Garland v. Knowles et al

Filing 44

ORDER DENYING 39 Motion for Supplemental Pleading and 43 Response/Motion in Opposition to Motion for Summary Judgment, signed by District Judge David C. Bury on 06/08/2011. (Martin-Gill, S)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8
9

Shaun Darnell Garland,
Plaintiff,

10
11

vs.

12

Warden M. Knowles, et al.,
Defendants.

13

)
)
)
)
)
)
)
)
)
)

No. 1:07-CV-750-DCB
ORDER

14
On May 26, 2011, the Court entered Judgment against Plaintiff in this case, summarily
15
granting Defendant Borbon’s Motion for Summary Judgment, pursuant to Calif. LR Civ.7816
230, after the Court twice gave Plaintiff notice and an opportunity to file a Response to the
17
dispositive motion. Subsequently, on June 3, 2011, the Plaintiff filed a Response to the
18
Motion for Summary Judgment. The Court has reviewed the Plaintiff’s Response and finds
19
no basis for reconsideration of its order granting summary judgment for Defendant.
20
Judgment was entered against Plaintiff because he failed to file a grievance addressing
21
the alleged excessive use of force by Defendant Borbon, thereby, failing to exhaust
22
administrative remedies. “An inmate must exhaust his administrative remedies before suing
23
prison officials and if he does not, the complaint is subject to dismissal.” (Ds’ Motion for
24

Summary Judgment (Doc. 28-1) at 3 (citing Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

25
2003)).
26
In his late Response, the Plaintiff asserts that a copy of the Borbon 602 grievance,
27
which would prove exhaustion, was removed while his property was held by prison staff
28

1

from March 10, 2009, to June 2, 2009, during his transfer from Kern Valley State Prison

2

(KVSP) to Lancaster, CSP. Plaintiff ignores admissions contained in the First Amended

3

Complaint that he did not exhaust his claims because: “Administrative remedies for all intent

4

and purposes become unavailable due to ECPOA members control of process & IGI

5

monitors/surveillers, counter intelligence operatives interference.” There is no evidence in

6

the record to support his assertion that the Borbon 602 grievance form was stolen from him;

7

the evidence is to the contrary that, in fact, he did not file a grievance regarding the Borbon

8

incident.

9

Even if the Court were inclined to reconsider its dismissal of the First Amended

10

Complaint on the basis of exhaustion, the Judgment would stand because Plaintiff has

11

admitted only a minor injury from having his wrist clamped in the cell door. The Eighth

12

Amendment prohibits “unnecessary and wanton infliction of pain” on prisoners. Neither

13

negligence nor gross negligence will constitute deliberate indifference. Farmer v. Brennan,

14

511 U.S. 825, 837-38 (1994); Estelle v. Gamble, 429 U.S. 97, 106 (1976).

15

Accordingly,

16

IT IS ORDERED that the late filed Response, captioned as “Notice of Motion and

17

Motion in Opposition to Defendants’ Motion for Summary Judgment (Doc. 43) is DENIED.

18

IT IS FURTHER ORDERED that the Motion for Supplemental Pleading (Doc. 39)

19
20

is DENIED.
DATED this 8th day of June, 2011.

21
22
23
24
25
26
27
28
-2-