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finding institutional time limitations waived where prison did not deny grievance because it was untimely, but rather because it was "non-grievable"
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CIVIL ACTION NO. 2001-12144-RBC.
December 18, 2006
Stephen G. Dietrick MA Department of Correction Legal Division Boston, MA, representing CO Hennesy, Defendant, CO Slyman, Defendant, Co. Andrea, Defendant, Lt. Hammond, Defendant, Sgt. Peckham, Defendant, Edward Ficco, Defendant, Sgt. Janice Pina, Defendant, Luis Spencer, Defendant, Michael Maloney, Defendant.
MEMORANDUM AND THIRD ORDER ON MOTION TO DISMISS (#33) (CONVERTED INTO MOTION FOR SUMMARY JUDGMENT)
I. Introduction
The plaintiff, Paul Maraglia ("Maraglia"), brought this prisoner civil rights suit against several Massachusetts Department of Correction ("DOC") prison security guards. Before the Court is the Defendants' Motion to Dismiss (#33) which the Court converted into a motion for summary judgment on the threshold question of whether the plaintiff has exhausted his available administrative remedies with respect to the claims brought against the remaining defendants. (Memorandum and Second Order on Motion to Dismiss, #40 at 10) The Court invited the parties to supplement the motion with materials in support of their respective positions.
On March 24, 2005, the Court dismissed claims asserted against defendants Michael Maloney, Luis Spencer, Edward Ficco, and Janice Pina. (#39, First Order on Motion to Dismiss) The remaining defendants are: Sgt. Peckham ("Peckham"), C.O. Slyman ("Slyman"), C.O. Andrea ("Andrea"), C.O. Hennessey ("Hennessey") and Lt. Hammond ("Hammond").
In the interim, the Supreme Court decided Woodford v. Ngo, ___ U.S. ___, 126 S.Ct. 2378 (2006), a case that bears on the exhaustion issue here. Because of Ngo's relevance, the Court will convene an evidentiary hearing in order to resolve the exhaustion question within Ngo's framework, and in order to permit the parties to bolster their respective positions in light of Ngo. Below, in order to focus the issues for the parties, the Court sets out the current state of the record.
Several courts within the First Circuit have taken this approach following the Supreme Court's decision in Woodford v. Ngo. See, e.g., Wigfall v. Duvall, 2006 WL 2381285 (D. Mass. 2006) (conducting evidentiary hearing in light of Ngo); Parker v. Robinson, 2006 WL 2904780, *2 n. 9 (D. Me. Oct. 10, 2006) (denying motion for summary judgment in report and recommendation, but noting equity in permitting inmate opportunity to "buffer his case for exhaustion in view of Ngo"); LaMarche v. Bell, 2006 WL 2927242, *3 (D. N.H. Oct. 13, 2006) (granting summary judgment in favor of prison officials on exhaustion issue after affording parties an opportunity to supplement their legal memoranda once the Supreme Court issued Ngo).
II. Legal Framework
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, "a court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor." Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).
Non-exhaustion of administrative remedies is an affirmative defense, and the defendants bear the ultimate burden of pleading and proving non-exhaustion. Casanova v. Dubois, 304 F.3d 75, 77 n. 3 (1st Cir. 2002). When the party moving for summary judgment bears the burden of proof on an issue, that party cannot prevail "unless the evidence that [it] provides on that issue is conclusive." Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998). In other words, "`[that party] must establish beyond peradventure all of the essential elements of the . . . defense to warrant judgment in his favor.'" Torres Vargas, 149 F.3d at 36 (quoting Fontenot v. Upjohn Company, 780 F.2d 1190, 1194 (5th Cir. 1986)).
Otherwise, as always, in responding to a properly supported motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or [otherwise], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "[A] `genuine' issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (internal quotations and citations omitted). The Court "need not credit purely conclusory allegations, indulge in rank speculation, or draw improbable inferences." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1 Cir.), cert. denied, 515 U.S. 1103 (1995).
Finally, the Court notes that Maraglia is proceeding pro se, and therefore the Court liberally construes his pleadings, and holds him to "less stringent standards than formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519 (1972)).
III. Analysis A. Overview
The Court presumes familiarity with the facts as set out in the Court's Memorandum and Second Order on Motion to Dismiss (#40). The question now before the Court is whether the defendants have met their burden in establishing that Maraglia has failed to exhaust administrative remedies, as required under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e et seq.
