United States District Court, E.D. California
COLIN M. RANDOLPH, Plaintiff,
B. NIX, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO (1) GRANT DEFENDANT AVERY'S MOTION TO STRIKE SUR-REPLY (ECF No. 60), AND (2) DENY DEFENDANT AVERY'S MOTION FOR SUMMARY JUDGMENT (ECF No. 49) FOURTEEN (14) DAY OBJECTION DEADLINE
MICHAEL J. SENG, Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Avery and Akano on Plaintiff's Eighth Amendment medical indifference claim. (ECF No. 19.)
On September 9, 2014, Defendant Avery moved for summary judgment on the ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 49.) Plaintiff filed an opposition (ECF No. 51), and Defendant filed a reply (ECF No. 54). Plaintiff filed a sur-reply (ECF No. 57), and Defendant moved to strike the sur-reply (ECF No. 60). These matters are deemed submitted.
II. MOTION TO STRIKE SUR-REPLY
Absent leave of court, no briefing on Defendant's motion is permitted beyond the opposition and reply. The Court did not grant Plaintiff leave to file a sur-reply and does not desire any further briefing on the motion. The sur-reply has not been considered in these findings and recommendations.
Accordingly, Defendant's motion to strike Plaintiff's sur-reply (ECF No. 60) should be granted, and Plaintiff's sur-reply (ECF No. 57) should be stricken from the record.
III. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard - Motion for Summary Judgment
A motion for summary judgment is the proper means to raise a prisoner's failure to exhaust administrative remedies. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). "If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56." Albino, 747 F.3d at 1166. If material facts are disputed, summary judgment should be denied, and the Court should decide disputed factual questions relevant to exhaustion "in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue." Id. at 1169-71.
Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. P. 56(c)(1). In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007), and it must draw all inferences in the light most favorable to the nonmoving party, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011).
B. Factual Summary
1. Plaintiff's Claims
The allegations in Plaintiff's second amended complaint (ECF No. 17) may be summarized, in ...