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Wenberg v. Devear

United States District Court, N.D. California, Oakland Division

February 6, 2015

NATHAN WENBERG, Plaintiff,
v.
CORRECTIONAL OFFICER DEVEAR, et al., Defendants.

ORDER GRANTING SUMMARY JUDGMENT AS TO SERVED DEFENDANTS GAMBOA AND KROSSA; DISMISSING CLAIMS AGAINST UNSERVED DEFENDANT CASUSFLA; GRANTING PLAINTIFF AN EXTENSION OF TIME TO PROVIDE INFORMATION TO LOCATE UNSERVED DEFENDANT DEVEAR; AND DIRECTIONS TO CLERK

SAUNDRA BROWN ARMSTRONG, District Judge.

Plaintiff Nathan Wenberg, a state prisoner currently incarcerated at Salinas Valley State Prison ("SVSP"), brings the instant action pursuant to 42 U.S.C. § 1983. The operative complaint is Plaintiff's First Amended Complaint ("FAC"), which alleges multiple constitutional violations, including a claim that served Defendants SVSP Physician L. Gamboa and Registered Nurse J. Krossa (collectively "Defendants") were deliberately indifferent to his serious medical needs.

The parties are presently before the Court on Defendants' unopposed motion for summary judgment. In their motion, Defendants contend that Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), prior to filing his FAC. Defendants also move to dismiss the deliberate indifference claim against them on the basis that it fails to state a claim upon which relief can be granted, and alternatively, for summary judgment on the ground of qualified immunity.

Having read and considered the papers submitted, and being fully informed, the Court GRANTS Defendants' motion for summary judgment.

I. BACKGROUND

The FAC alleges that on July 31, 2011, Defendants SVSP Correctional Officers Devear and Doe # 1 were working as Floor Officers, while Defendant Correctional Officer Doe #2 was working the Control Booth/Tower post and was responsible for constant visual monitoring of all activity occurring in that area of the prison.[1] According to Plaintiff, Defendant Devear along with Defendant Doe #1, without provocation, sprayed him twice with pepper spray through the food port of his cell. Plaintiff claims that Defendants Devear and Doe #1 then left Plaintiff in his cell without assessing his condition and without providing him with decontamination or medical attention for fifteen hours. Because of the puddles of pepper spray on his cell floor, Plaintiff allegedly slipped and fell, striking his left leg and hip on the steel edge of the lower bunk, thereby injuring his leg and hip. Plaintiff alleges that Defendants Devear, Doe #1, and Doe #2 ignored his pleas for help.

As a result of his fall, Plaintiff has allegedly endured constant moderate to severe pain in his left side, hip and leg, and has experienced a notably diminished function, range of motion and lack of strength in his left leg. Plaintiff claims that he now has a pronounced limp as a result of the incident, and was denied medical care immediately after and subsequent to the incident. In particular, Plaintiff made requests for an examination by an orthopedic surgeon and radiological studies (beyond the standard x-rays) to determine the nature of the injury to his left side and leg. According to Plaintiff, his requests were denied, and he received only an x-ray, which he asserts is ineffective in diagnosing his condition.

On April 29, 2013, Plaintiff filed his original complaint, Dkt. 1, which the Court screened and dismissed with leave to amend, Dkt. 7. On July 29, 2013, Plaintiff filed his FAC. Dkt. 10. Upon screening the FAC, the Court found the following Eighth Amendment claims cognizable: (1) an excessive force claim against Defendant Devear; (2) a deliberate indifference to medical needs claim against Defendants Devear, Doe #1, and Doe # 2 for failing to decontaminate Plaintiff; and (3) a deliberate indifference to medical needs claim against Defendants Gamboa, Krossa, and Casusfla for denying him an appropriate medical evaluation of his alleged slip-and-fall injuries.

The Court ordered service as to Defendants Devear, Gamboa, Krossa, and Casusfla. Defendants Gamboa and Krossa are the only served Defendants; therefore, the remaining unserved Defendants have not joined in the instant motion for summary judgment.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment on some or all of the claims or defenses presented in an action. Fed.R.Civ.P. 56(a)(1). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id .; see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Fed.R.Civ.P. 56(c)(1)(A) (requiring citation to "particular parts of materials in the record"). If the moving party meets this initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. See Celotex , 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986).

The failure to exhaust administrative remedies is an affirmative defense that must be raised in a motion for summary judgment. See Albino v. Baca , 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). The defendants have the initial burden to prove "that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Id. at 1172. If the defendants carry that burden, "the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id . The ultimate burden of proof remains with defendants, however. Id . "If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts." Id. at 1166.

As noted, Plaintiff has not filed an opposition to Defendants' motion. However, since the FAC is verified, the Court will construe it as an opposing affidavit under Federal Rule of Civil Procedure 56, insofar as it is based on personal knowledge and sets forth specific facts admissible in ...


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