IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 31, 2010
STEVEN WILLIAMS, PLAINTIFF,
D.L. RUNNELS, ET AL., DEFENDANTS.
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. He alleges that defendants denied or delayed giving him adequate medical treatment in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. Defendants James, Roche and Cox have filed a motion to dismiss alleging that plaintiff failed to exhaust administrative remedies prior to filing this lawsuit.*fn1 Plaintiff has opposed the motion, and defendants have filed a reply.
I. Plaintiff's Allegations And Defendants' Grounds For Dismissal
Plaintiff alleges that defendants were deliberately indifferent to and denied him adequate medical treatment for prostate cancer. See Second Am. Compl. (Docket No. 25) at 4-5.*fn2 He alleges that defendants failed to refer him to a urologist "until it was too late" and his "condition steadily worsened to the point of no treatment but removal only." Id. at 3-4. Although his complaint does not explicitly state that his prostate gland was removed, plaintiff made that allegation clear in his opposition to defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), which the court denied as to all defendants except Warden Runnels. See Docket Nos. 54 and 57. Plaintiff seeks compensatory and punitive damages.
Defendants James, Roche and Cox again move to dismiss, arguing that the claims in the second amended complaint regarding pre-prostatectomy treatment have not been exhausted. See Defs.' Mot. at 5-7 (Docket No. 56). Defendants concede that plaintiff has exhausted appeals complaining only about plaintiff's post-prostatectomy treatment, but that treatment is not covered by plaintiff's claims against James, Roche and Cox. Id.
A. Standard Of Review
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), cert. denied sub nom. Alameida v. Wyatt, 540 U. S. 810 (2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act (PLRA), which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The California Department of Corrections and Rehabilitation's (CDCR) regulations provide administrative procedures at one informal and three formal levels of review to address an inmate's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Generally, a prisoner exhausts his administrative remedies when he receives a "Director's Level Decision," or third formal level of review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
B. Factual Background
Defendants submit two declarations stating that plaintiff did not exhaust appeals regarding any pre-prostatectomy treatment involving these defendants. See Decl. of T. Robertson (Docket Nos. 56-3 and 56-4); Decl. of N. Grannis (Docket Nos. 56-1 and 56-2). Robertson, the Appeals Coordinator at HDSP, states that plaintiff filed three appeals concerning medical issues containing allegations against defendants while he was housed at High Desert State Prison (HDSP). In the first appeal, plaintiff complained of his state issued boots and medication for pain. See Robertson Decl. ¶ 6 (discussing Log No. HDSP-02-01055), Exs. 1, 2, 3. In the second, plaintiff complained of the denial of medication and unsanitary conditions at the prison medical facility following his prostatectomy. Id. ¶ 7 (discussing Log No. HDSP-05-02947), Exs. 4, 5, 6. In the third, plaintiff alleged he was still suffering from post-surgery complications when he was shot with a "block gun" and received no medical attention afterwards, further complicating his condition. Id. ¶ 8 (discussing Log No. HDSP-06-00713), Exs. 7, 8, 9.*fn3 Robertson states that plaintiff "has not filed any other administrative appeals, at the first level of review or beyond, regarding Defendants James, Roche, Cox and Scovel" concerning defendants' treatment before the prostatectomy.*fn4 Id. ¶ 9. Defendants also present the affidavit of N. Grannis, Chief of the Inmate Appeals Branch of CDCR. Grannis states that plaintiff submitted no third-level appeals concerning defendants' pre-surgery denial of referral to a specialist. See Grannis Decl. (Docket No. 56-1) ¶ 8.
In his opposition, plaintiff does not contend that his request for medically required footwear, Log No. HDSP-02-01055, exhausted the claims in the second amended complaint. Plaintiff also does not argue that the appeal concerning injuries from the "block gun" incident, Log No. HDSP-06-00713, satisfies the exhaustion requirement for this case.
