United States District Court, E.D. California
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
Felipe Garcia is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
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.
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.
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.)
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.)
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
November 7, 2016, Plaintiff filed an opposition to
Defendants' motion for summary judgment. (ECF No. 47.)
November 10, 2016, Defendants were granted an extension of
time to reply to Plaintiff's opposition. (ECF No. 49.)
November 30, 2016, Defendants filed a reply to
Plaintiff's opposition to the motion for summary
judgment. (ECF No. 50.)
Statutory Exhaustion Requirement
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)).
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
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
Summary Judgment Standard
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).
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 ...