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Cabrera v. Hubmer

United States District Court, D. Hawaii

July 6, 2018

FRED CABRERA, #A0114810, Plaintiff,
v.
BENJAMIN HUBMER, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.

         Before the court is Defendants Malia Anderson's and Manny Tavares's Motion for Summary Judgment. Mot., ECF No. 33. Defendants assert that Plaintiff Fred Cabrera failed to exhaust available prison administrative remedies prior to filing this suit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). See Mem. in Support, ECF No. 34. Cabrera has filed his Opposition, ECF No. 39, and Defendants have filed a Reply, ECF No. 44.

         The court finds that Cabrera failed to exhaust his available administrative remedies prior to filing this action. There is no basis in the record to excuse this failure, and Defendants' Motion for Summary Judgment is GRANTED. The Clerk is DIRECTED to terminate this action without prejudice and close the file.

         I. BACKGROUND

         Cabrera is in the custody of the Hawaii Department of Public Safety (“DPS”).[1] The events that give rise to this action occurred on June 22, 2017 at the Oahu Community Correctional Center (“OCCC”). Cabrera alleges that Defendants violated the Eighth Amendment when they ordered him to help move an allegedly mentally ill inmate from one cell to another and then failed to intervene when this inmate attacked him. Cabrera seeks relief under 42 U.S.C. § 1983.

         Although Cabrera signed the Complaint on July 2, 2017, the court did not receive it until July 27, 2017, with an in forma pauperis (“IFP”) application, and notice of change of address showing that Cabrera had transferred to the Halawa Correctional Facility (“HCF”).[2] See ECF Nos. 1-1, 1-3.

         On August 25, 2017, the court dismissed the Complaint for failure to state a claim, with leave granted to amend. Order, ECF No. 6.

         On September 20, 2017, Cabrera filed the First Amended Complaint (“FAC”). FAC, ECF No. 7. The court ordered the FAC served on Defendants Anderson and Tavares and dismissed all other claims against all other Defendants on September 22, 2017. Order, ECF No. 8.

         On November 2, 2017, Cabrera was transferred from HCF to SCC. See ECF No. 20.

         On December 22, 2017, Defendants filed an Answer to the FAC that asserted, inter alia, the affirmative defense of failure to exhaust administrative remedies. Answer, ECF No. 21, PageID #87 (Eleventh Defense). In response, Cabrera filed a “Motion in Opposition to Motion to Dismiss For Failure to Exhaust.” Mot., ECF No. 30. Because Defendants had not moved to dismiss (or for summary judgment), the court took no action on this motion. See ECF No. 32.

         On April 27, 2018, Defendants filed the present Motion for Summary Judgment, seeking dismissal of this action for Plaintiff's failure to exhaust available prison administrative remedies. Mot., ECF No. 34. Cabrera filed his “Motion in Opposition For Failure to Dismiss, ” on June 1, 2018, which is construed as his Opposition (rather than a separate motion). Pl. Opp'n, ECF No. 39. Defendants have filed a Reply. ECF No. 44.

         A hearing is not necessary to resolve Defendants' Motion. See Local Rule LR7.2; LR99.16.2 (designating all hearings in pro se prisoner cases as non-hearing motions unless otherwise ordered by the court).

         II. LEGAL STANDARD

         Summary judgment is proper when the record demonstrates that “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute is “genuine” when a reasonable jury could find for the nonmoving party. Id. Conclusory statements, speculative opinions, pleading allegations, or other assertions uncorroborated by ...


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