United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BASED ON FAILURE
TO EXHAUST CLAIMS BE GRANTED OBJECTIONS, IF ANY, DUE WITHIN
Wayne King ("Plaintiff") is a state prisoner
proceeding pro se in this civil rights action filed
pursuant to 42 U.S.C. § 1983. Plaintiff filed the
Complaint commencing this action on November 29, 2012. (ECF
No. 1.) This action now proceeds with the First Amended
Complaint filed on September 2, 2014, alleging that
Defendants J. Chokatos and M. Stringer were deliberately
indifferent to Plaintiff's serious medical needs in
violation of the Eighth Amendment and also liable for medical
malpractice under California state law. (ECF No. 33.)
January 28, 2016, Chokatos and Stringer filed a motion for
summary judgment under Rule 56 on the grounds that the
undisputed facts establish that Plaintiff failed to exhaust
his available administrative remedies with respect to (1) all
claims asserted against Stringer, and (2) any claims against
Chokatos for conduct that occurred prior to October 31, 2011.
(ECF No. 46.) On March 21, 2016, Plaintiff filed an
opposition to the motion. (ECF No. 50.) Defendant Stringer
filed a reply on May 12, 2016 (ECF No. 60), and Defendant
Chokatos filed a reply on May 16, 2016 (ECF No. 62).
Defendants' motion for summary judgment is now before the
is in the custody of the California Department of Corrections
and Rehabilitation ("CDCR"), presently incarcerated
at Pleasant Valley State Prison ("PVSP"), where the
events at issue in the First Amended Complaint allegedly
occurred. Plaintiff's factual allegations follow.
2008, Plaintiff injured his spine and his injury worsened
over the next three years. Plaintiff was prescribed pain
medication. On July 25, 2011, Plaintiff collapsed when his
legs lost function due to severe back pain. Plaintiff was
placed on a stretcher and transported to the prison's
medical clinic. On July 28, 2011, Plaintiff was examined by
Dr. Chokatos. Plaintiff reported severe spinal pain, numbness
of his left leg and foot, and professed a need for a
wheelchair. Dr. Chokatos failed to provide Plaintiff with a
wheelchair or pain medication. Dr. Chokatos ordered an X-ray
of Plaintiff's lumbar spine. This X-ray revealed disc
narrowing of the L1-L5 vertebrae and spondylosis.
was again seen by Dr. Chokatos on August 2, 2011. Dr.
Chokatos failed to order an MRI of Plaintiff's spine and
falsely stated in his notes that there were no abnormal
orthopedic or neurological findings. On August 31, 2011,
Plaintiff was examined by J. Fortune, PA-C. Mr. Fortune
ordered an MRI of Plaintiff's lumbar spine and issued an
order that authorized Plaintiff a lower tier and bunk
assignment, and the use of a cane. Plaintiff's pain and
symptoms worsened over the next few weeks. An MRI revealed
several degenerative changes, including a left disc extrusion
that caused moderate to severe spinal stenosis in the left
lateral recess and impingement of the left exiting nerve
September 23, 2011, Randolph Wilson, PA-C, reviewed the MRI
results and examined Plaintiff. Mr. Wilson provided Plaintiff
with an order that authorized the use of a cane and
wheelchair for three months. Mr. Wilson also renewed
Plaintiff's prescription of pain medication. In addition,
Mr. Wilson referred Plaintiff to a neurologist and ordered
that at work Plaintiff must avoid prolonged standing,
walking, and lifting over fifteen pounds.
September 24, 2011, Plaintiff approached Stringer to receive
his daily pain medication. Stringer informed Plaintiff that
his medication had not been refilled. Plaintiff became
frustrated with Stringer, because this was the fourth time
she failed to send a timely refill order to the pharmacy.
Stringer then became irritated and said "you don't
need to take any meds." From September 24, 2011, to
September 26, 2011, Plaintiff did not receive pain
medication, leaving him in severe pain.
September 28, 2011, Plaintiff was seen by Dr. Chokatos. Dr.
Chokatos informed Plaintiff that "the LVN assigned to
your building said that she saw you run up and down the
stairs. I am taking your wheelchair and pain medication,
because you don't need them." Dr. Chokatos declined
Plaintiff's request to call Plaintiff's housing unit
officers to confirm that Plaintiff's condition had left
him unable to ambulate without assistance. However, Dr.
