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deciding exhaustion issue under a summary judgment standard because the parties had the opportunity to submit materials to develop the record.
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Civil Action No. 02-10613-DPW.
August 16, 2006
MEMORANDUM AND ORDER
Plaintiff Norberto Andrade brings this action against a number of Massachusetts Department of Corrections ("DOC") officials alleging violations of his constitutional rights, assault and battery, breach of contract, violations of the Massachusetts Declaration of Rights, and violations of Rhode Island law. Defendants have moved to dismiss the Amended Complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment, for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq (1996), and failure to state a claim. Given the exhaustion issues in this case, I held Defendants' dispositive motion under advisement pending the Supreme Court's decision in Woodford v. Ngo, 126 S. Ct. 2378 (2006). In light of Ngo, I now find summary judgment on exhaustion grounds to be appropriate.
I. BACKGROUND
Andrade complains of placement in segregation without a hearing in 1995 after he was transferred from a Rhode Island prison to MCI Cedar Junction in Walpole, Massachusetts; use of excessive force by prison guards, including Defendants Steven Vieira and Michael Domingos, at MCI Cedar Junction on March 7, 2001; denial of access to Rhode Island legal material at MCI Cedar Junction; and failure to provide prison jobs and education and rehabilitative programs. Based on these allegations, Andrade lists six causes of action in his Amended Complaint: (1) that Defendants violated his Eighth and Fourteenth Amendment rights by using excessive force against him on March 7, 2001; (2) that Defendants breached the Interstate Corrections Compact entered into between Rhode Island and Massachusetts; (3) that Defendants committed the tort of assault and battery against him; (4) that Defendants' excessive force against him on March 7, 2001 constituted summary punishment in violation of the Fourteenth Amendment; (5) that Defendants' actions violated his rights secured by Articles 1, 10, 11, 12, and 26 of the Massachusetts Declaration of Rights; and (6) that Defendants actions violated his rights and privileges under Rhode Island law.
Defendants argue that I should dismiss the Amended Complaint in its entirety or grant them summary judgment because Andrade failed to exhaust his administrative remedies outlined in the DOC's Inmate Grievances Policy, see 103 CMR 491.00 et seq (2001), or that, at a minimum, I should dismiss any claim for which Andrade has not exhausted his administrative remedies. Defendants also argue that Andrade's sixth count should be dismissed for failure to state a claim as required by Federal Rule of Civil Procedure 8.
II. EXHAUSTION REQUIREMENT
Generally, litigants must "exhaust prescribed administrative remedies before seeking relief from the federal courts."McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). "Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency." Id. at 145; Ngo, 126 S. Ct. at 2385. The PLRA reinforced the exhaustion requirement for prisoners bringing suits challenging prison conditions by making explicit that exhaustion of all "available" remedies is mandatory. Ngo, 126 S. Ct. at 2382. Specifically,
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). Consequently, courts have no discretion to decline to require exhaustion in federal suits even where the "interest of the individual in retaining prompt access to a federal forum" is deemed to outweigh the "countervailing institutional interests favoring exhaustion."McCarthy, 503 U.S. at 146.
Massachusetts enacted a similar mandatory exhaustion requirement in 1999, which provides:
An inmate shall not file any claim that may be the subject of a grievance under section 38E unless the inmate has exhausted the administrative remedy established pursuant to said section 38E; but the court may consider such claim if a final administrative resolution of a grievance filed pursuant to said section 38E has not been decided within 180 days from the date of filing such a grievance, or if the inmate can demonstrate to the court that exigent circumstances exist which, if delayed pursuant to the requirements of this section, would jeopardize the life or seriously impair the health of the inmate, or, for actions seeking equitable relief.
Mass. Gen. Laws c. 127, § 38F, added by St. 1999, ch. 127 § 133.
Under Massachusetts law, "[g]rievances that may be brought by inmates subject to the provisions of subsections (a) and (b) shall include all grievances arising out of or resulting from a condition of or occurrence during confinement." Mass. Gen. Laws ch. 127, § 38E(c).
In Ngo, the Supreme Court concluded that the PLRA further requires "proper exhaustion." Ngo, 126 S. Ct. at 2387. "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 2386.
