Opinion
Civil Action No. 00-12274-DPW.
August 15, 2006
MEMORANDUM AND ORDER
Plaintiff, Dornell Wigfall, brought this prisoner's civil rights suit against a number of Department of Corrections ("DOC") officials. In addressing summary judgment motions, I found it was appropriate to hold an evidentiary hearing concerning the threshold issue of whether Wigfall exhausted the available administrative remedies. Given the exhaustion issues in this case, I have held various motions under advisement pending the Supreme Court's decision in Woodford v. Ngo, 126 S.Ct. 2378 (2006). In the wake of Ngo, I find a further hearing in this case is necessary.
I. BACKGROUND
Wigfall brought this suit against a number of DOC officials for actions related to and arising out of the alleged excessive use of force against him while he was an inmate at Souza-Baranowski Correction Center ("SBCC"). By Memorandum and Order issued March 29, 2002, I dismissed the Plaintiff's complaint as to all claims and all defendants except "as to the defendants Marshall, Shea and Dewey to the extent that the complaint alleges excessive force on 2/11/99."
On March 29, 2002, I also granted Defendants' motion to stay discovery pending the appointment of counsel. The stay remained in place until March 10, 2004 when I vacated the order for appointment of counsel after efforts to secure pro bono counsel for the Plaintiff proved unsuccessful.
Failing initially to recognize the original Answer did not include the affirmative defense of failure to exhaust, the remaining Defendants moved for summary judgment claiming that Wigfall had not exhausted his administrative remedies because he did not file a timely grievance in accordance with the procedures mandated by the Inmate Grievances Policy of the Massachusetts Department of Corrections. After recognizing the deficiency in their Answer, Defendants thereafter moved to amend their Answer to add this affirmative defense.
I held an evidentiary hearing to permit both sides an opportunity to develop the record as to the exhaustion issue. Wigfall, Bruce Waite (a fellow prisoner), and Michael Dickhaut (the former SBCC Institutional Grievance Coordinator) testified. Following the hearing, Defendants and Wigfall supplemented the record with more exhibits. Wigfall also cross-moved for summary judgment on the merits and made a number of other motions.
Although spelled in certain of the pleadings as "Dickaut," Michael Dickhaut apparently spells his last name with an "h."
II. MOTION TO AMEND
At the outset, I must address whether the Defendants may amend their Answer to raise the affirmative defense of failure to exhaust. An Answer may only be amended "by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Generally, this means that leave to amend is to be granted unless the amendment would be futile, or reward undue or intended delay, bad faith, or dilatory motive on the part of the movant. See States Resources Corp. v. The Architectural Team, Inc., 433 F.3d 73, 83 (1st Cir. 2005).
In this case, the addition of the exhaustion defense is not futile. As Ngo makes clear, it is a defense with great vitality. If the issue is resolved in Defendants' favor, that resolution would dispose of the case entirely. Defendants' failure to raise this defense in their April 19, 2001 Answer and Motion to Dismiss did not prejudice Wigfall because the time period for filing a grievance had long since passed when Defendants filed their Answer and Motion to Dismiss in 2001. Defendants' delay in asserting the defense is also not undue despite the three-year gap between the filing of their Answer and the motion to amend. At the time the original Answer was filed, the First Circuit had not yet settled the issue of whether failure to exhaust was a jurisdictional bar or an affirmative defense. See Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001) (excusing defendant's failure to raise exhaustion in a timely manner because the law regarding PLRA exhaustion was unsettled at the time). The Casanova decisions were not issued until after I granted Defendants' motion to stay discovery pending the appointment of counsel. A stay remained in place until March 10, 2004. At the first status conference held thereafter, on April 22, 2004, Defendants' Counsel represented that she believed the affirmative defense of failure to exhaust had been pled in Defendants' original Answer and was unaware that the Answer was filed before pleading this defense became standard practice for the DOC following the Casanova decisions. Given these circumstances, I find that the delay was not undue. Cf. Long v. Wilson, 393 F.3d 390, 399 (3rd Cir. 2004) (finding that the state did not unduly delay in raising its statute of limitations defense where the inactivity on the docket was not attributable to the state, even though the state conceded that it inadvertently failed to raise the defense in its answer). Consequently, I grant Defendants leave to amend their Answer to include the affirmative defense of failure to exhaust.
