Wolff v. NH Department of Corrections Et Al - Document No. 9

Wolff v. NH Department of Corrections et al Doc.
9
Case 1:06-cv-00321-PB Document 9 Filed 10/19/2006 Page 1 of 9
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE
Charles Jay Wolff
v. Civil No. 06-cv-321-PB
New Hampshire Department

of Corrections, et al.
O R D E R
Pro se plaintiff Charles Jay Wolff has filed a complaint,
pursuant to 42 U.S.C. § 1983, alleging that he has been denied
religious dietary restrictions, including a Kosher diet, while
incarcerated at the New Hampshire State Prison (“NHSP”) (document
nos. 5 and 7). Named as defendants are the New Hampshire
Department of Corrections (“NHDOC”) and two NHSP employees, Gency
Morse and James Daley. Also filed is a motion for appointment of
counsel (document no. 6).
The complaint is before me for preliminary review to
determine whether, among other things, it states a claim upon
which relief may be granted. See 28 U.S.C. § 1915A; U.S.
District Court for the District of New Hampshire Local Rule
(“LR”) 4.3(d)(2). For the reasons stated below, I order Wolff to
amend his complaint to demonstrate whether and to what extent he
Dockets.Justia.com
has exhausted the claims raised in his complaint.1 His motion
for appointment of counsel is denied without prejudice to it
being renewed at a later date should circumstances warrant
renewal.
Standard of Review
In reviewing a pro se complaint, this Court must construe
the pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d
8, 15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97,
106 (1976)), treating all well-pleaded factual allegations as
true and drawing all reasonable inferences in the litigant’s
favor, see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)
1
In the alternative, Wolff may file with this Court a
voluntary notice of dismissal pursuant to Fed. R. Civ. P. 41(a),
which provides in relevant part:
[A]n action may be dismissed by the plaintiff without

order of court (i) by filing a notice of dismissal at
any time before service by the adverse party of an
answer or of a motion for summary judgment, whichever
first occurs, or (ii) by filing a stipulation of
dismissal signed by all parties who have appeared in
the action. Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without
prejudice, except that a notice of dismissal operates
as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court of the
United States or of any state an action based on or
including the same claim.
Fed. R. Civ. P. 41(a).
2
(explaining that all “well-pleaded factual averments,” not bald
assertions, must be accepted as true). This review ensures that
pro se pleadings are given fair and meaningful consideration.
See Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).
Discussion
I. Exhaustion of Administrative Remedies
Wolff brings this action pursuant to Section 1983, which
creates a cause of action against those who, acting under color
of state law, violate federal law. See 42 U.S.C. § 1983; Parratt
v. Taylor, 451 U.S. 527, 535 (1981); Rodriguez-Cirilo v. Garcia,
115 F.3d 50, 52 (1st Cir. 1997). The Prison Litigation Reform
Act (“PLRA”) provides:
No action shall be brought with respect to prisons