Plaintiff contends the second appeal discussed in Robertson's and Grannis's declarations, Appeal Log No. 05-02947, concerns "past and present" medical issues broadly enough to exhaust the claims against James, Roche and Cox for their medical treatment before the prostatectomy. See Opp'n (Docket No. 58) at 6-8. The 602 form initiating that appeal states plaintiff's position, in pertinent part, that it was "bad enough that 4-years went by without the medical attention I needed," and "this recent surgery is a perfect example of the neglect by the medical department." See Mot. to Dismiss, Ex. 4 (Docket No. 56-4) at 14-15. However, these are only general, passing references to plaintiff's earlier treatment in a lengthy complaint about his post-prostatectomy medical care. Plaintiff identifies his recovery from surgery as "the problem" on the 602 form and asks for "the proper medicines to help in my recovery." Id. at 10. Plaintiff exhausted this appeal, and apparently it led to some responsive measures by prison staff regarding his recovery. It does not, however, alert prison staff to a specific problem regarding -> treatment before the prostatectomy. Log No. HDSP-05-2947 cannot stand as proof that plaintiff exhausted any claims about pre-surgery treatment.
Plaintiff also claims in his opposition that he filed additional appeals that were lost or destroyed. See Opp'n at 5-7. Failure to exhaust the administrative appeals process may be excused if prison staff renders the process effectively unavailable. See Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010). Plaintiff presents a fourth 602 form as evidence that he says "in essence nullifies" the declarations submitted by defendants because it involves pre-prostatectomy medical care and is not discussed in Robertson's or Grannis's declarations. See Opp'n at 7. Plaintiff apparently documents the history of that appeal, recorded as Log No. HDSP-03-0030, only to support his contention that defendants interfered with the appeals process. See Opp'n (Docket No. 58), Ex. A. He concedes the appeal was not exhausted. See Opp'n at 7.
This fourth appeal does notify prison staff of complaints about plaintiff's preprostatectomy care. However, there is no evidence that prison officials interfered with this appeal or any other. The attachments to plaintiff's opposition show that his third-level filing of this appeal was returned because it was untimely. See Opp'n at 34, Ex. I (N. Grannis declining the appeal at Director's Level for failure to meet submission deadlines).
The primary purpose of an administrative appeal is to notify prison officials of a problem with prison conditions. Defendants correctly make the distinction between claims regarding pre-prostatectomy and post-prostatectomy treatment in their motion to dismiss for failure to exhaust. There is no evidence that plaintiff exhausted his claim for inadequate pre-surgery treatment against defendants James, Roche or Cox.
The one grievance form that is both exhausted and potentially relevant to this case, Appeal Log No. HDSP-05-2947, complains only of deficiencies in post-surgery treatment, and accuses defendants Cox and James of deliberate indifference to the conditions of his recovery. As noted, however, plaintiff's second amended complaint alleges deliberate indifference against James, Roche and Cox for their failure to refer him to a specialist before a prostatectomy became necessary. See Second Am. Compl. at 4-5. Even with the liberal reading afforded pleadings by pro se litigants, the court can draw no reasonable inference from those allegations that would include James, Roche and Cox in a claim for post-surgery mistreatment.*fn5
Therefore the instant motion to dismiss for failure to exhaust should be granted.
III. Plaintiff's Motions
Plaintiff has moved for sanctions against defendants, pursuant to Federal Rule of Civil Procedure 11(c). See Docket No. 62. Plaintiff argues that defendants filed their second motion to dismiss, in which they argue that plaintiff has failed to exhaust his claims against James, Roche and Cox, for the purpose of harassing plaintiff and causing unnecessary delay. The motion is without merit and will be denied.
B. "Summary Judgment"
On January 13, 2010, plaintiff submitted a paper styled "Notice of Motion for Summary Judgment." See Docket No. 71. It was docketed as a motion for summary judgment, but on review it contains only a statement of alleged damages, without any argument of fact or law in support of summary judgment. It asks for no relief at all. The court will direct the Clerk of Court to re-characterize the filing as a statement of damages.
