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Garcia v. J. Hobmeier

United States District Court, E.D. California

July 25, 2017

FELIPE GARCIA, Plaintiff,
v.
J. HOBMEIER, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF NOS. 44, 47, 50) OBJECTIONS DUE WITHIN THIRTY DAYS

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

         Plaintiff declined United States Magistrate Judge jurisdiction; therefore, this matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.[1]

         Currently before the Court is Defendants J. Emerson, E. Gaona, J. Hobmeier, and G. Wildey's (collectively “Defendants”) motion for summary judgment for failure to exhaust the administrative remedies, filed on October 19, 2016.

         I. RELEVANT HISTORY

         This action is proceeding on the first amended complaint, filed December 23, 2015, against Defendant Emerson for excessive force, and against Defendants Gaona, Hobmeier, and Wildey for failure to protect. (ECF Nos. 28, 33.)

         On August 16, 2016, Defendants filed an ex parte request to file a pre-answer motion for summary judgment. (ECF No. 38.) On August 23, 2016, the Court granted Defendants' ex parte request to file a pre-answer motion for summary judgment. (ECF No. 39.)

         As previously stated, on October 19, 2016, Defendants filed a motion for summary judgment based on Plaintiff's failure to exhaust the administrative remedies as to his claims against them.

         On November 7, 2016, Plaintiff filed an opposition to Defendants' motion for summary judgment. (ECF No. 47.)

         On November 10, 2016, Defendants were granted an extension of time to reply to Plaintiff's opposition. (ECF No. 49.)

         On November 30, 2016, Defendants filed a reply to Plaintiff's opposition to the motion for summary judgment. (ECF No. 50.)

         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, 532 U.S. at 741, 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 v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “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 Judgment Standard

         Any party may move for summary judgment, and 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) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). 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) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         The defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, ” id. at 1172. If the defendants carry their burden, the burden of production shifts to the plaintiff “to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under ...


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