Gebo v. Thyng
Filing
46
ORDER denying 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 100
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
Robert Thyng, who was the Unit Manager at the Northern
Correctional Facility (“NCF”) in New Hampshire when Gebo was
assaulted in September of 2009.
Gebo alleges that Thyng violated
his Eighth Amendment rights by 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.
Gebo objects.
A hearing was held on May 22, 2012.
Thyng did not attend
the hearing but instead submitted his deposition for
consideration.
Three witnesses testified on behalf of Thyng:
Ann Marie Morin, who was a sergeant at NCF in September of 2009;
Edward S. McFarland, Jr., who also was a sergeant at NCF; and
Diane R. Bouthot, who is the administrative secretary to the
Warden at NCF.
Gebo testified, and David Peters, who was an
inmate at NCF in September of 2009, testified on behalf of Gebo.
Standard of Review
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
exhausted.”
42 U.S.C. § 1997e(a).
“proper exhaustion.”
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).
Jones v.
Because the administrative
exhaustion requirement under § 1997e(a) is an affirmative
defense, the defendant bears the burden of proving that the
plaintiff failed to exhaust.
Id. at 216; Casanova v. Dubois, 304
F.3d 75, 77 n.3 (1st Cir. 2002); Starr v. Moore, --- F. Supp. 2d
---, 2012 WL 1034452, at *3 (D.N.H. Mar. 28, 2012).
As noted in the previous order, the parties’ summary
judgment memoranda and supporting materials demonstrated that
material facts are in dispute as to whether Gebo exhausted his
administrative remedies.
All courts that have considered the
2
issue have concluded that there is no Seventh Amendment right to
a jury trial on disputed factual issues for purposes of deciding
the § 1997e(a) exhaustion issue.
See, e.g., Messa v. Goord, 652
F.3d 305, 308 (2d Cir. 2011) (citing cases).
Instead, the trial
court resolves factual disputes related to the exhaustion defense
and decides whether the defendant has carried his burden of
proving that the plaintiff failed to exhaust administrative
remedies.
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
Background
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.
was granted.
Gebo’s motion for appointment of counsel
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.
Thyng
moved for summary judgment, and Gebo objected.
The following background information is taken from the
parties’ summary judgment materials, along with the testimony and
evidence presented during the hearing.
3
John Gebo was an inmate at the Northern New Hampshire
Correctional Facility in September of 2009.1
At that time, NCF
was overcrowded, housing 200 inmates more than its peak capacity.
In addition, the number of staff had been reduced by layoffs.
Although inmates were not supposed to move between the two
housing levels in the prison, in 2009 they were able to access
the stairs and did move between the levels.
On September 2, 2009, Gebo was attacked by other inmates who
hit him repeatedly, causing a large gash on the back of his head
and other injuries.
Gebo knew that at least two of the attackers
were members of a prison gang, and he believed he was attacked
because he refused to join a gang.
He was treated at
Androscoggin Valley Hospital for his injuries and returned to the
prison that night.
When he returned to the prison, Gebo was placed in
Administrative Review status.
The next day, September 3, Gebo
told Unit Manager Robert Thyng that he needed to be in protective
custody because he had been assaulted by a known gang member.
Thyng denied his request and returned Gebo to general population,
1
The units are also referred to as pods and blocks. Gebo
initially was housed in A Unit, which is on the first level of
the prison, along with B, C, and D Units. E, F, G, and H Units
are on the second level.
4
although Gebo was moved from Unit A on the first level to Unit E
on the second level.
Gebo prepared a request slip in which he asked to meet with
Thyng for an explanation as to why his request for protective
custody was denied.
On his way to the request slip box which was
located outside of the sergeant’s office on the second level,
Gebo met another inmate, David Peters, whom he knew.
Peters was
surprised to see Gebo in the second level hallway because he
thought Gebo was in A Unit on the first level and asked him what
he was doing up there.
Gebo told Peters about the assault and
showed him the gash on his head and other wounds.
Peters was
shocked and asked Gebo why he was not in the health services
unit.
Peters was aware of the danger from gang members in prison
and thought Gebo should be moved out of the prison.
Gebo showed
Peters the inmate request slip he had completed and explained
that he was very concerned for his safety and was trying to get a
meeting with Thyng so that he could have a protective custody
hearing and be moved out of NCF.