Proper exhaustion is an affirmative defense in PLRA cases, rather than a prerequisite to federal jurisdiction. Casanova v. Dubois, 304 F.3d 75, 78 n. 3 (1st Cir. 2002) ("Casanova III"); Ngo, 126 S. Ct. at 2392 (noting that 42 U.S.C. § 1997e(c)(2) makes "it clear that the PLRA exhaustion requirement is not jurisdictional"). As an affirmative defense, "the requirement of exhaustion, rather like a statute of limitations, may be subject to certain defenses such as waiver, estoppel, or equitable tolling." Casanova III, 304 F.3d at 78 n. 3quoting Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). "Absent a valid defense to the exhaustion requirement . . ., the statutory requirement enacted by Congress that administrative remedies be exhausted before the filing of suit should be imposed." Id. at 890-91 (emphasis in original).
III. STANDARD OF REVIEW
When a prisoner does not dispute that he failed to exhaust administrative remedies as required by the PLRA, dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim is clearly appropriate. Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 34-36 (1st Cir. 2002). When the issue is disputed, a threshold procedural question arises: what is the proper procedure for resolving the issue of exhaustion before trial?
In Casanova v. Dubois, 289 F.3d 142 (1st Cir. 2002) ("Casanova I"), the appellees insisted that sua sponte dismissal of the prisoners' complaint was proper because, in addition to the reasons given by the district court, the prisoners had failed to exhaust their administrative remedies.Id. at 146. The First Circuit found that "the record [wa]s devoid of any evidence whatsoever on the issue of exhaustion."Id. at 147. Consequently, the Court remanded the case to the district court "for development of the record with regard to the issue of exhaustion of administrative remedies." Id. The First Circuit instructed the district court to "elicit from the parties whatever information it deems necessary to making this determination" and then to transmit its written findings. Id.
In carrying out these instructions, Judge Stearns correctly anticipated that the First Circuit would ultimately adopt the majority rule that the PLRA's exhaustion requirement is an affirmative defense, and that as a result, a defendant bears the burden of establishing non-exhaustion. Casanova v. Dubois, No. 98-cv-11277, 2002 WL 1613715, *2 (D.Mass. July 22, 2002) ("Casanova II"). With this in mind, he found on the developed record that the defendants failed to provide any evidence of a substantive nature disputing plaintiffs' assertion that the DOC had a practice by prison staff of refusing to process complaints involving the use of force, using the expedient of almost uniformly labeling them "not grievable." Id. at *6. As a result, the First Circuit concluded that the "PLRA does not mandate dismissal for failure to exhaust, at least not at this prefatory stage of litigation." Casanova III, 304 F.3d at 77. However, the Court also added the following proviso: "Nothing in this opinion . . . is intended to preclude the appellees from appropriately presenting this affirmative defense in any further proceedings." Id. at 78.
From the discussion in the Casanova decisions, it appears the issue of exhaustion could be considered on a motion to dismiss, but one in which the trial court may look beyond the pleadings.Compare Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.) ("In deciding a[n unenumerated Rule 12(b)] motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact."),cert. denied, Almeida v. Wyatt, 540 U.S. 810 (2003). With respect to this approach, the Ninth Circuit has cautioned that a court looking "beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust . . . must assure that [the prisoner] has fair notice of his opportunity to develop a record." Wyatt, 315 F.3d at 1120 n. 14. However, since the procedure is so "closely analogous to summary judgment," id., and since all the parties here have had the opportunity to submit materials to develop the record, I have considered the affidavits and other material provided with the view of determining whether Defendants have met their burden of establishing failure to exhaust such that summary judgment is appropriate.
See Greer v. Smith, 59 Fed.Appx. 491, 492, 2003 WL 1090708 (3rd Cir. 2003) ("[T]he Court erred by granting the defendants' motion to dismiss for failure to exhaust solely on the basis of representations made in an affidavit submitted by the defendants. Subject to a few narrow exceptions not applicable in this case, Rule 12(b) of the Federal Rules of Civil Procedure requires a District Court to convert a motion to dismiss to a motion for summary judgment if the Court considers materials outside the plaintiff's pleading, such as the affidavit relied upon in this case.") (footnote omitted); and Lindell v. O'Donnell, 135 Fed.Appx. 876, 880, 2005 WL 1389594 (7th Cir. 2005) ("Normally, the district court should not grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6) based on an affirmative defense without allowing the non-moving party an opportunity to respond. In this case, however, we find that the court's decision to resolve this issue at the 12(b)(6) stage was harmless error, because it is clear that Lindell did not exhaust his remedies. . . . A remand to convert this claim into a motion for summary judgment would therefore be pointless.")
