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Lagmay v. Nobriga

United States District Court, D. Hawaii

August 31, 2018

HENRY LAGMAY, #AO191119, Plaintiff,
SHELLEY NOBRIGA, et al., Defendants.



         Before 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.

         The 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.

         I. BACKGROUND

         On or about July 17, 2016, Lagmay commenced this action while he was incarcerated at the Halawa Correctional Facility (“HCF”).[1] 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 disarray.

         On 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.

         Lagmay 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 others.

         On 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.

         On 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.

         On June 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.


         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). 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).

         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 (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).

         If the 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).

         For 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).


         A. 42 U.S.C. § 1997e(a)

         The 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 litigation”).

         Regardless 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).

         Ross 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 language ...

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