Peters saw the inmate request
slip, which was addressed to Thyng and had extensive writing on
it, and saw Gebo put the slip in the box outside the sergeant’s
office.
Gebo got no response from the request slip, and he
remained in general population in the prison.
5
On September 5, 2009, Gebo was assaulted again by inmates
who threw boiling water on him and hit him with a lock.
Gebo was
treated for burns, lacerations, and bruising at Androscoggin
Valley Hospital.
Following that attack, Gebo spent several days
in health services at NCF.
He was placed on Administrative
Review status but again was returned to the general population, F
Unit.
Gebo completed and submitted another request slip
addressed to Thyng, asking for a meeting about the assaults and
his need for protective custody, but did not receive a response.2
A few days later, Gebo spoke to Sergeant Morin about his
situation, and she told Gebo that she would call Thyng.
Gebo
raised the protective custody issue again at his classification
review, which was held on September 17, 2009, but was told that
protective custody was not an issue for consideration by the
classification review board.
same.
His classification remained the
Gebo talked with Morin again who suggested he contact
Sergeant McFarland.
Gebo asked McFarland for a grievance form
but was told that he had to wait for a response from his request
slips before he could have a grievance form.
2
No one else saw this request slip. Prison officials have
searched the files and did not find inmate request slips from
Gebo that asked for a meeting with Thyng about Gebo’s safety or
his request for protective custody. Gebo’s testimony about the
second slip was less clear than for the first slip.
6
On October 15, 2009, Gebo told Morin that he was in fear for
his life.
statement.
Morin told Gebo to write his complaints in a
Gebo wrote that inmates in the BOWW gang were
charging him “rent”, which he could not afford, and that he was
afraid because he had been attacked twice.
Morin then escorted
Gebo to administrative segregation, where he was held over night.
The next day, when officers attempted to move him back to general
population in C Unit, 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 to move and was written up for a major disciplinary
offense and was transferred to the secure housing unit.
Gebo
remained in the secure housing unit.
Prison officials found several request slips that Gebo filed
in November and December.3
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
3
Gebo’s file also has request slips submitted by him during
2010.
7
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.
On December 8, 2009, a protection review board was held to
consider 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 state prison in Concord
where he is being held in protective custody.
The process for administrative review of inmate issues is
provided in a document titled “Grievances and Complaints by
Persons under DOC Supervision” PPD 1.16 (May 15, 2007) (“PPD
1.16").
The first level of review 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
8
provided to the inmate within fifteen working days.
The first
step, filing a request slip, 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
psychological well-being.”
Id. IV(A)(4).
The second step
requires the inmate to submit a grievance form to the warden
within thirty days after receiving a response to a request slip.
The third step is a grievance to the commissioner.
Thyng, Morin, and McFarland testified to different versions
of the review process.
Thyng also testified that the procedure
provided by PPD 1.16 had been changed by a memorandum from the
Commissioner of the Department of Corrections.
Under the changed
procedure, officers were required to give grievance forms to all
inmates who asked for them.
Thyng testified that not all prison
officers followed the Commissioner’s direction.
Findings of Fact
1.
Gebo asked to be placed in protective custody after he was
assaulted on September 2, 2009, and his request was denied.
2.
Gebo completed an inmate request form in which he asked to
meet with Thyng for an explanation of why his request for
protective custody was denied.
9
3.
Gebo put the inmate request form into the appropriate box on
September 3, 2009.
4.
Gebo did not receive a response to the inmate request form.
5.
Following the assault on September 5, 2009, Gebo went to the
control center, known as the bubble, and asked to speak with
Thyng but was told that Thyng was not available.
6.
Gebo spoke to Sergeant Morin about his safety concern, and
she said she would call Thyng.
7.
Gebo did not receive a response from that conversation.
8.
At a classification review held on September 17, 2009, Gebo
asked for protective custody but was told that the review board
could not make that decision.
9.
The same day Gebo talked to Morin again about his situation,
and Morin suggested that he talk to Sergeant McFarland.
10.
Gebo asked McFarland for a grievance form, but McFarland
said Gebo had to wait for a response to the inmate request slips
before he could have a grievance form.
11.
A review board granted Gebo protective custody status in
December of 2009.
12.
PPD 1.16 provided the official administrative procedure for
inmates to seek review of issues, although the procedures may
have been amended by memoranda from the Commissioner.
