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Brown v. Naseer

United States District Court, E.D. California

July 7, 2016

DEXTER BROWN, Plaintiff,
v.
SAHIR NASEER, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).

         In the 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 blood."

         On 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.

         Section 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, § 3084.7.

         Plaintiff 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.

         The November 6, 2013 response to petitioner's grievance is as follows:

The First Level Appeal . . . determined not to be a staff complaint and proceeded to be processed as disagreement with treatment.
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.
Appeal Decision:
Based upon the aforementioned information, your appeal is Partially Granted.

ECF No. 56 at 49-50. Plaintiff did not appeal this decision.

         In his 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 ...


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