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Bolosan v. Tanigawa

United States District Court, D. Hawaii

July 30, 2019

GAVIN BOLOSAN, #A1055979, Plaintiff,
v.
COURTNEY TANIGAWA, et al., Defendants.

          ORDER GRANTING (1) DEFENDANT FONSECA'S MOTION FOR SUMMARY JUDGMENT, ECF NO. 15; AND(2) DEFENDANT TANIGAWA'S MOTION FOR SUBSTANTIVE JOINDER, ECF NO. 25

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         Before the court is Defendant Kevin Fonseca's Motion for Summary Judgment (“Motion”) and Defendant Courtney Tanigawa's Motion for Substantive Joinder in Fonseca's Motion (“Joinder Motion”). Mots., ECF Nos. 15, 25. Defendants assert that Plaintiff Gavin Bolosan, an inmate currently incarcerated at the Halawa Correctional Facility (“HCF”), 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. 15.

         Although given an extension of time to do so, Bolosan has not filed an Opposition to the Motion. See ECF Nos. 18 (setting scheduling date and providing Notice to Pro Se Litigants); 28 (noting that Bolosan's Opposition was late and directing him to notify the court, on or before July 12, 2019, whether he will oppose the Motion and showing cause why he failed to meet the deadline for filing an Opposition).

         Because Tanigawa seeks the same relief as Fonseca¯dismissal of this action for Bolosan's failure to exhaust administrative remedies before commencing suit¯her Joinder Motion is GRANTED. See Mohr v. Deutsche Bank Nat'l Tr. Co., 2019 WL 2476791, at *8 (D. Haw. June 13, 2019) (“A substantive joinder under Local Rule 7.9 is a vehicle ‘through which a party may seek for itself the same relief the movant seeks.'”) (citing Pascua v. Opti on One Mortg. Corp., 2014 WL 4180947, at *1 n.1 (D. Haw. Aug. 20, 2014) (further citation omitted).

         Because Bolosan fails to rebut Defendants' Motion by showing that he exhausted available administrative remedies prior to filing this action, and there being no basis in the record to excuse this failure, Defendants' Motion for Summary Judgment is GRANTED.

         I. BACKGROUND

         Bolosan is in the custody of the Hawaii Department of Public Safety (“DPS”), and seeks relief under 42 U.S.C. § 1983. He commenced this action on or about November 28, 2018, when he mailed his Complaint from the prison to the court for filing. See ECF Nos. 1, 1-1. He alleged that Defendants violated his constitutional rights under the Eighth and Fourteenth Amendments on or about March 31, 2018, when they denied his request for a lower bunk, despite their alleged knowledge of his need for such an accommodation.

         On January 31, 2019, the court dismissed the Complaint in part, finding that Bolosan stated colorable claims against Tanigawa and Fonseca in their individual capacities. Order, ECF No. 4. The court directed service on these claims only.

         On April 5, 2019, Fonseca filed an Answer to the Complaint, ECF No. 11, and on May 2, 2019, he filed the present Motion, ECF No. 15.

         On June 4, 2019, Tanigawa filed an Answer and a Motion for Leave to File Substantive Joinder in Fonseca's Motion. ECF Nos. 22, 23. On June 5, 2019, the court granted Tanigawa's Motion for Leave to File Substantive Joinder, and on June 6, 2019, Tanigawa file her Joinder Motion. ECF Nos. 24, 25.

         On June 25, 2019, the court directed Bolosan to explain, on or before July 12, 2019, why he had failed to file an Opposition to Fonseca's Motion and whether he intended to file an Opposition. ECF No. 28. Bolosan has filed no response.

         A 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).

         II. LEGAL STANDARD

         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. Li berty 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 uncorroborated assertions ...


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