Recently, in Woodford v. Ngo, the Supreme Court held that the PLRA requires "proper exhaustion" of administrative remedies, which "demands compliance with an agency's deadlines and other critical procedural rules." Ngo, 126 S.Ct. at 2386. In particular, under Ngo, "`[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require.'" Id. at 2384 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.), cert. denied, 537 U.S. 949 (2002)). Thus, as Ngo makes clear, the affirmative defense of non-exhaustion "is a defense with great vitality." Wigfall v. Duval, 2006 WL 2381285, *1 (D. Mass. August 15, 2006).
Maraglia has asserted a number of claims against the remaining defendants, and the defendants' evidence in the record concerning exhaustion varies from claim to claim. As a general matter, however, the Court notes that the defendants' submissions at this juncture raise questions in the Court's mind about the "availability" of the grievance procedures. Cf. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.") (emphasis added). Other than a copy of the current regulations, the defendants have submitted no evidence concerning the accuracy and reliability of the prison's record-keeping practices, or the methods for acknowledging or receipting grievances about excessive force, or threats by staff members. Cf., e.g., Casanova, 304 F.3d at 77 (noting that during time period at issue in Casanova, Massachusetts DOC "had no grievance procedure available for complaints of the type [the inmates] ha[d] brought in th[e] case"). Even post- Ngo, the "availability" of grievance procedures remains a relevant inquiry. See, e.g., Kaba v. Stepp, 458 F.3d 678, 685 (7th Cir. 2006) (noting that "[s]ometimes grievances are clearly available; sometimes they are not; and sometimes there is a middle ground where, for example, a prisoner may only be able to file grievances on certain topics"); cf. also Wigfall, 2006 WL 2381285, at *6 (noting that despite Institutional Grievance Coordinator's testimony on the manner in which he routinely responded to grievances, other evidence established that the official record did not reflect all grievances). Thus, in order to resolve the exhaustion question definitively, the Court concludes below that the "availability" of grievance procedures during the relevant time frame here needs further factual development.
For his part, Maraglia has submitted an affidavit in which he states, as to all the defendants, that "[u]nder all Pains and Penalties of Perjury. [sic] I Plaintiff Paul Maraglia exhausted all file grievances all the way up." (#43 at 1) His affidavit further states that he "[f]iled grievances on each defendants [sic] . . . [f]iling first Institutions [sic]-then appeal to Superintendents-then appeal to Commissioner-Michael Maloney." (#43 at 1) Finally, Maraglia states in his affidavit that "[i]t was so easy for these nine defendants to cover up all this to throw away my records." (#43 at 2) As the Court notes below, Maraglia's affidavit suffers from a generality that is problematic under summary judgment standards, particularly in light of Ngo's requirements. Nevertheless, as noted, the Court withholds summary judgment pending further development of the record.
The Court begins with an overview of the relevant administrative grievance procedures. Because each of Maraglia's claims correlates to specific instances of alleged abuse at the hands of individual defendants, and implicates different provisions of the administrative scheme, the Court sets out the parties' submissions on the question of exhaustion in order of each alleged incident of abuse.
B. The Grievance System
The general requirements of the grievance process are set forth in 103 Code Mass. Regs. ("CMR") §§ 491.01 et seq. The administrative scheme requires that a copy of the grievance regulations be maintained at "each inmate library" and that all new inmates and "incoming inmate transfers shall be notified of Department and Institution Grievance Procedures during the inmate's orientation." 103 CMR § 491.05. An "Institutional Grievance Coordinator" ["IGC"] is the "staff person responsible for attempting resolution of grievances and for coordinating the operation of the grievance procedure at the institutional level." Id. at § 491.06. While inmates are encouraged to resolve complaints informally, they are not required to do so. 103 CMR at § 491.07. The policy provides that grievances be filed "within ten working days of the actual incident or situation," id. at § 491.08(4), by filing them "directly with the Superintendent, Deputy Superintendent, Facility Administrator, or [IGC], id. at § 491.09(3)(A), or "by depositing the completed form in a locked mailbox or drop box," id. at § 491.01(3)(B). "Grievance forms shall be readily available to all inmates. . . ." Id. at § 491.09(1). The regulations also provide that "[a]ll grievances shall be forwarded to the [IGC] on the date received," and that the IGC "shall sign, date-stamp and number each grievance received." Id. at § 491.09(3)(C). The IGC must "acknowledge receipt of the grievance form through a written notification to the inmate." Id. at § 491.10(1)(A). Thereafter, the IGC must "investigate the factual basis of the grievance and propose a resolution or deny the grievance, within ten (10) working days from receipt of the grievance," id. at § 491.10(1)(E), and "provide the inmate a written explanation regarding the proposed resolution or the reasons for the denial of the grievance," id. at § 491.10(1)(F). In addition, "[d]enied grievances shall inform the inmate of the right to appeal." Id. at § 491.10(4). The regulations also impose record keeping functions on the IGC:
Records of all institutional grievances shall be maintained by the [IGC]. A grievance log shall 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. The original grievance form shall be placed in the inmate's institutional file, a copy shall be maintained by the institutional grievance coordinator and a copy returned to the inmate.
