United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action filed pursuant to 42 U.S.C. § 1983. The defendants in this action are Warden Carey and Administrative Appeals Coordinator Cervantes. This action is proceeding on the amended complaint filed on October 28, 2004.
I. Factual Background
The amended complaint contains two claims arising from the failure to receive dental treatment while an inmate at California State Prison-Solano: (1) an Eighth Amendment claim for deliberate indifference to plaintiff's serious dental needs; and (2) a due process claim based on the improper screening of plaintiff's inmate grievances concerning the failure to receive dental care. Plaintiff proceeds on claims arising from an inmate grievance filed by plaintiff on December 3, 2003 (the December Grievance), which sought repair of a tooth he had broken while eating on December 2, 2003. Another Eighth Amendment claim presented in this action, which was the subject of a 2009 jury trial, arose from plaintiff's grievance submitted on November 17, 2013 concerning the failure to repair a broken partial denture (the November Grievance).
II. Procedural History
This matter is once again before the court on the motion for summary judgment of defendants Carey and Cervantes based on plaintiff's failure to exhaust administrative remedies. This is the third motion regarding administrative exhaustion that defendants have filed in this case. In order to resolve the present motion, it is necessary to understand the long and complicated procedural history of this case.
Defendants' first motion based on plaintiff's failure to exhaust was originally filed on December 13, 2006. ECF No. 118. The magistrate judge previously assigned to this case issued Findings and Recommendations on August 3, 2007 that the motion to dismiss should be granted with respect to the December Grievance concerning plaintiff's broken tooth, but denied as to the November Grievance concerning defendants' failure to repair his partial denture. ECF No. 131 at 7. These Findings and Recommendations were adopted by the District Judge on February 15, 2008, but plaintiff filed an interlocutory appeal on March 17, 2008. ECF Nos. 162, 167.
While that appeal was pending in the Ninth Circuit Court of Appeals, plaintiff's remaining Eighth Amendment claim against defendant Cervantes related to his broken partial denture proceeded to trial. On February 12, 2009, the jury returned a verdict in favor of plaintiff awarding him $500 in compensatory damages and $1000 in punitive damages. ECF Nos. 230, 232. Plaintiff appealed various trial rulings and defendant Cervantes cross-appealed as to the judgment. ECF No. 236, 245.
On July 9, 2012, the Ninth Circuit Court of Appeals reversed the grant of summary judgment to defendant Carey in his individual capacity as well as the grant of defendant Cervantes's motion to dismiss the Eighth Amendment claim for plaintiff's failure to exhaust the December Grievance. Woods v. Carey , 684 F.3d 934 (9th Cir. 2012). The Court of Appeals concluded that plaintiff had not been afforded contemporaneous notice of the requirements for opposing these dispositive motions. Id . The case was remanded with directions that "plaintiff be provided with proper notice if and when the defendants re-file either or both of the relevant motions." Id. at 941. Defendant Cervantes's cross-appeal of the jury verdict against him and plaintiff's appeal from various other trial rulings were all affirmed in a separate unpublished memorandum decision. Woods v. Carey, 488 Fed.Appx. 194 (9th Cir. 2012).
In light of these appeals, the remaining claims are: (1) an Eighth Amendment claim against defendants Carey, in his individual capacity, and Cervantes based on plaintiff's December 3, 2003 inmate grievance seeking repair of a tooth he broke while eating on December 2, 2003; and (2) a due process claim based on the rejection of plaintiff's inmate appeal as untimely.
Following remand, defendants filed their second motion to dismiss based on the failure to exhaust administrative remedies. ECF No. 269. On June 19, 2013, the undersigned issued Findings and Recommendations that the motion be denied because "[i]t is not clear from defendants' evidence whether plaintiff did, in fact, fail to file any subsequent requests for treatment or appeals of the December Grievance after February 20, 2004." ECF No. 282 at 6. The undersigned found that defendants had not met their burden of establishing plaintiff's failure to exhaust in light of evidence in the record "support[ing] an inference that the December Grievance, was routed on or around January 8, 2004, for whatever reason, to the Medical Appeals Analyst, who did not return the December Grievance to plaintiff until February 19, 2004." ECF No. 282 at 10. Because the undersigned found that the defendant had failed to carry their burden, it was not necessary to resolve the "confusion regarding the various complaints and dates" for purposes of determining whether defendants had affirmatively prevented plaintiff from exhausting his administrative remedies. ECF No. 282 at 10, n. 5.
