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Rosenblum v. Mule Creek State Prison Medical Officials

August 5, 2009

PHILLIP ROSENBLUM, PLAINTIFF,
v.
MULE CREEK STATE PRISON MEDICAL OFFICIALS, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On November 3, 2008, defendants moved to dismiss this action, arguing that plaintiff failed to exhaust available administrative remedies prior to bringing suit. Plaintiff has filed an opposition, and defendants have filed a reply.

BACKGROUND

Plaintiff is proceeding on an amended complaint against defendants Akintola, Galloway, Milliman, Pham, and Williams. Therein, plaintiff alleges that he suffers from a circulatory disorder that started while he was incarcerated at the California State Prison at Wasco sometime in 2004. Plaintiff also alleges that beginning sometime in 2002 he began to suffer from a neurological disorder called tardive dyskinesia caused by prescribed psychiatric medication. Plaintiff alleges that he experiences various symptoms as a result of these disorders, including muscle spasms, twitching, numbness, high blood pressure, protruding veins, and heart palpitations. Plaintiff claims that the defendants have denied him adequate medical care in violation of the Eighth Amendment and requests monetary damages. (Am. Compl. at 5 & Attach. 1-39.)

DEFENDANTS' MOTION TO DISMISS

I. Defendants' Motion

Counsel for defendants argues that the court should dismiss this action because plaintiff failed to exhaust administrative remedies prior to filing this suit. Counsel argues that plaintiff filed only a single inmate appeal prior to filing this action, designated as WSP-04-00917, in which he requested additional diagnosis of and treatment for tardive dyskinesia. According to defense counsel, however, plaintiff did not allege in his appeal that the defendants provided him with inadequate medical care or that they were deliberately indifferent to his medical needs as he does in his civil rights complaint in this action. (Defs.' Mot. to Dismiss at 2-6, Escalante Decl., Wilson Decl. & Grannis Decl.)

Defense counsel also argues that plaintiff did not pursue WSP-04-00917 beyond the second level of review. Defendants acknowledge that plaintiff attempted to file the appeal at the director's level of review, but the director's level of review screened out the appeal because plaintiff failed to include supporting documents. Plaintiff never re-submitted the appeal with the requested documents. Accordingly, counsel for defendants concludes that plaintiff failed to properly exhaust his administrative remedies. (Defs.' Mot. to Dismiss at 6 & Grannis Decl.)

II. Plaintiff's Opposition

In opposition to defendants' motion to dismiss, plaintiff argues that he has exhausted his administrative remedies. Specifically, plaintiff argues that he pursued his grievance, WSP-04-00917, through the first two levels of review to the director's level of review but that the latter screened out his appeal as incomplete and missing supporting documents. Plaintiff acknowledges that he did not re-submit the appeal with the requested documents, but argues that he was only required to make a reasonable attempt to exhaust his claims. Plaintiff also argues that the director's level decision to screen out his appeal was improper because the missing documents were unnecessary to a final determination of his appeal. In this regard, plaintiff contends that the director's level of review requested a copy of his Reception Center Medical Chrono, but that chrono does not mention anything about his medical complaints and could not have contributed to consideration of the merits of his appeal. Similarly, plaintiff asserts that the director's level of review requested a Mental Health Placement Form that does not mention anything about his medical complaints and was therefore irrelevant. Moreover, plaintiff contends that prison regulations do not require him to file the additional documents the director's level requested. Finally, plaintiff argues that he would not have been able to timely re-submit his inmate appeal to the director's level of review within the required 15 days in any event because prison policy allows medical staff up to 60 days to respond to an inmate's request for copies of his medical file. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1-7 & Ex. B.)

Plaintiff also argues that his grievance, WSP-04-00917, included sufficient detail to alert prison officials to the nature of the wrong for which he sought redress. Plaintiff argues that his grievance included a description of the symptoms he was experiencing and explained that he was not receiving adequate medical treatment. In addition, plaintiff contends that as he pursued the appeal he included further details about the inadequacy of his medical care and named medical officials, including defendant Pham, who were not providing him with adequate medical care. Plaintiff concludes that he included sufficient information in the appeal for prison officials to take responsive action. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 8-12 & 16.)*fn1

III. Defendants' Reply

In reply, defendants argue that a prisoner is required to submit supporting documents to clarify the issues presented in an inmate appeal. In addition, defendants argue that plaintiff's belief that the documents the director's level of review requested were irrelevant does not excuse him from pursuing his grievance, WSP-04-00917, through the director's level of review. In this regard, counsel contends that plaintiff had administrative remedies available to him, but he simply chose not to pursue them. (Defs.' Reply at 2-3.)

Defendants also argue that plaintiff's grievance did not place any defendant on notice of his constitutional claims. In this regard, they contend that plaintiff did not name any defendants in his appeal, and although he asked for additional tests and examinations from the California Department of Corrections and Rehabilitation, he did not claim that any medical staff was deliberately indifferent to his serious medical needs until after the informal level of review. (Defs.' Reply at 3.)

Finally, defense counsel argues that plaintiff did not properly exhaust any of his other screened out grievances prior to filing this action. Counsel also argues that plaintiff's correspondence with the warden of his institution cannot serve ...


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