103 CMR at § 491.10(5).
The inmate grievance process provides for a second level of review by the Superintendent. See id. at § 491.12. Under this provision, "[a]ppeal forms shall be made available from designated institutional staff," id at § 491.12(1), and the appeal form "must be filed within (10) working days from receipt of a decision to the Superintendent." Id. "The time periods . . . for filing a grievance or appeal or for response to any inmate grievance may be extended for a like period if the [IGC] or Superintendent determines that the initial period is insufficient to make an appropriate decision or if the inmate presents a legitimate reason for requesting an extension." Id. at § 491.18. Otherwise, "[f]ailure by a grievant to comply with the time restrictions . . . unless waived by the [IGC] or Superintendent, shall terminate the grievance process." 103 CMR at § 491.19.
C. The Defendants and Claims 1. Defendants Peckham and Hennessey
Maraglia alleges that in May 2000, defendant Peckham kicked Maraglia in his lame right leg, and threatened Maraglia as he was leaving the chow hall. (#24 ¶ 15) He also alleges that Peckham threatened to retaliate if Maraglia reported the incident to staff. Id. Maraglia alleges that on June 25, 2001, defendant Hennessey punched Maraglia in the face, splitting Maraglia's lip, and handcuffed Maraglia in a way that twisted his lame arm. Maraglia further alleges that Hennessey pulled Maraglia out of video range and assaulted him, and that Hennessey threatened retaliation if Maraglia told anyone about the incident. (#24 ¶ 18)
The defendants have submitted the affidavit of Maria Sazonick ("Sazonick"), a paralegal at Souza-Baranowski Correctional Center (#35 ¶ 1), stating that she searched institutional records and found only two grievances filed by Maraglia during the period alleged in his complaint. Neither of those grievances concerns defendants Peckham or Hennessey, or complains of incidents in May, 2000, or on June 25, 2001. Although Maraglia has averred generally that he filed and appealed all grievances, he does not aver specific facts that would permit the Court to conclude that he grieved the specific complaints against Peckham or Hennessey. Cf. Fed.R.Civ.P. 56(e) (a party opposing a properly supported motion for summary judgment "must set forth specific facts showing that there is a genuine issue for trial"). The plaintiff does not, for example, aver how and when he filed grievances, details that have become particularly relevant under Ngo.
DOC regulations require the grievance to contain, inter alia, the following information: "the date of the occurrence of the incident and a brief statement of facts. 103 CMR § 491.09(2)(A), (D).
The recent post- Ngocase, Andrade v. Maloney, 2006 WL 2381429, *6 (D. Mass. Aug. 16, 2006), is instructive. There, the inmate submitted an affidavit specifically averring that he had filed a formal grievance by placing it in the prison outgoing locked mailbox on a given date, and that he had filed an appeal on a specific date with the proper officials. This level of specificity "arguably raise [d] a factual dispute concerning whether any grievance was actually filed." Id. In the end, however, summary judgment entered in favor of prison officials in Andrade because, under Ngo, the inmate's own affidavit established that he had failed to comply with the prison's internal filing deadlines. See Andrade, 2006 WL 2381429, at *6.
In this sense, then, the evidence in Andrade was also "conclusive" as to the exhaustion issue. Further, in Andrade, the plaintiff-inmate did not contest the defendants' averment that he failed to file grievances on his remaining claims. See Andrade, 2006 WL 2381429, at *5; see also La Marche v. Bell, 2006 WL 2927242, at *5 (D. N.H. Oct. 13, 2006) (inmate's grievances were not properly exhausted under Ngo because inmate's own pleadings established that inmate had filed grievances out of time, and with wrong authority).
