Miller v. Flores

          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 ...