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United States District Court, S.D. California

October 4, 2005.

REMIGIO MAGANA, CDC #D-88908, Plaintiff,
G.J. GIURBINO, et al., Defendants.

The opinion of the court was delivered by: THOMAS WHELAN, District Judge


[Doc. No. 10]
I. Procedural History
On September 13, 2004, Plaintiff, an inmate currently incarcerated at Calipatria State Prison in Calipatria, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. On November 22, 2004, this Court granted Plaintiff's Motion to Proceed In Forma Pauperis and directed the U.S. Marshal to effect service of Plaintiff's Complaint pursuant to FED.R.CIV.P. 4(c)(2) and 28 U.S.C. § 1915(d). See Nov. 22, 2004 Order at 4.

Defendants Campos and Gonzales ("Defendants") have filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b), 42 U.S.C. § 1997e(a) and FED.R.CIV.P. 12(b)(6) [Doc. No. 10]. On July 20, 2005, Defendant Cerrillo, formerly designated "Jane Doe," filed a Notice of Joinder to Defendants' Motion to Dismiss [Doc. No. 14].

  Defendants claim that Plaintiff failed to exhaust his available administrative remedies pursuant to 42 U.S.C. § 1997e(a) prior to bringing the action currently before the Court. Defendants also claim that Plaintiff failed to state either an Eighth or Fourteenth Amendment claim against Defendants. On July 18, 2005, Plaintiff requested an extension of time to file an Opposition to the Defendants' Motion which the Court granted and permitted Plaintiff to file his Opposition no later than September 2, 2005. Plaintiff filed an Opposition on August 29, 2004 to which Defendants filed a Reply on September 16, 2005.

  II. Factual Allegations

  On November 12, 2003, Plaintiff was incarcerated at Calipatria State Prison ("Calipatria). See Compl. at 1-2. On that date he slipped in water while he was working in the Facility "D" Satellite Kitchen. Id. at 1. Plaintiff lost his footing and severely injured his back. Id. at 2-3. Plaintiff was taken to the prison's central infirmary where he was examined by Dr. Sands. Id. at 3. Dr. Sands gave Plaintiff a seven day "lay in"*fn1 and prescribed painkillers. Id. After the seven days, Plaintiff informed Medical Technical Assistant Cerrillo*fn2 and "Jane Doe" Nurse that he remained in "excruciating pain" and needed more time off from work. Id. Cerrillo and Jane Doe informed Plaintiff that he must continue to work or he would be fired from his prison job which would result in a loss of privileges. Id. Plaintiff's work duties included lifting and carry heavy pots and pans. Id. The following day Plaintiff returned to the infirmary and informed Cerrillo, as well as Jane Doe, that he was "in severe pain, having back spasms and could barely lift his arms because the pain was so debilitating." Id. MTA Cerrillo and Jane Doe refused to allow Plaintiff to see the physician to request an additional "lay in" and was told "you look fine, so you can work." Id. at 3-4.

  Plaintiff returned to his kitchen assignment where he was observed by other inmates to be in pain. Id. at 4. When other inmates attempted to assist Plaintiff, Defendant Campos ordered Plaintiff to perform his work without additional assistance. Id. The medical department had advised Defendants Campos and Gonzales that Plaintiff had suffered a severe back injury. Id. Plaintiff later informed his Correctional Counselor and Lieutenant Ries of the situation. Correctional Counselor Brown telephoned Campos and Gonzales in an attempt to allow Plaintiff to have some time off. Id. However, Campos and Gonzales refused to listen to Brown and informed him that if Plaintiff did not return to work, he would be fired. Id. Plaintiff was later issued a Rules Violation Report that resulted in a ten day "confinement to quarters status" and a ninety day loss of phone privileges due to Plaintiff's "refusing to perform assigned duties." Id., Attachment to Compl., Loss of Privileges General Chrono dated March 19, 2003.

  Plaintiff filed an administrative grievance which was "partially granted" on June 2, 2003. Id. at 5; Attachment to Compl., First Level Appeal Response, CDC Log No. CAL-D-03-00615 dated June 2, 2003. Plaintiff claims to have submitted his appeals to the Director's Level of Review but they were returned to him with a stamp indicating "received without contents at San Bernardino, CA." Id. at 5.

  III. Defendants' Motion to Dismiss per FED. R. CIV.P. 12(b)(6)

  A. Standard of Review

  A motion to dismiss for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

  The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Conley, 355 U.S. at 45-46; see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000) (en banc) (district court should grant leave to amend when complaint fails to state a claim "unless it determines that the pleading could not possibly be cured by the allegation of other facts" and if "it appears at all possible that the plaintiff can correct the defect") (citations omitted).

  Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel."). In giving liberal interpretation to a pro se civil rights complaint, however, a court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983.) "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted). In addition, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings. Schneider v. California Dep't of Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). "The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Id. at 1197 n. 1. However, the court may consider documents or exhibits "whose contents are alleged in a complaint and whose authenticity no party questions." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1990); Stone v. Writer's Guild of Am. W. Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).

  B. Eighth Amendment Inadequate Medical Treatment Claims

  Defendants Campos and Gonzales have filed a Motion to Dismiss seeking dismissal of Plaintiff's Complaint on the grounds that he has failed to allege facts sufficient to an Eighth Amendment claim. See Defs.' Mot. at 5. Defendant Cerrillo filed a joinder to Defendants' Motion but failed to add any additional facts or analysis.

  1. Standard of Review

  A public official's "deliberate indifference to a prisoner's serious illness or injury" violates the Eighth Amendment ban against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 105 (1976).*fn3 To state a claim, the prisoner must allege facts which demonstrate that he was confined under conditions posing a risk of "objectively, sufficiently serious" harm and that prison officials had a "sufficiently culpable state of mind" in denying him proper medical care. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995) (internal quotations omitted). Thus, there is both an objective and a subjective component to an actionable Eighth Amendment violation. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).

  Although the "routine discomfort inherent in the prison setting" is inadequate to satisfy the objective prong of an Eighth Amendment inquiry, see Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 1999), the objective component is generally satisfied so long as the prisoner alleges facts to show that his medical need is sufficiently "serious" such that the "failure to treat [that] condition could result in further significant injury or the unnecessary and wanton infliction of pain." Clement, 298 F.3d at 904 (quotations omitted); Lopez, 203 F.3d at 1131-32; see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) ("serious" medical conditions are those a reasonable doctor would think worthy of comment, those which significantly affect the prisoner's daily activities, and those which are chronic and accompanied by substantial pain).

  However, the subjective component requires the prisoner to also allege facts which show that the officials had the culpable mental state, which is "`deliberate indifference' to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)). "Deliberate indifference" is evidenced only when "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.

  Thus, because the indifference to medical needs also must be substantial; inadequate treatment due to "mere medical malpractice" or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Hallett v. Morgan, 287 F.3d 1193, 1205 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). In other words, an "official's failure to alleviate a significant risk that he should have perceived but did not, . . . cannot . . . be condemned as the infliction of punishment." Farmer, 511 U.S. at 838. "Rather the Eighth Amendment proscribes the `unnecessary and wanton infliction of pain,' which includes those sanctions that are `so totally without penological justification that it results in the gratuitous infliction of suffering.'" Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976)). "This is not an easy test for plaintiffs to satisfy." Hallett, 287 F.3d at 1205.

  2. Defendant Cerrillo

  In his Complaint, Plaintiff alleges that he injured his back and was taken to the Central Infirmary where he was examined by Dr. Sands. See Compl. at 3. Dr. Sands provided Plaintiff with a seven day "lay in" and prescribed pain medication. Id. Plaintiff returned to the infirmary after the seven days had expired and informed Defendant Cerrillo that he continued to be in "excruciating pain." Id. Plaintiff requested an additional "lay in" to recover from his back pain. Id. Defendant Cerrillo alleging informed Plaintiff that he would receive no further "lay in" and he must report to his prison job. Id. Plaintiff returned to work but the following day Plaintiff reported to the Medical Technician's Office and explained to Defendant Cerrillo that he was in "severe pain, having back spasms, and could barely lift his arms because the pain was so debilitating." Id. However, Defendant Cerrillo again denied Plaintiff an additional "lay in" and refused to allow Plaintiff to be examined by a medical doctor. Id. at 3-4.

  The Court finds these allegations sufficient to support both the "objective" and "subjective" aspects of an Eighth Amendment inadequate medical treatment claim. See Clement, 298 F.3d at 904. Defendant Cerrillo fails to argue that Plaintiff's medical condition is not clearly and objectively "serious." See Estelle, 429 U.S. at 105; Doty, 37 F.3d 546. In fact, Defendant Cerrillo offers no facts or arguments relating to the claims Plaintiff has made. The facts pertaining to Defendant Cerrillo differ significantly than the facts pertaining to the other Defendants who originally filed this motion, yet Cerrillo has offered no additional analysis for the Court.

  For these reasons, the Court DENIES Defendant Cerrillo's Motion to Dismiss Plaintiff's inadequate medical treatment claims pursuant to FED.R.CIV.P. 12(b)(6). 2. Defendants Gonzales and Campos

  Plaintiff alleges that after he was denied an additional "lay in," he was forced to return to his work assignment in the prison's kitchen. See Compl. at 4. Plaintiff claims to have told Defendants Gonzales and Campos, his supervisors, that he was unable to work due to his back injury and showed them his medical reports. Id. Defendants Gonzales and Campos allegedly forced Plaintiff to "work through the pain" subjecting him to cruel and unusual punishment in violation of his Eighth Amendment rights. Id. at 4.

