United States District Court, N.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT DKT NO.
THELTON E. HENDERSON, UNITED STATES DISTRICT JUDGE
Ian Bulandr, a state prisoner, filed this pro se action under
42 U.S.C. § 1983. This case proceeds under the first
amended complaint (Docket No. 10) against Defendants Nurse
Risenhoover and Dr. Bal with allegations that they failed to
properly treat Plaintiff's eczema like rashes in
violation of the Eighth Amendment. Defendants filed a motion
for summary judgment stating that Plaintiff failed to exhaust
his administrative remedies, Defendants were not deliberately
indifferent to his serious medical needs and Defendants did
not personally participate in the alleged acts. Plaintiff
filed an opposition and Defendants filed a reply. For the
reasons that follow, Defendants' motion is GRANTED.
judgment is properly granted when no genuine disputes of
material fact remain and when, viewing the evidence most
favorably to the nonmoving party, the movant is clearly
entitled to prevail as a matter of law. Fed.R.Civ.P. 56(c);
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285,
1288-89 (9th Cir. 1987). The moving party bears the burden of
showing there is no material factual dispute.
Celotex, 477 U.S. at 331. Therefore, the Court must
regard as true the opposing party's evidence, if
supported by affidavits or other evidentiary material.
Id. at 324; Eisenberg, 815 F.2d at 1289.
The Court must draw all reasonable inferences in favor of the
party against whom summary judgment is sought. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Intel Corp. v. Hartford Accident & Indem.
Co., 952 F.2d 1551, 1559 (9th Cir. 1991).
moving party bears the initial burden of identifying those
portions of the pleadings, discovery and affidavits which
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. If the moving party meets
its burden of production, the burden then shifts to the
opposing party to produce “specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists.” Bhan v. NME Hosps., Inc., 929
F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S.
994 (1991); Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1105 (9th Cir. 2000).
facts that would preclude entry of summary judgment are those
which, under applicable substantive law, may affect the
outcome of the case. The substantive law will identify which
facts are material. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Questions of fact regarding
immaterial issues cannot defeat a motion for summary
judgment. Reynolds v. County of San Diego, 84 F.3d
1162, 1168-70 (9th Cir. 1996), rev'd on other grounds
by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir.
1997). A dispute as to a material fact is genuine if there is
sufficient evidence for a reasonable jury to return a verdict
for the nonmoving party. Anderson, 477 U.S. at 248.
Prison Litigation Reform Act of 1995 (“PLRA”)
amended 42 U.S.C. § 1997e to provide that “[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). Exhaustion
is mandatory and no longer left to the discretion of the
district court. Woodford v. Ngo, 548 U.S. 81, 84
(2006) (citing Booth v. Churner, 532 U.S. 731, 739
(2001)). “Prisoners must now exhaust all
‘available' remedies, not just those that meet
federal standards.” Id. at 85. Even when the
relief sought cannot be granted by the administrative
process, i.e., monetary damages, a prisoner must still
exhaust administrative remedies. Id. at 85-86
(citing Booth, 532 U.S. at 734).
PLRA's exhaustion requirement requires “proper
exhaustion” of available administrative remedies.
Id. at 93. This requirement cannot be satisfied
“by filing an untimely or otherwise procedurally
defective administrative grievance or appeal.”
Id. at 83-84. “The text of 42 U.S.C. §
1997e(a) strongly suggests that the PLRA uses the term
‘exhausted' to mean what the term means in
administrative law, where exhaustion means proper
exhaustion.” Id. at 93. Therefore, the PLRA
exhaustion requirement requires proper exhaustion.
Id. “Proper exhaustion demands compliance with
an agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.” Id. at 90-91. A prisoner must
complete the administrative review process in accordance with
the applicable procedural rules, including deadlines, as a
precondition to bringing suit in federal court. See
id. at 87; see also Johnson v. Meadows, 418
F.3d 1152, 1159 (11th Cir. 2005) (holding that, to exhaust
remedies, a prisoner must file appeals in the place, and at
the time, the prison's administrative rules require).
California Department of Corrections and Rehabilitation
(“CDCR”) provides that inmates and parolees
“may appeal 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). “Three levels of
formal review are provided, and a prisoner exhausts the
grievance process when he completes the third level.”
Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010).
indifference to serious medical needs violates the Eighth
Amendment's proscription against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
Cir. 1992), overruled on other grounds, WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th
Cir. 1997) (en banc). A determination of "deliberate
indifference" involves an examination of two elements:
the seriousness of the prisoner's medical need and the
nature of the defendant's response to that need.
Id. at 1059.
"serious" medical need exists if the failure to
treat a prisoner's condition could result in further
significant injury or the "unnecessary and wanton
infliction of pain." Id. The existence of an
injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of
a medical condition that significantly affects an
individual's daily activities; or the existence of
chronic and substantial pain are ...