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Michael Mcneil v. Lvn Hayes

November 28, 2012

MICHAEL MCNEIL,
PLAINTIFF,
v.
LVN HAYES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION TO DEFER CONSIDERATION OF MOTION TO DISMISS BE DENIED AS MOOT AND DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED, WITH PREJUDICE THIRTY-DAY OBJECTION DEADLINE (Docs. 27, 39, and 41)

Findings and Recommendations Recommending Defendants' Motion be Denied

I. Procedural History

Plaintiff Michael McNeil, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 23, 2010. Pursuant to the Court's screening order, this action for damages is proceeding on Plaintiff's second amended complaint, filed on June 28, 2011, against Defendants Hayes, Raman, Soto, Byers, Doe, and Rotman on Plaintiff's Eighth Amendment medical care claims.

On June 28, 2012, Defendant Soto filed a motion to dismiss for failure to exhaust the administrative remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). On the same day, the Court granted Defendant Raman's request for an extension of time to file a response to Plaintiff's second amended complaint, pending resolution of Defendant Soto's motion to dismiss. Plaintiff filed an opposition on July 30, 2012, and Defendant Soto filed a reply on August 7, 2012.*fn1 On August 13, 2012, Defendant Byers filed a notice of joinder and joinder in Defendant Soto's motion to dismiss and reply.

On August 23, 2012, Plaintiff, citing to Federal Rule of Civil Procedure 56(f), which is now 56(d), filed a motion seeking to postpone consideration of the motion to dismiss until trial so he may engage in full discovery.*fn2 For the reasons set forth below, the Court finds that Plaintiff exhausted his Eighth Amendment medical care claims and Defendants Soto and Byers are not entitled to dismissal. Therefore, Plaintiff's motion for a continuance pending discovery shall be denied as moot.

II. Discussion

A. Statutory Exhaustion Requirement and Unenumerated 12(b) Motions

Pursuant to the Prison Litigation Reform Act of 1996, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).

The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which the 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). The failure to exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the pleadings and decide disputed issues of fact. Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315 F.3d at 1119-20. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

B. Summary of Plaintiff's Eighth Amendment Claims

Plaintiff's Eighth Amendment claims arise from events which occurred at California Substance Abuse Treatment Facility and State Prison (SATF) beginning on March 26, 2009, and lasting thirty-five days, approximately.

Plaintiff alleges that he suffers from degenerative disc disease, and he has multiple disc herniations in his neck and lower back with spinal compression -- conditions which cause him to suffer from severe pain and for which he is prescribed morphine and gabapentin. On March 26, 2009, Defendant Hayes, a licensed vocational nurse, requested that Plaintiff's morphine prescription be discontinued because she believed he had "cheeked" his medication, conduct which is prohibited. Defendant Raman, the physician on duty that day, agreed to authorize the discontinuation, which was abrupt rather than tapered and which was done without a review of Plaintiff's medical file and without consideration of his medical history. Plaintiff alleges that as a result of the abrupt discontinuation of his morphine, he needlessly suffered from withdrawal symptoms, extreme pain, sleeplessness, and increased mobility impairment for thirty-five days.

The defendants against whom this action is proceeding were all medical staff members who interacted with Plaintiff during the thirty-five day time period, and they either were directly involved in the allegedly improper discontinuation of Plaintiff's morphine prescription or failed to take action despite their ...


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