Gebo v. Thyng

Filing 39

ORDER granting in part as provided for in the order 37 Motion to Strike Affidavit of David Peters; hearing to be scheduled on 35 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

John W. Gebo
v.

Civil No. 11-cv-047-JD
Opinion No. 2012 DNH 059

Robert Thyng

O R D E R
John W. Gebo, an inmate in the New Hampshire State Prison
system, brings an action pursuant to 42 U.S.C. § 1983 against
Unit Manager Robert Thyng, alleging violation of his Eighth
Amendment rights for failing to protect him from assault by other
inmates.

Thyng moves for summary judgment on the ground that

Gebo failed to exhaust his administrative remedies.
objects.

Gebo

Thyng filed a motion to strike parts of an affidavit

submitted by Gebo in support of his objection, and Gebo also
objects to that motion.

I.

Motion to Strike
Thyng moves to strike certain statements in an affidavit by

David Peters that Gebo submitted in support of his objection to
summary judgment.

Thyng contends that the affidavit includes

statements that cannot be considered for purposes of summary

judgment because they are not based on Peters’s personal
knowledge and are hearsay.

The challenged statements pertain to

the contents of a request slip and to what Gebo told Peters
during a conversation.
Statements in affidavits “are effective in opposing summary
judgment only when they are given on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant . . . is competent to testify about the matter in
question.”

Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011); see

also Fed. R. Civ. P. 56(c)(4).

Hearsay is an out-of-court

statement offered for its truth.

Fed. R. Evid. 801.

Statements

that would otherwise be inadmissible hearsay may be admissible if
they are covered by an exception to the hearsay bar.
Evid. 802.

Fed. R.

Those exceptions include certain statements that are

not hearsay as defined by Rule 801(d), and statements that fall
within the exceptions provided by Rules 803 and 804.
Peters’s statements in his affidavit about his conversation
with Gebo in September of 2009 may be considered to show that
Peters and Gebo met and talked at that time and that they talked
about Gebo having been assaulted and his concern for his safety.
Gebo showed Peters the request slip, and Peters saw Gebo put the
slip in the appropriate box.

Because Peters does not say that he

read the request slip, Peters’s statements about his
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understanding of what the request slip said are hearsay and will
not be considered.

Similarly, Peters’s statement that he

believed the upstairs unit at the prison was easily accessible to
those in the downstairs unit will not be considered for purposes
of summary judgment.

II.

Motion for Summary Judgment
The record presented by the parties for and opposing summary

judgment, as limited by the result above, is considered under the
applicable standard.

A.

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.”
P. 56(a).

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).
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B.

Background
During the events at issue in this case, Gebo was an inmate

at the Northern New Hampshire Correctional Facility.

On

September 2, 2009, Gebo was housed in the general prison
population when he was attacked by other inmates.

Gebo knew that

at least two of the attackers were members of prison gangs, and
he believed he was attacked because he refused to join either
gang.

He was treated at Androscoggin Valley Hospital for

injuries he sustained in the attack.
On his return to the prison, Gebo was given Administrative
Review status.

Initially he was housed in the Health Services

Center at the prison.

The next day, September 3, Gebo told Unit

Manager Robert Thyng that he needed to be placed in protective
custody because he had been assaulted by a known gang member.
Thyng denied his request and returned Gebo to general population.
Gebo states in his affidavit that he then filed a request
slip in which he asked to speak with Thyng and asked for an
explanation of why his request for protective custody was denied.
Peters states in his affidavit that he talked with Gebo in early
September of 2009 about the assault and Gebo’s concern for his
safety and that he saw Gebo put a request slip into the request
slip box outside the sergeant’s office.

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Gebo got no response

from the request slip, and he remained in general population in
the prison.1
On September 5, 2009, Gebo was assaulted again.

Other

inmates threw boiling water on him and hit him with a lock.

Gebo

was treated for burns, lacerations, and bruising at Androscoggin
Valley Hospital.