C. "Imminent Danger"
Plaintiff has submitted a motion "to present further evidence of Imminent Danger," see Docket No. 73, which the court construes as a request for the court to reconsider its denial of plaintiff's earlier motion for a protective order, wherein the plaintiff alleged he was in imminent danger of not receiving medication for back pain. See Docket Nos. 67, 74. Plaintiff submits no evidence to support reconsideration of the court's denial. Therefore plaintiff's request should be denied.*fn6
D. Summary Judgment
Plaintiff has filed two identical motions for summary judgment. See Docket Nos. 77, 81. Because plaintiff has not exhausted his claims against defendants James, Roche and Cox, the motions for summary judgment against them are moot. As to defendant Scovel, they should be denied even though Scovel has not answered them. Summary judgment is appropriate when the movant demonstrates that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c ). In both of his motions, plaintiff submits no discussion of the facts of his claim against Scovel such that the court could decide there are no genuine issues of material fact and enter judgment in plaintiff's favor under Federal Rule of Civil Procedure 56. The motions should be denied without prejudice, subject to renewal of a motion against any remaining defendants, if a schedule for dispositive motions is set in the future.
E. Motions For Judicial Intervention
Plaintiff's multitudinous filings have become a burden for the court and have contributed to delay in the resolution of pending matters in this case. Plaintiff shall not file any new motions for summary judgment until discovery has concluded. Failure to honor this restriction may subject plaintiff to sanctions, including dismissal of this case.
Plaintiff has submitted two other filings that are identical to each other, at docket numbers 78 and 83. Although they are docketed, respectively, as a motion for summary judgment and a "motion regarding discovery," the court construes them as motions for judicial intervention in obtaining information to serve defendant Dial, a physician who, plaintiff alleges, rendered inadequate medical treatment.*fn7 The court earlier instructed plaintiff to seek Dr. Dial's information through discovery or the California Public Records Act, § 6250 et seq. See Order at 2 (docket no. 75). The court left open the possibility of judicial intervention if plaintiff's efforts to obtain the information were denied. Id.
Plaintiff supports his motions for judicial intervention with a letter from the litigation coordinator at HDSP, stating that CDCR had denied his request for information to serve Dr. Dial. See Docket No. 82, Ex. A. The letter also states Dr. Dial is no longer employed by CDCR. Id.
In light of plaintiff's apparent good faith effort to obtain the information necessary to serve Dr. Dial, the court finds plaintiff's first motion for judicial intervention well taken.*fn8
Defendants' counsel shall query CDCR to ascertain the whereabouts of Dr. Dial. If defendant Dial is employed with another California state agency, or if counsel is otherwise informed of the business address of defendant Dial, counsel shall provide the business address to plaintiff. If counsel is able to ascertain only the residence address for Dr. Dial, counsel shall promptly provide that information to the U.S. Marshals Service to facilitate service. Defendants' counsel shall file and serve a report, informing the court of its efforts to comply with this order and the results of its inquiry, within thirty days of the entry of this order.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for sanctions against defendants (Docket No. 62) is denied.
2. The Clerk of Court is directed to re-characterize Docket No. 71 as "plaintiff's statement of damages."
3. The Clerk of Court is directed to re-characterize Docket Number 78 and Number 83 each as "motion for judicial intervention in obtaining information for service of defendant Dial."
4. Plaintiff's motion for judicial intervention (Docket No. 78), as re-characterized, is granted to the extent described in the discussion above.
5. Defendants' counsel shall query CDCR to ascertain the whereabouts of defendant Dial. Defendants' counsel shall file and serve the report directed above, informing the court of efforts to comply with this order, within thirty days of the entry of this order.
6. Plaintiff's motion for judicial intervention (Docket No. 83), as re-characterized, is denied as moot.
7. The Clerk of Court is directed to enter default against defendant Scovel. IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motion to present further evidence of imminent danger, construed by the court as a motion to reconsider (Docket No. 73), be denied.
2. The motion to dismiss by defendants James, Roche and Cox (Docket No. 56) be granted for failure to exhaust administrative remedies.
3. Plaintiff's motions for summary judgment (Docket Nos. 77 and 81) be denied as to defendants James, Roche and Cox, and denied without prejudice as to defendant Scovel.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). If a party does not plan to file objections or a reply, that party is encouraged to file a prompt notice informing the court of as much.