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.”
How later courts described this case
- 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.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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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
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