UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
August 30, 2011
DARRYL BROWN, PLAINTIFF,
C. TERHUNE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER RE: Defendant Kate Macias' Motion for Summary Judgment; Request for Leave to Amend Defendant's Answer  On August 23, 2011, Defendant Kate Macias' Motion for Summary Judgment and Request for Leave to Amend Defendant's Answer  came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:
This Action centers around a claim brought by Plaintiff Darryl Brown ("Plaintiff") against six employees of the California State Prison-Los Angeles County ("CSP-LAC") pursuant to 42 U.S.C. § 1983 for the alleged violation of Plaintiff's rights under the Eighth Amendment to the United States Constitution.
Plaintiff is a California state inmate who was incarcerated at CSP-LAC, specifically Lancaster State Prison (the "Prison"), at the time of the events giving rise to this Action. Plaintiff claims to suffer from vision impairment caused by his diabetes. Plaintiff alleges that in February 2004, he was injured when he fell on metal stairs while incarcerated at the Prison due to the alleged failure of prison officials and medical personnel to follow a medical prescription to place him in a lower tier/lower bunk, prevent him from falling down stairs and sustaining physical injuries, and provide him with adequate medical treatment after the fall.
Specifically, Plaintiff alleges that on February 1, 2004, he spoke to a correctional officer, N. Jackson, at Plaintiff's cell and told him he was suffering from blurred vision, dizziness and low sugar. Stephanie Johnson, a Medical Technical Assistant ("M.T.A."), told Plaintiff to report his problems at the infirmary when he received his daily insulin shot. Plaintiff, who claims he was wearing his "vision impairment" vest that day, avers that Defendant Kate Macias ("Defendant"), a correctional officer with the California Department of Corrections who was the control booth officer in Plaintiff's yard at the time, instructed Plaintiff to go to the infirmary for his insulin shot. Plaintiff then left his cell to go to the infirmary, unescorted by prison personnel.
As he walked down a metal staircase, Plaintiff lost his balance and fell. Plaintiff was then taken to the prison infirmary, where he was examined and then assessed by Pryor, a registered nurse. Plaintiff stated he had severe pain in his shoulder and back, and that his left hand was numb. Soon after, Dr. Haniffa Cassim ("Dr. Cassim"), the physician on call, called in response to a page from Pryor. Dr. Cassim instructed Pryor to administer Motrin and schedule a follow up examination for the next day. Pryor discharged Plaintiff to the custody of a correctional officer, Weier, who brought Plaintiff to his housing unit.
Plaintiff again saw Dr. Cassim on March 15, 2004, and Dr. Cassim examined Plaintiff at this time. During this examination Plaintiff complained he was suffering from pain in his back, left shoulder and arm, and that he was also suffering from poor vision. Plaintiff requested Dr. Cassim order x-rays or an MRI, but Dr. Cassim advised him these were not necessary. As such, based on this examination, Dr. Cassim diagnosed Plaintiff as a diabetic who had complaints of back pain, but concluded that no further treatment related to the fall was necessary. On March 29, 2004, Dr. Cassim examined Plaintiff a second time, and Plaintiff alleges that during this examination he complained he had pain from the fall and that he also renewed his request for x-rays.
On February 3, 2004, Plaintiff filed a prison grievance inmate "Form 602" appeal ("Form 602") regarding the alleged denial of medical treatment for his injuries related to his February 1, 2004 fall. On February 8, 2004, Plaintiff filed a second grievance requesting a single cell due to his disabilities and alleging that the Prison had violated the Americans with Disabilities Act ("ADA"). The two appeals were combined and partially granted at the first level of review on March 16, 2005. Plaintiff was given a lower bunk and lower tier cell, but his request for further medical evaluation was denied, as was his request for a special diabetic diet.*fn1
At the second level of review, Plaintiff's February 3, 2004*fn2
grievance was denied. On December 17, 2004, Plaintiff's
inmate appeals were reviewed at the third level of review, the
Director's Level. Plaintiff again argued that he was in pain and
suffering, and requested to receive x-rays, be provided with a
diabetic diet, and that he be given a walking stick, a
low bunk/low tier assignment and single cell privileges. The review
"determined that the staff had acted appropriately on the Plaintiff's
requests" and that Plaintiff's administrative remedies with respect to
those appeals had been exhausted. [Decl. of Paul F. Arentz ("Decl.
