United States District Court, E.D. California
KAVASIO K. HALL, Plaintiff,
VASQUEZ, et.al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF NO.
Kavasio K. Hall is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion for summary
judgment, filed July 17, 2019.
action is proceeding Defendant Vasquez for excessive force
and against Defendant Agiani for failure to protect in
violation of the Eighth Amendment.
January 14, 2019, Defendants filed an answer to the
January 15, 2019, the Court issued the discovery and
previously stated, on July 17, 2019, Defendants filed a
motion for summary judgment. Plaintiff did not file an
opposition and the time to do so has expired. Local Rule
230(1). Therefore, 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 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.
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 ...