governing law.”
Id. at 248.
The court considers
the undisputed material facts and all reasonable inferences from
those facts in the light most favorable to the nonmoving party.
Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011).
party opposing summary judgment “cannot rest on conclusory
allegations, improbable inferences, or unsupported speculation to
defeat a motion for summary judgment,” but instead “must set
forth specific facts showing that there is a genuine issue for
Barry v. Moran, 661 F.3d 696, 703 (1st Cir. 2011)
(internal quotation marks omitted).
Under the local rules of this district, the party moving for
summary judgment must provide “a short and concise statement of
material facts, supported by appropriate record citations, as to
which the moving party contends there is no issue to be tried.”
In response, the objection must include “a short
and concise statement of material facts, supported by appropriate
record citations, as to which the adverse party contends a
genuine dispute exists so as to require a trial.”
Further, “[a]ll properly supported material facts set forth in
the moving party’s factual statement shall be deemed admitted
unless properly opposed by the adverse party.”
In their reply to Palermo’s objection to summary judgment,
the defendants repeatedly refer to Palermo’s response as being
based on “unsworn allegations.”
Palermo, however, filed his
declaration in support of his objection to summary judgment in
which he purported to swear to the truth of all facts stated in
his objection under penalty of perjury.
The defendants did not
move to strike any part of Palermo’s declaration or object to it
in any way.
Therefore, the facts in the objection are
considered, for purposes of the current motion for summary
judgment only, as if they were presented in an affidavit in
compliance with Rule 56(c)(4).
See Desrosiers v. Hartford Life &
Accident Co., 515 F.3d 87, 91-92 (1st Cir. 2008); Perez v. Volvo
Car Corp., 247 F.3d 303, 314-15 (1st Cir. 2001); Lacey v. Lumber
Mut. Fire Ins. Co. of Boston, 554 F.2d 1204, 1205 (1st Cir.
1977); Aftokinito Props., Inc. v. Millbrook Ventures, LLC, 2010
WL 2108225, at *1, n.1 (D.N.H. May 25, 2010).
During the incidents at issue in this case, Palermo was a
New Hampshire inmate, and the incidents occurred at the New
Hampshire State Prison for Men (“NHSP”).2
However, Palermo was
housed in a Rhode Island prison pursuant to an interstate
transfer in 2008 until he was returned to the NHSP in April of
While Palermo was in Rhode Island, he was returned to New
Hampshire on several occasions for court proceedings.
contends that during one of the times he was returned to New
Hampshire, on March 24, 2009, he was attacked by guards at the
NHSP, which required treatment at Catholic Medical Center.
Palermo further contends that after receiving medical treatment
he was put on a stretcher restraint and returned to Rhode Island
the same day.3
The background information pertains to the issue of
administrative exhaustion and does not include representations
and evidence pertaining to the merits of Palermo’s claims.
The court notes that although Palermo currently provides
his address at the NHSP, he represents in his objection to
summary judgment that he was released on parole in January of
The defendants provide evidence that Palermo was returned
to Rhode Island the next day, and in his surreply Palermo agrees.
The defendants provide evidence that Palermo did not file an
inmate request form about the March 24, 2009, incident within the
time allowed to do so.
Palermo contends that when he returned to
Rhode Island he asked a “Captain of the High Security Center”
about the incident and requested a grievance form.
told Palermo that he would have to write to the NHSP about the
Palermo states that the next day he sent a letter to Denise
Heath, who was the interstate compact coordinator at the NHSP.
When he did not get a response for two weeks, he sent another
letter to Heath.
He contends that in both letters he requested
Palermo was returned to New Hampshire for the
period from April 8 to April 28, 2009, and was housed at the
Northern New Hampshire Correctional Facility during that time.4
Palermo contends that when he asked for a grievance form he was
told to send a request asking for a form.
Palermo states that he
sent a request for a grievance form but because his stay was
short, he did not receive a response.
Palermo states that after he returned to Rhode Island he
wrote to the NHSP Warden, Richard Gerry, about the March 24,
Although Palermo states that he was housed in the Secure
Housing Unit, the prison records show that he was not. In his
surreply, Palermo agrees that he was housed at the Northern New
Hampshire Correctional Facility.
When he received no response, he wrote to the
“Commissioner of Corrections.”
Palermo states that he made other
efforts to complain about the March 24 incident when he was in
New Hampshire but provides no dates or detail about those
complaints other than that he “voiced his complaint” during an
Palermo further states that he filed
grievances about the March 24 incident in 2011.