Casanova v. Dubois, 289 F.3d 142, 146 (1st Cir. 2002) ("Casanova I") (finding that the issue was one of first impression in the First Circuit); Casanova v. Dubois, 304 F.3d 75, 78 n. 3 (1st Cir. 2002) ("Casanova III") (confirming, as the district court correctly predicted on remand, that the First Circuit had officially adopted the majority rule that failure to exhaust is an affirmative defense).
III. 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 Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq (1996), reinforced the exhaustion requirement for prisoners bringing suits challenging prison conditions by making clear 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 no longer have the discretion to decline to require exhaustion 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.
In Ngo, the Supreme Court clarified that the PLRA requires "proper exhaustion." 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. 3 quoting 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)
Ngo did not settle what constitutes a valid defense to the statutory requirement for exhaustion in PLRA cases. Justice Alito writing for the majority did not address Justice Breyer's comment in concurrence that "on remand, the lower court should . . . consider any challenges that petitioner may have concerning whether his case falls into a traditional exception that the statute implicitly incorporates." 126 S.Ct. at 2393 (Breyer, J. concurring). Nor did Justice Alito comment on Justice Breyer's suggestion that "[a]dministrative law . . . contains well established exceptions to exhaustion," id., such as constitutional claims, futility, hardship, and inadequate or unavailable administrative remedies. Justice Breyer's solitary concurrence must, in any event, be considered in light of Booth v. Churner, 532 U.S. 731 (2001).
The First Circuit has observed in this connection that "[t]o unsettle th[e] presumption of initial administrative review . . . [even without explicit statutory language of preclusion] requires a strong countervailing rationale. The Supreme Court has made exceptions in the past, inter alia, for situations where plaintiffs will effectively receive no review at all, where the administrative process is fundamentally flawed because of a pattern and practice of administrative agency abuse, where the agency's behavior is utterly lawless, and where further administrative exhaustion is deemed futile." Eastern Bridge, LLC v. Chao, 320 F.3d 84, 89 (1st Cir. 2003) (internal citation and footnotes omitted).
In Booth, the Supreme Court unanimously rejected a prisoner's argument that there were no remedies "available" as set forth in 42 U.S.C. § 1997e(a) because he sought a form of relief unavailable through the grievance process. The Court also rejected the prisoner's argument that this position is "at odds with traditional doctrines of administrative exhaustion, under which a litigant need not apply to an agency that has 'no power to decree . . . relief,' or need not exhaust where doing so would otherwise be futile." Id. at 741 n. 6 (internal citation omitted). Justice Souter, delivering the opinion for the Court, wrote that "[w]ithout getting into the force of this claim generally, we stress the point . . . that we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise," such as here by eliminating the condition that the administrative remedy must be "plain, speedy, and effective" before exhaustion could be required. Id. at 741 n. 6, 739. See also Boston Edison Co. v. Federal Energy Regulatory Comm., 233 F.3d 60, 69 (1st Cir. 2000) (holding that exhaustion-of-remedies provisions that are statutory in character are "somewhat less susceptible to the implied exceptions that courts have liberally devised where the exhaustion requirement is created by the courts rather than Congress"); Sousa v. I.N.S., 226 F.3d 28, 31 (1st Cir. 2000) (same).
In Booth, the state's grievance process did not permit an award of monetary damages, and the prisoner appellant was only seeking monetary damages.
Despite Booth, I assume that a defendant may still "become estopped from asserting an inmate's failure to exhaust as a defense under the PLRA . . . by interfering with an inmate's efforts to pursue administrative remedies." Beltran v. O'Mara, 405 F.Supp.2d 140, 153 (D.N.H. 2005). See also Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004) ("[N]on-exhaustion is an affirmative defense subject to estoppel in cases where prison officials inhibit an inmate's ability to utilize administrative grievance procedures.") citing Ziemba v. Wezner, 366 F.3d 161, 163-64 (2d Cir. 2004); Lyon v. Vande Krol, 305 F.3d 806, 808 (8th Cir. 2002) ("[I]nmates cannot be held to the exhaustion requirement of the PLRA when prison officials have prevented them from exhausting their administrative remedies.") As discussed below, whether such interference occurred in this case will require further development.
