United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner incarcerated at California State Prison
Corcoran (CSP-COR), under the authority of the California
Department of Corrections and Rehabilitation (CDCR).
Plaintiff proceeds pro se and in forma pauperis with this
civil rights action filed pursuant to 42 U.S.C. § 1983,
challenging conditions of his prior confinement at California
State Prison Sacramento (CSP-SAC). This action proceeds
against four of the five defendants on plaintiff's Eighth
Amendment claims for the use of excessive force (against
defendants Rutherford, Elizarraras, Hart and Saaverdra), and
against defendant Saelee on plaintiff's Eighth Amendment
failure-to-protect claim. See ECF No. 7 et seq.
August 22, 2019, defendants filed and served a motion for
partial summary judgment on the ground that plaintiff failed
to exhaust his administrative remedies against defendants
Hart, Saavedra and Saelee before commencing this action.
See ECF No. 30-2. The Prison Litigation Reform Act
requires that prisoners exhaust “such administrative
remedies as are available” before commencing a suit
challenging prison conditions. See 42 U.S.C. §
1997e(a). Defendants concede that plaintiff timely exhausted
his administrative remedies on his excessive force claims
against defendants Rutherford and Elizarraras. See
ECF No. 30-2 at 7:3-5.
failed to oppose defendants' motion for summary judgment.
On September 24, 2019, the court so informed plaintiff and
granted him additional time to file an opposition. ECF No.
32. The court informed plaintiff that failure to oppose
defendants' motion may result in the dismissal of this
action for failure to prosecute. Id. at 2.
Thereafter plaintiff requested a further extension of time.
ECF No. 33. On October 23, 2019, the court extended the
deadline for plaintiff to file and serve his opposition to
defendants' motion for summary judgment to November 22,
2019. ECF No. 34. That deadline has now passed yet plaintiff
has not filed an opposition or otherwise responded to
defendants' motion or the court's
Rule 230(1) provides that “[f]ailure of the responding
party to file written opposition or to file a statement of no
opposition may be deemed a waiver of any opposition to the
granting of the motion.” See also Local Rule
110 (failure to comply with the Local Rules “may be
grounds for imposition of any and all sanctions authorized by
statute or Rule or within the inherent power of the
Court”); Fed.R.Civ.P. Rule 41(b) (authorizing
involuntary dismissal of a claim or action “if the
plaintiff fails to prosecute or to comply with these rules or
a court order”).
to this legal authority, and defendants' prima facie
showing they are entitled to the requested relief, the
undersigned will recommend that defendants' motion for
partial summary judgment be granted. Defendants' motion
identifies all of plaintiff's administrative appeals
during the relevant period. See ECF No. 30-2 at 3-4;
see also ECF No. 30-3 (Defendants' Statement of
Undisputed Facts (DSUF)). Of these, only one appeal, Log No.
SAC-16-03611, is relevant to this action. Defendants
accurately note that, while the exhaustion of that appeal
exhausted petitioner's administrative remedies on his
excessive force claims against defendants Rutherford and
Elizarraras, the appeal neither named nor reasonably
identified defendants Hart, Saavedra or Saelee; nor did it
identify conduct subsequent to the challenged conduct of
defendants Rutherford and Elizarraras that could reasonably
be attributed to other defendants. See ECF No. 30-2
at 7:3-5 (citing DSUF 4-6); see also ECF No. 30-4
(Decl. of J. Spaich, Acting Chief of CDCR's Office of
Appeals, and copies of plaintiff's appeals attached
thereto); id. at 8-16, Ex. 2 (Plaintiff's Appeal
Log. No. SAC-16-03611, allegations and administrative
decisions); ECF No. 30-5 (Decl. of L. O'Brian, CSP-SAC
Appeals Coordinator, and copies of plaintiff's appeals
undersigned finds that these exhibits support the affirmative
defense that plaintiff failed to exhaust his administrative
remedies on his claims against defendants Hart, Saavedra and
Saelee. See Jones v. Bock, 549 U.S. 199, 211, 216
(2007). Defendants having met their initial burden of
production regarding non-exhaustion, the burden shifts to
plaintiff to show that administrative remedies were
unavailable to him or that the defense otherwise fails.
See Albino v. Baca, 697 F.3d 1023, 1030-31 (9th Cir.
2012). Plaintiff has not contested the fact of non-exhaustion
as to defendants other than Rutherford and Elizarraras, nor
has he made any showing in support of an exception to the
plaintiff's claims against defendants Hart, Saavedra, and
Saelee should be dismissed with prejudice, and this action
should proceed only on the remaining claims that defendants
Rutherford and Elizarraras used excessive force against
plaintiff in violation of the Eighth Amendment.
IT IS HEREBY RECOMMENDED that:
1. Defendants' motion for partial summary judgment, ECF
No. 30, be GRANTED.
2. Plaintiff's claims against defendants Hart, Saavedra
and Saelee be DISMISSED WITH PREJUDICE due to plaintiff's
failure to exhaust his administrative remedies against them
before commencing this action, see 42 U.S.C. §
1997e(a), and plaintiff's failure to oppose
defendants' motion, see Local Rule 230(1),
3. This action should proceed on plaintiffs remaining claims
that defendants Rutherford and Elizarraras used excessive
force against plaintiff in violation of the Eighth Amendment.
findings and recommendations are submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
(14) days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” The parties
are advised that failure to file objections ...