Arentz"), Ex. C, p. 94-95.]
On December 15, 2006, Plaintiff filed the operative Second Amended Complaint ("SAC") pursuant to 42 U.S.C. § 1983, raising an Eighth Amendment Claim against six employees of the Prison, seeking monetary, declaratory and injunctive relief.
Specifically, Plaintiff filed suit against Defendants Dr. Cassim, Pryor, Johnson, Macias, Jackson and Weier. Plaintiff alleges that Defendants' conduct violated his right to be free from cruel and unusual punishment under the Eighth Amendment, and sued all Defendants in their individual and official capacities.
On April 30, 2008, the Court denied Defendants' Motion to Dismiss as to all claims with the exception of Plaintiff's claim for monetary relief against Defendants in their official capacities . On November 10, 2009, this Court granted Summary Judgment on Plaintiff's Section 1983 claim as to all Defendants,*fn3 with the exception of Defendant Macias . Specifically, the Court found that triable issue of fact remained regarding Defendant Macias' liability on Plaintiff's Section 1983 claim. As such, Plaintiff's Section 1983 claim against Defendant Macias is the sole remaining claim in this Action.
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party can satisfy this burden by: (1) presenting evidence that negates an essential element of the non-moving party's case or (2) demonstrating that the non-moving party failed to establish an essential element of the non-moving party's case on which the non-moving party bears the burden of proving at trial. Id. at 322-23.
Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the non-moving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 322. However, the non-moving party is required by Federal Rules of Civil Procedure, Rule 56(e)*fn4 to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id. at 324. Conclusory allegations unsupported by factual allegations are insufficient to create a triable issue of fact so as to preclude summary judgment. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993)(citing Marks v. Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978)). A non-moving party who has the burden of proof at trial must present enough evidence that a "fair-minded jury could return a verdict for the [opposing party] on the evidence presented." Anderson, 477 U.S. at 255.
B. Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that once the time frame to amend a pleading as a matter of course has lapsed, a party may amend its pleading only by obtaining leave of the Court. Fed. R. Civ. P. 15(a). Leave shall be "freely given when justice so requires." Id. See Foman v. Davis, 371 U.S. 178, 182 (1962). Courts consider the following factors in determining whether to grant leave to amend: undue delay, bad faith or dilatory motive, futility of amendment, prejudice to the opposing party and/or repeated failure to cure deficiencies by previous amendments. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). "The party opposing the amendment has the burden of demonstrating why leave to amend should not be granted." Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989) (citing Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 667 (Fed. Cir. 1986)).
C. The Prison Litigation Reform Act "The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Harry v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010) (quoting Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a))). The exhaustion requirement under the Prison Litigation Reform Act is mandatory, and requires "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). As such, a prisoner must "complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (quoting Ngo, 548 U.S. at 88). The defense of failure to exhaust is an affirmative defense as to which a defendant bears the burden of proof. Jones v. Bock, 549 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119.
A. Plaintiff's Request for Judicial Notice Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of adjudicative facts only. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either 1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A court must take judicial notice if a party requests it and supplies the court with the requisite information. Fed.
R. Evid. 201(d).
The Court GRANTS Plaintiff's request for judicial notice, but takes judicial notice of only the authenticity and existence of the requested documents.*fn5
See United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 975 (E.D. Cal. 2004)(noting that a court can only take judicial notice of the existence or authenticity of a particular order, motion, pleading or judicial proceeding, and not of the veracity or validity of the document's contents).
