PLAINTIFF BENJAMIN BEAN REPRESENTED BY VERNE E. PARADIE, JR. PARADIE, SHERMAN & WORDEN P.A.
DEFENDANT PATRICIA BARNHART IN HER INDIVIDUAL CAPACITY AS FORMER WARDEN FOR THE MAINE STATE PRISON REPRESENTED BY JAMES E. FORTIN
DEFENDANT JOSEPH PONTE IN JIS INDIVIDUAL CAPACITY AS COMMISSIONER FOR THE MAINE DEPARTMENT OF CORRECTIONS REPRESENTED BY JAMES E. FORTIN
RECOMMENDED DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
John C. Nivison U.S. Magistrate Judge
Plaintiff Benjamin Bean has filed suit, pursuant to 42 U.S.C. § 1983 and the Maine Civil Rights Act, 5 M.R.S. § 4682, against Defendants Patricia Barnhart, who at the time of the incident at issue was Warden of the Maine State Prison, and Joseph Ponte, Commissioner of the Maine Department of Corrections. (Complaint, ECF No. 1.) Bean claims Eighth Amendment violations as a result of an assault by another prisoner who allegedly used a padlock as a weapon. Defendants have filed a motion for summary judgment based on their affirmative defense that Bean failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). (Motion, ECF No. 18.) For reasons that follow, the recommendation is that the Court deny the motion.
I. Factual and Procedural Background
For purposes of this motion, the facts are presented in the light most favorable to Bean as the non-moving party. The pertinent facts are undisputed except where otherwise indicated. Bean was in the custody of the Maine Department of Corrections from April 25, 2012, to July 12, 2013, at which time he completed his sentence and was released. (Defendants’ Statement of Facts ¶ 2, ECF No. 19; Plaintiff’s Opposing Statement of Facts ¶ 2, ECF No. 26.) The padlock assault occurred while Bean was incarcerated at the Maine State Prison in Warren. (Complaint ¶¶ 7-9, ECF No. 1; Answer ¶¶ 7-9, ECF No. 4; Defendants’ Statement ¶ 3; Opposing Statement ¶ 3.) Although the statements of facts suggest that the assault occurred on May 24, 2012, (Defendants’ Statement ¶ 3 n.1; Opposing Statement ¶ 3), it appears that both Defendants and Bean assert that the assault actually took place on May 21, 2012. (Id.; Grievance File at 4, 6, 8, ECF No. 20-1.) Bean incurred significant facial and head injuries as a result. (Complaint, ¶ 9; Answer ¶ 9.)
The grievance procedure of the Maine Department of Corrections, which procedure is provided to each prisoner, states in relevant part:
During the orientation process for each client, a copy of this policy and procedures shall be provided and the grievance process and how to obtain assistance with the process shall be explained. It shall be the responsibility of the Caseworker or Care and Treatment Worker assigned to a prisoner or resident who needs assistance with the grievance process to provide assistance, including, but not limited to, arranging for a sign language interpreter, foreign language interpreter, assistance to an illiterate prisoner or resident, and reasonable accommodation for a prisoner or resident with a physical or mental disability.
(ECF No. 21-1 at 3.) The grievance procedure requires that a prisoner attempt an informal resolution before filing a grievance, and further requires that a prisoner initiate a grievance within 15 days after the incident that gave rise to the grievance. (Defendants’ Statement ¶ 4; Opposing Statement ¶ 4.)
The policy also states: “The Grievance Review Officer shall grant an exception in a case where it was not possible for the client to file a grievance within the fifteen (15) day period.” (ECF No. 21-1 at 4.) The procedure contemplates a three-level review. (Defendants’ Statement ¶ 5, Opposing Statement ¶ 5.) A prisoner is to initiate a grievance by filing a form with the facility’s grievance review officer, who would make the initial decision. (Id.) In the event of an adverse decision, the prisoner could appeal to the facility’s chief administrative officer, who in this case was the warden. (Id.) If the prisoner remains dissatisfied with the result, the prisoner could appeal to the commissioner. (Id.)
In this case, Bean went through all three levels of review. (Grievance File, ECF No. 20-1.) He filed a grievance form, but not until July 10, 2012, which filing Bean concedes was not within the required 15-day time period. (Defendants’ Statement ¶¶ 6-8, Opposing Statement ¶¶ 6-8.) On the initial grievance form, Bean said that he told his caseworker on May 19 that he believed he was at risk of being assaulted in the prison, but the caseworker told him there was no other place for him to be housed at that time. (ECF No. 20-1 at 4, 8.) In his initial grievance form, Bean maintained that the late filing of the grievance form should not bar his grievance because the assault occurred just a few days after he arrived at the Maine State Prison, and as of the time of the assault, he had not had time to review the prisoner handbook that contained the prison grievance policy. (Defendants’ Statement ¶ 8, Opposing Statement ¶ 8, ECF No. 20-1 at 8.)
The grievance review officer denied the grievance on two grounds: lack of timeliness and failure to attempt an informal resolution. (ECF No. 20-1 at 7.) The letter stated in pertinent part, “In your grievance you state that this event occurred on May 21, 2012. You filed your grievance approximately one and one half months later, which is clearly outside of the 15 days that you are allowed by policy to properly file a grievance. You also made no attempt [at] resolving this issue informally.” (Id.) That concluded the first level of administrative review.
Bean appealed to the second level of review, and at this stage, he further explained his reasons for the time of the filing. (ECF No. 20-1 at 6.) On the form for this appeal, Bean asserted that he was in the infirmary from May 21 until May 24, when he was placed in a special unit. He alleged that he remained in the special unit from May 24 until June 28, and that he ...