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 added).
As the Supreme Court has recently held in Woodford v. Ngo,
__ U.S. __, 126 S. Ct. 2378, 2382 (2006), “A centerpiece of the
PLRA’s effort ‘to reduce the quantity . . . of prisoner suits’ is
an ‘invigorated’ exhaustion provision, § 1997e(a). Id. (quoting
Porter v. Nussle, 534 U.S. 516, 524 (2002)). Prisoners must
3
exhaust even where the relief sought cannot be granted in the
administrative process. Ngo, 126 S.Ct. At 2382-83. See also
Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)(holding that an
inmate’s perception that exhaustion would be futile does not
excuse him from the exhaustion requirement). “The PLRA attempts
to eliminate unwarranted federal-court interference with the
administration of prisons, and thus seeks to ‘affor[d]
corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case.’”
Id. at 2387.
However, the exhaustion requirement is not jurisdictional.
Id. at 2387. “If administrative remedies are not available to an
inmate, then the inmate cannot be required to exhaust. Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006).” Therefore,
“[c]orrections officials concerned about maintaining order in
their institutions have a reason for creating and retaining
grievance systems that provide -- and that are perceived by
prisoners as providing -- a meaningful opportunity for prisoners
to raise meritorious grievances.” Ngo, at 2392. Because the
PLRA does not say when a process is available, courts must apply
the ordinary meaning of the term. See Kaba, 458 F.3d at 684
4
(citing Asgrow Seed Co. V. Winterboer, 513 U.S. 179, 187 (1995)).
“In Ngo, the Supreme Court rejected the idea . . . that a process
becomes unavailable because the prisoner does not comply with the
procedural rules and therefore cannot obtain relief, and required
courts to look at the reason why the administrative process is
unavailable.” Kaba, 458 F.3d at 684 (quoting Ngo, 126 S.Ct. at
2387, 2392-93)). “Thus, when the prisoner causes the
unavailability of the grievance process by simply not filing a
grievance in a timely manner, the process is not unavailable but
rather forfeited.” Id. At 684. On the other hand, when prison
officials prevent inmates from using the administrative process,
that process becomes unavailable. Id. (citing Dale v. Lappin,
376 F.3d 652, 655 (7th Cir. 2004)(holding that where prison
officials failed to provide inmates with the necessary form to
file an administrative grievance, administrative remedies are not
available.”) and Brown v. Croak, 312 F.3d 109-111-12 (3d. Cir.
202)(holding that administrative remedies were unavailable where
prison officials erroneously told prisoner that he must wait
until the investigation was complete before filing a grievance)).
Viewing the allegations in the light most favorable to
Wolff, I cannot conclude that he has demonstrated exhaustion of
5
administrative remedies with regard to each claim raised in his
complaint. He filed the instant complaint on August 29, 2006 and
alleges that at least some of the violations therein are ongoing
and/or continued until the time of his filing. It appears,
therefore, that at least as to the violations alleged to have
occurred at the time of filing, that Wolff could not have fully
exhausted those claims through the prison administrative
grievance procedures prior to filing this action. While Wolff
has stated in correspondence that he “has completed [his]
grievance process” (document no. 3), there is no indication that
he sought administrative review or pursued the administrative
grievance procedures available to him at the NHSP. Thus, it is
not clear on the face of the complaint that he has attempted to
exhaust the administrative grievance procedures available to him
prior to filing this action. However, the complaint does not
exclude the possibility that he may have exhausted other claims
raised in his complaint.
II. Appointment of Counsel
Wolff has filed a motion for appointment of counsel which,
construed liberally, alleges that in light of the legal
complexity of his case he cannot adequately represent himself
6
(document no. 6). An indigent litigant must show that
exceptional circumstances exist to justify appointment of
counsel, such that without counsel the litigant most likely would
be unable to obtain due process of the law. See DesRosiers v.
Moran, 949 F.2d 15, 23-24 (1st Cir. 1991). “In determining
whether the circumstances are ‘exceptional,’ courts have
considered such factors as the merits of the case, the litigant’s
capability of conducting a factual inquiry, the complexity of the
legal and factual issues, and the ability of the litigant to
represent [himself].” Weir v. Potter, 214 F. Supp. 2d 53, 54 (D.
Mass. 2002)(citing Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir.
1986)).
While Wolff maintains that he is unable to represent himself
adequately, he has not demonstrated an inability to litigate or
other exceptional circumstances to justify the appointment of
counsel. He has filed a complaint in which he has sufficiently
presented his claims and alerted this Court to the federal
violations at issue. At this preliminary stage in the
proceedings, appointment of counsel does not appear to be
necessary. Having considered Wolff’s circumstances and the
applicable law regarding his rights to legal representation, I
deny his motion without prejudice to it being renewed at a later
7
date should circumstances warrant renewal.
Conclusion
For the reasons stated above, it is not clear on the face of
the complaint whether or not Wolff has exhausted each of the
claims raised in his complaint. Accordingly, I direct him to
amend his complaint within thirty days of the date of this order
to demonstrate, with specificity, whether and to what extent each
claim has been exhausted through the administrative grievance
process.2 If he cannot demonstrate exhaustion for each claim, I
will recommend to the District Judge that the unexhausted claims
be dismissed without prejudice to refiling after they have been
properly exhausted through prison grievance procedures. See 42
U.S.C. § 1997e(c)(1) (requiring the Court to dismiss a prison
conditions action sua sponte if the Court is satisfied that the
plaintiff has failed to state a claim upon which relief might be
2
In the alternative, Wolff may file with this Court a
voluntary notice of dismissal pursuant to Fed. R. Civ. P. 41(a),
as explained more fully above.
8
granted); LR 4.3(d)(2)(A).
SO ORDERED.
____________________________________
James R. Muirhead
United States Magistrate Judge
Date: October 19, 2006
cc: Charles Jay Wolff, pro se

