United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a California Department of Corrections and Rehabilitation
(“CDCR”) inmate proceeding without counsel in an
action brought under 42 U.S.C. § 1983. He filed this
action on August 14, 2017. ECF No. 1. On May 1, 2018, the
court determined that plaintiff's complaint alleged a
cognizable Eighth Amendment deliberate indifference to
medical needs claim against defendant Lisa Clark-Barlow. ECF
No. 11. The other defendants listed in plaintiff's
complaint were dismissed on February 5, 2018. ECF Nos. 25
& 34. Now, defendant Clark-Barlow has filed a motion for
summary judgment (“motion”) wherein she argues
that plaintiff failed to administratively exhaust the claim
against her. ECF No. 39. Plaintiff has filed an opposition to
the motion. ECF No. 49.
review of the pleadings and, for the reasons discussed below,
the court concludes that defendant Clark-Barlow's motion
should be granted.
judgment is appropriate when 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).
Summary judgment avoids unnecessary trials in cases in which
the parties do not dispute the facts relevant to the
determination of the issues in the case, or in which there is
insufficient evidence for a jury to determine those facts in
favor of the nonmovant. Crawford-El v. Britton, 523
U.S. 574, 600 (1998); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle
Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468,
1471-72 (9th Cir. 1994). At bottom, a summary judgment motion
asks whether the evidence presents a sufficient disagreement
to require submission to a jury.
principal purpose of Rule 56 is to isolate and dispose of
factually unsupported claims or defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule
functions to “‘pierce the pleadings and to assess
the proof in order to see whether there is a genuine need for
trial.'” Matsushita Elec. Indus. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting
Fed.R.Civ.P. 56(e) advisory committee's note on 1963
amendments). Procedurally, under summary judgment practice,
the moving party bears the initial responsibility of
presenting the basis for its motion and identifying those
portions of the record, together with affidavits, if any,
that it believes demonstrate the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 323;
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc). If the moving party meets its burden with a
properly supported motion, the burden then shifts to the
opposing party to present specific facts that show there is a
genuine issue for trial. Fed.R.Civ.P. 56(e);
Anderson, 477 U.S. at 248; Auvil v. CBS
“60 Minutes”, 67 F.3d 816, 819 (9th Cir.
focus on where the burden of proof lies as to the factual
issue in question is crucial to summary judgment procedures.
Depending on which party bears that burden, the party seeking
summary judgment does not necessarily need to submit any
evidence of its own. When the opposing party would have the
burden of proof on a dispositive issue at trial, the moving
party need not produce evidence which negates the
opponent's claim. See, e.g., Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 885 (1990).
Rather, the moving party need only point to matters which
demonstrate the absence of a genuine material factual issue.
See Celotex, 477 U.S. at 323-24 (“[W]here the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, a summary judgment motion may properly be
made in reliance solely on the ‘pleadings, depositions,
answers to interrogatories, and admissions on
file.'”). 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 Id. at 322. In such a circumstance,
summary judgment must be granted, “so long as whatever
is before the district court demonstrates that the standard
for entry of summary judgment, as set forth in Rule 56(c), is
satisfied.” Id. at 323.
defeat summary judgment the opposing party must establish a
genuine dispute as to a material issue of fact. This entails
two requirements. First, the dispute must be over a fact(s)
that is material, i.e., one that makes a difference in the
outcome of the case. Anderson, 477 U.S. at 248
(“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). Whether a
factual dispute is material is determined by the substantive
law applicable for the claim in question. Id. If the
opposing party is unable to produce evidence sufficient to
establish a required element of its claim that party fails in
opposing summary judgment. “[A] complete failure of
proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts
immaterial.” Celotex, 477 U.S. at 322.
the dispute must be genuine. In determining whether a factual
dispute is genuine the court must again focus on which party
bears the burden of proof on the factual issue in question.
Where the party opposing summary judgment would bear the
burden of proof at trial on the factual issue in dispute,
that party must produce evidence sufficient to support its
factual claim. Conclusory allegations, unsupported by
evidence are insufficient to defeat the motion. Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the
opposing party must, by affidavit or as otherwise provided by
Rule 56, designate specific facts that show there is a
genuine issue for trial. Anderson, 477 U.S. at 249;
Devereaux, 263 F.3d at 1076. More significantly, to
demonstrate a genuine factual dispute the evidence relied on
by the opposing party must be such that a fair-minded jury
“could return a verdict for [him] on the evidence
presented.” Anderson, 477 U.S. at 248, 252.
Absent any such evidence there simply is no reason for trial.
court does not determine witness credibility. It believes the
opposing party's evidence, and draws inferences most
favorably for the opposing party. See Id. at 249,
255; Matsushita, 475 U.S. at 587. Inferences,
however, are not drawn out of “thin air, ” and
the proponent must adduce evidence of a factual predicate
from which to draw inferences. American Int'l Group,
Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th
Cir. 1991) (Kozinski, J., dissenting) (citing
Celotex, 477 U.S. at 322). If reasonable minds could
differ on material facts at issue, summary judgment is
inappropriate. See Warren v. City of Carlsbad, 58
F.3d 439, 441 (9th Cir. 1995). On the other hand, 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). In
that case, the court must grant summary judgment.
Prison Litigation Reform Act of 1995 (hereafter
“PLRA”) states that “[n]o action shall be
brought with respect to prison conditions under section 1983
. . . or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The PLRA applies
to all suits about prison life, Porter v. Nussle,
534 U.S. 516, 532 (2002), but a prisoner is only required to
exhaust those remedies which are “available.”
See 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 v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014)
(citing Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.
2005)) (internal quotations omitted).
for failure to exhaust should generally be brought and
determined by way of a motion for summary judgment under Rule
56 of the Federal Rules of Civil Procedure. Id. at
1168. Under this rubric, the defendant bears the burden of
demonstrating that administrative remedies were available and
that the plaintiff did not exhaust those remedies.
Id. at 1172. If defendant carries this burden, then
plaintiff must “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 ...