In rejecting these Findings and Recommendations, the District Judge noted that "the burden has shifted to plaintiff to show that administrative remedies were effectively unavailable' for the Eighth Amendment claim arising from the alleged delay in treatment for plaintiff's broken tooth, which was the subject of plaintiff's December 3, 2003 grievance, and the magistrate judge should consider the facts through that lens should defendants renew their 12(b) motion." ECF No. 288 at 5. By order of September 12, 2013, the motion to dismiss was denied, but defendants were permitted to renew their contention that plaintiff failed to exhaust his administrative remedies for either his Eighth Amendment or his due process claim arising from the broken tooth and the December 3, 2003 grievance by which he sought dental treatment." Id.
III. Defendants' Summary Judgment Motion
In their current motion, defendants Cervantes and Carey argue that plaintiff failed to exhaust his available administrative remedies for both the Eighth Amendment and Due Process claims. ECF No. 293-2 at 8. "It is clear from records searches of appeals submitted at CSP-Solano and those maintained in the Inmate Appeals Branch, plaintiff did not appeal any grievances regarding his November or December grievances to the third formal level [of review] with the director." ECF No. 293-2 at 21. Defendants further contend that plaintiff did not even attempt, much less was prevented from, appealing the rejection of his December grievance to the second and subsequent formal levels of review. Id. at 22.
In the alternative, defendant Cervantes asserts that he is entitled to summary judgment because a serious medical need is not evident from the face of the December grievance and because he did not intentionally deny or delay plaintiff's dental treatment since dental staff was already alerted to the problem based on their informal level of review of plaintiff's grievances. ECF No. 293-2 at 30-33, 35-38. Defendant Carey contends that he should be awarded summary judgment because he did not personally participate, supervise or direct any subordinate to engage in any wrongful conduct related to plaintiff's' dental treatment. ECF No. 293-2 at 36-38. Plaintiff has simply not provided "any evidence upon which a trier of fact could conclude that Carey acted with deliberate indifference." Id. at 38.
As to the due process claim, defendants contend that they are entitled to summary judgment as a matter of law because there is no constitutional right to a prison grievance procedure.
IV. Plaintiff's Opposition
At the outset the court notes that plaintiff has not filed a document disputing defendants' statement of undisputed facts, nor has he filed a separate statement of disputed facts. ECF No. 295. In this respect, plaintiff has failed to comply with Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure which requires that "a party asserting that a fact... is genuinely disputed must support the assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, ... admissions, interrogatory answers, or other materials...." He has also not followed Local Rule 260(b), which requires that any party in its opposition to a motion for summary judgment:
shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
Local Rule 260(b) also states, in relevant part, that: [t]he opposing party may also file a concise Statement of Disputed Facts, ' and the source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or adjudication. The opposing party shall be responsible for the filing of all evidentiary documents cited in the opposing papers. See L.R. 133(j).
It is well-established that the pleadings of pro se litigants are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam). Nevertheless, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh , 814 F.2d 565, 567 (9th Cir. 1987), overruled on another ground by Lacey v. Maricopa County , 693 F.3d 896 (9th Cir. 2012) (en banc). While non-prisoner pro se litigants should not be treated more favorably than parties represented by attorneys, unrepresented prisoners' choice to proceed without counsel "is less than voluntary" and they are subject to the "handicaps... detention necessarily imposes upon a litigant".... such as "limited access to legal materials" as well as "sources of proof." Jacobsen v. Filler , 790 F.2d 1362, 1364-65 & n. 4 (9th Cir. 1986)). Inmate litigants, therefore, should not be held to a standard of "strict literalness" with respect to the requirements of the summary judgment rule. Id . The court is mindful of the Ninth Circuit's more overarching caution in this context, as noted above, that district courts are to "construe liberally motion papers and pleadings filed by pro se inmates and... avoid applying summary judgment rules strictly." Thomas v. Ponder , 611 F.3d at 1150. Accordingly, the court considers the record before it in its entirety despite plaintiff's failure to be in strict compliance with the applicable rules. However, only those assertions in the opposition which have evidentiary support will be considered.