IV. MASSACHUSETTS WRITTEN EXHAUSTION REGULATIONS
The current regulations governing inmate grievances, see 103 CMR 491.00 et seq. (2001), codified January 5, 2001 are preceded by a statement of department policy called Inmate Grievances, see 103 DOC §§ 491.01 et seq. This policy and the subsequent regulations set forth the rules for filing a formal grievance. The requirement of administrative exhaustion became mandatory as a matter of state law July 1, 1999. See Mass. Gen. Laws ch. 127, § 38F, added by St. 1999, c. 127 § 133. The version of the Inmate Grievances Policy effective August 27, 1998 appears to have remained in force through at least February 11, 1999. That 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 policy provides that in order to initiate the formal processing of inmate grievances, "[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). "However, the IGC may extend this period, not to exceed thirty working days, if it is determined that it was not feasible for the inmate to file within this period." Id. "The 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).
The 1998 Inmate Grievances Policy does not specifically define grievance, but, for present purposes, the definition of a grievance under the 1996 Inmate Grievance Policy — "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) — appears to encompass the excessive force claim asserted here by Plaintiff.
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), 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). 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).
The Inmate Grievances Policy provides 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). "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). 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). "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).
The Inmate Grievances Policy mandates 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). 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). The IGC also 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. THE RECORD
A. The Alleged AssaultWigfall alleges that Defendants Marshall, Shea, and Dewey physically assaulted him on February 11, 1999 in the Segregation Management Unit ("SMU"). He contends that the prison personnel needlessly used tear gas to remove him forcibly from his cell while he was naked. He asserts that due to the contamination of his cell by the gas, Defendants moved him to a different cell in "another unit there." At the hearing in this matter, Wigfall further testified that the incident took place in his cell in the K-3 unit and that afterwards he was put in a different cell on the same floor, either around the corner in the next unit or on the other side of the floor.
B. The Alleged Grievance
The parties have provided conflicting evidence regarding Wigfall's complaint. The evidence adduced by the parties is not only inconsistent between Plaintiff and Defendants, it is internally inconsistent.
1. Wigfall's Evidence for the April 30, 2004 Hearing — In an April 16, 2004 affidavit, Wigfall claimed that Bruce Waite, a prisoner in the cell next to his second cell, witnessed Wigfall being dragged into the second cell. Wigfall claimed that Waite "sent [him] over an institutions grievance form [he] fil[l]ed out and passed in immediately."
Waite testified at the April 30, 2004 hearing in this matter that he was in the same unit as Wigfall at some point in their residency at SBCC, but he could not remember when. The certified copy of the housing rosters for the housing units indicates that on February 11, 1999, Waite was housed in the N-1 Block, whereas Wigfall was housed in the K-3 Block. At the hearing, Waite could not remember if he gave Wigfall an inmate grievance form on February 11, 1999, but he testified that if Wigfall had asked for one, he would have given it to him.
In his October 18, 2000 Complaint, Wigfall claimed that he "filed his grievances with the grievance department to the name[d] officer sgt. michael dickaut, who's job is to process the grievance submitted to his office." He alleged that Sgt. Dickhaut "refused to process [the grievance] and give plaintiff a docket number from the time plaintiff began filing any of his legit grievances from February 17th, 19 thru the 23rd, etc."
However, Wigfall testified during the April 30, 2004 hearing that he definitely filed the grievance the day of the incident and that he either gave the form to a staff member or he put it in the mailbox. Wigfall further testified that he received the receipt from the Institutional Grievance Coordinator indicating that the grievance had been denied, and that he filed an appeal of the initial denial to Paul L. DiPaolo, then Superintendent of SBCC, which was also denied. Wigfall claimed that he also received a receipt for his appeal. At the April 30, 2004 hearing, Wigfall testified that he brought the receipts of his grievance and appeal to his disciplinary hearing on March 24, 1999 relating to the incident on February 11, 1999 and submitted them as exhibits. The certified record of the disciplinary hearing does not include the receipts and none of the documents refer to any grievance filed by Wigfall. Wigfall has not produced any of the receipts. At the hearing, Wigfall testified that he cannot produce the receipts because he claims that they went missing with some of his other legal papers when he was transferred in 2000 to MCI Cedar Junction in Walpole, Massachusetts.