B. Evidentiary Objections
The Court OVERRULES Plaintiff's evidentiary objections Nos. 1 and 3. With respect to Plaintiff's objection No. 2, the Court SUSTAINS Plaintiff's objection to the statement in paragraph 8 of the Declaration of Paul F. Arentz in which Paul F. Arentz states that "[i]t was therefore obvious to both parties from the outset that Plaintiff's inmate appeals, and Plaintiff's exhaustion of administrative remedies under the PLRA, were issues in this case," but OVERRULES Plaintiff's objection to the remainder of the statement at issue in this paragraph.
The Court SUSTAINS Defendant's evidentiary objection Nos. 1 and 5 insofar as Defendant objects to the excerpts of Plaintiff's deposition testimony regarding the Prison's lockdown and escort procedures, specifically Defendant's objection to p.54:1-19 and p.24:8-13 of Exhibit H of the Declaration of Julie L. Chen. The Court OVERRULES Defendant's objections Nos. 1 and 5 insofar as Defendant objects to Plaintiff's Statements of Undisputed Facts Nos. 10, 11, 31, 32, 33, 36 and 55 and Plaintiff's Statement of Additional Material Facts No 12. The Court OVERRULES Defendants objections Nos. 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 and 13.
C. Defendant's Motion For Leave To Amend The Court GRANTS Defendant Leave to Amend her Answer to Plaintiff's SAC pursuant to Federal Rule of Civil Procedure 15 in order to assert the affirmative defense of failure to exhaust administrative remedies.
The Ninth Circuit has held that, absent prejudice to the plaintiff, an affirmative defense may be raised for the first time in a motion for summary judgment. See Panaro v. City of N. Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005); Rivera v. Anaya, 726 F.2d 564 (9th Cir. 1984); Healy Tibbitts Constr. Co. v. Ins. Co. of N. America, 679 F.2d 803 (9th Cir. 1982); Medtronic, Inc. v. AGA Med. Corp., 2009 WL 1163976 (N.D. Cal., April 28, 2009). As such, the Court finds that Defendant is not precluded from requesting leave to amend her Answer at this summary judgment stage.
The Court finds that Plaintiff has not met his burden to establish that leave to amend pursuant to Federal Rule of Civil Procedure 15(a)*fn6 should not be granted here.
First, the Court notes that while there is a presence of delay here on part of Defendant in requesting this leave to amend, delay alone is insufficient to deny leave to amend. See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999)(noting that "[u]ndue delay by itself ... is insufficient to justify denying a motion to amend"). Instead, courts also consider factors such as prejudice to the opposing party, bad faith and futility of the amendment, with prejudice being the most important factor. See id.; Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)(stating that "[t]he law is well settled that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.... Delay alone is an insufficient reason to deny leave to amend"). As such, the Court finds that the presence of delay in and of itself is insufficient to deny Defendant leave to amend.
The Court finds that the relevant factors weigh in favor of granting leave to amend here. First, the Court finds that Plaintiff has failed to establish the presence of bad faith or dilatory motive on part of Defendant in bringing this request for leave to amend. Specifically, Defendant puts forth a Declaration of Paul F. Arentz, the Deputy Attorney General for the State of California assigned to represent Defendant, in which he avers that he was unaware of the fact that this affirmative defense had not been specifically pled in the Answer and "promptly filed this Motion" upon learning the defense had not been specifically pleaded. [Decl. Arentz, ¶ 8.] See Owens v. Kaiser Found. Health Plan Inc., 244 F.3d 708, 712 (9th Cir. 2001). Plaintiff fails to proffer evidence of bad faith or dilatory motive here on part of Defendant in requesting this leave to amend, and therefore the Court finds that these factors weigh in favor of granting leave to amend. Moreover, as discussed below, the Court finds that leave to amend would not be futile here, as Defendant has met her burden to establish that Plaintiff failed to exhaust his administrative remedies with respect to his claim against Defendant in this present Case.