Again, he was placed on Administrative Review

status, pending an investigation and protective custody issues.
Despite the pending investigation and the assaults, Gebo was
returned to general population housing.

It is not apparent from

the record currently before the court why, after two assaults by
inmates within three days, when both incidents required Gebo to
receive medical treatment, prison officials returned Gebo to the
general population, albeit in a different cell block.
Gebo states in his affidavit that he submitted another
request slip to Thyng, asking for a meeting about the assaults
and his need for protective custody but did not receive a
response.

A few days later, Gebo spoke to another prison

officer, whom he believes was Sergeant Morin, about his
1

Thyng asserts, supported by the affidavit of Christopher
Kench, Director of Security and Training at the prison, that
prison records do not have a request slip filed by Gebo on
September 3, 2009. Gebo’s inmate request slips that Kench found
do not refer to Thyng. The absence of Gebo’s request slip is not
determinative when Gebo supports his assertion that he submitted
request slips and his assertion is supported by affidavits. See
Maraglia v. Maloney, 499 F. Supp. 2d 93, 96 (D. Mass. 2007).
5

situation, and she told Gebo that she would call Thyng.

Gebo

states that he raised the issue again at his classification
review which was held on September 17, 2009, but was told that
protective custody was not an issue for their consideration.2
His classification remained the same.

Gebo talked with Morin

again who suggested he contact another officer, who Gebo believes
was Sergeant McFarland.

Gebo asked McFarland for a grievance

form but was told that he had to wait for a response from his
request slip.
Gebo states that at the beginning of October he complained
to Morin about being in general population.

Morin told Gebo to

write his complaints in a statement, and then she escorted him to
administrative segregation, where he stayed over night.3

When

officers tried to take him back to general population the next
day, Gebo refused to move, saying that he could not stay in
general population because of threats to his safety.

Gebo was

written up for a minor disciplinary offense, and he pleaded
guilty.

When officers returned to move him, Gebo again refused

2

Again, it is not apparent from the current record why this
information would not have been passed along to the appropriate
prison officials, even if it were not a matter for classification
review.
3

The only form in Gebo’s file for October is a request slip
dated October 2, 2009, asking to sign up for an education
program.
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to move and was written up for a major disciplinary offense and
transferred to the secure housing unit.

Gebo remained in the

secure housing unit during November.
Prison officials found several request slips that Gebo filed
in November and December.4

On November 3, he submitted a request

slip asking to have his property brought to him.

On November 12,

he submitted a request slip asking for permission to use a
telephone in another area because the telephone available to him
was broken.

On November 22, Gebo submitted a request slip asking

the director of classifications if he could be transferred to
another state.

On November 27, he asked to speak with the unit

manager, identified as Craig Thyng, apparently about getting
property returned to him from another unit.

On December 6, Gebo

wrote to the director of classifications, saying that it was
“imperative” that he talk to her about his classification status.
He stated that he had been assaulted twice, that he could not be
returned to general population because of the gangs, and that the
secure housing unit was not supposed to be used as a form of
protective custody.

He asked to be transferred to a county jail.

A little over two months after the assaults occurred, on
December 8, 2009, a protection review board was held to consider

4

Gebo’s file also has request slips submitted by him during

2010.
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Gebo’s classification, and the board recommended that Gebo be put
in protective custody.

The classification was approved on

December 10, 2009, with the notation that Gebo would remain in
the secure housing unit pending an out of state transfer.

Gebo

was eventually transferred to Merrimack County House of
Corrections and later to the prison in Concord where he is being
held in protective custody.
Gebo, proceeding pro se and in forma pauperis, filed a
complaint alleging claims under § 1983.

On preliminary review,

the magistrate judge recommended dismissal of Gebo’s Fourteenth
Amendment claim and ordered service on Robert Thyng of Gebo’s
Eighth Amendment claim.

Gebo moved for appointment of counsel,

which was granted on the condition that an attorney would accept
the case on a pro bono basis.

An attorney entered an appearance

on Gebo’s behalf and filed an amended complaint, alleging that
Thyng violated Gebo’s Eighth Amendment rights by failing to
protect him from being assaulted.

