United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST
(Document 65) ORDER DISREGARDING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE (Document 93)
DENNIS L. BECK, Magistrate Judge.
Plaintiff Joseph Raymond McCoy ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on June 19, 2012. This action is proceeding on Plaintiff's First Amended Complaint ("FAC") against Defendants Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tann for deliberate indifference in violation of the Eighth Amendment.
On November 5, 2014, Defendants filed the instant motion for summary judgment based on Plaintiff's failure to exhaust his administrative remedies. Plaintiff filed his opposition on February 12, 2015. On April 7, 2015, Defendants filed their reply, as well as objections to Plaintiff's evidence. The motion is deemed submitted pursuant to Local Rule 230(1).
A. PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California, where the events at issue occurred.
Plaintiff alleges that on June 11, 2009, Defendant Stronach examined him and determined that he had an infection of his right foot. Plaintiff alleges that she knowingly overstepped the scope of her LVN license by prescribing him two tubes of anti-fungal cream. Defendant Stronach also instructed Plaintiff to return to the general population, despite his request to see qualified medical personnel and despite obvious signs of swelling, oozing and difficulty walking.
On June 14, 2009, after following Defendant Stronach's instructions, Plaintiff noticed an increase in swelling, discoloration and drainage, and he had more difficulty walking. Defendant Stronach again refused to provide Plaintiff with access to specialized medical personnel.
On June 25, 2009, Clark Kelso delegated Defendant Doctor Gonzales and Defendant Stronach to carry out Plaintiff's medical orders. Plaintiff told Defendants Gonzales and Stronach that while he was trying to shower, the splint on his right leg became contaminated. Instead of referring him to medical personnel to replace his splint, and despite observing discharge, pain, swelling and difficulty walking, Defendant Gonzales instructed Defendant Stronach to remove the splint and issue an Ace Wrap. Defendant Stronach instructed Plaintiff to place the Ace Wrap on his own foot and when Plaintiff disagreed, Defendants Gonzales and Stronach ordered Plaintiff to leave the clinic.
On June 30, 2009, Defendant Gonzales interviewed Plaintiff. When Plaintiff began to explain his dissatisfaction with his medical treatment, Defendant Gonzales told Plaintiff that he would order Defendant Stronach to ensure that staff under her supervision cleaned the wound every two days for one week. Defendant Gonzales did not send Plaintiff to a specialist or issue protective footwear.
On August 13, 2009, Mr. Kelso delegated Defendants Gonzales and Stronach to comply with orders for Plaintiff's medical treatment. Defendant Gonzales issued a priority ducat authorizing custody staff to make sure Plaintiff attended his medical appointment. When custody staff told them that the wheelchair that had been issued to Plaintiff had malfunctioned and he could not make the appointment, Defendants Gonzales and Stronach filed a report charging Plaintiff with a rules violation for destroying state property. Defendant Gonzales and Dr. Enenmoh had another prisoner retrieve a wheelchair from the clinic and go get Plaintiff. Plaintiff was accompanied by Defendant LeMay.
When he arrived, Defendants Snell, Gonzales, LeMay and Stronach told Plaintiff that he was being charged with destruction of state property. When Plaintiff asked for another wheelchair, Defendant Gonzales told Plaintiff that he did not need another one. He instructed Defendants Stronach and LeMay to issue Plaintiff another inmate's walker. When Plaintiff refused and told them that both of his feet were now infected and that walking without protective footwear would be dangerous, Defendants Gonzales, Stronach, Snell and LeMay decided to force Plaintiff to remain in the general population without protective footwear.
On August 25, 2009, Plaintiff asked other prisoners to find a wheelchair so that he could go to the medical clinic. Plaintiff was in severe pain, with excessive swelling, burning and blood in his urine. When Plaintiff arrived, Defendants Gonzales, Stronach and LeMay asked Plaintiff where he got the wheelchair. Plaintiff told them he got it from another prisoner and Defendant Gonzales ordered Defendants Stronach and LeMay to confiscate the wheelchair. Plaintiff tried to disagree, but Defendant Gonzales immediately activated his prison emergency alarm. Defendants Beltran, Fisher, Snell and Tann responded and Plaintiff told them that he could not walk. However, Defendants Gonzales, Stronach and LeMay told them to confiscate the borrowed assistive device. Defendant Gonzales also told Defendants Beltran, Fisher, Snell and Tann to remove Plaintiff from the medical clinic, and they ordered staff to pick Plaintiff up off a bench and place him on another bench outside. Plaintiff was given a walker and told to return to his housing unit. Plaintiff tried to walk, but the pain caused him to pass out. When he came to, he felt like he was being carried and noticed that Defendants Gonzales, Stronach and LeMay were standing over him. Plaintiff passed out again and when he regained consciousness, he told Defendant Gonzales that he had severe pain in his back, shoulders and head and requested medical assistance.
Instead of referring Plaintiff to a medical expert to provide appropriate treatment, Defendant Gonzales instructed Defendants Stronach, LeMay, Beltran, Snell, Fisher and Tann to again remove Plaintiff from the clinic. Custody staff was instructed to assist Gonzales, Stronach, and LeMay in removing Plaintiff. Plaintiff was lowered to the ground from a gurney and rolled to the pavement. While Defendants Stronach, Gonzales, LeMay, Beltran, Snell, Fisher and Tann watched, Plaintiff made attempts to remove himself from the heat of the sun by crawling on his hands and knees back to his assigned housing.
On December 21, 2009, medical specialists at Mercy Hospital diagnosed disseminated coccidiomycosis of the right navicular bone.
B. LEGAL STANDARD
The failure to exhaust is subject to a motion for summary judgment in which the court may look beyond the pleadings. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
Defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and must "prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, " id. at 1172. If Defendants carry this burden, the burden of production shifts to Plaintiff "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 . This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). "If the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is ...