United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges defendants were deliberately indifferent to
his safety in violation of the Eighth Amendment. Before the
court is defendant's motion for summary judgment. For the
reasons set forth below, this court will recommend
defendant's motion be granted and this action be
dismissed for plaintiff's failure to exhaust his
administrative remedies prior to filing suit.
filed his civil rights complaint in this court on May 2,
2019. (ECF No. 1.) Plaintiff alleges that in
February 2019 at Mule Creek State Prison
(“MCSP”), defendants King and Links loudly and
publicly identified plaintiff as a snitch. Two days later,
three inmates approached plaintiff, told him they heard he
was a snitch, and attacked him. After the attack, defendant
Knight also stated publicly that plaintiff was a snitch and,
the following day, plaintiff was attacked again by the same
three inmates. Plaintiff alleges he suffered physical
injuries and emotional distress as a result of
screening, the court found plaintiff stated potentially
cognizable claims against all three defendants for failure to
protect him in violation of the Eighth Amendment. (ECF No.
6.) On August 19, defendants filed both an answer to the
complaint and a motion for summary judgment. (ECF Nos. 12,
14.) Defendants argue that plaintiff failed to exhaust his
administrative remedies prior to filing his complaint in this
court. On September 9, plaintiff filed an opposition (ECF No.
17) and on September 16, respondent filed a reply (ECF No.
FOR SUMMARY JUDGMENT I.
Judgment Standards under Rule 56
judgment is appropriate when the moving party “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). Under summary judgment practice, the
moving party “initially bears the burden of proving the
absence of a genuine issue of material fact.” In re
Oracle Corp. Sec. Litigation, 627 F.3d 376, 387 (9th
Cir. 2010) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). The moving party may accomplish this
by “citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
or by showing that such materials “do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).
the non-moving party bears the burden of proof at trial,
“the moving party need only prove that there is an
absence of evidence to support the nonmoving party's
case.” Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325.); see also
Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be
entered, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. See Celotex, 477 U.S. at
322. “[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Id. In such a circumstance, summary judgment should
be granted, “so long as whatever is before the district
court demonstrates that the standard for entry of summary
judgment . . . is satisfied.” Id. at 323.
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). In attempting to establish the
existence of this factual dispute, the opposing party
typically may not rely upon the allegations or denials of its
pleadings but is required to tender evidence of specific
facts in the form of affidavits, and/or admissible discovery
material, in support of its contention that the dispute
exists. See Fed.R.Civ.P. 56(c)(1);
Matsushita, 475 U.S. at 586 n.11. However, a
complaint that is submitted in substantial compliance with
the form prescribed in 28 U.S.C. § 1746 is a
“verified complaint” and may serve as an opposing
affidavit under Rule 56 as long as its allegations arise from
personal knowledge and contain specific facts admissible into
evidence. See Jones v. Blanas, 393 F.3d 918, 923
(9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454,
460 (9th Cir. 1995) (accepting the verified complaint as an
opposing affidavit because the plaintiff “demonstrated
his personal knowledge by citing two specific instances where
correctional staff members . . . made statements from which a
jury could reasonably infer a retaliatory motive”);
McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir.
1987); see also El Bey v. Roop, 530 F.3d 407, 414
(6th Cir. 2008) (Court reversed the district court's
grant of summary judgment because it “fail[ed] to
account for the fact that El Bey signed his complaint under
penalty of perjury pursuant to 28 U.S.C. § 1746. His
verified complaint therefore carries the same weight as would
an affidavit for the purposes of summary judgment.”).
The opposing party must demonstrate that the fact in
contention is material, i.e., a fact that might affect the
outcome of the suit under the governing law, and that the
dispute is genuine, i.e., the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
the existence of a factual dispute, the opposing party need
not establish a material issue of fact conclusively in its
favor. It is sufficient that “the claimed factual
dispute be shown to require a jury or judge to resolve the
parties' differing versions of the truth at trial.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). Thus, the
“purpose of summary judgment is to ‘pierce the
pleadings and to assess the proof in order to see whether
there is a genuine need for trial.'”
Matsushita, 475 U.S. at 587 (citations omitted).
evaluating the evidence to determine whether there is a
genuine issue of fact, ” the court draws “all
reasonable inferences supported by the evidence in favor of
the non-moving party.” Walls v. Central Contra
Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011).
It is the opposing party's obligation to produce a
factual predicate from which the inference may be drawn.
See Richards v. Nielsen Freight Lines, 602 F.Supp.
1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d
898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine
issue, the opposing party “must do more than simply
show that there is some metaphysical doubt as to the material
facts. . . . Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted).
argue that plaintiff failed to fully exhaust his claims prior
to filing this action in early May of this year. Plaintiff
argues that his administrative remedies are
“effectively unavailable” to him because he has
been threatened by prison officials, including one of the
defendants, and because the administrative appeals process is
taking so long.
Legal Standards for Exhaustion of Administrative