United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO CORRECT SPELLING OF
DEFENDANT FLORES' NAME FINDINGS AND RECOMMENDATIONS
REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 28,
29, 32) THIRTY (30) DAY DEADLINE
Plaintiff
Gerald Lee Miller is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently
before the Court is Plaintiff's motion for summary
judgment, filed on June 29, 2019, Defendants
Flores'[1], Marquez's, and Xayoudom's
cross-motion for summary judgment, filed on August 21, 2019,
and Plaintiff's second motion for summary judgment, filed
on September 3, 2019. (ECF Nos. 28, 29, 32.)
I.
RELEVANT
HISTORY
Plaintiff
initiated this action by filing his original complaint on
October 2, 2017. (ECF No. 1.)
This
action is currently proceeding on Plaintiff's second
amended complaint against Defendants Flores, Marquez, and
Xayoudom for retaliation in violation of the First Amendment.
(ECF No. 21.)
On
November 14, 2018, Defendants Flores, Marquez, and Xayoudom
filed an answer to Plaintiff's second amended complaint.
(ECF No. 25.)
On
November 19, 2018, the Court issued the discovery and
scheduling order. (ECF No. 26.)
On July
29, 2019, Plaintiff filed a motion for summary judgment. (ECF
No. 28.)
On
August 21, 2019, Defendants filed an opposition to
Plaintiff's summary judgment motion, as well as their own
motion for summary judgment. (ECF Nos. 29, 31.)
On
September 3, 2019, Plaintiff filed a second motion for
summary judgment. (ECF No. 32.) The Court notes that, other
than the fact that the document filed on September 3, 2019
does not contain a page titled “Plaintiff's notice
of motion for summary judgment” and a proof of service
of that page, the summary judgment motion filed on September
3, 2019 is word-for-word identical to the summary judgment
motion that Plaintiff filed on July 29, 2019.
Neither
Plaintiff nor Defendants filed a reply to their respective
motions for summary judgment within the allotted time.
Accordingly, Plaintiff's motion for summary judgment and
Defendants' cross-motion for summary judgment are deemed
submitted. Local Rule 230(1).
II.
LEGAL
STANDARD
A.
Statutory Exhaustion Requirement
Section
1997e(a) of the Prison Litigation Reform Act of 1995
(“PLRA”) provides that “[n]o action shall
be brought with respect to prison conditions under [42 U.S.C.
§ 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). Exhaustion is
mandatory unless unavailable. Exhaustion is required
regardless of the relief sought by the prisoner and
regardless of the relief offered by the process, Booth v.
Churner, 532 U.S. 731, 741 (2001), and the exhaustion
requirement applies to all prisoner suits relating to prison
life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
Section
1997e(a) also requires “proper exhaustion of
administrative remedies, which ‘means using all steps
that the agency holds out, and doing so properly (so
that the agency addresses the issues on the
merits).'” Woodford v. Ngo, 548 U.S. 81,
90 (2006) (citation omitted). “Proper exhaustion
demands compliance with an agency's deadlines and other
critical procedural rules because no adjudicative system can
function effective without imposing some orderly structure on
the course of its proceedings.” Id. at 90-91.
“[I]t is the prison's requirements, and not the
PLRA, that define the boundaries of proper exhaustion.”
Jones v. Bock, 549 U.S. 199, 218 (2007). “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)).
The
failure to exhaust is an affirmative defense, and the
defendant or defendants bear the burden of raising and
proving the absence of exhaustion. Id. at 216;
Albino, 747 F.3d at 1166. “In the rare event
that a failure to exhaust is clear on the face of the
complaint, a defendant may move for dismissal under Rule
12(b)(6).” Albino, 747 F.3d at 1166.
Otherwise, the defendant or 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 the plaintiff failed to exhaust.
Id.
B.
Summary Judgment Standard
Any
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;
Wash. Mut. Inc. v. United States, 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 to by the parties, although
it is not required to do so. Fed.R.Civ.P. 56(c)(3);
Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026,
1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty.,
Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). “The
evidence must be viewed in the light most favorable to the
nonmoving party.” Williams v. Paramo, 775 F.3d
1182, 1191 (9th Cir. 2014).
Initially,
“the defendant's burden is to prove that there was
an available administrative remedy, and that the prisoner did
not exhaust that available remedy.” Albino,
747 F.3d at 1172. If the defendant meets that burden, the
burden of production then shifts to the plaintiff to
“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 him.” Id. However, the ultimate
burden of proof on the issue of administrative exhaustion
remains with the defendant. Id. “If undisputed
evidence viewed in the light most favorable to the prisoner
shows a failure to exhaust, a defendant is entitled to
summary ...