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Wolff v. NH Department of Corrections et al Doc.

UNITED STATES DISTRICT COURT FOR THE

Charles Jay Wolff

v. Civil No. 06-cv-321-PB

New Hampshire Department

Pro se plaintiff Charles Jay Wolff has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that he has been denied

religious dietary restrictions, including a Kosher diet, while

incarcerated at the New Hampshire State Prison (“NHSP”) (document

nos. 5 and 7). Named as defendants are the New Hampshire

Department of Corrections (“NHDOC”) and two NHSP employees, Gency

Morse and James Daley. Also filed is a motion for appointment of

counsel (document no. 6).

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I order Wolff to

amend his complaint to demonstrate whether and to what extent he

has exhausted the claims raised in his complaint.1 His motion

for appointment of counsel is denied without prejudice to it

being renewed at a later date should circumstances warrant

In reviewing a pro se complaint, this Court must construe

the pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d

8, 15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97,

106 (1976)), treating all well-pleaded factual allegations as

true and drawing all reasonable inferences in the litigant’s

favor, see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)

[A]n action may be dismissed by the plaintiff without

Fed. R. Civ. P. 41(a).

(explaining that all “well-pleaded factual averments,” not bald

assertions, must be accepted as true). This review ensures that

pro se pleadings are given fair and meaningful consideration.

I. Exhaustion of Administrative Remedies

Wolff brings this action pursuant to Section 1983, which

creates a cause of action against those who, acting under color

of state law, violate federal law. See 42 U.S.C. § 1983; Parratt

v. Taylor, 451 U.S. 527, 535 (1981); Rodriguez-Cirilo v. Garcia,

Act (“PLRA”) provides:

No action shall be brought with respect to prisons

42 U.S.C. § 1997e(a)(emphasis added).

As the Supreme Court has recently held in Woodford v. Ngo,

__ U.S. __, 126 S. Ct. 2378, 2382 (2006), “A centerpiece of the

PLRA’s effort ‘to reduce the quantity . . . of prisoner suits’ is

an ‘invigorated’ exhaustion provision, § 1997e(a). Id. (quoting

Porter v. Nussle, 534 U.S. 516, 524 (2002)). Prisoners must

exhaust even where the relief sought cannot be granted in the

administrative process. Ngo, 126 S.Ct. At 2382-83. See also

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)(holding that an

inmate’s perception that exhaustion would be futile does not

excuse him from the exhaustion requirement). “The PLRA attempts

to eliminate unwarranted federal-court interference with the

administration of prisons, and thus seeks to ‘affor[d]

corrections officials time and opportunity to address complaints

internally before allowing the initiation of a federal case.’”

However, the exhaustion requirement is not jurisdictional.

Id. at 2387. “If administrative remedies are not available to an

inmate, then the inmate cannot be required to exhaust. Kaba v.

Stepp, 458 F.3d 678, 684 (7th Cir. 2006).” Therefore,

U.S. , 126 S. Ct. 2378, 2382 (2006), “A centerpiece of the