2. Defendants' Evidence for the April 30, 2004 Hearing — In support of Defendants' motion for summary judgment, Defendants submitted the affidavit of Betty Pillsbury, the Institutional Grievance Coordinator at SBCC beginning in 2001. She averred that there is no record of Wigfall filing a grievance relating to the alleged use of force on February 11, 1999. A certified copy of the grievance log printout of the grievances received from Wigfall between December 1, 1998 and December 31, 1999 at SBCC lists four grievances filed by Wigfall during that time period regarding "legal mail opened," "missing mail," "broken/missing watch," and "claims missing legal work and no access to legal storag[e]." The "missing mail" grievance, which was received on February 8, 1999, is the only grievance listed as received in February, 1999. There are no grievances listed for May, 1999.
After Pillsbury executed her Affidavit, Wigfall did however file an Inmate Grievance Form dated April 22, 2004 regarding the February 11, 1999 incident at SBCC. The grievance was denied by the Institutional Grievance Coordinator at MCI Cedar Junction on April 26, 2004 because 103 CMR 491.08(4) 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." The decision-maker concluded that "You have clearly exceeded the time limits." The issue before me is whether Wigfall previously filed a timely grievance in accordance with the procedures mandated by the DOC Inmate Grievance Policy.
At the April 30, 2004 hearing, Sgt. Dickhaut, the Institutional Grievance Coordinator at SBCC in February, 1999, testified that when he received any grievances, he logged them in and kept track of them. He also testified that he would never receive a grievance and not respond to it; he always responded one way or another, he said.
3. Wigfall's Post-Hearing Evidence — After the hearing before me, Wigfall filed a motion for declaratory judgment. In the accompanying memorandum Wigfall argues that summary judgment should not be entered for the remaining Defendants because he did exhaust his administrative remedies in a timely fashion. Wigfall contends that "Exhibits #1 [are] complete evidence the plaintiff did in fact file his grievances." Exhibits #1 as marked are not relevant to the issue of whether Wigfall filed a grievance. Other documents submitted in connection with the declaratory judgment motion appear relevant, however. The documents identified as "Exhibits #5" consist of three memoranda from the SBCC Institutional Grievance Coordinators to Wigfall. The first and second memoranda are from Sgt. Michael Dickhaut and dated March 1, 1999. The subject of both is "Inmate Grievance." The third is from Sgt. Shawn Puchalski and dated May 27, 1999. It is regarding " GRIEVANCE FORMS." The authors initialed each of the memoranda which I refer to collectively herein as the "Grievance Memoranda."
The Memoranda individually state:
[March 1, 1999]
Mr. Wigfall this letter is to inform you that I have received your Inmate Grievance Form dated February 23, 1999. Due to the nature of your complaint your Grievance cannot be appropriately handled by this Office therefore I have forwarded it to the Superintendent's Office.
I trust this will address your concerns in this matter.
* * * * *
[March 1, 1999]
Mr. Wigfall this letter is to inform you that I received your Inmate Grievance Forms dated February 17 and 19, 1999. Please be advised that due to the nature of your complaints they cannot be appropriately handled by this office and therefore I have forwarded them to the Superintendent's Office for review.
I trust this will address your concerns in this matter.
* * * * *
[May 27, 1999]
Over the past two days I have received in my office a total of five grievance forms from you. As you have been advised more than once by this office, issues concerning property are to first be addressed on an inmate to staff request form. This procedure also applies to problems within the mail room, as you have repeatedly alleged. Without that form, and a written response from that department, this office will not investigate these matters. I can not [sic] allow you to circumvent procedures despite repeated correspondence of the proper procedures to follow.
