Newton v. Eatmon ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 THEODORE J. NEWTON, CASE NO. 19cv511-LAB (KSC) 10 Plaintiff, ORDER ADOPTING REPORT AND 11 vs. RECOMMENDATION [Dkt. 25] 12 OFFICER S. EATMON, 13 Defendant. 14 Theodore Newton, a state prison inmate proceeding pro se, brought this Section 15 1983 action alleging that he was assaulted by Defendant-Officer S. Eatmon. Officer Eatmon 16 moved for summary judgment on the grounds that Newton failed to exhaust his 17 administrative remedies prior to filing this suit. Currently before the Court is Magistrate 18 Judge Crawford’s Report and Recommendation (“R&R”), which recommends that Officer 19 Eatmon’s Motion for Summary Judgment be granted. Dkt. 25. The Court has reviewed 20 Judge Crawford’s R&R, Newton’s objections, and Officer Eatmon’s reply. For the reasons 21 below, the Court ADOPTS IN FULL Judge Crawford’s R&R. 22 Judge Crawford did not err in concluding that summary judgment was warranted 23 based on Newton’s failure to exhaust administrative remedies. The law is clear that a prison 24 inmate like Newton may not bring a Section 1983 claim in federal court until he has 25 exhausted all administrative remedies available to him. 42 U.S.C. § 1997(e). Here, Newton 26 concedes that he did not exhaust his administrative remedies, but he maintains that the 27 prison’s nine-month delay in processing the second level of his administrative appeal 28 constituted an unreasonable delay that excused the exhaustion requirement. Although it’s 1 || true there is no need to exhaust administrative remedies where prison officials make the 2 || grievance process “effectively unavailable,” Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 3 || 2010), if an inmate reasonably believes that prison authorities are responding to his 4 || grievance, he must complete the exhaustion process. See Brown v. Valoff, 422 F.3d 926, 5 || 935 (9th Cir. 2005) (exhaustion requirement excused only where an inmate has received all 6 || available remedies or has “been reliably informed by an administrator that no remedies are 7 || available.”). Even with an extended delay, Newton could not reasonably believe the prison 8 || authorities were ignoring his grievance. While his appeal was pending, the prison informed 9 || him in writing every thirty days that his appeal was still under review, informed him of the 10 || reason for the delay, and provided him with a revised deadline for completing the review. 11 || More importantly, after the prison completed its second level of review, Newton continued 12 || his appeal to the third level, showing that he understood he had not exhausted all remedies 13 || available to him. 14 The Court ADOPTS IN FULL Judge Crawford’s R&R. Dkt. 25. Defendant's Motion 15 || for Summary Judgment is GRANTED. Dkt. 13. Defendant's ex parte Motion to Vacate 16 || Pretrial Conference Dates is DENIED AS MOOT. Dkt. 32. The clerk is directed to enter 17 || judgment in favor of the Defendant and close the case. 18 IT IS SO ORDERED. 19 || Dated: December 5, 2019 lam / A (Buywy 20 HONORABLE LARRY ALAN BURNS Chief United States District Judge 22 23 24 25 26 27 28