The Court also finds that Plaintiff has not met his burden to establish that he will be substantially prejudiced by granting Defendant leave to amend. "Prejudice is the touchstone of the inquiry under Rule 15(a)," and in order to justify denial of leave to amend, "the prejudice must be substantial." Breakdown Servs., Ltd. v. Now Casting, Inc., 550 F. Supp. 2d 1123, 1132 (C.D. Cal. 2007). First, the Court finds that Plaintiff has been on notice that Plaintiff's alleged failure to exhaust would be an issue in this Case, as Defendants had previously filed a Motion to Dismiss the SAC based in part on Plaintiff's alleged failure to fully exhaust his administrative remedies.*fn7 See Sierra Club v. Union Oil Co. of California, 813 F.2d 1480, 1493 (9th Cir. 1987)(noting that "where a defendant is on notice of the facts contained in an amendment to a complaint, there is no prejudice to defendant in allowing the amendment"). Moreover, the Court finds that Plaintiff has conducted discovery regarding the issue of exhaustion and the Prison's appeal process, as well as Plaintiff's specific prison appeal forms, and therefore will not be substantially prejudiced in granting Defendant leave to amend. Specifically, Plaintiff conducted discovery regarding the inmate appeal and grievances process, requesting specific documents on Plaintiff's appeal forms. [Decl. Arentz, Ex. E.] Moreover, Plaintiff has taken the deposition of John Curiel, the appeals coordinator, and asked him questions regarding the appeal and exhaustion process, specifically Plaintiff's own appeal. [Decl. Arentz, Ex. C.] See Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999)(finding defendant would not be prejudiced by allowing leave to amend the complaint, as the allegations sought to be added derived from evidence obtained during discovery); Duhn Oil Tool, Inc. v. Cooper Cameron Corp., 2010 WL 596312, at *11 (E.D. Cal. Feb. 16, 2010)(finding leave to amend would not prejudice to defendant given it was on notice of the potential new claim because both parties had conducted discovery relevant to the issue).
As such, the Court finds that Plaintiff has failed to show that he will be substantially prejudiced by granting leave to amend here, as the Court finds Plaintiff was on notice of this affirmative defense and was not prejudiced in his ability to develop evidence on this issue of exhaustion. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074 (9th Cir. 1990).
Therefore, the Court GRANTS Defendant leave to amend her Answer to the SAC in order to assert the affirmative defense of failure to exhaust administrative remedies.
D. Defendant's Motion For Summary Judgment Defendant moves for summary judgment on the basis that Plaintiff failed to properly exhaust his administrative remedies as to his Section 1983 claim against Defendant, as required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).
As a threshold matter, the Court finds that Ninth Circuit case law establishes that a prisoner's failure to exhaust administrative remedies is a matter of abatement, and therefore the proper pretrial motion for raising non-exhaustion is an unenumerated motion under Federal Rule of Civil Procedure 12(b), not a summary judgment motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119--20 (9th Cir. 2003); Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam). As such, courts in this Circuit have held that the defense of failure to exhaust administrative remedies is to be raised in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b), or is to be treated as such if raised in a motion for summary judgment. Williams v. Servin, 2011 WL 2837490, at *3 (C.D. Cal. May 20, 2011). See also Morton v. Hall, 455 F. Supp. 2d 1066 (C.D. Cal. 2006).
Accordingly, as this Motion is predicated upon Plaintiff's failure to exhaust his administrative remedies, the Court treats this Motion as an unenumerated Motion to Dismiss under Federal Rule of Civil Procedure 12(b).*fn8 See Seneca v. Arizona, 345 Fed. Appx. 226, 229 (9th Cir. 2009).
The exhaustion requirement under the PLRA requires a prisoner to "properly" exhaust all available administrative remedies, meaning that "a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). "Prisoners need comply only with the prison's own grievance procedures to properly exhaust under the PLRA." Id. "The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Morton v. Hall, 599 F.3d 942, 944 (9th Cir. 2010). In California, the administrative appeals system is described in Title 15 of the California Code of Regulations.*fn9 California Code of Regulations, title 15, section 3084.2 requires an inmate to "describe the specific issue under appeal and the relief requested." Cal.Code Regs. tit. 15, § 3084.2(a). Where a "prison's grievance procedures are silent or incomplete as to factual specificity," as is the case with California's procedures here, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Morton, 599 F.3d at 944. (quotation omitted).