IV. MASSACHUSETTS' EXHAUSTION REGULATIONS
The current regulations governing inmate grievances, see 103 CMR 491.00 et seq. (2001), codified January 5, 2001 were preceded by a statement of department policy called Inmate Grievances, see 103 DOC §§ 491.01 et seq. That policy set forth the rules for filing a formal grievance. The version effective August of 1998 appears to have remained in force until January 5, 2001. The 1998 version of the policy is substantially the same as the 2001 Code of Massachusetts Regulations version.See Ryan v. Pepe, 65 Mass.App.Ct. 833, 835-36 (2006).The 1998 Inmate Grievances Policy did not independently define grievance, but for present purposes the definition of grievance under the 1996 Inmate Grievance Policy and the restated definition of grievance in the 2001 policy appear to encompass the claims asserted here by Plaintiff.
The 1996 Inmate Grievance Policy defined a grievance as "a written complaint by an inmate concerning an incident, a condition of confinement, or the application of any Department of Correction [or] institutional policy, rule or regulation for which redress is sought." 103 DOC 491.06(4)(1996). The Inmate Grievance Policy as reissued on January 5, 2001 now defines a grievance as "a written complaint filed by an inmate on the inmate's own behalf in accordance with 103 CMR 491.00." 103 CMR 491.06 (2001).
To initiate the formal processing of an inmate grievance under the 1998 version of the policy, "[a]ll forms shall normally be forwarded to the Institution Grievance Coordinator (IGC) within ten (10) working days of incident of complaint." 103 DOC 491.04(1)(1998). As of 2001, a prisoner could initiate a formal grievance by submitting a grievance form, which must include "(A) the date of occurrence of the incident; (B) the name of current institution; (C) the name of institution of complaint; (D) a brief statement of facts; (E), the remedy being requested; (F) [and] (F) the signatures of both the inmate and staff recipient," 103 CMR 491.09(2)(2001), either (A) "directly with the Superintendent, Deputy Superintendent, Facility Administrator, or Institutional Grievance Coordinator" or (B) "by depositing the completed form in a locked mailbox or drop box." 103 CMR 491.09(3)(2001). The "grievance shall be filed within ten working days of the actual incident or situation or within ten working days of the inmate's becoming aware of the incident or situation." 103 CMR 491.08(4)(2001).
Under the 1998 version, the IGC had the authority to "extend th[e grievance filing] period, not to exceed thirty working days, if it is determined that it was not feasible for the inmate to file within this period." 103 DOC 491.04(1)(1998). Under both versions of the policy, "[t]he time periods referred to in this policy for filing a grievance or appeal . . . may be extended for a like period . . . if the inmate presents a legitimate reason for requesting an extension." 103 DOC 491.10 (1998); 103 CMR 491.18(2001).
Under both versions, upon receipt of the grievance, the IGC was to "acknowledge receipt of the grievance form through a written notification to the inmate," 103 DOC 491.05(2)(1998), 103 CMR 491.10(1)(A)(2001), and "investigate the factual basis of the grievance and determine a resolution or deny the grievance, within ten (10) days from receipt of the grievance." 103 DOC 491.05(6)(1998), 103 CMR 491.10(1)(E)(2001). Notice of a denied grievance was to include "a written explanation regarding the denial" and "inform the inmate of the right to appeal." 103 DOC 491.05(7)(1998), 103 CMR 491.10(4)(2001).
Both versions of the Inmate Grievances Policy provide a second level of review. "An inmate dissatisfied with the IGC's response may appeal to the Superintendent. . . . The original grievance form must accompany all appeal forms." 103 DOC 491.06(1)(1998), 103 CMR 491.12(1)(2001). "The appeal form must be mailed within ten (10) working days from receipt of a decision to the Superintendent" unless the time period is enlarged. Id. Upon receipt of an inmate's appeal, "[w]ritten notification of receipt of the grievance will be forwarded to the inmate." 103 DOC 491.06(2)(1998), 103 CMR 491.12(2)(2001). The Superintendent is required to "respond to the grievant in writing within thirty working days from receipt of the grievance." 103 DOC 491.06(3)(1998), 103 CMR 491.12(2)(2001). "Failure by a grievant to comply with the time restrictions imposed by this policy, unless waived by the Institutional Grievance Coordinator or Superintendent, shall terminate the grievance process." 103 DOC 491.11 (1998), 103 CMR 491.19 (2001).