Here, although Maraglia maintains that he exhausted his remedies "all the way up" (#43 at 1) he has not averred specific details to bolster this assertion, or provided any correspondence, copies of grievances, or receipts to suggest that this is so. Nor does Maraglia explain why he has no documentation to buttress his assertion that he has exhausted his remedies against these defendants. Cf. Wigfall, 2006 WL 2381285, at *5 (noting that inmate claimed that he was unable to produce receipts because they "went missing" during a transfer from one facility to another). Although Maraglia speculates that "[i]t was so easy for these nine defendants to cover up all this to throw away [his] records" (#43 at 2), this supposition is unsupported by any evidence or specific facts. Cf. Perez v. Volvo Car Corp., 247 F.3d 303, 315-316 (1st Cir. 2001) ("personal knowledge is the touchstone" of admissibility of affidavits supporting or opposing summary judgment and "the requisite personal knowledge must concern facts as opposed to conclusions, assumptions, or surmise"). Even a self-serving affidavit may constitute proper summary judgment material if it sets forth specific factual details sufficient to create a dispute of fact. Cf. Cadle Co. v. Hayes, 116 F.3d 957, 961 n. 5 (1st Cir. 1997) (stating that a "party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment"); Kaba, 458 F.3d at 681 (noting that sworn affidavits, "particularly those that are detailed, specific, and based on personal knowledge are competent evidence to rebut [a] motion for summary judgment" even though the affidavit is self-serving) (internal quotations and citation omitted). Here, however, no specific facts permit the Court to draw a favorable inference concerning Maraglia's speculation about the completeness of prison records.
Further, the Court specifically forewarned Maraglia that "[i]f the plaintiff claims he did not exhaust any of his available remedies because of deliberate wrongful actions of the defendants to deter him from exhausting his remedies (i.e., filing grievances and appeals), he shall submit an affidavit providing the factual details of such deliberate wrongful actions." (Memorandum and Second Order on Motion to Dismiss, #40 at 10-11) To the extent that Maraglia has alleged that Peckham and Hennessey threatened retaliation if Maraglia reported the alleged incidents to staff, Maraglia's affidavit filed in response to the motion for summary judgment contains no factual details, despite the Court's directive.
Notwithstanding the inadequacies noted above, the Court will withhold entering summary judgment pending further development of the record within Ngo's framework.
2. Defendant Slyman
Maraglia alleges that defendant Slyman has many times closed the heavy electric cell door on Maraglia's lame leg, and has punched Maraglia in his lame shoulder. Maraglia also alleges that Slyman threatened to beat Maraglia up if he reported the incidents to the staff. (#24 ¶ 16)
The defendants have attached a grievance form dated May 6-7, 2001, in which Maraglia complains that Slyman closed the door on his lame leg. ( See #35, Affidavit of Maria Sazonick, Exh. A) The grievance was stamped as received on May 16, 2001, and denied on that date. This grievance appears therefore to have been timely filed, according to DOC regulations. See 103 CMR § 491.08(4) ("A grievance shall be filed within ten working days of the actual incident or situation"). The defendants aver, however, that the plaintiff did not appeal this grievance to the Superintendent. (#35 ¶ 4)
The plaintiff alleges in his complaint that in March through August, 2001, Maraglia "brought to the attention" of the Superintendent Slyman's actions (#24 ¶ 13), and in his affidavit he avers that he complained "all the way up." The Court notes that the DOC Inmate Grievance Procedures (attached to Sazonick's affidavit, #35), instructs the IGC to "[r]eceipt the inmate by completing and removing the bottom portion of the Inmate Grievance form (Section C) and forward[ing] it to the inmate." (Elsewhere, the regulations direct the IGC to "acknowledge receipt of the grievance form through a written notification to the inmate," 103 CMR § 491.10(1)(A).) Here, the grievance form appears to be intact, prompting the question whether Maraglia ever received notice of the denial of his claim. Because "[d]enied grievances shall inform the inmate of the right to appeal," id. at § 491.10(F)(4), the Court questions whether Maraglia could have availed himself of the internal appeal process. In any event, because the burden is with the defendants to prove non-exhaustion, and because the defendants also offer only a general averment that Maraglia failed to appeal this grievance without establishing that they complied with their own procedures on this critical point, the Court concludes that, without more, a dispute of fact remains on whether the internal appellate process was indeed "available" to Maraglia, and that the record requires further development on this point. Cf. Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 97 (D. Mass. 2005) (noting that "administrative remedies are not `available' where plaintiff received no response to grievances and thus could not file an administrative appeal") (citing Pritchett v. Page, 2002 WL 1838150 (N.D. Ill Aug 12 2002)); Dole v Chandler, 438 F 3d 804 809 (7th Cir 2006) ("Prison officials may not take unfair advantage of the exhaustion requirement . . . and a remedy becomes `unavailable' if prison employees do not respond to a properly filed grievance").