Moreover, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim." Grifin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Instead, "[t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id.
An inmate must completely exhaust these administrative remedies prior to filing any papers with a federal court to initiate the lawsuit. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006). The requirement of exhaustion applies to all claims alleged by the plaintiff. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). As such, no unexhausted claims asserted in a complaint may be considered by the Court.
The Court finds that Defendant has met her burden to establish that Plaintiff failed to properly exhaust his administrative remedies with regard to his Section 1983 claim against Defendant.
On February 3, 2004, Plaintiff filed his first inmate appeal Form 602. In this first appeal form, Plaintiff stated he was vision impaired and a diabetic, that he was supposed to be housed on a lower bunk, and that on February 1, 2004 "I inform the morning M.T.A. that my eyes was hurting and I could not see proper. 30 minutes later they open my door for me to go take a diabetic shot, as I was going down the stairs, I feel down and as I tumbled my legs got caught in the railing." [Decl. Arentz, Ex. C. at 85.] He then stated in this form he was still hurting from falling down the stairs and was dissatisfied because he had not gotten any medical treatment, specifically stating that "I addressed this problem as an (emergency) and I clearly ask for x-rays because I was hurting and all that I got was wheelchaired back and carried back up stairs." [Id. at 86.] He also stated that a correctional officer, Cole, had laughed at him when originally responding to his fall, and then went on to request medical treatment, a lower bunk and lower tier chrono, and alleged that the M.T.A. was refusing to bring him his insulin. On February 8, 2004, Plaintiff filed his second appeal form, requesting single cell privileges due to his illnesses and alleging that the Prison was violating the ADA. [Id. at 88.] In this present Action, Defendant brings a Section 1983 claim against Defendant alleging that Defendant violated his Eighth Amendment rights by deliberately disregarding Plaintiff's disabilities and safety in opening his door and permitting him to walk to the infirmary unescorted during a lockdown, resulting in his fall and subsequent injury.
The Court finds these appeal forms were insufficient to put the Prison on notice of the nature of the wrongs for which Plaintiff seeks redress against Defendant in this Action. See Grifin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Specifically, the Court finds that the two forms focus on Plaintiff's request for medical care and the allegation that he had not received his requested medical care, as well as his request for a different bunk and cell assignment based on his disabilities.*fn10 Plaintiff's forms fail to mention sufficient facts or allegations regarding wrongdoing on part of a control booth officer or correctional officer here in the opening of Plaintiff's cell door or in the fact he was permitted to leave unescorted. Instead, the February 3, 2004 appeal form simply states that the door was opened and only mentions a wrongdoing on part of the correctional officer Cole, who allegedly laughed at him after he fell, with the February 8, 2004 form focusing on Plantiff's request for a different cell and the Prison's alleged ADA violation. As such, while Plaintiff's claim against Defendant in this Action asserts that she was deliberately indifferent to his rights and safety in opening his door, the Court finds that this alleged indifference is not sufficiently mentioned in the appeal forms here. See Griffin, 557 F.3d at 1120 (finding plaintiff had failed to exhaust administrative remedies because his appeal form did not provide enough information to allow prison officials to take appropriate responsive measures).