In a sworn declaration, plaintiff states that "I tried everything that I could do to exhaust my administrative remedies, I wrote request for interviews to the appeals coordinator and I even wrote a letter to the warden complaining about the appeals problems." ECF No. 295 at 2. He also states that defendant Cervantes has rejected appeals without CDC Form 695's. Id . As evidence of the effective unavailability of administrative remedies plaintiff attaches 29 CDC 695 screen out forms; three memoranda regarding "staff not complying with the CDCR appeal time restraints and informal and formal appeal practices...[, ] and a copy of a letter asking the appeals coordinator to hear and process appeals." Id. at 11.
With respect to his December Grievance, plaintiff asserts that defendant Cervantes mailed it back to him instructing him to forward the 602 appeal to the medical appeals analyst. Id. at 13. Plaintiff complied and the medical appeals analyst directed it back to him, after which he sent it back to defendant Cervantes. ECF No. 295 at 13. In this manner plaintiff attempted to exhaust his administrative remedies on three separate occasions, but he was prevented from doing so based on the mistaken information provided to him. Id. at 15-16. Plaintiff further asserts that the 51 day delay between the signature date on the first formal level appeal and defendant Cervantes' receipt of it is due to the deficient mail policy at CSP-Solano. Id. at 14.
As to the merits of his claims, plaintiff further asserts, without any supporting evidence, that defendant Carey implemented the dental and administrative appeals policies in question here. ECF No. 295 at 3. Plaintiff generally alleges that the delay in treating his broken tooth led to further harm in the form of stomach problems which were exacerbated by not being able to eat correctly based on his broken dental partial. Id. at 9-10.
V. Defendants' Reply and Objections to Plaintiff's Evidence
In their reply, defendants point out that plaintiff's opposition generally consists of "claims not alleged in the Amended Complaint and... allegations against non-party individuals in unrelated incidents occurring as late as 2006." ECF No. 299 at 1. Defendants assert that plaintiff has not supported his allegations that his appeals were improperly screened out to prevent exhaustion and that he "does not and cannot dispute that the separate CDC-695 screening form refers to routing procedures for the informal level appeal rather than the formal level." ECF No. 299 at 2. In addition, defendant Carey points out that plaintiff has not provided any evidence of his personal involvement in the alleged violations or evidence of any causal connection between Carey's conduct and the constitutional deprivations. ECF No. 299 at 3-4. According to defendant Cervantes, plaintiff conceded that "he did not experience pain relating to the December 2003 dental issue and therefore fails to prove a serious medical need." Id. at 4 (citing ECF No. 295 at 7).
Defendants further object to plaintiff's request for judicial notice of his exhibits, with the exception of excerpts from the 2009 trial transcripts, on grounds that plaintiff's exhibits are hearsay, irrelevant, not properly authenticated, and not in a sworn or certified format. ECF No. 299-1. At the summary judgment stage, the court focuses not on the admissibility of evidence's form but on the admissibility of its contents. Block v. City of Los Angeles , 253 F.3d 410, 418-19 (9th Cir. 2001). The substance of plaintiff's exhibits all post-date the timeframe involved in the screen out of his December Grievance. In fact, the majority of his exhibits date from 2006. To the extent that the memoranda pertaining to the processing time for informal level grievance responses date from the relevant time period of 2003 and 2004, there is no explanation provided by plaintiff as to why the contents of these documents are relevant. ECF No. 295 at 27-29. Accordingly, the exhibits would not be admissible at trial and are therefore not properly considered on summary judgment. Defendants' objections are therefore sustained.
VI. Legal Standards for Exhaustion
Section 1997(e) (a) of Title 42 of the United States Code provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997(e)(a) (also known as the Prison Litigation Reform Act ("PLRA")). The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey , 311 F.3d 1198 (9th Cir. 2002).
Failure to exhaust is "an affirmative defense the defendant must plead and prove." Jones v. Bock , 549 U.S. 199, 204, 216 (2007). To bear this burden:
"a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case.... With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, available.'"
Brown v. Valoff , 422 F.3d 926, 936-37 (9th Cir. 2005) (citations omitted).
Exhaustion requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. Woodford v. Ngo , 548 U.S. 81 (2006). California state regulations provide administrative procedures in the form of one informal and three formal levels of review within the California Department of Corrections and Rehabilitation (the "CDCR") to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a plaintiff has ...