C.

Discussion
Thyng moves for summary judgment on the ground that Gebo

failed to exhaust available administrative remedies.
objects to summary judgment.

Gebo

Gebo acknowledges that he did not

follow the prison’s administrative procedures through the entire
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process but argues that his failure to do so should be excused
because he did not get a response to his September request slips
or his oral complaints and because he eventually achieved a
favorable outcome.
As provided under the Prison Litigation Reform Act of 1995,
“[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
exhausted.”

42 U.S.C. § 1997e(a).

“proper exhaustion.”

Section 1997e(a) requires

Woodford v. Ngo, 548 U.S. 81, 88 (2006).

Proper exhaustion requires a prisoner to complete the grievance
process in the manner required by the prison.

Jones v. Bock, 549

U.S. 199, 218 (2007).
The New Hampshire Department of Corrections has a threelevel grievance procedure.

“Grievances and Complaints by Persons

under DOC Supervision,” PPD 1.16 (May 15, 2007).

The first level

requires an inmate to submit a request slip to the lowest level
staff person with authority to address the issue.

A response to

a request slip is to be provided to the inmate within fifteen
days.

The request slip step may be waived only “when the inmate

can demonstrate that using the process is likely to result in
identifiable risk of harm to their [sic] physical safety or
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psychological well-being.”

Id. IV(A)(4).

The second level

requires that within thirty days after receiving a response to a
request slip, the inmate must submit a grievance form to the
warden.

1.

The third level is a grievance to the commissioner.

Request Slips

In this case, Gebo maintains that he submitted a request
slip to Thyng after the first assault, asking for protective
custody, and a second request slip after the second assault.
Gebo states that he received no response from Thyng and that when
he asked McFarland for a grievance form, he was told to wait for
a response to the request slip.

Thyng contends that no such

request slips have been found in the prison’s records and, on
that basis, asserts that Gebo failed to exhaust administrative
remedies.5
There is no dispute that Gebo did not complete the prison’s
three-step grievance procedure.

Based on the summary judgment

record, however, there is a factual dispute as to whether Gebo
submitted request slips to Thyng about the assaults and

5

Thyng provides no evidence, by affidavit or otherwise, that
he did not receive a request slip from Gebo soon after the
assault on September 2. Instead, Thyng asserts only that the
prison now does not have any record of a request slip filed by
Gebo in early September of 2009.
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protective custody.6

Therefore, if an exception to the

exhaustion requirement applies, based on the circumstances in
this case, Gebo’s § 1983 claim would survive Thyng’s motion for
summary judgment.
The administrative exhaustion requirement under § 1997e(a)
is an affirmative defense.

Jones, 549 U.S. at 212.

The

defendant bears the burden of pleading and proving the defense.
Id. at 216; Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir.
2002); Fisher v. Town of Orange, 2012 WL 639461, at *7 (D. Mass.
Feb. 24, 2012); Russo v. Honen, 755 F. Supp. 2d 313, 315 (D.
Mass. 2010) (“Exhaustion is an affirmative defense, and thus the
burden of showing non-exhaustion is on the defendants.”).
As an affirmative defense, exhaustion may be subject to
equitable considerations such as tolling, estoppel, and waiver.
See, e.g., Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011);
Casanova, 304 F.3d at 77 n.3 (1st Cir. 2002).

Furthermore, under

certain circumstances, misconduct or inaction by prison officials
may make administrative remedies unavailable, thereby obviating
the exhaustion requirement.

See, e.g., Beaton v. Tennis, 2012 WL

266967, at *2 (3d Cir. Jan. 31, 2012) (unpublished decision);
Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011); Moore v.

6

There is also evidence that Gebo continued his efforts to
be heard.
11

Bennette, 517 F.3d 717, 725 (4th Cir. 2008);

Kaba v. Stepp, 458

F.3d 678, 684-85 (7th Cir. 2006).
Taking the facts provided by Gebo as true, Gebo properly
submitted a request slip to Thyng on September 3, asking to talk
to Thyng about protective custody.7

Thyng did not respond.