As far as the issues you have raised regarding alleged threats against you by staff members, this office does not investigate such matters. As you have been advised prior to this for similar complaints, you should contact the superintendents office for this type of investigation.
By following the proper procedures you will avoid delays in the process and consuming your time and mine for issues that will not be addressed.
The grievance log submitted by Defendants does not list any of the complaints referred to in the "Grievance Memoranda" as submitted by Wigfall on February 17, 19, and 23, 1999, nor those submitted on May 26 and 27, 1999. It appears, then, that the grievance logs are not reliable in that they do not record the universe of complaints submitted by inmates regarding the conditions of confinement.
VI. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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). First Circuit jurisprudence requires the moving party to "demonstrate an absence of evidence to support the nonmoving party's case. In determining whether that burden is met, 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) (internal citations omitted). Once the movant makes the necessary showing, the non-movant "may not rest upon the mere allegations or denials" in his Complaint, Fed.R.Civ.P. 56(e), but must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal citation and quotation marks omitted). "[C]onclusory allegations, improbable inferences, and unsupported speculation," are insufficient to establish a genuine dispute of fact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
The ultimate burden is on Defendants to demonstrate non-exhaustion as an affirmative defense. Casanova III, 304 F.3d at 78 n. 3 quoting Massey v. Helman, 196 F.3d 727, 734-35 (7th Cir. 1999) ("Because failure to exhaust administrative remedies is an affirmative defense, defendants have the burden of pleading and proving the defense."). See also Dupont v. Silva, 71 Fed.Appx. 862, 863 (1st Cir. 2003 July 2, 2003) ("The burden of proof did not rest with the plaintiff, however, Casanova v. Dubois, 304 F.3d 75, 77 n. 3 (1st Cir. 2002) (adopting majority rule that exhaustion under § 1997e(a) is an affirmative defense to be pled and proved by defendants).").
In this case, despite the fact that there is no official record of Wigfall filing a timely grievance relating to the alleged excessive use of force on February 11, 1999 — as demonstrated through the affidavit of the current Institutional Grievance Coordinator and the certified copy of the grievance log printout of Wigfall's grievances from December 1, 1998 through December 31, 1999 — it is possible Wigfall has met his burden of opposing summary judgment by providing the Court with the three Grievance Memoranda from the Grievance Coordinators in March and May 1999.
Wigfall's testimony in April, 2004 about filing the grievance on February 11, 1999, appealing the denial, and receiving receipts for both is, of course, inconsistent with the allegations in his October, 2000 Complaint that there was a refusal to process his grievance. The Grievance Memoranda from Defendants' representatives submitted by Wigfall post-hearing are, however, consistent with the Complaint. In the Complaint, Wigfall claimed that Sgt. Dickhaut "refused to process [the grievance] and give plaintiff a docket number from the time plaintiff began filing any of his legit grievances from February 17th, 19 thru the 23rd, etc." Sgt. Dickhaut's two March 1, 1999 memoranda indicate that he did receive some sort of complaints from Wigfall dated February 17, 19, and 23, 1999 and that the nature of the complaints meant they could not be processed as grievances by his office. Sgt. Puchalski's May 27, 1999 memorandum indicates that allegations of threats by staff are not grievable.
The Grievance Memoranda cast doubt upon Dickhaut's testimony before me that he logged all grievances that he received. The kindest interpretation of his testimony is that Dickhaut was operating under practices, unlike current practices, which did not define complaints of excessive force by staff as "grievances." Thus, in his testimony before me, Dickhaut may have defined excessive force complaints as non-grievances. If that is the reason he omitted mention of the complaints referenced in the Grievance Memoranda, there has, at a minimum, been an unacceptable lack of candor and completeness by the Defendants in the presentation of evidence in this case.
