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Hamilton v. Clendenen

United States District Court, E.D. California

May 1, 2017

ALBERT J. HAMILTON, Plaintiff,
v.
CLENDENEN, Defendant.

         FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES BE GRANTED AND DEFENDANT'S MOTION FOR PROTECTIVE ORDER BE DENIED AS MOOT [ECF Nos. 71, 72]

         Plaintiff Albert J. Hamilton is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendant's motion for summary judgment, filed February 14, 2017.

         I. RELEVANT HISTORY

         This action proceeds on Plaintiff's failure to protect claim against Defendant Clendehen.

         On October 19, 2015, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and argued that Plaintiff failed to exhaust the administrative remedies. (ECF No. 28.) Plaintiff filed an opposition on November 25, 2015, and Defendant filed a reply on December 2, 2015. (ECF Nos. 29, 30.) Plaintiff subsequently filed a second opposition and objection on December 17, 2015 and February 2, 2016, respectively. (ECF Nos. 31, 34.)

         On February 26, 2016, the undersigned issued Findings and Recommendations recommending that Defendant's motion to dismiss be granted in part and denied in part. It was specifically recommended that the motion to dismiss for failure to exhaust the administrative remedies be denied, and granted, with leave to amend, for failure to request a demand for relief. (ECF No. 37.) The Findings and Recommendations were adopted in full on April 7, 2016. (ECF No. 40.) Plaintiff was granted thirty days to file a second amended complaint. (Id.)

         On April 18, 2016, Plaintiff filed second amended complaint. (ECF No. 41.) Because the second amended complaint was not complete within itself, the Court granted Plaintiff leave to file a third amended complaint. (ECF No. 42.) Plaintiff filed a third amended complaint on May 4, 2016, which is the operative complaint in this action. (ECF No. 43.)

         On May 19, 2016, Defendant filed a motion to dismiss the third amended complaint. (ECF No. 46.) Plaintiff filed an opposition on June 2, 2016, and Defendant filed a reply on this same date. (ECF Nos. 48, 50.) On June 16, 2016, Plaintiff filed a surreply. (ECF No. 51.)

         On November 7, 2016, the undersigned issued Findings and Recommendations recommending that Defendant's motion to dismiss the third amended complaint be denied. (ECF No. 60.) The Findings and Recommendations were adopted in full on January 6, 2017. (ECF No. 66.)

         As previously stated, Defendant filed the instant motion for summary judgment for failure to exhaust the administrative remedies on February 14, 2017. (ECF No. 71.) On February 17, 2017, Defendant filed a motion for a protective order staying all merits-based discovery. (ECF No. 72.) After receiving an extension of time, Plaintiff filed oppositions to Defendant's motion on March 27, 2017 and March 29, 2017, respectively. (ECF Nos. 85, 86.) Defendant filed a reply on April 3, 2017. (ECF No. 87.)

         II. LEGAL STANDARD

         A. Statutory Exhaustion Requirement

         The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such administrative remedies as are available” before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __136 S.Ct. 1850 (June 6, 2016) (“An inmate need exhaust only such administrative remedies that are ‘available.'”). Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.' Once that is no longer the case, then there are no ‘remedies … available, ' and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

         This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).

         The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.

         B. Summary ...


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