United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. He initiated this action on December 20, 2012, alleging that the named defendants were indifferent to his serious medical needs in violation of the Eighth Amendment. ECF No. 1. The case is proceeding on his second amended complaint, filed July 9, 2013, against the sole remaining defendant in this action, Paul Osterlie, Jr. ("defendant") for alleged violation of plaintiff's Eighth Amendment rights. ECF No. 18. He alleges in that complaint that he sustained an injury on January 12, 2009, while working under defendant's supervision at Mule Creek State Prison ("Mule Creek"), and that defendant required him to continue working under painful conditions. Id.
Osterlie moves to dismiss the action for failure to exhaust administrative remedies. ECF No. 29. For the following reasons, defendant's motion, construed as a motion for summary judgment, must be granted.
On January 12, 2009, plaintiff injured his back while working as a butcher boner for the C.A.L.P.I.A. meat factory at Mule Creek. Second Amended Complaint ("SAC"), ECF No. 18, at 2. Plaintiff says he did not immediately report the injury to his supervisor, Osterlie, because plaintiff did not feel pain at that time or realize the magnitude of his injury. Id. On February 23, 2009, five weeks after first suffering the injury, plaintiff reported the injury to his supervisors, defendant and Ms. Kim Yarbrough. Id. Defendant sent plaintiff to the medical clinic where he was examined by a doctor. Id.
Plaintiff returned to work in a "chronically painful condition." Id. Upon his return to the meat factory, plaintiff explained to Osterlie that the doctor who examined him "did nothing but look at Plaintiff's low back area and did not administer anything by way of any type of diagnosis or examination." Id. at 3. Plaintiff's remaining allegations with regard to Osterlie are as follows:
Defendant Paul Osterlie Jr. then instructed the Plaintiff be moved to a less strenuous position to continue working despite observing the chronically painful condition this Plaintiff was suffering from and the need for further medical attention....
During the period of 2/23/2009 through 3/3/2009, Plaintiff was made to work and suffer under a chronically painful condition that no human being should ever have to endure due to the reckless conduct of industrial supervisor Paul Osterlie Jr.... for intentionally or recklessly not summoning the appropriate medical treatment [he] should have summoned in [his] professional capacity upon observing Plaintiff's chronically painful condition....
Id. Plaintiff also alleged that on March 3, 2009 he sought "the help of a qualified medical evaluator... offered through the workman's compensation program to assess the true nature of Plaintiff's lower back injury Plaintiff was made to chronically suffer due to the deliberate indifference and wonton misconduct of [defendant]...." Id. at 4.
In his motion to dismiss, defendant argues that plaintiff's second amended complaint should be dismissed because he failed to exhaust administrative remedies with regard to allegations involving defendant. ECF No. 29.
In support of his motion, defendant provided the declaration of A. Altschuler, the Health Care Appeals Coordinator at Mule Creek. ECF No. 29-3. Altschuler maintains records of the medical appeals at Mule Creek in a database called the Health Care Appeals and Risk Tracking System. Id. ¶ 2. Altschuler described the process for receipt of inmate appeals involving health care issues, and provided a copy of plaintiff's appeal history which shows that plaintiff filed three separate health care appeals. Id. ¶¶ 3-6. Of the three appeals, only one appeal was processed through all three levels of review; the remaining two appeals were rejected for failure to comply with appeal regulations. Id. ¶ 6. The one health care appeal that was denied at the third level of review addressed a grievance initiated by plaintiff on April 6, 2012 involving a complaint regarding medical treatment plaintiff received for his January 12, 2009 injury (the "April 2012 grievance"). Id. ¶ 6, Ex. B.
Defendant also provided the declaration of L. Zamora, Chief of the Inmate Correspondence and Appeals Branch. ECF No. 29-6. Chief Zamora's office is responsible for reviewing inmate medical appeals, including medical staff complaints, at the third level of review. Id. ¶¶ 2-3. Chief Zamora provided plaintiff's appeal history which shows that plaintiff filed only one medical appeal at the third level. Id. ¶ 6, Ex. A. The third level appeal, which addresses the April 2012 grievance, was denied on October 25, 2012. Id.
A copy of the entire April 2012 grievance (which includes the reasons for plaintiff's dissatisfaction with the response at the second level) and the third level decision were provided by plaintiff with his second amended complaint as well as his opposition. See Pl.'s Opp'n, ECF No. 30, at 58-62; SAC at 53-57.
In his April 2012 grievance, plaintiff described the subject/purpose of his appeal as follows: "preexisting work related injury performing job assignment." Altschuler Decl. Ex. B. The court provides at length plaintiff's explanation of his grievance:
On 1/12/2009 while performing my job assignment as a boner/butcher on Facility C yard in the P.I.A. Meat Factory I injured or tore a ligament in the lower section of my right hip while lefting [sic] several 90 lb rounds (cow-legs) from a cardboard container. I did not report this said injury to my supervisor... because I didn't feel any pain at that specific instance - (nor) - did I realize that I would suffer this injury this present 4/1/2012 day. After a continuance [sic] attempt from 2/23/2009 thur [sic] 7/09 at getting the proper medical treatment to no avail... I was transferred to B yard on 6/16/2010 where after realizing that the injury wasn't just a minor sprained hip I once again tried getting treatment. On 5/18/2011 I submitted a 7362 health request to B yard clinic. On 5/27/2011 I was issued a medical lay-in.... On 7/15/2011 Dr. Hawkins schedule [sic] me for several x-ray of my hip, spine, pelvic area etc. All x-rays came inconclusive of injury in question.... On ...