United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Glenn Greer, who is currently confined in the Arizona State
Prison Complex-Lewis, brought this civil rights action
pursuant to 42 U.S.C. § 1983. (Doc. 1.) Defendants move
for summary judgment based on failure to exhaust
administrative remedies, and Plaintiff opposes. (Docs. 54, 64.)
Also pending before the Court is Plaintiff's
“Motion to Deny (Dismiss) Defendants' Motion for
Summary Judgment.” (Doc. 67.) The Court will deny
Plaintiff's Motion and will grant in part and deny in
part Defendants' Motion.
filed his Complaint while incarcerated in the Pinal County
Jail (PCJ) against several PCJ employees. Plaintiff's
claims relate to searches of his PCJ cell on September 9,
2016 and May 15, 2017, and his placement in solitary
confinement on September 9, 2016. (Doc. 1.)
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated Sixth Amendment claims
regarding the cell searches in Count One against Defendants
Sergeant Street and Lieutenant Hoyos; in Count Two against
Defendants Security Captain VanGorden and Lieutenant Arnold;
and in Count Three against Defendants Street, Hoyos, and
Arnold. (Doc. 5 at 7.) The Court also determined that
Plaintiff stated a due process claim in Count Four against
Defendants VanGorden and Arnold regarding his placement in
solitary confinement. (Id.) The Court dismissed the
remaining Defendants. (Id. at 10.)
Plaintiff's Motion to Deny (Dismiss)
argues that Defendants' Reply in support of their Motion
for Summary Judgment was due August 25, 2018, but they did
not file it until August 27, 2018. (Doc. 67 at 1-2.)
Plaintiff asks the Court to deny Defendants' Motion for
Summary Judgment with prejudice and grant Plaintiff the
relief requested in his Complaint. (Id. at 2.)
Motion is without merit. Plaintiff's Response was served
on Defendants on August 10, 2018, when it was entered in the
Court's electronic case filing system. (See Doc.
64.) The Court permitted Defendants 15 days after service of
the Response to file a Reply - until August 25, 2018.
(See Doc. 57.) Because August 25 was a Saturday,
Defendants had until the following Monday, August 27, to file
their Reply under Federal Rule of Civil Procedure 6(a)(1)(C).
Defendants' Reply filed on August 27, 2018 was timely and
the Court will deny Plaintiff's motion.
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,
i.e., a fact that might affect the outcome of the suit under
the governing law, and that the dispute is genuine, i.e., 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); however, 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.
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. In its analysis, the 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, 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, in fact, 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