United States District Court, D. Arizona
G. Campbell, United States District Judge.
Ron Zachary Pettit, who is currently confined in Arizona
State Prison Complex-Eyman, brought this civil rights action
pursuant to 42 U.S.C. § 1983. (Doc. 1.) Defendants move
for summary judgment, and Plaintiff opposes. (Docs. 50, 79.)
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated First Amendment retaliation
claims against Defendants Perrotta, Moore, and Sergeant
Sajonia in Counts II and III, and Eighth Amendment
medical-care claims against Defendant Braaten in Count V.
(Doc. 10.) The Court dismissed the remaining claims and
Defendants. (Id.) Defendants Perrotta, Moore, and
Sajonia move for summary judgment in their favor on Counts II
and III on the basis that Plaintiff failed to properly
exhaust his available administrative remedies. (Docs. 50,
must 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant 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.
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if
the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and that the fact in contention is material
(a fact that might affect the outcome of the suit under the
governing law), and that the dispute is genuine (the evidence
is such that a reasonable jury could return a verdict for the
nonmovant). Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 250 (1986); see Triton
Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th
Cir. 1995). The nonmovant need not establish a material issue
of fact conclusively in its favor, First Nat'l Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968), but it must “come forward with specific facts
showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted); see Fed. R. Civ. P. 56(c)(1).
summary judgment, the judge's function is not to weigh
the evidence and determine the truth, but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. A court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court need
consider only the cited materials, but it may consider any
other materials in the record. Fed.R.Civ.P. 56(c)(3).
the Prison Litigation Reform Act (PLRA), a prisoner must
exhaust “available” administrative remedies
before filing an action in federal court. See 42
U.S.C. § 1997e(a); Vaden v. Summerhill, 449
F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff,
422 F.3d 926, 934-35 (9th Cir. 2005). The prisoner must
complete the administrative review process in accordance with
the applicable rules. See Woodford v. Ngo, 548 U.S.
81, 92 (2006). Exhaustion is required for all suits about
prison life, Porter v. Nussle, 534 U.S. 516, 523
(2002), regardless of the type of relief offered through the
administrative process, Booth v. Churner, 532 U.S.
731, 741 (2001).
defendant bears the initial burden to show that there was an
available administrative remedy and that the prisoner did not
exhaust it. Albino v. Baca, 747 F.3d 1162, 1169,
1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37
(a defendant must demonstrate that applicable relief remained
available in the grievance process). Once that showing is
made, the burden shifts to the prisoner, who must either
demonstrate that he exhausted administrative remedies or
“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.” Albino, 747 F.3d at 1172.
The ultimate burden, however, rests with the defendant.
Id. Summary judgment is appropriate if the
undisputed evidence, viewed in the light most favorable to
the prisoner, shows a failure to exhaust. Id. at
1166, 1168; see Fed. R. Civ. P. 56(a).
summary judgment is denied, disputed factual questions
relevant to exhaustion should be decided by the judge; a
plaintiff is not entitled to a jury trial on the issue of
exhaustion. Albino, 747 F.3d at 1170-71. But if a
court finds that the prisoner exhausted administrative
remedies, that administrative remedies were not available, or
that the failure to exhaust administrative remedies should be
excused, the case proceeds to the merits. Id. at