United States District Court, D. Arizona
Honorable David C. Bury United States District Judge
Court screened the Plaintiff's First Amended Complaint,
dismissed the claims against the various Defendants except
for Defendant Herman, and ordered Herman to answer claims
alleged in Counts Two and Three. Plaintiff is Jewish and
alleged three counts related to his free exercise of
Count Two, the Plaintiff alleged that ASPC-Douglas Senior
Chaplain Herman, in charge of all religious programs and
approving religious supplies, denied Plaintiff Passover
holiday supplies in 2016 and 2017. Plaintiff also alleged
that Herman failed to turn out the Jewish prisoners,
including Plaintiff, to use the interfaith chapel during
Passover. In Count Three, Plaintiff alleged that he has been
provided a kosher diet during his incarceration until Herman
removed Plaintiff from the diet in retaliation against the
historical practices of Plaintiff's Jewish religion.
Plaintiff admits that he was given back his kosher diet on
May 8, 2017, but that this was after Passover had already
20, 2019, the Defendant moved for Partial Summary Judgment on
Count Two in part as to claims regarding denial of religious
property in 2017 and all of Count Three because the Plaintiff
failed to exhaust available administrative remedies. Herman
asserts that Plaintiff's bald claims that he appealed his
request for administrative relief to the highest
administrative level conflicts with the Arizona Department of
Corrections (ADC) record which does not contain any relevant
inmate grievance appeals for any claim in 2017.
28, 2019, the Court issued a Notice to the Plaintiff
explaining his obligations under Federal Rule 56 of the
Federal Rules of Civil Procedure to respond to the Motion for
Summary Judgment and of the consequences for failing to file
a Response, including Local Rule 7.2(e)(1) for summary
granting of the motion in final disposition of his case.
(Order (Doc. 24)). The Notice was returned to the Court as
“undeliverable.” On June 6, 2019, the Defendant
filed a Motion to Dismiss for Lack of Prosecution because the
copy of the dispositive motion Herman sent to the Plaintiff
was returned to sender as undeliverable. It appears that the
Plaintiff was released on parole on April 30, 2019. This
likely explains why the Plaintiff also failed to file a
Response to the Motion for Summary Judgment in violation of
the directives contained in the Court's May 28, 2019,
Notice to file the Response by June 22, 2019.
Local Rules of this Court, LRCiv 83.3(d) requires inmates to
submit a notice of an address change to be filed
“within seven (7) days after the effective date of the
change.” Without an updated address, neither this Court
nor the Defendant can communicate with the Plaintiff.
See (Order (Doc. 8) at 6 (requiring compliance with
Rule 83.3(d)). So, while the case has not sat for six (6)
months without any proceedings or pleadings, notices, or
other documents being filed in it, the Court nevertheless
dismisses it for failure to prosecute, pursuant to LRCiv.
41.1, without notice to Plaintiff and an opportunity to show
cause why it should not be dismissed.
Court has also reviewed the Motion for Partial Summary
Judgment, pursuant to Rule 7.2(e)(1) and grants it. Under
Rule 7.2(i) of this Court's Local Rules of Practice, a
failure to file a responsive pleading may be deemed consent
to the motion and this Court may dispose of the motion
summarily. “A motion for summary judgment cannot be
granted simply because the opposing party violated a local
rule.” Marshall v. Gates, 44 F.3d 722, 725
(9th Cir. 1995) (citing Henry v. Gill Industries
Inc., 983 F.2d 943, 950 (9th Cir. 1993). This is so
because a party may oppose a motion for summary judgment
without offering affidavits or any other materials in support
of its opposition. “‘Summary judgment may be
resisted and must be denied on no other grounds than that the
movant has failed to meet its burden of demonstrating the
absence of triable issues.'” Id. at 106
(quoting Henry, 983 F.2d at 950).
Court has reviewed the Motion for Summary Judgment, wherein
Defendants assert that a review of the ADC's records
failed to reveal any relevant inmate grievance appeal in 2017
received by the Director. Under ADC procedures, an Informal
Resolution request is appealable to the final decisionmaker,
the Director. The PLRA mandates exhaustion of administrative
remedies prior to suit for all inmate claims challenging
prison conditions under 42 U.S.C. § 1983. 42 U.S.C.
§1997e(a); Porter v. Nussle, 534 U.S. 516, 524
(2002). Exhaustion is a prerequisite to suit and cannot be
waived on grounds of futility, inadequacy, default or for
lack of being “plain, speedy, and effective.”
Booth v. Churner, 532 U.S. 731, 739-741 (2001);
Porter, 534 U.S. at 524.
Court has reviewed the First Amended Complaint and considered
the merits of the Motion for Partial Summary Judgment and
finds that summarily granting the motion is warranted,
pursuant to Rule 7.2(i).
IS ORDERED that Defendants' Motion to Dismiss
for Failure to Prosecute (Doc. 25) is GRANTED as to the case
in its entirety.
IS FURTHER ORDERED that the Defendants' Motion
for Partial Summary Judgement (Doc. 22) is summarily granted,
pursuant to Rule 7.2(i), for Defendant Herman.
IS FURTHER ORDERED that the Clerk of the Court shall