It appears likely that Sgt. Dickhaut, as the Institutional Grievance Coordinator at the time, did not accept claims of use of excessive force by staff as proper formal grievances subject to the Inmate Grievances Policy. The likelihood that this is so is supported by the decision of Judge Stearns in Casanova v. Dubois, 2002 WL 1613715, No. 98-11277 (D.Mass. July 22, 2002) ("Casanova II"). On remand from Casanova v. Dubois, 289 F.3d 142 (1st Cir. 2002) ("Casanova I") for the purpose of developing the record with regard to the issue of exhaustion of administrative remedies, id. at 147, Judge Stearns found that:
despite the broad subject matter wording of § 491.06(4) [of the 1996 version], the DOC's practice during the relevant time period was to treat complaints of alleged civil rights abuses by staff as "not grievable." Plaintiffs' analysis of the log, confirmed by the court's own examination (and not disputed by the DOC), indicates that the three complaints recorded from April 3, 1995, to the end of 1995, that arguably involved allegations of physical mistreatment were not processed for that reason. Plaintiffs also accurately point out that seventy-nine of eighty-two complaints of staff harassment filed between January 1, 1996, and April 3, 1998, were also determined by the IGC to be not grievable, while the other three were not formally processed for indeterminate reasons.
[Moreover,] the DOC has provided nothing of a substantive nature to dispute the plaintiffs' assertion [that "the DOC had a practice of refusing to process complaints involving the use of force by prison staff by almost uniformly labeling them 'not grievable.'"]Casanova II, 2002 WL 1613715 at *3. From this factual determination, the First Circuit concluded that "it appears that the Massachusetts Department of Corrections had no grievance procedure available for complaints of the type appellants have brought in this case." Casanova III, 304 F.3d at 77. The Grievance Memoranda submitted by Wigfall suggest that the Massachusetts DOC continued its practice of refusing to process complaints involving the use of excessive force by prison staff as grievances through at least February 11, 1999.
Whether Wigfall in fact made a timely claim of excessive force as to the February 11, 1999 incident remains open. If he did, I would likely conclude that Defendants are not entitled to summary judgment for non-exhaustion, either because they are estopped from asserting the defense "where prison officials inhibit an inmate's ability to utilize administrative grievance procedures," Giano, 380 F.3d at 677, or because the "Massachusetts Department of Corrections had no grievance procedure available for complaints" of excessive use of force as required by 41 U.S.C. § 1997e(a). Casanova III, 304 F.3d at 77 (emphasis supplied).
VII. FURTHER HEARING
I will afford the Defendants the opportunity to exhibit the candor and completeness so far lacking in their evidence regarding the "ungrievable" grievances referred to in the Grievance Memoranda.
On or before noon, Friday, August 25, 2006, the Defendants shall submit an affidavit(s) fully detailing with all supporting documents the treatment on any complaint of excessive force during February, 1999, made by the plaintiff, including those referenced in the Grievance Memoranda, whether considered grievable or not. A further hearing, at which time Defendants must produce the affiant(s) and any other percipient witnesses regarding such complaints, whether considered grievable or not, shall be held at 9:30 a.m., Tuesday, August 29, 2006. In the interim, I decline to act definitely on the Defendants' motion for summary judgment.
I will at this time deny Plaintiff's cross-motion for summary judgment for failure properly to "demonstrate an absence of evidence to support the nonmoving party's case," Clifford, 449 F.3d at 280, because Wigfall did not include "a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation." L.R. 56.1. Nonetheless, I specifically note that had Wigfall properly supported his motion for summary judgment, Defendants could not rest their opposition, as they appear to do, on the fact that they disputed in their Answer that any excessive force was used on Wigfall, that he was assaulted by defendants in any manner, or that he received any injuries as a result of Defendants' illegal actions.
VIII. CONCLUSION
For the foregoing reasons, Defendants' motion to amend its Answer (No. 89) is GRANTED, Plaintiff's cross motion for summary judgment (No. 96) is DENIED, and Defendants' motion for summary judgment (No. 79) remains under advisement.It is FURTHER ORDERED THAT:
On or before noon, Friday, August 25, 2006, the Defendants shall submit an affidavit(s) fully detailing with all supporting documents the treatment on any complaint of excessive force during February, 1999, made by the plaintiff, including those referenced in the Grievance Memoranda, whether considered grievable or not. A further hearing, at which time Defendants must produce the affiant(s) and any other percipient witnesses regarding such complaints, whether considered grievable or not, shall be held at 9:30 a.m., Tuesday, August 29, 2006.