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King v. Chokatos

United States District Court, E.D. California

June 20, 2016

DARRELL WAYNE KING, Plaintiff,
v.
J. D. CHOKATOS, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST CLAIMS BE GRANTED OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

         I. BACKGROUND

         Darrell 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.)

         On 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 Court.

         II. PLAINTIFF'S ALLEGATIONS

         Plaintiff 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.

         In 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.

         Plaintiff 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 roots.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         III. MOTION FOR SUMMARY JUDGMENT BASED ON EXHAUSTION

         A. Statutory Exhaustion Requirement

         Section 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. § 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).

         An 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).

         The 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.

         Because "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 936-37.

         B. California Department of Corrections and Rehabilitation (CDCR) Administrative Grievance System

         The 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).

         At the 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.

         C. Motion for Summary Judgment for Failure to Exhaust

         The 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)[1] 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).

         Summary 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).

         In a 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.

         IV. DEFENDANT'S STATEMENT OF UNDISPUTED FACTS (DUF) [2]

         1. 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 at 2:7-9.)[3]

         2. An inmate appeal or administrative remedy process was available for Plaintiff's use at ...


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