United States District Court, E.D. California
ORDER & FINDINGS AND 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 sole remaining defendant in this action is Dr. Noriega. This action proceeds on the first amended complaint, ECF No. 9, for violations of plaintiff's rights under the Eighth Amendment. ECF No. 9.
Plaintiff's original complaint, filed February 27, 2013, alleged that defendants Dr. Noriega, Dr. Goller, and the director of the CDCR violated plaintiff's Eighth Amendment rights when they were deliberately indifferent to plaintiff's serious medical needs. ECF No. 1. By order dated May 21, 2013, the court dismissed the director of the CDCR as a defendant. ECF No. 8 at 5. Plaintiff was given the option of proceeding against Dr. Goller and Dr. Noriega, or attempting to amend his complaint. ECF No. 8 at 3-5. Plaintiff elected to proceed against Dr. Noriega alone and filed a first amended complaint on June 27, 2013. ECF No. 9.
On December 5, 2013, defendant Noriega filed a motion to dismiss the amended complaint for failure to exhaust administrative remedies. ECF No. 18. In light of the Ninth Circuit's decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), which held that exhaustion issues should in most cases be presented in a motion for summary judgment rather than in a motion to dismiss under Rule 12(b), the court vacated defendant's motion to dismiss by order dated April 10, 2014. ECF No. 24. The court permitted defendant to file a motion for summary judgment on the issue of administrative exhaustion and to re-file the portion of the vacated motion that asserted failure to state a claim in a separate motion or in combination with a motion for summary judgment. On May 14, 2014, defendant filed a motion for summary judgment for failure to exhaust administrative remedies. On July 29, 2014, plaintiff opposed the motion, and on August 26, 2014 defendant replied.
The first amended complaint alleges that defendant Noriega was deliberately indifferent to plaintiff's serious medical needs in relation to an injury plaintiff suffered in 2004 while incarcerated at California State Prison-Solano. Specifically, plaintiff alleges that on April 11, 2004, he was injured while working at his job in the prison laundry when a runaway laundry cart struck plaintiff's left ankle, causing him "great pain." ECF No. 9 at 10. Plaintiff was taken to the Correctional Treatment Center (CTC) and examined by medical staff, who viewed plaintiff's skin laceration and swollen ankle as a "minor injury." Id. Plaintiff was given pain pills and issued a three-day medical lay-in. Id.
On April 12, 2004, plaintiff was referred for x-rays "to see if any bones were broken" in his "now very swollen" foot. ECF No. 9 at 10. The radiologist, Dr. Goller, took a single x-ray and issued a radiology report. Id. at 11.
Dr. Noriega, plaintiff's primary care provider, reviewed the radiograph and radiology report and informed plaintiff that "there were no broken bones to be seen in the radiograph." Id. However, unbeknownst to plaintiff, Dr. Goller's report contained the following additional information:
An acute osseous injury is identified. The visualized osseous structures are intact. The base of the fifth metatarsal is not included on the radiographs. Injury at this location cannot be excluded. If there is clinical concern for an injury at the base of the fifth metatarsal a foot series should be obtained. Impression: No acute osseous injury identified.
Id. Plaintiff complained to Dr. Noriega that he was in severe pain and believed his foot was broken, but Noriega told him that "everything would be alright just as soon as the swelling in [plaintiff's] left ankle went down." Id. Despite being "in excruciating pain and throbbing discomfort, " plaintiff trusted Dr. Noriega's diagnosis. Id.
Over the next six years, plaintiff suffered intermittent severe swelling in his foot and excruciating pain. ECF No. 9 at 11. He persistently complained to prison medical staff and on February 10, 2010, his primary care provider, Dr. Pfile, agreed to order additional x-rays of plaintiff's left ankle. Dr. Pfile ordered that the x-rays "be taken in 3 views." Id.
On March 1, 2010, Dr. Goller took x-rays of plaintiff's ankle pursuant to Dr. Pfile's orders. ECF No. 9 at 11. In the resulting report, Dr. Goller "noted (1) an old-well fracture of distal fibula, and (2) mild... degenerative changes are present within the ankle." Id. at 11-12. This report "uncovered that the injury plaintiff had suffered back in 2004 had been from a fracture." Id. at 7. Plaintiff was then informed that he would have a permanent limp, which would worsen over time. Id. at 7.
The March 2010 x-rays and subsequent conversations with his doctor led plaintiff to request a copy of his medical file, in which he discovered Dr. Goller's 2004 report indicating that the x-ray taken on April 12, 2004 could not exclude injury in the area not visible in the x-ray. ECF No. 9 at 7.