3. Defendant Andrea
Among other things, Maraglia alleges that defendant Andrea closed the heavy cell door on his leg many times, and that he threatened Maraglia often. (#24 ¶ 17) The defendants aver that "there was no correction officer named Andrea employed at Souza-Baranowski Correctional Center" during the time frame alleged in Maraglia's complaint. (#35 ¶ 5) Maraglia offers no specific response to this contention. The allegations in the complaint standing alone are insufficient to rebut the defendant's properly supported contention, see Celotex Corp. v Catrett, 477 U.S. 317, 324 (1986) (allegations of pleading fail to constitute specific facts required by Fed.R.Civ.P. 56(e)), and the Court therefore concludes that, without specific rebuttal evidence, summary judgment will be appropriate on these claims. Nevertheless, the Court will withhold summary judgment pending the evidence submitted at the evidentiary hearing on the matter.
4. Defendant Hammond
Finally, Maraglia alleges that on August 8, 2001, defendant Hammond attempted to break Maraglia's right arm. (#24 ¶ 19) The defendants have submitted a grievance dated September 14, 2001, and stamped received by the IGC on October 1, 2001, complaining about an incident with Lt. David Hammond that occurred on August 9, 2001, in which the plaintiff complains that Hammond tried to break his right arm. This grievance appears to correspond to allegations in the complaint concerning Hammond. The grievance also appears to relate to a disciplinary report that Hammond wrote up on the plaintiff regarding the August 9, 2001 incident. ( See #35, [Exh. B at 3])
On its face, the grievance appears untimely under DOC regulations, which permit only ten days for filing a grievance from the date of the incident. However, Maraglia also states in the grievance: "The reason why I did not send this to you sooner I was afraid he would of did [sic] something to the food." (#35, [Exh. B at 2]) DOC regulations grant the IGC the authority to waive the time limits. See 103 CMR § 491.19. Here, the grievance was denied on January 17, 2002, not as untimely, but because "[d]isciplinary actions are non-grievable under CMR 103.491." Thus, drawing all reasonable inferences in favor of Maraglia, the Court must conclude that the IGC waived the institutional time limitations.
The Court notes that by the time the grievance was denied, Maraglia had already filed suit in federal court.
Furthermore, the grievance was denied as "non-grievable." To be sure, the regulations provide that "disciplinary decisions and recommendations are not grievable under 103 CMR 491.00," see 103 CMR § 491.08(1), but the defendants do not explain how Maraglia could have exhausted the appeal process on his complaint of excessive force given this categorization. Cf. Shaheed-Muhammad, 393 F. Supp. 2d at 103 (denying summary judgment on non-exhaustion grounds because "classification decisions" are not grievable and "Plaintiff clearly could not exhaust an administrative remedy that was unavailable to him"). These omissions give the Court pause, and for that reason, the Court determines that, on this record, a dispute of fact exists on whether exhaustion procedures were indeed "available." Thus, the Court will withhold its summary judgment ruling until further factual development of this and other points.
IV. Conclusion and Third Order
In view of Woodford v. Ngo, ___ U.S. ___, 126 S.Ct. 2378 (2006), the Court has determined that an evidentiary hearing is needed to develop the factual record more fully on the potentially dispositive question of exhaustion of remedies. Accordingly, it is ORDERED that an evidentiary hearing be, and the same hereby is, set for Wednesday, February 21, 2007 at 10:30 A.M. at Courtroom #23 (7th floor), John Joseph Moakley United States Courthouse, Boston, Massachusetts. The Clerk shall issue a writ of habeas corpus in order to secure plaintiff's presence at the hearing.