  Estelle holds that an Eighth Amendment violation would be established where "the indifference is manifested . . . by prison guards intentionally denying or delaying access to medical care." 429 U.S. at 104-05; see also Carlson v. Green, 446 U.S. 14, 16 n. 1 (1980) (delay in treatment after asthma attack and delay in transfer to hospital); Riley v. Rhay, 407 F.2d 496, 1497 (9th Cir. 1969) (alleged failure to treat tuberculosis). Likewise, a constitutional violation may exist where guards "intentionally interfere[] with treatment once prescribed," Estelle, 429 U.S. at 105; Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970) (prison officials deny diabetic access to insulin). However, a section 1983 plaintiff must allege facts that show the seriousness of his medical need as well as "the nature of the defendant's response to that need." McGuckin, 974 F.2d at 1059. Only if these elements are sufficiently pleaded to show "deliberate indifference," may a prisoner state an Eighth Amendment claim. Id. at 1060.

  The Court finds that Plaintiff has failed to allege facts sufficient to show that either Gonzales or Campos denied him access to adequate medical treatment or delayed treatment. The allegations in Plaintiff's Complaint fail to claim that either Campos or Gonzales prevented Plaintiff from seeking medical treatment for his back pain Accordingly, the Court GRANTS Defendants Gonzales and Campos Motion to Dismiss Plaintiff's Eighth Amendment claims pursuant to FED.R.CIV.P. 12(b)(6). IV. Defendants' Motion to Dismiss pursuant to FED.R.CIV.P.12(b)

  However, while the Court has found that Plaintiff has adequately stated an Eighth Amendment claim against Defendant Cerrillo, the Court must dismiss Plaintiff's entire action as Defendants have shown that he has failed to exhaust all available administrative

  Defendants argue that Plaintiff has failed to exhaust all available administrative remedies within the prison before filing suit, and therefore, his complaint must be dismissed pursuant to 42 U.S.C. § 1997e(a) and FED.R.CIV.P. 12(b). Before the Prison Litigation Reform Act ("PLRA") was enacted, prisoners challenging conditions of confinement under 42 U.S.C. § 1983 were not generally required to exhaust administrative remedies prior to filing suit in district court. See Patsy v. Bd. of Regents, 457 U.S. 496, 500-01 (1982); Porter v. Nussle, 534 U.S. 516, 517-518 (2002).

  The PLRA amended 42 U.S.C. § 1997e(a), however, to provide that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); Porter, 534 U.S. at 517; Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2002). The Supreme Court has called "protecting administrative agency authority and promoting judicial efficiency" the "twin purposes" of administrative exhaustion. McCarthy v. Madigan, 503 U.S. 140, 145 (1992); see also Porter, 534 U.S. at 517 (noting that corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate and thereby obviate the need for litigation, help to filter out frivolous claims and provide the court with an administrative record that clarifies the contours of the controversy) (citing Booth, 532 U.S. at 737).

  A. Standard for Motion to Dismiss

  As noted above, Defendants' have filed and specifically request that the Court rule on its motion to dismiss Plaintiff's Complaint not only under FED.R.CIV.P.12(b)(6), but also under the "non-enumerated" provisions of FED.R.CIV.P.12(b). The Ninth Circuit has held that "failure to exhaust nonjudicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a non-enumerated motion under FED.R.CIV.P. 12(b). See Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988). "Non-enumerated" Rule 12(b) motions are governed by the general motion provisions in the federal rules, including FED.R.CIV.P. 43(e), which permits the hearing of motions based on facts outside the record on affidavits submitted by the parties. Id.; 5A Wright & Miller, FEDERAL PRACTICE & PROCEDURE, § 1360 (2d ed. 1990).

  The Ninth Circuit has also held that under the PLRA, 42 U.S.C. § 1997e(a)'s exhaustion requirement is an affirmative defense. Wyatt, 315 F.3d at 1119. In Wyatt, the court stated that district courts should look to documentation beyond the pleadings in deciding motions to dismiss for failure to exhaust nonjudicial remedies. Id. (citing Ritza, 837 F.2d at 369).

  Here, Defendants raise a non-enumerated 12(b) motion, as permitted by Ritza and Wyatt. Accordingly, the Court may look to documents regarding exhaustion attached to Defendants' Motion.

