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Tony Asberry v. Matthew Cate

March 6, 2013


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff's third amended complaint against defendants Virga, Phelps, McCarval, Bobbala, Nangalama, Wedell, Ali, Elston, Dhillon, Duc, and Chen.*fn1 Plaintiff alleges that defendants violated his Eighth Amendment right to be protected from harm caused by another inmate, and that he subsequently received inadequate medical care in violation of the Eighth Amendment. Plaintiff also includes several state law claims. (Dkt. No. 55.) Pending before the court are defendants' motions to dismiss these claims based on a failure to first exhaust administrative remedies (except as to defendant Phelps), and failure to plead facts sufficient to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6), based on plaintiff's alleged failure to comply with the California Government Tort Claims Act. After careful review of the record, the undersigned concludes that defendants' motions to dismiss should be granted in part, and denied in part.

II. Plaintiff's Third*fn2 Amended Complaint

Plaintiff's claims arise from a cell move on January 25, 2010, and plaintiff's claim that he was assaulted by his new cellmate, inmate Wilson, the following day, during which plaintiff suffered injuries to his back and neck.*fn3 (Dkt. No. 49.) Plaintiff claims that (a) defendant Elston failed to protect plaintiff by bringing inmate Wilson to plaintiff's cell on January 25, 2010, and ordering plaintiff to accept Wilson as his cellmate or plaintiff would face disciplinary action; (b) defendant McCarvel failed to protect plaintiff from inmate Wilson's attack on January 26, 2010; (c) defendant Virga failed to protect plaintiff by improperly classifying inmate Wilson; and (d) defendant Chen failed to protect plaintiff because he misdiagnosed Wilson, and it was defendant Chen's evaluation of inmate Wilson that eventually led to plaintiff being housed with inmate Wilson, resulting in plaintiff's injuries (dkt. no. 93 at 6).

Plaintiff alleges that defendant Dr. Bobbala examined plaintiff in February of 2010, by punching and chopping plaintiff in the back, and attempting to bend plaintiff over, all while asking plaintiff "does that hurt?," and without giving plaintiff any medical treatment, except for ordering an x-ray. (Dkt. No. 49 at 9-10.) On March 30, 2010, plaintiff claims his back went out, but all defendant Dr. Nangalama did was ask a few questions, and prescribed plaintiff no pain medication. (Id. at 10.) On April 9, 2010, plaintiff was seen by defendant Dr. Wedell, who told plaintiff he would need muscle relaxers, physical therapy, and a waist chain chrono. On September 7, 2010, plaintiff was seen by defendant Dr. Ali, who allegedly told plaintiff that he needed back surgery, but that "it was up to others to order it;" Dr. Ali ordered methadone, an MRI, a back brace, and a wheelchair chrono for plaintiff. (Id.) On April 26, 2011, plaintiff was seen by defendant Dr. Dhillon for MRI test results; plaintiff alleges Dr. Dhillon would not reveal the MRI results, but instead ordered a second MRI. On July 12, 2011, plaintiff saw Dr. Dhillon again, and when plaintiff asked him about the MRI results, Dr. Dhillon allegedly told plaintiff that his knee was within normal limits, and that plaintiff had Hepatitis-C. Plaintiff states he did not receive an MRI for his knee and does not have Hepatitis-C. On October 20, 2011, plaintiff was escorted to medical by Correctional Officer Conely to see defendant Dr. Duc, and obtain the results from the second MRI. (Id. at 11.) When plaintiff asked for his results, plaintiff alleges Officer Conely began gesturing to Dr. Duc as if to say "don't tell him the results," and defendant Dr. Duc allegedly told plaintiff that another doctor would give plaintiff the second MRI results. (Id.) Plaintiff alleges these medical doctors denied and delayed plaintiff's medical care in violation of the Eighth Amendment.

III. Motions to Dismiss - Failure to Exhaust

Defendants claim plaintiff failed to first exhaust his administrative remedies as to all defendants except defendant Phelps. Plaintiff was informed of the requirements for opposing a motion to dismiss for failure to exhaust administrative remedies on August 20, 2012, and October 30, 2012. (Dkt. Nos. 63, 84.) Plaintiff filed oppositions (dkt. nos. 80, 93), and defendants filed replies (dkt. nos. 83, 95.)

A. Legal Standard re Exhaustion

The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[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). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.

Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner "seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money." Id. at 734. The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records). The Supreme Court has cautioned courts against reading futility or other exceptions into the PLRA exhaustion requirement. See Booth, 532 U.S. at 741 n.6.

A prisoner need not exhaust further levels of review once he has either received all the remedies that are "available" at an intermediate level of review, or has been reliably informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Id., at 936-37.

As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, compliance with grievance procedures is required by the PLRA to properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. When the rules of the prison or jail do not dictate the requisite level of detail for proper review, a prisoner's complaint "suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is because the primary purpose of a prison's administrative review system is to "notify the prison of a problem and to facilitate its resolution." Griffin, 557 F.3d at 1120.

Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court may look beyond the pleadings to determine whether a plaintiff exhausted his administrative remedies. Id. at 1119-20.

