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Burnett v. Dugan

September 30, 2010

ESTER BURNETT, PLAINTIFF,
v.
DR. DUGAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING IN PART REPORT; GRANTING MOTION TO DISMISS UNEXHAUSTED CLAIM [doc. #87]and MOTION TO DISMISS SAC [doc. #88]; REFERRING MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT TO MAGISTRATE JUDGE [doc. #89]; DENYING MOTION TO FILE LATE RESPONSE TO MOTION TO DISMISS [doc. #113]

Plaintiff, appearing pro se, filed a second amended complaint on November 10, 2009, alleging violation of his Eighth Amendment rights based upon accommodations to plaintiff's medical condition that were denied or delayed. The SAC names Doctors Dugan, Hawthorne, Barreras, Fraze, and Khatri; Jane Doe, R.N., Victor Almager, and G.J. Giurbino*fn1 as defendants. Defendants filed a motion to dismiss the SAC for failure to exhaust his administrative remedies and a motion to dismiss for failure to state a claim under the Eighth Amendment. Rather than respond to defendants' motions to dismiss,*fn2 plaintiff filed a motion to file a supplemental complaint. Defendants opposed plaintiff's motion and plaintiff has replied.

The case was referred to United States Magistrate Judge William V. Gallo for a report and recommendation ("Report") in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge recommended that both of defendants' motions to dismiss be granted and plaintiff's motion to file a supplemental complaint be denied. Plaintiff filed objections to the Report and defendants filed a response to plaintiff's objections.

The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) ( en banc), cert. denied, 124 S.Ct. 238 (2003).

Background

Plaintiff's complaint alleges defendants were deliberately indifferent to his medical needs in that he received inadequate medical care from various health care providers while incarcerated at both the Richard J. Donovan Correctional Facility ("Donovan") and at the Centinela State Prison ("CEN"). Plaintiff has lumbar disk disease that ultimately required surgery. His back problems include mobility impairment to his lower extremities. Plaintiff contends that while incarcerated at RJD, Dr. Dugan, a staff physician, and Dr. Hawthorne, Chief Medical Officer and Dr. Dugan's supervisor, failed to assign plaintiff lower tier housing in contravention of a prior doctor's recommendation.

Plaintiff was transferred to CEN where Doctors Fraze, Khatri and Barreras were assigned. Dr. Calvin, an outside neurosurgeon, also was involved in plaintiff's medical care and performed surgery on plaintiff's back on June 27, 2008. While in CEN, plaintiff contends the physician defendants were deliberately indifferent by failing to provide him with a raised toilet seat following the surgery; he was removed from the Disability Placement Program ("DPP"), and there was a delay in transferring him from a general population lower bunk to the Correctional Treatment Center, a prison health care facility, which was ADA accessible.

The SAC also alleges that Victor Almager, the Warden of CEN and G.J. Giurbino, the prior warden of CEN, violated his rights when plaintiff was not provided with an extra mattress based on prison policy.

Motion to Dismiss for Failure to Exhaust Administrative Remedies

It is well established that under the Prison Litigation Reform Act of 1995, prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 42 U.S.C. § 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Defendants move to dismiss a claim raised in the SAC that was not properly exhausted, i.e., that defendants Barreras, Fraze and Khatri were deliberately indifferent to his medical needs when they refused to provide a raised toilet seat following plaintiff's back surgery.

The administrative grievance system for prisoner complaints provides for four levels of appeal: the informal level, first formal level, second formal level, and third formal level, also known as the "Director's Level." Appeals must be submitted within fifteen working days of the event being appealed, and the process is initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. In order to satisfy 42 U.S.C. § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing

Woodford v. Ngo, 548 U.S. 81, 85-86 (2006).

In deciding a motion to dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).

Using CDC Form 1824, plaintiff requested a raised toilet seat on July 5, 2008. On August 4, 2008, Dr. Khatri, as the First Level Reviewer, denied plaintiff's request finding that there was no medical indication for the request. (SAC, Doc. # 83-2 at 40.) There are no records demonstrating that plaintiff ever appealed the issue to any further levels of review.

In objecting to the Report that found plaintiff had not exhausted this claim, plaintiff argues that: 'the issue of raised toilet seat was addressed at the 3rd level of appeals (see Page 2 of Exhibit C last paragraph last sentence) as a related health care appliance." Objection at 13, ¶ 79. Plaintiff points to the Director's Level Decision dated October 13, 2009 to show that an appeal of the raised toilet seat was considered in the consolidated appeal. Plaintiff's characterization does not accurately reflect the record. The raised toilet seat request was issued an Institution Log No. CEN-A-08-00857 but the Director's Level Decision concerned five other appeals: CEN-29-08-11666; CEN-29-08-11854; CEN-29-09-10331; CEN-29-09-10018; and SAC-10-09-11528. It is beyond dispute that the raised toilet seat appeal was not addressed in the Director's Level Decision.

Defendants have met their burden to show plaintiff has not exhausted his administrative remedies as to the claim of a raised toilet seat and plaintiff has not offered any evidence to rebut this conclusion. There is no documentation that plaintiff took the specific issue of a raised toilet seat to any appeal level after Dr. Khatri denied the request on August 4, 2008.

Accordingly, the Court overrules plaintiff's objection to the magistrate judge's Report that plaintiff failed to exhaust administrative remedies and the claim will be dismissed.

Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

As noted above, plaintiff contends defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. In the Report, the magistrate judge recommended that the SAC be dismissed in its entirety because certain defendants acted only in a supervisory capacity and plaintiff failed to adequately allege facts pointing to deliberate indifference on the part of defendants. Plaintiff objects to the Report by generally relying on Federal Rule of Civil Procedure 8 and his pro se status. But plaintiff ...


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