Plaintiff then filed a series of administrative grievances in relation to his allegation that Dr. Noriega was deliberately indifferent to his serious medical needs when he failed to order additional x-rays of plaintiff's foot in 2004, despite his knowledge that plaintiff's injury could be more severe than Noriega initially diagnosed. ECF No. 9 at 7-8. These grievances were cancelled as untimely on the grounds that they were not filed in 2004. Id.
The instant action was filed on February 27, 2013. ECF No. 1. Plaintiff seeks a declaratory judgment, compensatory and punitive damages, a jury trial, and his costs in the lawsuit. ECF No. 9 at 14.
DEFENDANT'S SUMMARY JUDGMENT MOTION
1. Defendant's Argument
Defendant moves for summary judgment solely on the ground that plaintiff failed to properly exhaust his administrative remedies within the prison system before filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ECF No. 28-2. Defendant argues that plaintiff failed to exhaust administrative remedies because all of the grievances he filed in connection with his 2004 deliberate indifference claim were cancelled, and cancelled appeals do not satisfy the exhaustion requirement. Id. at 8. Defendant contends that when plaintiff filed his appeals in 2011, they were untimely and thus were properly cancelled as permitted by the applicable CCR regulations. Id. Defendant further argues that plaintiff did not complete the exhaustion process because his third level appeal was cancelled and plaintiff did not appeal the cancellation, even though the regulations state that "a cancellation at the third level may itself be appealed." Id. at 3, 8.
Defendant observes that plaintiff's claim is based entirely on Dr. Noriega's alleged "[failure] to diagnose a broken bone in plaintiff's left ankle/foot area" on April 12, 2004, and provides two arguments in support of his contention that plaintiff's 2011 grievances were untimely. ECF No. 28-2 at 1, 3. First, defendant contends that under the regulations in place in 2004, plaintiff was required to submit an appeal "within 15 working days following his visit to Dr. Noriega on April 12, 2004." Id. at 3. Since plaintiff did not submit his appeal until February 26, 2011, his appeal was untimely. Id.
Defendant's second argument recognizes that at the time plaintiff filed his first grievance on February 26, 2011, the deadline for filing administrative grievances had changed. ECF No. 28-2 at 3. Under the updated regulations, plaintiff's appeal had to be filed within "30 calendar days of the event or decision, or of first having knowledge of the event being appealed." Id. Because plaintiff admitted that "he first learned of a fracture somewhere' in June of 2010, '" plaintiff's February 26, 2011 grievance was untimely. Thus, under either version of the regulations, plaintiff's appeal was untimely and cancellation was proper. Id.
Defendant contends that because "the evidence and supporting documents establish that there are no disputed issues of material fact" regarding plaintiff's failure to exhaust his administrative remedies, defendant is entitled to summary judgment as a matter of law. ECF No. 28-2 at 6. In the event that defendant's summary judgment motion is denied, defendant requests an evidentiary hearing. Id.
2. Plaintiff's Opposition
Plaintiff submitted a memorandum in opposition to defendant's motion for summary judgment, ECF No. 33, as well as a separate document disputing defendant's statement of undisputed facts, ECF No. 31. Plaintiff disputes two of the facts asserted by defendant, but provides support for only one of the denials. ECF No. 31 at 4, 5. 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...." The court also notes that plaintiff has not filed a separate statement of disputed facts as required by Local Rule 260(b).
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). However, the 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." 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 his opposition, plaintiff disputes defendant's contention that plaintiff was required to file a grievance in 2004. ECF No. 33. Plaintiff agrees that the events gave that rise to his deliberate indifference claim occurred in 2004, but argues that he could not have filed a grievance in 2004 because at that time he did not know that his rights had been violated. Id. at 1-2, 6. Specifically, plaintiff asserts that he did not become aware of Dr. Noriega's deliberate indifference until he obtained his medical file and discovered Dr. Goller's 2004 radiology report. See id. at 2, 3, 6; ECF No. 9 (FAC) at 7, 11, 13. Until he learned of this report, plaintiff did not have knowledge that Dr. Noriega knew in 2004 that plaintiff's injury might be more severe, but failed to order the additional x-rays that would have revealed plaintiff's fracture. Id.
Plaintiff also disputes defendant's alternative argument that plaintiff had knowledge of the injury "somewhere in June of 2010" and was therefore required to file an appeal within 30 days of that date. Plaintiff asserts that when he learned "somewhere in June 2010" that his 2004 injury had been a fracture, he still did not know that the failure to diagnose the fracture in 2004 was due to an act of deliberate indifference, by Dr. Noriega or otherwise. ECF No. 33 at 2-4. Plaintiff asserts that as soon as he had knowledge that Dr. Noriega's act of deliberate indifference caused the failure to diagnose ...