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Thompson v. Torres

United States District Court, D. Hawaii

August 22, 2018

THAD THOMPSON, #A5013250, Plaintiff,
KATHERINE TORRES, et al., Defendants.


          Derrick K. Watson, Judge

         Before the court is Defendant Michael Bala's Motion for Summary Judgment. Mot., ECF No. 50. Bala asserts that Plaintiff Thad Thompson failed to exhaust available prison administrative remedies regarding the retaliation claim that Thompson alleged against him prior to filing this suit as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). See id., Mem. in Support, ECF No. 50-1. Thompson has filed his Opposition, ECF No. 55, and Bala has filed a Reply, ECF No. 61, and an amended Reply, ECF No. 62.

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

         I. BACKGROUND

         Thompson is incarcerated at the Halawa Correctional Facility (“HCF”) in the custody of the Hawaii Department of Public Safety (“DPS”). He commenced this suit on July 3, 2017, [1] claiming that HCF employees and officials Katherine Torres, Captain Paleka, Nolan Uehara, Residency Department Supervisor John Doe, High Kitchen Supervisor Jane Doe, and Law Library Supervisor Jane Doe denied him due process and retaliated against him for filing grievances and lawsuits. See Compl., ECF No. 1. Relevant to the present Motion, Thompson alleged that Jane Doe High Kitchen Supervisor provided him a finger food diet rather than a chopped food diet in retaliation for his filing civil suits and grievances. Thompson said he asked several nurses to correct his diet but he did not name Bala as one of these nurses.

         On August 2, 2017, the court found that Thompson stated a colorable retaliation claim against Torres and dismissed the remaining claims against all other Defendants with leave granted to amend. See Order, ECF No. 9.

         On August 23, 2017, Thompson filed the First Amended Complaint (“FAC”). ECF No. 10. He reasserted his retaliation claims, added Eighth Amendment claims, and abandoned his due process claims. Thompson renamed Defendants Torres, Paleka, Uehara, John Doe Residency Supervisor, and Jane Doe Law Library Supervisor. He also identified “Nurse Mike, ”[2] as the nurse who served him finger food rather than a chopped food diet, allegedly in retaliation for Thompson filing law suits and grievances against other HCF staff. See id., PageID #64.

         On October 4, 2017, the court dismissed Thompson's Eighth Amendment claims and all claims alleged against Torres, Paleka, Uehara, Residency Supervisor John Doe, and Law Library Supervisor Jane Doe with prejudice. See Order, ECF No. 11. The court dismissed Thompson's retaliation claim against Bala with leave to amend.

         On November 13, 2017, Thompson filed a Second Amended Complaint (“SAC”), which is the operative complaint, in which Thompson alleged that Bala refused to change his finger food diet to a chopped food diet in retaliation for Thompson's filing grievances and lawsuits against others. ECF No. 18. He alleged Bala's actions violated the First and Eighth Amendments.

         On November 21, 2017, the court dismissed Thompson's Eighth Amendment claim and directed the SAC served on Bala as to the retaliation claim only. Order, ECF No. 19.

         On May 18, 2018, Bala filed the present Motion for Summary Judgment, seeking dismissal for Thompson's failure to exhaust available administrative remedies before filing suit. See Mot., ECF No. 50; Concise Statement of Facts (“CSF”), ECF No. 51.


         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 facts are insufficient to establish a genuine dispute. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996). At summary judgment, the court's role is to verify that reasonable minds could differ when interpreting the record; the court does not weigh the evidence or determine its truth. Schmidt v. Contra Costa Cty., 693 F.3d 1122, 1132 (9th Cir. 2012).

         On summary judgment, a moving party who does not bear the burden of proof at trial “must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element” to support its case. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). That is, the moving party must demonstrate through authenticated evidence that the record forecloses the possibility of a reasonable trier-of-fact finding in favor of the nonmoving party as to disputed material facts. Celotex, 477 U.S. at 323; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 ...

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