Gebo

then asked Morin for help, and she referred him to McFarland who
told him he could not have a grievance form until Thyng responded
to his request slip.

Those circumstances may present a situation

where prison officials have made the prison’s administrative
remedies unavailable.

See, e.g., Moore, 517 F.3d at 725 (“[A]n

administrative remedy is not considered to have been available if
a prisoner, through no fault of his own, was prevented from
availing himself of it.”); Kaba, 458 F.3d at 684 (“[W]hen prison
officials fail to provide inmates with the forms necessary to
file an administrative grievance, administrative remedies are not
‘available.’”); Braxton v. Ross, 2010 WL 1713614, at *1 (D. Mass.
Apr. 27, 2010) (“[A] prison’s failure to comply with its own
procedures (such as failing to timely respond to a grievance) may
excuse a failure to exhaust.”).
Thyng’s argument that Gebo should have applied for a waiver
of the request slip rule does not fit the circumstances.

7

Gebo

Gebo also asserts that he submitted a second request slip
after the assault that occurred on September 5.
12

lacked the required basis for requesting a waiver and cannot be
faulted for failing to use a procedure for which he did not
qualify.8

Further, when he asked McFarland for a grievance form,

he was told he had to wait for a response, but he was not told to
apply for a waiver.
Therefore, a material factual dispute exists as to whether
Gebo submitted a request slip or slips in early September and
whether prison officials prevented him from exhausting the
prison’s grievance procedures.

2.

Favorable Outcome

Gebo also argues that he should be excused from exhausting
the prison’s grievance procedures because he obtained a favorable
outcome when he was granted protective custody status.

He relies

on the discussion in Johnson v. Thyng, 369 Fed. Appx. 144, 148-49
(1st Cir. 2010), where the court noted that “[i]f, in fact, there
was no pertinent additional relief obtainable through the
grievance process, further exhaustion might be excused.”

8

Gebo

Waiver of the request slip process is available only to
avoid retaliation, “when the inmate can demonstrate that using
the process is likely to result in identifiable risk of harm to
their [sic] physical safety or psychological well-being.” PPD
1.16 IV(A)(4). In this case, Gebo did file a request slip and
did not fear retaliation from Thyng.
13

acknowledges, however, that the holding in Johnson “cuts against
his argument.”9
Johnson is an unpublished per curiam decision which may be
considered for its persuasive value but is not binding precedent.
First Circuit Rule 32.1.0(a).

The court declines to consider the

persuasive value of Johnson, and the Ninth Circuit decision that
it cites, in the context of this case.
Here, a factual dispute prevents summary judgment at this
stage based on the issue of whether Gebo filed a request slip or
slips in early September and whether he was precluded from
exhausting his remedies through the prison’s grievance
procedures.

Therefore, it is unnecessary at this juncture to

consider whether the fact that he later achieved protective
custody status would also excuse Gebo’s failure to exhaust
administrative remedies.

3.

Hearing

The summary judgment record leaves factual issues that must
be resolved to determine whether Gebo is barred from bringing his
§ 1983 claim due to the affirmative defense under § 1997e(a).

9

The Johnson case involves a claim against the same
defendant, Robert Thyng, who is the defendant in this case.
14

A

hearing will be scheduled to address the unresolved factual
matters.
At the hearing, the court expects the parties to testify and
to call witnesses to testify under oath.
may subpoena witnesses to testify.

If necessary, parties

To the extent any witness may

be incarcerated at the time of the hearing, counsel may seek a
writ of habeas corpus ad testificandum.

Conclusion
For the foregoing reasons, the defendant’s motion to strike
(document no. 37) is granted in part as provided in this order.
A hearing will be scheduled on the motion for summary
judgment (document no. 35).
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 21, 2012
cc:

James Spencer Culp, Esquire
Theodore M. Lothstein, Esquire
Nancy J. Smith, Esquire

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