  B. Administrative Remedies and Booth

  The administrative appeal system for inmates in the California prison system is described in Title 15 of the California Code of Regulations. "Any inmate or parolee under the [California Department of Corrections'] jurisdiction may appeal any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." CAL. CODE REGS. tit. 15 § 3084.1(a). In order to exhaust administrative remedies, a prisoner must first attempt to informally resolve the problem with the staff member involved in the action or decision being appealed." Id., § 3084.5(a). If unsuccessful, the prisoner must then submit a formal appeal on an inmate appeal from (a "CDC 602") to the institution's Appeals Coordinator or Appeals Office. Id. § 3084.5(b). If the prisoner is again unsuccessful, he or she must submit a formal appeal for second level review, id. § 3084.5(c), which is conducted by the institution head or designee. Id. § 3084.5(e)(1). The third or "Director's Level" of review "shall be final and exhausts all administrative remedies available in the Department [of Corrections.]" See Cal. Dep't. of Corrections Operations Manual, § 54100.11, "Levels of Review;" see also Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997); Irvin v. Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001). In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court resolved a split among the Circuits as to whether a state prison grievance procedure which is incapable of providing money damages is "available" under section 1997e(a) and therefore must be exhausted before the prisoner files federal suit under 42 U.S.C. § 1983 seeking those damages. Looking both to the plain language of the statute and to the legislative history behind the PLRA, the Court held the exhaustion of "available" administrative remedies under § 1997e(a) is required in prison condition cases so long as the "prison administrative process [. . .] could provide some sort of relief on the complaint stated" regardless of whether that process can provide "the remedial action [the] inmate demands." Booth, 532 U.S. at 734, 736. In other words, no matter the specific "form of relief sought and offered through administrative avenues," the prisoner must exhaust his claims through the existing administrative processes, even if he seeks money damages which are not authorized, so long as those procedures have the "authority to provide any relief' or permit prison officials to take "some action in response to the complaint." Id. at 736, 741 nn. 4, 6.

  Defendants seek dismissal of the entire action on grounds that Plaintiff failed to exhaust all administrative remedies available to him as set forth in CAL. CODE REGS., tit. 15 § 3084.1 to the Director's Level of review as to any of the claims alleged in his Complaint. See Defs' Mot. at 4-5; see also Defs.' Reply at 1-4.*fn4

  In support, Defendants attach the declarations of D. Porter, Acting Chief of Inmate Appeals Branch, and H. Fasolo, Appeals Coordinator for Calipatria State Prison. Attached to Plaintiff's Complaint, as well as his Opposition to Defendants' Motion, is the prison's responses to the administrative grievance filed by Plaintiff and provided with the Log. No. CAL-D-03-00615. Defendants have submitted the original grievance filed by Plaintiff. See Fasolo Decl., Inmate/Parolee Appeal Form, Log No. CAL-D-03-00615, dated February 6, 2003. While this grievance written entirely in Spanish, the Defendants have also supplied a translation of Plaintiff's grievance into English. Id., Translation by CCIP. Alaniz. In this grievance, Plaintiff complains of having "lots of problems with cook Gonzales" and Gonzales is "disrespectful." Id. There is no mention in this grievance of any of the claims set forth in Plaintiff's Complaint. Plaintiff does not mention any issues regarding a medical condition nor does he state that Defendant Gonzales forced him to work despite his serious medical issues.

  In his Opposition, Plaintiff does not argue that there were any other grievances filed by him that addressed the issues in his Complaint, instead he maintains that his "access to courts is meaningless if he cannot obtain judicial review on the merits without first exhausting his administrative remedies when these remedies are serious flawed." See Pl.'s Opp'n at 6. Booth makes clear that to the extent Plaintiff seeks to be excepted from 42 U.S.C. § 1997e(a)'s mandatory exhaustion requirement because the CDC 602 procedures set forth in CAL. CODE REGS., tit. 15, § 3084.1, were ineffective, or that prison administrators were nonresponsive, this Court no longer has discretion to excuse Congress's mandate that he exhaust, even though he may have found the available administrative procedure futile. See Booth, 532 U.S. at 741 n. 6 ("[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."); McCarthy v. Madigan, 503 U.S. 140, 144 (1991); McKinney, 311 F.3d 1198, 1199 (9th Cir. 2003) (noting that under 42 U.S.C. § 1997e(a), exhaustion is a "mandatory" pre-condition to suit)).

  Therefore, the Court finds that because Defendants have sufficiently shown that Plaintiff failed to properly exhaust the administrative remedies set forth on CAL. CODE REGS., tit. 15, § 3084.5 as to any of the claims asserted in his Complaint, their Motion to Dismiss per FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a) is GRANTED and this action must be dismissed without prejudice on this ground. See Wyatt, 315 F.3d at 1120 ("If the district court concludes that the prisoner has not [satisfied 42 U.S.C. § 1997e(a)'s exhaustion requirement], the proper remedy is dismissal of the claim without prejudice."). V. Conclusion

  For all the reasons set forth above, IT IS HEREBY ORDERED that:

  Defendants' Motion to Dismiss Plaintiff's Complaint is GRANTED pursuant to FED.R.CIV.P. 12(b) [Doc. No. 10] and that the action is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a).

  The Clerk shall close the file.



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