B. California Prisons' Grievance Procedures

California regulations allow a prisoner to appeal any action or decision by a prison official that adversely affects the prisoner's welfare. Cal. Code Regs. tit. 15, § 3084.1(a). To exhaust a grievance, an inmate must pursue his appeal through four levels, one "informal" and three "formal." Id. §§ 3084.5, 3084.1(a). An inmate must file the initial grievance within 15 working days of the action being appealed, and he must file each administrative appeal within 15 working days of receiving an adverse decision at a lower level. Id. § 3084.6(c).

At the informal level, an inmate must seek to have the involved prison employee resolve the problem. Id. § 3084.5(a). If this request is unsuccessful, the inmate must then fill out a "Form 602," the "Inmate/Parolee Appeal Form," describing the problem and action requested. Id. § 3084.2(a). An "appeals coordinator" at the prison "screen[s]" each appeal before forwarding it on for review on the merits. Id. § 3084.3(a). The appeals coordinator may reject, or "screen," an appeal for various reasons, including failure to comply with the 15-day time limit, incompleteness or omission of necessary supporting documents, or failure to attempt to resolve the grievance informally. Id. §§ 3084.3, 3084.6(c). When the appeals coordinator rejects an appeal, he must fill out a form that explains why the appeal is unacceptable and instructs the inmate on what he must do to qualify the appeal for processing. Id. § 3084.3(d). If it appears from the appeal form that the prisoner has difficulty describing the problem in writing, the appeals coordinator must arrange an interview with the prisoner to help clarify or complete the appeal. Id. § 3084.3(b)(3). Once the appeals coordinator allows an appeal to go forward, the inmate must pursue it through three levels of formal review. Id. § 3084.5.

C. Administrative Appeals

Plaintiff filed his original complaint on September 16, 2011, and provided exhibits which the court has reviewed in connection with this motion. (Dkt. Nos. 1-1, 1-2.) At the time the underlying claims accrued, plaintiff was housed at California State Prison -Sacramento ("CSP-SAC"). Defendants provided the declaration of J.D. Lozano, Chief of the Office of Appeals for the California Department of Corrections and Rehabilitation ("CDCR"). Chief Lozano described the grievance procedure for inmates held in the CDCR, and submitted copies of plaintiff's grievances submitted between January 26, 2010, and September 16, 2011. (Dkt. No. 63-3 at 1-43.) Defendants also provided the declaration of K. Daly, Appeals Coordinator for CSP-SAC, who described the screening process for appeals, and filed copies of plaintiff's appeals that were screened out during the relevant time frame. (Dkt. No. 63-4 at 1-21.) Finally, defendants submitted the declaration of L.D. Zamora, Chief of the Office of Third Level Appeals ("OTLA") for California Correctional Health Care Services ("CCHCS") in Sacramento, California. (Dkt. No. 63-5 at 1-2.) Chief Zamora described the procedure for appeals concerning health care, and provided copies of medical appeals filed by plaintiff during the relevant time period. (Dkt. No. 63-5 at 1-33.)

D. Third Level Appeals

As noted above, Chief Lozano provided copies of plaintiff's appeals that were denied at the third level of review. The court reviewed these appeals*fn4 and determined that only third level appeals SAC-10-00226 and SAC-10-10-12683 raised claims relevant herein. (Dkt. Nos. 63-3 at 12-15; 63-5 at 10.)

1. Appeal SAC-10-00226

In appeal SAC-10-00226, signed February 1, 2010, plaintiff sought an investigation into his claims, and to be compensated in some form. (Dkt. No. 63-3 at 12.) Plaintiff alleged that on January 25, 2010, defendant Phelps made a cell move that resulted in plaintiff being celled with inmate Wilson. Plaintiff alleged that inmate Wilson suffers from a mental disorder, has an anger problem, and is violent, unclean, and refused to shower. Plaintiff alleged that inmate Wilson attacked him because plaintiff offered Wilson a bar of soap. Plaintiff stated that he requested an investigation into why defendant Phelps moved inmate Wilson into plaintiff's cell. (Dkt. No. 63-3 at 15.) Plaintiff noted that at 7:00 a.m. on January 26, 2010, while housed in a medical holding cell next to inmate Wilson, plaintiff remarked to defendant Phelps that inmate Wilson should be single-celled. (Dkt. No. 63-3 at 15.) Plaintiff alleged defendant Phelps responded, "I know he (Wilson) should not even be on the mainline with main population inmates." (Id.) Plaintiff claimed this statement "implies that [defendant] Phelps already knew moving inmate Wilson in the cell with [plaintiff] would be a problem." (Id.)

In the first level appeal response, Correctional Sgt. Rose summarized plaintiff's appeal as alleging defendant Phelps housed plaintiff improperly with a cellmate who should have been on single cell status, and defendant Phelps was aware of this fact. (Dkt. No. 1-1 at 6.) Sgt. Rose noted that during the interview, plaintiff stated that his "main concern was that [defendant] Phelps housed you with inmate Wilson knowing you were not compatible." (Id.) Sgt. Rose noted that defendant Phelps was interviewed on March 5, 2010, and stated that plaintiff was housed with Wilson because both were "double-cell cleared and were compatible." (Id.)

