United States District Court, E.D. California
FRANKIE L. GERMANY, Plaintiff,
M. COELHO, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES [ECF NO. 24]
Frankie L. Germany is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
before the Court is Defendants' motion for summary
judgment based on Plaintiff's alleged failure to exhaust
the administrative remedies, filed on September 28, 2017.
action is proceeding against Defendants Ward,
Garcia-Fernandez, Hanson and Coelho for excessive force in
violation of the Eighth Amendment.
September 11, 2017, Defendants filed an answer to the
September 13, 2017, the Court issued the discovery and
previously stated, on September 28, 2017, Defendants filed
the instant motion for summary judgment for failure to
exhaust the administrative remedies. Plaintiff did not file
an opposition and the time period to do so has passed.
Accordingly, the motion is deemed submitted for review
without oral argument. Local Rule 230(1).
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 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).
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
inmate is required to exhaust only available remedies.”
Albino, 747 F.3d at 1171 (citing Booth v.
Churner, 532 U.S. 731, 736 (2001)). “To be
available, a remedy must be available ‘as a practical
matter'; it must be ‘capable of use; at
hand.'” Albino, 747 F.3d at 1171 (quoting
Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005)).
In Ross v. Blake, the Court set forth the following
three examples of when the administrative remedies are not
available: (1) the “administrative procedure …
operates as a simple dead end-with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates;” (2) the “administrative scheme …
[is] so opaque that it becomes, practically speaking,
incapable of use … to that no ordinary prisoner can
make sense of what it demands; and (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross v. Blake, 136 S.Ct. 1850,
1859-60 (2006) (citations omitted). In addition, when an
inmate's administrative grievance is improperly rejected
on procedural grounds, exhaustion may be excused as
effectively unavailable. Sapp v. Kimbrell, 623 F.3d
813, 823 (9th Cir. 2010); see also Nunez v. Duncan,
591 F.3d 1217, 1224-1226 (9th Cir. 2010) (warden's
mistake rendered prisoner's administrative remedies
“effectively unavailable”); Brown v.
Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not
required to proceed to third level where appeal granted at
second level and no further relief was available).