United States District Court, D. Hawaii
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
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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.
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.
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.
April 5, 2019, Fonseca filed an Answer to the Complaint, ECF
No. 11, and on May 2, 2019, he filed the present Motion, ECF
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.
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.
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).
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 ...