The plaintiff, Edward Silva, appeals an order of the Superior Court (Fitzgerald, J.) granting a motion filed by the defendants, the warden and several employees of the New Hampshirе State Prison, to dismiss Silva’s writ with prejudice. We reverse in part, vacate in part and remand.
Silva, an inmate at the prison, alleged the following facts in his writ. Three different сorrections officers assaulted Silva on three different occasions during pat-down searches at the prison. Silva alleges that a corrections offiсer grabbed his genitals while conducting a pat-down search in January 2001. In March 2001, another corrections officer grabbed Silva’s genitals twice during a pat-down search. When Silva objected to the first assault, the corrections officer replied, “Welcome to New Hampshire State Prison,” and grabbed his genitals a second time. After Silva complained again, the corrections officer threatened him with disciplinary action and subjected him to a “strip out” search. The strip out search rеquired removal of all clothing and an inspection of body cavities; this search was done in a “slow, exaggerated and humiliating manner.” During a pat-down search in July 2001, a third сorrections officer grabbed Silva’s genitals. When Silva objected, the officer subjected Silva to a “slow, exaggerated and humiliating” strip out search.
First, we address thе defendants’ motion to dismiss counts III and IV (assault) for Silva’s failure to specify adequately the alleged harm in the writ. The standard of review in considering a motion to dismiss is whether the plaintiffs allegations are reasonably susceptible of a construction that would permit recovery. Allen v. Dover Co-Recreational Softball League,
Silva’s writ provides a detailed description of the events surrounding the alleged assaults. These allegations sufficiently state a claim that would permit recovery for a tоrt. See Daigle v. City of Portsmouth,
We recognize damages that dо not have physical manifestations, such as mental suffering that may result from an intentional tort. See Fischer v. Hooper,
The trial court also erred when dismissing counts III and IV by ruling that Silva needs expert testimony to prove alleged emotional damages suffered as a result of the claimed assaults. Expert testimony is necessary whenever the matter to be determined is so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layperson. Lemay v. Burnett,
We have held that expert testimony is required to prove physical symptoms suffered from alleged negligent infliction of emotional distress. See Thorpe v. State,
Although the average juror may not have common knowledge of and everyday experience with specific searсhes at the State prison, it is within the ken of average lay people what mental and emotional harm might result from “unprivileged physical contact” of the genitаls and from a strip-down search done in a “slow, exaggerated and humiliating manner.” Therefore, the trial court erred in dismissing counts III and IV for lack of expert testimony.
Finally wе address whether the trial court properly dismissed counts V and VI (constitutional violations) with prejudice. Although the defendants argue in their brief that under the Prison Litigation Reform Act an inmate may not recover compensatory damages for mental or emotional suffering without a showing of a specific physical injury, that issue is not proрerly before us; the sole issue on appeal is whether the trial court properly dismissed counts V and VI with prejudice for failure to exhaust administrative remedies. See 42 U.S.C.A. § 1997e (West 2003); Mitchell v. Horn,
Purely procedural dismissals do not bar subsequent actions because they do not rest on a substantive decision on the merits of the case. In re Proposed Rules of Civil Procedure,
Additionally, federal courts have entered dismissals without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). See Wyatt v. Terhune,
The defendants argue thаt Silva can no longer exhaust his administrative remedies under New Hampshire Department of Corrections PPD 1.16, because it has been modified to impose a specific time limit on the administrative steps that he failed to take. When the alleged events in this case took place, this policy did not include a prohibitory time limit. The mоdified policy, effective October 1, 2002, states: “As to any claims that exist on the date this policy initially takes effect, these procedures must be used within the time framеs established herein as if the date of the event giving rise to the grievance is the effective date of this policy.” Therefore, in accordance with the new рolicy, Silva had thirty days after October 1, 2002, to take the first of three steps necessary to exhaust his administrative remedies.
Assuming without deciding that this policy is valid and appliсable, we find that the record is inconclusive as to whether Silva took the first necessary step to exhaust his administrative remedies within thirty days of October 1, 2002. At oral argument, Silva asserted that he has exhausted his administrative remedies since the initiation of this appeal. The defendants did not argue that Silva was foreclosed from exhausting remedies because he failed to begin by October 31, 2002, but rather referenced the new policy without addressing whether or not Silva had taken the first step by that time. If Silva had taken the first administrative step within the proper time period, then exhaustion of administrative remedies may still have been available to him, and it may be that counts V and VI should have been dismissed without prejudice. On the other hand, if Silva failed to act before the October 31, 2002 deadline, his administrative remedies were no longer availablе under the new policy .and dismissal with prejudice was proper. Because the record is devoid of evidence on the time of exhaustion, we vacate the trial court’s dismissal with prejudice and remand the issue for development of the record with regard to when and if Silva exhausted his administrative remedies. See Casanova v. Dubois,
Reversed in part; vacated inpart; and remanded.