United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
the court is Defendants Levy Christensen's and Kaipo
Sarkissian's Motion for Summary Judgment. ECF No. 74.
Defendants assert that Plaintiff Henry Lagmay failed to fully
exhaust available prison administrative remedies prior to
filing this suit, as required by the Prison Litigation Reform
Act (“PLRA”). See 42 U.S.C. §
1997e(a). Lagmay has filed his Opposition, ECF No. 79, and
Defendants have filed a Reply, ECF No. 80.
court agrees that Lagmay failed to exhaust available
administrative remedies prior to filing this action. There is
no basis in the record to excuse this failure, and Defendants
Sarkissian's and Christensen's Motion is GRANTED. The
Clerk is DIRECTED to terminate this action without prejudice
and close the file.
about July 17, 2016, Lagmay commenced this action while he
was incarcerated at the Halawa Correctional Facility
(“HCF”). See Compl., ECF No. 1. On August
24, 2016, Lagmay filed a Supplement to the Complaint with
numerous exhibits attached to support his claims.
See ECF Nos. 6, 7. The Court construed these
documents together as Lagmay's initial pleadings. Lagmay
broadly alleged that more than seventy HCF officials and
others conspired to retaliate against him for filing numerous
grievances and three previous lawsuits against prison
officials. Lagmay repeatedly referred to an incident that
allegedly occurred at HCF on May 25, 2016, in which he
claimed Defendants Sarkissian and Christensen retaliated
against him for filing suits and grievances by roughly
cuffing him behind his back during a cell transfer,
re-injuring his left arm and leaving his legal paperwork in
September 16, 2016, the court dismissed Lagmay's
pleadings for his failure to comply with the Federal Rules of
Civil Procedure and Local Rules for the District of Hawaii.
ECF No. 9. This Order granted Lagmay leave to file an amended
pleading to cure the noted deficiencies in the Complaint.
filed the First Amended Complaint (“FAC”) on
December 22, 2016. ECF No. 18. He again alleged that more
than seventy defendants were retaliating against him for
filing grievances and lawsuits. The FAC also realleged and
clarified his claims that Sarkissian and Christensen had
re-injured his left biceps when they cuffed his wrists behind
his back through his cell's trapdoor on May 25, 2016, and
interfered with his legal papers, allegedly in retaliation
for his filing grievances and lawsuits against them and
February 9, 2017, the court found that Lagmay's
retaliation and excessive force claims against Sarkissian and
Christensen were colorable and directed that they be served.
See Orders, ECF Nos. 20 and 21. The court dismissed
all remaining claims and Defendants for Lagmay's failure
to state a claim. Order, ECF No. 20.
November 28, 2017, Sarkissian and Christensen waived service
of the summons and answered the FAC. Answer, ECF No. 56. On
April 5, 2018, Sarkissian and Christensen filed an amended
Answer. ECF No. 69.
1, 2018, Sarkissian and Christensen moved for summary
judgment for Lagmay's alleged failure to exhaust
available administrative remedies. Mot., ECF No. 74. Lagmay
has filed his Opposition, ECF No. 79, and Sarkissian and
Christensen have filed a Reply, ECF No. 80.
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). On summary judgment, the court's role is
to verify whether 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).
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 (9th Cir. 2002). The court
must view all evidence and any inferences in the light most
favorable to the nonmoving party. Colwell v.
Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).
moving party meets its burden, the burden shifts to the
nonmoving party to “designate specific facts
demonstrating the existence of genuine issues for
trial.” In re Oracle Corp. Sec. Litig., 627
F.3d 376, 387 (9th Cir. 2010) (citation omitted). This
requires the nonmoving party to “show more than the
mere existence of a scintilla of evidence. . . . In fact, the
non-moving party must come forth with evidence from which a
jury could reasonably render a verdict in the non-moving
party's favor.” Id. (citations omitted).
The nonmoving party may defeat a summary judgment motion only
by setting forth specific facts that illustrate a genuine
dispute requiring a factfinder's resolution. Liberty
Lobby, 477 U.S. at 248; Celotex, 477 U.S. at
324. Although the nonmoving party need not produce
authenticated evidence, see Fed. R. Civ. P. 56(c),
mere assertions, pleading allegations, and
“metaphysical doubt as to the material facts”
will not defeat a properly-supported and meritorious summary
judgment motion. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986).
purposes of opposing summary judgment, the contentions
offered by a pro se litigant in motions and pleadings are
admissible to the extent that the contents are based on
personal knowledge, set forth facts that would be admissible
into evidence, and the litigant attested under penalty of
perjury that they were true and correct. Jones v.
Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
42 U.S.C. § 1997e(a)
PLRA “mandates that an inmate exhaust ‘such
administrative remedies as are available' before bringing
suit to challenge prison conditions.” Ross v.
Blake, 136 S.Ct. 1850, 1854-55 (2016) (quoting 42 U.S.C.
§ 1997e(a)). “There is no question that exhaustion
is mandatory under the PLRA.” Jones v. Bock,
549 U.S. 199, 211 (2007) (citation omitted). Requiring
exhaustion allows prison officials “an opportunity to
resolve disputes concerning the exercise of their
responsibilities before being haled into court.”
Id. at 204. The “exhaustion requirement does
not allow a prisoner to file a complaint addressing
non-exhausted claims.” Rhodes v. Robinson, 621
F.3d 1002, 1004 (9th Cir. 2010); McKinney v. Carey,
311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (“a
prisoner does not comply with [the exhaustion] requirement by
exhausting available remedies during the course of the
of the relief sought, a prisoner must pursue an appeal
through all levels of a prison's grievance process as
long as some remedy remains available. “The obligation
to exhaust ‘available' remedies persists as long as
some remedy remains ‘available.' Once that is no
longer the case, then there are no ‘remedies . . .
available,' and the prisoner need not further pursue the
grievance.” Brown v. Valoff, 422 F.3d 926, 935
(9th Cir. 2005)(citing Booth v. Churner, 532 U.S.
731, 739 (2001)). “The only limit to §
1997e(a)'s mandate is the one baked into its text: An
inmate need exhaust only such administrative remedies as are
‘available.'” Ross, 136 S.Ct. at
1862. Thus, “an inmate is required to exhaust those,
but only those, grievance procedures that are ‘capable
of use' to obtain ‘some relief for the action
complained of.'” Ross, 136 S.Ct. at 1859
(quoting Booth, 532 U.S. at 738).
outlined three limited “circumstances in which an
administrative remedy, although officially on the books, is
not capable of use to obtain relief.” Id. at
1859. They are: (1) the “administrative procedure . . .
operates as a simple dead end-with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates;” (2) the “administrative scheme . . .
[is] so opaque that it becomes, practically speaking,
incapable of use . . . so that no ordinary prisoner can make
sense of what it demands;” and (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60 (citations
omitted). Beyond these three circumstances demonstrating the
unavailability of an administrative remedy, the mandatory