United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
Derrick K. Watson, Judge
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.
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
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,  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
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.
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, ” 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.
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.
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.
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.
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.
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).
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 ...