United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.
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.
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.
is in the custody of the Hawaii Department of Public Safety
(“DPS”). 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. §
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”). See ECF
Nos. 1-1, 1-3.
August 25, 2017, the court dismissed the Complaint for
failure to state a claim, with leave granted to amend. Order,
ECF No. 6.
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.
November 2, 2017, Cabrera was transferred from HCF to SCC.
See ECF No. 20.
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.
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.
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).
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 ...