Chokatos wrote in his notes that "no one with
Plaintiff's condition could run up and down a flight of
stairs." Dr. Chokatos ordered that Plaintiff's pain
medication be discontinued, his wheelchair and cane be
confiscated, and that his lower cell and bunk assignments be
revoked. Dr. Chokatos also changed King's job limitations
from "avoid prolonged standing, walking, and
lifting" to "cannot continuously squat, crouch,
crawl." On October 13, 2011, Dr. Chokatos wrongfully
removed Plaintiff from the disability placement program by
falsely stating that there was "no evidence of a
significant mobility impairment." On October 19, 2011,
Plaintiff appeared before the Clinical Case Management Review
Committee ("CCMRC") regarding his continued
complaints of pain. The CCMRC reviewed the medical evidence
and concluded that Plaintiff's complaints of pain and
symptoms were consistent with all objective medical evidence.
The CCMRC recommended that Plaintiff see a neurosurgeon,
remain in a wheelchair, and receive pain medication. Dr.
Chokatos ignored the CCMRC's orders.
October 28, 2011, a neurosurgeon, Majid Rahimifar, M.D.,
evaluated Plaintiff and reviewed the medical records. Dr.
Rahimifar diagnosed Plaintiff with spinal stenosis and a left
foot drop resulting from a ruptured L4-L5 disc. Dr. Rahimifar
recommended Plaintiff receive lower back surgery. Dr.
Chokatos received Dr. Rahimifar's medical report, but did
not refer Plaintiff for lower back surgery.
October 31, 2011, Plaintiff attended a medical appointment
with Dr. Chokatos. Dr. Chokatos made Plaintiff sit and wait
outside the medical clinic for over five hours. On two
occasions, other inmates complained that Plaintiff's back
pain was progressively worsening. Each time an inmate
complained, Dr. Chokatos stated "[Plaintiff] can either
wait for his appointment or refuse it." Dr. Chokatos was
observed standing at the clinic door watching Plaintiff while
laughing with the other medical staff. Plaintiff's back
pain became so severe that when he stood his legs gave out
and he collapsed. The medical staff did not respond and Dr.
Chokatos was observed watching Plaintiff through a window.
Officers sounded the alarm for a medical emergency and
strapped Plaintiff to a stretcher. Plaintiff was taken into
Dr. Chokatos's office. Plaintiff begged Dr. Chokatos to
allow him to lie on his side instead of his back, which made
the pain worse. Plaintiff's pleas were ignored and he
lost consciousness. Dr. Chokatos ordered medical staff to
wheel Plaintiff's gurney into the clinic holding cage.
Plaintiff lost consciousness again because of the pain. He
regained consciousness in the back of an ambulance in route
to the hospital. At the hospital, Plaintiff was evaluated by
Mr. Wilson, PA-C. Mr. Wilson ordered that Plaintiff be
transferred to Bakersfield Memorial Hospital
("BMH"). At BMH, Plaintiff received emergency
surgery to remove a herniated disc.
MOTION FOR SUMMARY JUDGMENT BASED ON EXHAUSTION
Statutory Exhaustion Requirement
1997e(a) of the Prison Litigation Reform Act of 1995
("PLRA") provides that A[n]o action shall be
brought with respect to prison conditions under [42 U.S.C. Â§
1983], or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.'' 42 U.S.C. § 1997e(a). Prisoners are
required to exhaust the available administrative remedies
prior to filing suit. Jones v. Bock, 549 U.S. 199,
211 (2007); McKinney v. Carey, 311 F.3d 1198,
1199-1201 (9th Cir. 2002). Exhaustion is required regardless
of the relief sought by the prisoner and regardless of the
relief offered by the process, Booth v. Churner, 532
U.S. 731, 741 (2001), and the exhaustion requirement applies
to all prisoner suits relating to prison life, Porter v.
Nussle, 534 U.S. 516, 532 (2002).
untimely or otherwise procedurally defective appeal will not
satisfy the exhaustion requirement. Woodford v. Ngo,
548 U.S. 81, 90, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368
(2006). When an inmate's administrative grievance is
improperly rejected on procedural grounds, however,
exhaustion may be excused as "effectively
unavailable." Sapp v. Kimbrell, 623 F.3d 813,
823 (9th Cir. 2010); see also Nunez v. Duncan, 591
F.3d 1217, 1224-26 (9th Cir. 2010) (warden's mistake
rendered prisoner's administrative remedies
"effectively unavailable"); Ward v.
Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012)
(exhaustion excused where futile); Brown v. Valoff,
422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to
proceed to third level where appeal granted at second level
and no further relief was available).
test for deciding whether a grievance procedure was
unavailable uses an objective standard. Albino v.
Baca (Albino I), 697 F.3d 1023, 1035 (9th Cir.
2012). "[A]ffirmative actions by jail staff preventing
proper exhaustion, even if done innocently, make
administrative remedies effectively unavailable."
Id. at 1034. An inmate may demonstrate the
unavailability of remedies by showing "(1) that jail
staff affirmatively interfered with his ability to exhaust
administrative remedies or (2) that the remedies were
unknowable." Id. at 1033. The inmate must make
"a good-faith effort" to determine and comply with
a prison's grievance procedures. Id. at 1035.
"there can be no absence of exhaustion unless
some relief remains available, 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." Brown, 422 F.3d at
California Department of Corrections and Rehabilitation
(CDCR) Administrative Grievance System
Court takes judicial notice of the fact that the State of
California provides its prisoners and parolees the right to
appeal administratively "any policy, decision, action,
condition, or omission by the department or its staff that
the inmate or parolee can demonstrate as having a material
adverse effect upon his or her health, safety, or
welfare." Cal.Code Regs. tit. 15 § 3084.1(a). The
process is initiated by submitting a CDCR Form 602 ("602
form"). Id. at § 3084.2(a).
time of the events giving rise to the Complaint in this
action, California prisoners were required to submit appeals
within thirty calendar days of the event being appealed, and
the process was initiated by submission of the appeal at the
first level. Id. at §§ 3084.7(a),
3084.8(c). Three levels of appeal were involved, including
the first level, second level, and third level. Id.
at § 3084.7. The third level of review exhausts
administrative remedies. Id. at § 3084.7(d)(3).
In order to satisfy § 1997e(a), California state
prisoners are required to use this process to exhaust their
claims prior to filing suit. Woodford, 548 U.S. at
85; McKinney, 311 F.3d. at 1199-1201.
Motion for Summary Judgment for Failure to
failure to exhaust in compliance with section 1997e(a) is an
affirmative defense under which Defendant has the burden of
raising and proving the absence of exhaustion.
Jones, 549 U.S. at 216; Wyatt v. Terhune,
315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the
United States Court of Appeals for the Ninth Circuit issued a
decision overruling Wyatt with respect to the proper
procedural device for raising the affirmative defense of
exhaustion under § 1997e(a). Albino v. Baca
(Albino II), 747 F.3d 1162, 1168-69 (9th Cir. 2014)
(en banc). Following the decision in Albino II,
defendants may raise exhaustion deficiencies as an
affirmative defense under § 1997e(a) in either (1) a
motion to dismiss pursuant to Rule 12(b)(6) or (2) a motion
for summary judgment under Rule 56. Id. If the Court
concludes that Plaintiff has failed to exhaust, the proper
remedy is dismissal without prejudice of the portions of the
complaint barred by § 1997e(e). Jones, 549 U.S.
at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76
(9th Cir. 2005).
judgment is appropriate when it is demonstrated that there
"is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); Albino II, 747 F.3d at 1169
("If there is a genuine dispute about material facts,
summary judgment will not be granted.") A party
asserting that a fact cannot be 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
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials, or
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c)(1). The Court may consider other materials
in the record not cited to by the parties, but is not
required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San
Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th
Cir. 2001); accord Simmons v. Navajo County, Ariz.,
609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence
at the summary judgment stage, the Court "must draw all
reasonable inferences in the light most favorable to the
nonmoving party." Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th
Cir. 2011). The Court must liberally construe Plaintiff's
filings because he is a pro se prisoner. Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)
(quotation marks and citations omitted).
summary judgment motion for failure to exhaust administrative
remedies, 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." Albino II, 747 F.3d 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.
DEFENDANT'S STATEMENT OF UNDISPUTED FACTS (DUF)
During the time period relevant to the operative complaint,
Plaintiff Darrell Wayne King (J-96720) was a prisoner within
the custody of the California Department of Corrections and
Rehabilitation ("CDCR") and was incarcerated at
Pleasant Valley State Prison ("PVSP"). (ECF No. 33
inmate appeal or administrative remedy process was available
for Plaintiff's use at ...