The defendants note that Palermo does not provide dates as
to when he sent letters to the Warden and the Commissioner or any
supporting evidence that the letters were sent.
provide the affidavits of the secretary to the Warden and an
administrative assistant in the Commissioner’s office who explain
the process used in each office to keep records of grievances and
correspondence and who state that there is no record of letters
from Palermo or any grievance about the March 24 incident that
were sent before 2011.
Palermo states that the second incident underlying his
claims occurred on June 17, 2011.
He contends that a prison
guard, Michael Mosher, used a taser on him.
incident, he was moved to the Secure Psychiatric Unit because he
had attempted suicide.
Palermo states that when he discovered he
had been hit and burned by a taser, he filed requests and
grievances about the incident.
He states that his grievances
addressed to the Commissioner were intercepted and answered by
the Warden and that others were not returned.
The defendants provide evidence that Palermo did not file an
inmate request slip, the first step in the grievance process,
about the June 17, 2011, incident, although he filed request
slips about many other issues.
The defendants show that on
September 12, 2011, the Warden received a grievance from Palermo
about an incident identified as having occurred on July 17, 2011.
Although Palermo stated in the grievance that he had been tased
by Mosher, the incident involving tasing occurred on June 17,
The formal grievance process at the NHSP is provided in New
Hampshire Department of Corrections Policy and Procedure
Directive (“PPD”) 1.16 and involves three steps.
At the first
step, the inmate must file an inmate request slip within thirty
days of the incident which includes enough detail about the
complaint to allow an investigation.
PPD 1.16, IV, A.
request slip should be addressed to the lowest level staff person
with authority to address the issue.
answered within fifteen days.
The request is to be
At the second step, the inmate must complete a grievance
form that is directed to the Warden within thirty days from the
date of the response to the inmate’s request.
PPD 1.16, IV, B.
A grievance will not be accepted unless it shows that the first
step has been completed.
The third step is an appeal to the
Commissioner that must be filed within thirty days of the date of
the Warden’s response to the grievance.
PPD 1.16, IV, C.
the appeal will not be accepted unless it demonstrates that the
second step has been completed.
The defendants seek summary judgment on the ground that
Palermo failed to exhaust the administrative remedies available
to him, specifically the process provided by PPD 1.16.
objects to summary judgment, arguing that he made a good faith
effort to comply with the administrative process.
The Prison Litigation Reform Act of 1995 provides that “[n]o
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
42 U.S.C. § 1997e(a).
Section 1997e(a) requires
Woodford v. Ngo, 548 U.S. 81, 88 (2006).
Proper exhaustion means that a prisoner must complete the
grievance process in the manner required by the prison.
Bock, 549 U.S. 199, 218 (2007).
Therefore, a complaint that is
not filed in the time and manner provided in the prison’s
administrative procedure does not exhaust the administrative
See Woodford, 548 U.S. at 92-103; Acosta v. U.S.
Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006); Lassalle-Pitre
v. Mercado-Cuevas, 839 F. Supp. 2d 471, 474 (D.P.R. 2012).
In this case, the undisputed facts establish that Palermo
did not file an inmate request slip about either the March 24,
2009, incident or the June 17, 2011, incident.
To the extent
Palermo made complaints about the incidents in other contexts,
that did not comply with the requirements of PPD 1.16.
agrees that he did not follow the procedure provided by PPD 1.16.
Palermo’s suggestion that he was precluded from following
the process provided by PPD 1.16 is not supported by the record.
Gebo v. Thyng, 2012 WL 2061693, at *5 (D.N.H. June 7, 2012).
Further, the Warden denied Palermo’s grievances filed in
September and October of 2011 on the ground that they were
untimely and did not follow the prescribed procedure.
argument in his surreply that the Warden addressed his complaints
on the merits, despite their untimeliness, is not supported by
Therefore, the record presented for summary judgment shows
that Palermo did not exhaust the NHSP’s administrative remedies
as to either of the incidents that form the basis of his claims
in this case.
As a result, his case must be dismissed under
§ 1997e(a) for failure to exhaust administrative remedies.
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 26) is granted.
The case is
dismissed under § 1997e(a).
The clerk of court shall enter judgment accordingly and
close the case.
Joseph A. DiClerico, Jr.
United States District Judge
September 12, 2012
Russell F. Hilliard, Esquire
Christopher M. Palermo 12437, pro se
Nancy J. Smith, Esquire