Plaintiff sought a second level review, stating he was dissatisfied with the first level decision, without specifying any further factual allegations. (Dkt. No. 63-3 at 13.) Defendant Virga provided the second level decision, summarizing plaintiff's appeal by articulating plaintiff's claims set forth in his initial appeal. (Dkt. No. 1-1 at 8.) Defendant Virga reiterated the first level appeal response that both plaintiff and inmate Wilson were cleared for double-cell housing, and no incompatibility factors were revealed in a records review. (Id.) Defendant Virga found that staff acted appropriately. (Id.)

In seeking third level review, plaintiff stated that the prior reviewers failed to acknowledge his request for an investigation into plaintiff's issues, "particularly inmate Wilson's mental health issues, and Wilson's inability to effectively program in the main population as a double cell status prisoner." (Dkt. Nos. 63-3 at 13; 1-1 at 3.)

The third level review reiterated plaintiff's claims against defendant Phelps. The third level review examiner found that plaintiff provided no credible evidence to substantiate his claim that CSP-SAC staff knowingly housed him with a violent, mentally ill inmate. (Dkt. No. 1-1 at 11.) "Staff attested that both inmates were cleared for double cell housing and there were no documented incompatibility factors." (Id.) In connection with plaintiff's claim that Wilson struck him in the face in response to plaintiff's offer of soap, the examiner noted that plaintiff failed to advise staff at the time so that Wilson could be removed. (Id.)

In this appeal, SAC-10-00226, plaintiff does not allege facts concerning or challenging the January 26, 2010 attack on plaintiff by inmate Wilson, or plaintiff's claim that defendant McCarvel failed to protect plaintiff. (Dkt. No. 63-3 at 12-15.)

Defendants contend that this appeal only exhausts plaintiff's claims as to defendant Phelps, because it fails to allege any wrongdoing on the part of defendant McCarvel, and was filed prior to any alleged wrongdoing on the part of the other named defendants.

In his opposition, plaintiff claims he did not learn of defendant Virga's involvement until much later in plaintiff's investigation. (Dkt. No. 80 at 4.) Plaintiff states that although he could not appeal the classification of another inmate, he could include that claim in appealing the RVR that he claims resulted from defendant Virga's classification of inmate Wilson, as well as the actions of defendant McCarvel who authored the RVR. (Id.) The hearing on the RVR, postponed pending the district attorney's decision to prosecute, occurred on July 30, 2010. Plaintiff contends he could not file an appeal until he was found guilty of the RVR, issued a final copy of the RVR, as well as a 128-G chrono approving the disciplinary process by a classification committee. (Id. at 5.) Plaintiff argues that he did not timely receive a copy of the final RVR. (Id.) On August 18, 2010, plaintiff went before the classification committee, and submitted his appeal of the RVR on the same day. (Id. at 6.) However, the appeal was rejected based on plaintiff's failure to attach the complete RVR, and plaintiff included too many issues in one appeal. (Id.) Plaintiff alleges he tried on many occasions to obtain a copy of the RVR, but claims he did not receive a copy until November 1, 2010, and filed his appeal the same day. (Id. at 7.) The appeal was rejected as untimely. (Id.) Plaintiff claims these efforts demonstrate that plaintiff was not allowed to exhaust his claims as to defendants McCarvel and Virga. (Id. at 9.)

Plaintiff also argues that appeal SAC-10-00226 exhausts plaintiff's claims against defendants McCarvel, and Virga, but does not explain why. (Dkt. No. 80 at 24:6-8.) In his verified supplemental opposition, plaintiff contends that this appeal exhausted his administrative remedies as to defendants Elston and Chen. (Dkt. No. 93 at 5.) Although plaintiff did not reference defendant Elston by name in the appeal, plaintiff contends he referenced defendant Elston's actions, which was to tell plaintiff that if he refused a cellmate, he would face a range of disciplinary actions, including placement in administrative segregation. (Id., citing Dkt. No. 63-3 at 14.) Plaintiff also argues that he did not learn of defendant Chen's involvement until much later. (Dkt. No. 93 at 6.) Moreover, plaintiff contends that the CDCR would not process an appeal from a prisoner that revealed information about another inmate's mental health. (Id.)

In reply, defendants argue that appeal SAC-10-00226 does not reference defendant McCarvel's response to the January 26, 2010 alleged cell fight, or defendant Virga's classification of inmate Wilson. (Dkt. No. 83 at 3.) Thus, defendants contend this appeal failed to put prison officials on notice of any wrongdoing on the part of defendants McCarvel and Virga. (Id.)

A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations. Jones v. Bock, 549 U.S. 199, 218 (2007). The California regulations require only that an inmate "describe the problem and the action requested." Cal. Code Regs. tit. 15, ยง 3084.2(a). Where a prison's regulations are "incomplete as to the factual specificity [required in an inmate's grievance], a grievance suffices if it ...

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