Both versions of the Inmate Grievances Policy mandate certain record keeping practices. "Records of all institutional grievances shall be maintained by the IGC. The original grievance form, should be returned to the inmate with a copy forwarded to the inmate's institutional file." 103 DOC 491.04(5)(1998), 103 CMR 491.10(5)(2001). The 2001 policy also requires that "[a] grievance log . . . be maintained indicating the assigned number of the grievance, the date the grievance was received, the inmate's name and identification number, the facility where the inmate is housed, the subject of the grievance, and the decision made." 103 CMR 491.10(5)(2001). Similarly, "[t]he Institution Grievance Coordinator shall maintain a record of all inmate grievance appeal. The appeal and original grievance will be returned to the inmate with copies distributed to the inmate's institutional file and forwarded to the respective institution grievance coordinator." 103 DOC 491.06(5)(1998), 103 CMR 491.12(4)(2001). The IGC has the duty and responsibility to "maintain all records of institution grievances, return the original grievance to the inmate, and send copies to the Institution Inmate Records." 103 DOC 491.05(8)(1998).
V. DISCUSSION
A. Availability of Programs
In 1995, Andrade, a Rhode Island prisoner, was transferred to MCI Cedar Junction in Massachusetts pursuant to the New England Interstate Corrections Compact. Mass. Gen. Laws c. 125 App. § 1-2. Defendants do not contest at this stage Andrade's characterization of the Compact as entitling him to the same rights and privileges he would have been entitled to in a Rhode Island prison. Upon Andrade's arrival at MCI Cedar Junction, Massachusetts prison officials allegedly informed him that he would not be able to work in the prison or participate in educational or rehabilitative programs, as he had done while incarcerated in Rhode Island, because of the lack of such programs at MCI Cedar Junction. To the degree that Counts II and V allege violations of Massachusetts or federal law pertaining to Andrade's allegation that he was denied programs which he was entitled to, Andrade was required to grieve this complaint about prison conditions in accordance with the formal grievance procedures.
Paul Duford, the Institutional Grievance Coordinator at MCI-Cedar Junction since July of 2003, avers that Andrade's grievance file dating back to 1997 does not contain any grievances related to this complaint. Andrade does not contest the implication of this deficiency, namely that he has never filed an administrative grievance related to the lack of available programs. Consequently, summary judgment is appropriate for failure to exhaust under Mass. Gen. Laws ch. 127, § 38F and the PLRA.
B. Segregation Unit
Andrade also contends that he was placed in the Segregation Unit immediately upon arrival at MCI Cedar Junction without a prior hearing in violation of his due process rights, presumably in 1995 well beyond the statute of limitations. To the degree that Count V alleges violations of state or federal law pertaining to this complaint, I will also grant summary judgment for failure to exhaust as required by Mass. Gen. Laws c. 127, § 38F and the PLRA. Duford avers that Andrade's grievance file does not reveal any grievances related to this complaint, and Andrade does not claim otherwise.
C. Access to Rhode Island legal material
Andrade contends that the law library at MCI Cedar Junction does not carry any Rhode Island legal material, which he claims continues to impede his ability to file legal papers challenging his confinement.
Andrade contends that on July 11, 1998, he wrote a letter to the DOC Commissioner complaining about the denial of needed Rhode Island state legal materials. Again, in September of 2000, he says he wrote a letter to the Commissioner complaining about his inability to access necessary materials. He contends that on December 11, 2000 he submitted an informal grievance to the law library staff and received no response. Thereafter, on December 27, 2000, he says he filed "a formal grievance pursuant to 103 C.M.R. [§]491.09(3)(B), by placing it in the prison outgoing locked mailbox alleging the denial of access to Rhode Island legal materials." Plaintiff further contends that, when he received no response after ten days, he filed an appeal on January 5, 2001 with the Superintendent.