Moreover, Defendant offers the deposition testimony of John Curiel, in which Curiel states that in his review of the appeal, Plaintiff's appeal did not contend that any officer acted improperly, with the exception of Cole. [Decl. Arentz, Ex. C.] See Coley v. Cassim, 2008 WL 2073949, at *5 (E.D. Cal. May 14, 2008)(pointing to the fact that the prison officials "clearly understood what plaintiff was complaining about and what relief he was seeking" in finding that plaintiff had sufficiently exhausted his administrative remedies); Morton v. Hall, 455 F. Supp. 2d 1066, 1074-75 (C.D. Cal. 2006)(finding plaintiff had failed to exhaust his administrative remedies with regard to his assault claim, noting that the inmate appeals coordinator had determined that plaintiff's appeal form had only been related to an alleged denial of visitation rights, and not the assault claim). In addition, the appeal records submitted by Defendant establish that at the various stages of appeal, Plaintiff kept grieving about his lack of medical treatment and repeated his request for x-rays and a different bunk or cell assignment. [Decl. Arentz, Ex. C., p. 92-95.] As such, the Court finds that the appeal forms do not "contend that Defendant [was] deliberately indifferent to [his] safety," nor do they set forth facts or details regarding any impropriety on part of Defendant that would put the prison officials on notice as to the type of claim that is now being asserted against Defendant in this Action. Imboden v. Hornbeak, 2011 WL 590457, at *1 (E.D. Cal. Feb. 10, 2011)(finding plaintiff had failed to exhaust her administrative remedies because her appeals stated nothing about the defendants' alleged improper conduct in failing to protect her from an attack).
The Court finds Morton v. Hall persuasive here. In Morton, the Ninth Circuit upheld the district court's finding that the plaintiff prisoner had failed to exhaust his administrative remedies with respect to his Section 1983 assault claim. 599 F.3d 942, 945 (9th Cir. 2010). The plaintiff had argued he had exhausted his remedies by virtue of exhausting his challenge to the prison's decision to deny him visitation with minors, arguing that the denial of visitation arose out of the same facts and circumstances as the Section 1983 assault claim. Id. However, the Ninth Circuit found that the "Form 602 [Plaintiff] filed relating to the visitation restriction does not even mention the assault or theorize that the visitation restriction imposed was related to the assault," and therefore was insufficient to put prison officials on notice of the plaintiff's complaint that prison-staff conduct contributed to his assault. Id. at 946.
Here, as noted above, the Court finds that Plaintiff's two appeal forms focus on the fact that Defendant received inadequate medical attention after his fall and his request for medical treatment and a different housing assignment, and fail to mention wrongdoing or any deliberate indifference to his disabilities on part of Defendant in the fact that his door was opened and he was permitting to leave his cell unescorted. As such, like the grievance at issue in Morton, the Court finds the forms here insufficient to put Prison officials on notice of Plaintiff's complaint against Defendant for deliberate indifference of his Eighth Amendment rights.
Plaintiff argues that the contents of the appeal forms combined with the circumstances surrounding his fall at the time were sufficient to put the Prison on notice of Plaintiff's claim against Defendant in this Action. Specifically, Plaintiff argues that the substance of his Section 1983 claim against Defendant was apparent based on the appeal language, the fact Defendant was the control booth officer at the time, the fact that Plaintiff suffered from a vision impairment and wore a vision impairment vest and also because the prison was on a lockdown at the time.
The Court finds this argument unpersuasive, as Plaintiff fails to show that the Prison would have been on notice here based on the contents of the form and the surrounding circumstances at the time of the fall. First, Defendant puts forth deposition testimony establishing that while a control booth officer was responsible for the overall safety and for controlling the movement of the inmates, Defendant would not have been solely responsible for determining whether to open Plaintiff's cell door and when he required an escort to be moved out of his cell.*fn11 Therefore, the Court finds that the fact Defendant was the control booth officer at the time of the fall does not establish that the Prison would have been on notice of this claim against Defendant based on the statement in the form that his cell door was opened. See Porter v. Howard, 2011 WL 3298885, at *4 (S.D. Cal. June 14, 2011).
