(PC) Bender v. Santoro ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FLOYD EUGENE BENDER, ) Case No.: 1:21-cv-00448-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND NOTICE 14 KELLY SANTORO, et al., ) REGARDING EXHAUSTION BE DENIED ) 15 Defendants. ) (ECF Nos. 6, 7) ) 16 ) 17 Plaintiff Floyd Eugene Bender is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. 19 On April 1, 2021, Plaintiff filed a motion for summary judgment and a separate motion 20 demanding proof of review of inmate grievance. (ECF Nos. 6, 7.) 21 I. 22 DISCUSSION 23 A. Motion for Summary Judgment 24 As an initial matter, Plaintiff has not paid the filing fee or submitted an application to proceed 25 in forma pauperis in this action, and the deadline to do so is currently May 6, 2021. This case cannot 26 proceed forward without payment of the filing fee or the submission of a complete application to 27 proceed in forma pauperis demonstrating that Plaintiff is unable to pay the filing fee in full. 28 /// 1 In addition, the Court is required to screen complaints brought by prisoners seeking relief 2 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 3 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 5 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The 6 Court will order the United States Marshall to serve Plaintiff's complaint if, and only if, it determines 7 that Plaintiff has stated a cognizable claim. 8 The Court has yet to screen Plaintiff's complaint to determine whether it states a claim upon 9 which relief could be granted. As such, none of the Defendants have been served or have appeared in 10 this case. With this procedural background in mind, the Court will address Plaintiff's pending motion. 11 Federal Rule of Civil Procedure 56 contemplates that, prior to filing a motion for summary judgment, 12 the opposing party should have a sufficient opportunity to discover information essential to its 13 position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In other words, the case 14 must be sufficiently advanced in terms of pretrial discovery for the summary judgment target to know 15 what evidence likely can be mustered and be afforded a reasonable opportunity to present such 16 evidence. Portsmouth Square, Inc., v. Shareholders Protective Comm., 770 F.2d 866, 869 (9th 17 Cir.1985). 18 Until such time as Defendants have entered an appearance and had the opportunity to conduct 19 discovery, Plaintiff's motion is premature. Once Defendants have filed an answer, a discovery order 20 will be entered, and a deadline for the filing of dispositive motions will be set. Accordingly, Plaintiff's 21 motion for summary judgment must be denied. 22 B. Notice Regarding Exhaustion of Administrative Remedies 23 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect to 24 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any 25 jail, prison, or other correctional facility until such administrative remedies as are available are 26 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 27 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). Inmates 28 are required to “complete the administrative review process in accordance with the applicable 1 procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodford v. 2 Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all inmate suits relating to 3 prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner 4 or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 5 The failure to exhaust administrative remedies is an affirmative defense, which the defendant 6 must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of producing 7 evidence that proves a failure to exhaust; and, summary judgment is appropriate only if the undisputed 8 evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff failed to exhaust. 9 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary judgment, the 10 defendant must prove (1) the existence of an available administrative remedy and (2) that Plaintiff 11 failed to exhaust that remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citations 12 omitted). If the defendant meets this burden, “the burden shifts to the plaintiff, who must show that 13 there is something particular in his case that made the existing and generally available administrative 14 remedies effectively unavailable to him.” Id. (citations omitted). If the plaintiff fails to meet this 15 burden, the court must dismiss the unexhausted claims or action without prejudice. See Lira v. 16 Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005). 17 Plaintiff is advised that he is not required to plead and/or prove exhaustion of the 18 administrative remedies because it is an affirmative defense. Further, to the extent Plaintiff is seeking 19 a court order directing prison officials to process and review his inmate grievance, the Court does not 20 have jurisdiction to issue such order. A motion for a preliminary injunction cannot be decided until 21 the parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). In this 22 matter, even if the Court were to consider Plaintiff's motion for a preliminary injunction, such a 23 motion would have been denied because the parties to this action have not yet been served, and 24 Plaintiff has failed to satisfy either of the criteria under Rule 65 for granting a preliminary injunction. 25 Id. 26 Plaintiff is advised that he is should refrain from filing requests until after he has paid the filing 27 fee or submitted a complete application to proceed in forma pauperis. 28 /// 1 Il. 2 RECOMMENDATIONS 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. Plaintiff's motion for summary judgment be denied; and 5 2. Plaintiffs request for a court order for prison officials to process and review his inmat 6 grievance be denied. 7 These Findings and Recommendations will be submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 9 || after being served with these Findings and Recommendations, Plaintiff may file written objections 10 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 12 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 13 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IS SO ORDERED. A (Se _ 16 | Dated: _ April 5, 2021 OF 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28