Referencing Duford's Affidavit, Defendants suggest that a review of Andrade's six-part folder and the institutional grievance coordinator's logs dating back to 1997 belie Andrade's assertion that he ever either mailed the letters or filed a formal grievance in 2000 and appeal in 2001. This arguably raises a factual dispute concerning whether any grievance was actually filed. However, Defendants base their argument for dismissal on the undisputed fact that Andrade did not properly exhaust his generalized claim of the denial of Rhode Island legal materials in the sense that he failed to file a formal grievance within the ten, or even the extended thirty day, limit set by the policy then in effect. See 103 DOC 491.04(1), 491.10 (1998). This arguably rests on the assumption that the time period for initiating a grievance began to run on July 11, 1998 when Andrade became aware of the alleged denial of legal materials.
The 1998 version of the Grievances Policy speaks of initiating a grievance "within ten (10) working days of incident of complaint." 103 DOC 491.04(1)(1998). While this provision is not as clear as the current version, which provides that "[a] grievance shall be filed within ten working days of the actual incident or situation or within ten working days of the inmate's becoming aware of the incident or situation," 103 CMR 491.08(4)(2001), I will not toll the filing deadline because the generalized complaint was somehow a continuing violation. To do so "would undermine the very purpose of the deadline, which is to limit the time to file a claim." Wallace v. Burbury, 305 F.Supp.2d 801, 806 (N.D.Ohio 2003). It would also be inconsistent with the policy judgments underlying the Supreme Court's decision in Ngo. Moreover, tolling the filing deadline would undermine the duty of specificity imposed upon an inmate who raises a claim of denial of legal materials. An inmate must demonstrate injury as a consequence of such a denial of legal materials. Without such a demonstration of injury, an inmate lacks standing to bring this claim. As summarized by Judge Barbadoro:
"[i]t is undisputed that inmates have a fundamental constitutional right of access to the courts." This right of access, however, only "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." In order to make a claim that this right of access has been denied, an inmate "must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." The right of access "is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." It therefore "follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation."Cookish v. Rouleau, No. 02-526, 2004 WL 443208, *4 (D.N.H. March 11, 2004) (internal citations omitted).
Consequently, summary judgment is appropriate for failure to file a timely formal grievance specifically identifying the legal claim frustrated by the lack of Rhode Island materials.
D. Assault
Andrade claims that guards used excessive force against him on March 7, 2001. Ten days after the alleged incident, Andrade claims to have submitted an Inmate Request to Staff Member to Defendant Peter Pepe, then Superintendent at MCI Cedar Junction, alleging that he had been beaten. Plaintiff contends he then filed a formal grievance on March 26, 2000 by placing the form in the prison outgoing locked mailbox. Thereafter, he says he wrote a "complaint" to Superintendent Pepe dated April 6, 2001. The "complaint" noted that the Superintendent had not answered his Inmate Request form alleging assault, but does mention the formal grievance. Plaintiff contends that, when he received no response to his formal grievance after ten days, he filed an appeal dated April 8, 2001 with the Superintendent.
Superintendent Pepe replied to Andrade's "second letter" to him — the "complaint" — in a letter dated April 10, 2001 advising Andrade that the "matter is being investigated and appropriate action will be taken if there is any truth to your claims." In a letter dated April 27, 2001, Andrade wrote to the new Superintendent, Peter Allen, that:
On 3/17/01, I sent a staff member form to Peter Pepe who has never answered back to me. On 3/26/001, I sent Donald Stewart, a grievances form, who also has not answered back to me. On 4/8/001, I sent grievance appeal form to pepter pepe, who also never answered back to me.
Andrade indicated in the letter that he was enclosing copies of the referenced letters, and that he had also sent copies to Att. Gen. Thomas Reilly and to his family members.
In response to the April 27, 2001 letter, Superintendent Allen replied in a letter dated May 1, 2001 that the "Institution Grievance Coordinator did not receive a grievance from you concerning this subject." The Superintendent acknowledged, however, that the former Superintendent had received the initial correspondence. The letter suggested the investigation was ongoing and that appropriate action would be taken if officials found any substance to his allegations.