Plaintiff also argues that the contents of the appeal form were sufficient to put Prison officials on notice of the harm being grieved against Defendant here, as Prison officials would have been on notice of Defendant's wrongdoing based on the fact that Plaintiff was permitted to leave his cell unescorted, during a lockdown, despite the fact that he was wearing a vision impairment vest. However, the Court finds this argument unpersuasive. First, the Court finds that the mere fact Plaintiff was permitted to leave his cell unescorted the day of his fall would not put Prison officials on notice of potential wrongdoing on part of Defendant. Specifically, Defendant puts forth evidence establishing that the Prison was on a modified lockdown*fn12 at the time of the fall, and therefore the escort of prisoners without handcuffs was permitted at this time and some movement was allowed.*fn13 [Decl. Arentz, Ex. B, p. 42, 44-45, 51-52, 60-61; Ex. D, p. 112-13.] As such, contrary to Plaintiff's argument here, Plaintiff's movement was not required to be facilitated by an escort and with handcuffs at all times during the day of the fall. Therefore, the Court finds that Prison officials would not have been on notice of Defendant's alleged wrongdoing here based on the fact that Plaintiff stated in his form that he was let out of his cell. Moreover, the Court finds that Plaintiff fails to establish that his vision impairment would have put the Prison on notice of Defendant's alleged deliberate indifference here based on the fact he stated in the form that his cell door was opened. Specifically, both Defendant and Calvin Campbell, III testified in their depositions that the Prison's escort procedures did not change for an inmate that was disabled or had a vision impairment vest, and therefore the evidence indicates that Plaintiff was not required to be escorted in handcuffs at all times during the time of the fall. [Decl. Arentz, Ex. B, p. 49:15-25; Ex. D, p. 123:7-17, 125:3-7.] Therefore, the Court finds that Plaintiff fails to establish that the circumstances at the time of the fall, combined with the contents of the form, were sufficient to put Prison officials on notice of the nature of Plaintiff's claim against Defendant in this Action.
Moreover, the Court finds that these alleged circumstances do not change the fact that the appeal forms themselves make no reference to a claim against a control booth officer or Prison official for wrongdoing stemming from the fact Plaintiff was let out of his cell unescorted, nor do the forms mention that an officer knew of his disability and deliberately let him leave the cell unescorted, resulting in his fall. The forms simply state that Plaintiff's door was opened and that he left the cell. As such, the Court finds that Plaintiff's grievances fail to set forth sufficient facts and description here to put the Prison on notice of the wrongs for which redress is sought in this Action. See Johnson v. Woodford, 2010 WL 4007308, at *4 (C.D. Cal. April 20, 2010)(finding the prisoner had failed to exhaust his administrative remedies because his appeal was silent to facts underlying his deliberate indifference claim).
Therefore, the Court finds that Defendant has met her burden to establish that Plaintiff failed to properly exhaust his administrative remedies with respect to his Section 1983 Claim against Defendant.
When the district court "concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d at 368, n. 3 (9th Cir. 1988)). However, the Court may exercise its discretion and deny leave to amend when it is clear that the plaintiff cannot allege any set of facts that would entitle him or her to relief. Neitzke v. Williams, 490 U.S. 319, 327 (1989).
The Court finds that dismissal without prejudice would be futile because Plaintiff would not be able to cure the defect present here based on his failure to properly exhaust administrative remedies. See, e.g., Pough v. Grannis, 2011 U.S. Dist. LEXIS 32514, at *23--24 (S.D. Cal. Jan. 6, 2010) (finding that because plaintiff can no longer timely exhaust administrative remedies the action must be dismissed with prejudice); Coleman v. Cook, 2009 WL 3109741 at *6-7 (C.D. Cal. 2009)(same); Stutzman, 2009 WL 2901634 at *4 (same). As such, Plaintiff's 42 U.S.C. § 1983 claim against Defendant is DISMISSED with prejudice for failure to properly exhaust administrative remedies. See Coleman, 2009 WL 3109741 at *6-7.
For the reasons stated above, the Court GRANTS
Defendant leave to amend her Answer to the Second Amended Complaint. Moreover, the Court finds that Defendant has met her burden to establish that Plaintiff failed to properly exhaust his administrative remedies with respect to his 42 U.S.C. § 1983 Claim against Defendant.
As such, the Court DISMISSES with prejudice Plaintiff's 42 U.S.C. § 1983 claim against Defendant.
IT IS SO ORDERED.