13.
During the fall of 2009, the officers at NCF did not all
10
follow the same procedure for administrative review of inmate
issues and did not necessarily follow the procedure as it is
provided in PPD 1.16.
14.
Thyng, Morin, and McFarland have no memory of the events
involving Gebo in September of 2009 and no memory of whether Gebo
submitted inmate request slips asking for a meeting with Thyng to
discuss his need for protective custody.
15.
No request slips from Gebo, dated in September of 2009 and
asking for a meeting with Thyng about protective custody, were
found in the prison files.
Ruling
Thyng contends that Gebo cannot maintain his suit because he
did not exhaust the administrative remedies provided by PPD 1.16.
Gebo acknowledges that he did not complete the three-step process
provided by PPD 1.16 but argues that he was prevented from doing
so by Thyng’s failure to respond to his request slips.
Thyng
contends that Gebo did not file any request slips that asked for
a meeting with Thyng to discuss protective custody and contends
that even if such slips were filed and he received no response,
Gebo should have sought a waiver from the request slip step or
filed a grievance.
11
As was discussed in the prior order, because exhaustion
under § 1997e(a) is an affirmative defense, it 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).
In addition,
§ 1997e(a) requires exhaustion of only “such administrative
remedies as are available.”
If prison officials make
administrative remedies unavailable by misconduct, mistake, or
inaction, the exhaustion requirement is obviated.
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. Bennette, 517 F.3d 717, 725 (4th Cir.
2008); Macias v. Zenk, 495 F.3d 37, 44-45 (2d Cir. 2007); Kaba v.
Stepp, 458 F.3d 678, 684-85 (7th Cir. 2006); Perfetto v. N.H.
State Prison, Warden, 2008 WL 943372, at *6 (D.N.H. Apr. 8,
2008).
In particular, remedies are not available if prison
officials fail to respond to a properly filed form or refuse to
provide forms to an inmate who requests them.
Sapp v. Kimbrell,
623 F.3d 813, 822-23 (9th Cir. 2010) (citing cases).
Gebo properly submitted a request slip addressed to Thyng by
putting the request slip in the appropriate box on September 3,
12
2009.4
Gebo received no response.
Gebo then asked Morin for
help, and she referred him to McFarland who told him he could not
have a grievance form until he received a response to his request
slip.5
Because neither Thyng nor anyone else responded to the
request slip or slips and Gebo was told he could not have a
grievance form until he received a response, prison officials
made administrative remedies unavailable.6
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.’”); Dole v. Chandler,
438 F.3d 804, 810-11 (7th Cir. 2006) (holding that when prison
officials were responsible for mishandling a complaint inmate did
4
Gebo may also have submitted a second request slip after
the assault that occurred on September 5.
5
McFarland may also have required inmates to file a request
slip for a grievance form.
6
Under PPD 1.16(IV)(A)(5), prison officials were supposed to
respond to a request slip within fifteen “working days” after
receiving it. Assuming “working days” do not include weekends,
the response time for Gebo’s slip filed on September 3, 2009,
would have expired on September 24, 2009. Gebo testified,
however, that the prison officers at NCF told inmates that they
would get responses within seven days, which would have made the
deadline September 14.
13
not fail to exhaust); Russo v. Honen, 755 F. Supp. 2d 313, 315
(D. Mass. 2010) (failure to provide grievance form makes remedy
unavailable); 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.”).
Gebo is not required to exhaust
unavailable remedies.
To the extent Thyng argues that Gebo should have filed a
grievance to address his safety concerns, that procedure would be
contrary to the three-step process provided in PPD 1.16.
In
addition, as noted above, McFarland refused Gebo’s request for a
grievance form, making that remedy unavailable.
Thyng also
argues that Gebo should have applied for a waiver under PPD 1.16
IV(A)(4).
As the court decided in the prior order, PPD 1.16
IV(A)(4) does not apply to the circumstances in this case and,
therefore, does not provide an alternative remedy that Gebo
should have pursued.
Thyng did not carry his burden of showing that Gebo failed
to exhaust available administrative remedies.
suit is not barred by § 1997e(a).
14
Therefore, Gebo’s
Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 35) is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 7, 2012
cc:
James Spencer Culp, Esquire
Theodore M. Lothstein, Esquire
Nancy J. Smith, Esquire
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?