As with the legal materials complaint, Defendants suggest, based on Duford's Affidavit, that Andrade did not actually ever mail the formal grievance on March 27, 2001 as he claims. Presumably, however, because this raises a factual dispute, Defendants base their argument for summary judgment on the fact that even if Andrade did file the requested form on March 27, 2001, he did not do so within the required ten day limit. See 103 CMR 491.08(4)(2001). I must agree with Defendants. Although 103 CMR 491.18(2001) provides that "[t]he time periods referred to in this policy for filing a grievance or appeal . . . may be extended for a like period . . . if the inmate presents a legitimate reason for requesting an extension," there is nothing in the record suggesting that an extension was ever requested or that it would have been an abuse for officials to deny one. Furthermore, even if Andrade did submit a grievance by mail, which the Institution Grievance Coordinator did not receive for some reason not attributable to Andrade, Andrade did not re-file a formal grievance within ten days after being informed by Superintendent Allen that his March 27th grievance had not been received.
In Ngo, the Supreme Court was emphatic that the PLRA requires punctiliously proper exhaustion of administrative remedies. 126 S. Ct. at 2387. This means a prisoner must use "all steps that the agency holds out, and do so properly (so that the agency addresses the issues on the merits)." Id. at 2385 quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original). "[A]s a general rule . . . courts should not topple over administrative decisions unless the administrative body not only has erred, but has erred against objection made at the time appropriate under its practice.'"Ngo, 126 S. Ct. at 2385 quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (emphasis in Ngo). Consequently, "[p]roper 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." Ngo, 126 S. Ct. at 2386. Requiring proper exhaustion in this case means that summary judgment with respect to Andrade's complaint of alleged excessive use of force is also appropriate.
E. Count VI
In Count VI, Andrade alleges that "[t]he actions of the defendants violate rights, privileges and laws of the state of Rhode Island and prejudices plaintiff's ability to rehabil[it]ate himself as other prisoners sentenced to serve a prison sentence in Rhode Island are allowed." Defendants move to dismiss this count because Andrade has not exhausted his administrative remedies as required under the PLRA and Mass. Gen. Laws c. 127, § 38F, and for failure to comply with the notice pleading requirements of Fed.R.Civ.P. 8(a).
This count, broadly claiming violations of Rhode Island law, is subject to summary judgment for failure to exhaust because the Massachusetts Defendants alleged to have violated Rhode Island law are entitled to the mandatory administrative exhaustion required under Mass. Gen. Laws ch. 127, § 38F.
To satisfy the notice pleading standard, the complaint must "contain 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir. 2005) quoting Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957). "In measuring a complaint against this benchmark, a reviewing court must 'assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiff's stated theory of liability.'" Centro Medico, 406 F.3d at 5 quoting In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).
Defendants complain that in Count VI Plaintiff merely recites and re-alleges each and every preceding paragraph without specification for his factual support, fails to identify the particular rights of which he is deprived of or the source of the rights, and fails to indicate which defendant or defendants deprived him of any claimed rights. The same complaints could be raised as to Count V except that plaintiff specifies that Defendants violated his rights secured by Articles 1, 10, 11, 12, and 26 of the Massachusetts Constitution.
Keeping in mind that "[a]ll pleadings shall be so construed as to do substantial justice," Fed.R.Civ.P. 8(f), ordinarily I would not dismiss a count such as this for failure to state a claim. Generally, motions to dismiss for failure to state a claim test the adequacy of the facts alleged in a complaint, not the precision of the legal cause of action described in the complaint. Here, Defendants are clearly aware of the nature of Andrade's complaints, which they specifically delineate in their memorandum in support of their dispositive motion. Furthermore, "[w]hile pro se litigants are not exempt from procedural rules, courts are solicitous of the obstacles that they face. Consequently, courts hold pro se pleadings to less demanding standards than those drafted by lawyers." Boivin v. Black, 225 F.3d 36, 43 (1st Cir. 2000) citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) and Instituto de Educacion Universal Corp. v. United States Dep't of Educ., 209 F.3d 18, 23 (1st Cir. 2000).
Irrespective of the specificity of claims of Rhode Island (or Massachusetts) law, however, it is apparent that Andrade has not grieved the matter in a timely manner. That failure neither protects administrative agency authority, nor promotes judicial efficiency. Ngo, 126 S. Ct. at 2385. For that reason, summary judgment on Count VI is also appropriate.
VI. DISCUSSION
For the reasons stated above, I GRANT summary judgment to the Defendants on all the Counts.