United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a California prisoner proceeding pro se with an action for
violation of civil rights under 42 U.S.C. § 1983. On
December 2, 2014, the court screened plaintiff's third
amended complaint pursuant to 28 U.S.C. § 1915A(a) and
found that the complaint states a claim upon which relief can
be granted under the Eighth Amendment against defendant
Naseer. All other defendants and claims were dismissed.
Defendant Naseer (defendant) has now filed a motion for
summary judgment in which he argues, among other things, that
plaintiff did not exhaust available administrative remedies
with respect to plaintiff's remaining claim prior to
filing suit. The court notes that plaintiff filed an amended
opposition to the motion on January 26, 2016 (ECF No. 56).
Defendant has not objected to the amended opposition.
Accordingly, the court considers the amended opposition and
not the original filed on January 22, 2016 (ECF No. 55).
operative third amended complaint (ECF No. 22), which is
signed under the penalty of perjury, plaintiff alleges that
between September 29 and October 1, 2013, he suffered from
chest pain, muscle weakness, nausea, vomiting and other
symptoms consistent with a condition known as
hyperkalemia-too much potassium in the blood. Plaintiff
alleges that while he was suffering from these symptoms,
defendant, a physician employed at the California Health Care
Facility (CHCF) in Stockton, wrote medical orders placing
plaintiff on "fluid restrictions, " thereby
"preventing plaintiff from implementing counter-measures
to abate the toxicity of potassium in plaintiff's
October 1, 2013, plaintiff's chest pain and other
symptoms became worse. Plaintiff was sent to San Joaquin
General Hospital and tests performed there revealed plaintiff
was hyperkalemic with a "critical value" of 5.9.
1997(e)(a) of Title 42 of the United States Code provides
that "[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, . . .
until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997(e)(a). Administrative
procedures generally are exhausted with respect to the
California prisoner grievance process once the third level of
review is complete. The third level of review constitutes the
decision of the Secretary of the California Department of
Corrections and Rehabilitation. Cal. Code Regs. tit. 15,
admits he never presented his claim that defendant improperly
placed plaintiff on "fluid restrictions" between
September 29 and October 1, 2013 for review at the third
level. Plaintiff did file a grievance with respect to this
claim, however. In the grievance, which was submitted on
October 3, 2013, plaintiff asserted that on October 1, 2013,
he was placed on fluid restrictions by defendant. Plaintiff
complained that he did not give his "informed
consent" to this. Plaintiff asked that an investigation
by internal affairs be commenced. ECF No. 56 at 52-54.
November 6, 2013 response to petitioner's grievance is as
The First Level Appeal . . . determined not to be a staff
complaint and proceeded to be processed as disagreement with
A review of your appeal with attachment(s), Unit Health
Record (UHR), and all pertinent departmental policies and
procedures were reviewed.
You requested to discontinue fluid restriction that was
administered by Dr. Naseer. The eUHR was reviewed. You were
interviewed face to face on the date of this evaluation. You
were explained and understood the consequences of drinking
excessive amounts of water and you made it known that you
would take responsibility for that. You signed a refusal form
and the fluid restriction was discontinued.
Based upon the aforementioned information, your appeal is
ECF No. 56 at 49-50. Plaintiff did not appeal this decision.
opposition, plaintiff asserts the remedy he sought in this
grievance was that the "fluid restrictions" medical
order be discontinued. ECF No. 56 at 56. Plaintiff asserts
that since the remedy he sought was provided at the first
level, further exhaustion was not necessary. There are two
problems with this argument. First, as indicated above, when
plaintiff submitted his grievance he submitted it as a
"staff complaint" appeal, requesting that certain
staff members be investigated and disciplined. Second, to the
extent the grievance could be construed as a request that the
order for "fluid restrictions" be lifted,
administrative remedies with respect to the claim for damages
in this action would not be exhausted upon the granting of
that request. The issue before this court concerns
defendant's past conduct, not whether plaintiff should
remain on "fluid restrictions." Plaintiff submitted
a second grievance before the first one was decided on
October 8, 2013. ECF No. 56 at 61-62. In this grievance,
plaintiff asserted that medical and custodial staff were
trying to kill him by various methods including denying him
the ability to self-treat hyperkalemia though "fluid
dilution" and "controlled blood-letting."
Plaintiff sought an immediate transfer to Atascadero State
Hospital. On October 16, 2013, plaintiff's appeal was
screened out at the first level because the appeal
"involves multiple issues that do ...