United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STALES MAGISLRALE JUDGE.
is a state prisoner, proceeding pro se, with a civil rights
action under 42 U.S.C. § 1983. Defendants' motion
for summary judgment based on exhaustion of administrative
remedies is before the court. Defendants do not dispute that
plaintiff exhausted his claims concerning his requests for
in-cell feeding and a wedge pillow. Rather, defendants seek
summary judgment on the grounds that plaintiff failed to
exhaust his administrative remedies as to his claims that Dr.
Smith and Dr. Horowitz failed to timely diagnose plaintiffs
cancer and improperly delayed plaintiffs surgery, and Dr.
Soltanian-Zadeh refused to order J-tube feeding. In response,
plaintiff filed his own motion for summary judgment, a
"final statement," and an unauthorized sur-reply.
As discussed below, the undersigned recommends that
defendants' motion be granted in part, plaintiffs motion
for summary judgment on the merits be dismissed without
prejudice, and this action proceed solely on plaintiffs
claims against Dr. Smith and Dr. Horowitz.
Plaintiffs Operative Pleading
action proceeds on plaintiffs October 25, 2017 verified
amended complaint, in which plaintiff alleges the following.
On February 4, 2015, plaintiff received a diagnosis of
"indefinite low grade dysplasia. A follow-up examination
is recommended." (ECF No. 9 at 7.) Five months passed
without such examination or further testing, and on June 30,
2015, plaintiff was diagnosed with adenocarcinoma. Such delay
by defendants Dr. Horowitz and Dr. Smith, as well as their
failure to follow the medical recommendation, allowed
plaintiff s condition to develop into esophageal cancer,
which necessitated surgery to remove parts of plaintiff s
stomach and esophagus. Dr. Horowitz and Dr. Smith were aware
that plaintiffs brother also had esophageal adenocarcinoma
and died of the disorder in 1999 at age 52. Plaintiffs
surgery was delayed another four months, allowing further
development of the cancer. On October 22, 2015, plaintiff had
surgery for the removal of his esophagus and parts of his
stomach and small intestines. Plaintiff contends that had the
cancer been diagnosed or treated earlier, he could have
received less invasive medical treatment such as endoscopic
resection, or radiofrequency or thermal ablation. (ECF No. 9
at 6-16, 18.)
plaintiff returned to Mule Creek State Prison
("MCSP") following his surgery at an outside
hospital, Dr. Soltanian-Zadeh was the primary care physician
at the MCSP infirmary from November 2 through 30, 2015. (ECF
No. 9 at 16.) Dr. Soltanian-Zadeh refused to order medically
necessary J-tube feeding, instead ordering syringe-forced
feeding which overloaded plaintiffs recently re-sectioned
abdominal tract, causing projectile vomiting, forceful
diarrhea, dizziness, and massive pain (also known as
"dumping syndrome"), allegedly claiming "we
don't have the equipment here for that." (ECF No. 9
at 16.) Dr. Soltanian-Zadeh should have sent plaintiff to a
hospital that had the proper equipment to avoid subjecting
plaintiff to the excruciatingly painful dumping syndrome
"that lasted for many hours each feeding over a ten day
period." (ECF No. 9 at 17-18.)
also alleges that following the surgery, Dr. Horowitz and Dr.
Smith denied plaintiff in-cell feeding and a wedge pillow.
(ECF No. 9 at 21-22; 22-23.)
Plaintiffs Motion for Summary Judgment
January 2, 2019, plaintiff filed a document entitled,
"Motion for Summary Judgment, FRCP Rule 56, Local Rule
260." (ECF No. 46.) However, as pointed out by
defendants, plaintiff failed to provide a statement of
undisputed facts, an affidavit or declaration in support, did
not identify material facts in his motion, and cited no
relevant portions of any pleading, affidavit, deposition, or
other discovery response upon which plaintiff relies. Despite
referring to multiple exhibits by specific number, plaintiff
failed to file or serve any exhibit with his
motion. In his motion, plaintiff raises multiple
arguments concerning exhaustion, apparently in response to
defendants' motion, but also argues that he should be
granted summary judgment on the merits of his claims.
undersigned construes plaintiffs motion as an opposition to
defendants' motion for summary judgment regarding
exhaustion. To the extent plaintiff contends he is entitled
to summary judgment on the merits of his claims as a matter
of law, his motion is wholly unsupported by competent
evidence and should be denied without prejudice to its
renewal following resolution of defendants' motion for
summary judgment on the issue of exhaustion.
request that plaintiffs sur-reply regarding the motion (ECF
No. 52) be stricken. Rule 56 of the Federal Rules of Civil
Procedure does not authorize the filing of a sur-reply. This
court's local rules do not provide for the filing of
sur-replies regarding motions. See Local Rule
230(1). However, when a party has raised new arguments or
presented new evidence in a reply to an opposition, the court
may permit the other party to counter the new arguments or
evidence. El Polio Loco v. Hashim, 316 F.3d 1032,
1040-41 (9th Cir. 2003).
reply addressed plaintiffs arguments in opposition to the
motion for summary judgment regarding exhaustion; however,
defendants cited, for the first time, Ross v. Blake,
136 S.Ct. 1850, 1853-54 (2016), and argued that none of the
Ross exceptions apply. (ECF No. 51 at 2-3.) Thus,
the court finds it appropriate to consider plaintiffs
sur-reply in which plaintiff addressed, for the first time,
the application of Ross. Defendants' motion to
strike the sur-reply (ECF No. 53) is denied.
because plaintiff filed a counter-motion, the undersigned
considers plaintiffs "final statement" (ECF No. 50)
as his reply to defendants' opposition to plaintiffs
counter-motion. Even though it was untimely,  the undersigned
finds good cause to grant plaintiff an extension of time,
nunc pro tunc, and the reply is deemed timely-filed.
The court acknowledges that plaintiff argued both the merits
of his claims and the exhaustion of administrative remedies
in his "final statement," but in an abundance of
caution, the court has considered plaintiffs arguments
concerning exhaustion in connection with defendants'
Defendants' Motion for Summary Judgment
The Parties' Positions
contend that plaintiff failed to exhaust his administrative
remedies as to his claims that Dr. Smith and Dr. Horowitz did
not timely diagnose plaintiffs cancer and improperly delayed
plaintiffs surgery, and Dr. Soltanian-Zadeh refused to order
drip feeding. Defendants submitted evidence that plaintiff
failed to appeal his claims as to Dr. Smith and Dr. Horowitz
through the third level of review, and plaintiff filed no
administrative appeal as to plaintiffs drip feeding claim
against Dr. Soltanian-Zadeh.
Plaintiffs Opposition and Reply
the court notes that plaintiff has largely failed to comply
with Federal Rule of Civil Procedure 56(c)(1)(A), which
requires that "a party asserting that a fact... is
genuinely disputed must support the assertion by . . . citing
to particular parts of materials in the record. . . ."
Plaintiff has also failed to timely file a separate document
disputing defendants' statement of undisputed facts that
fully complies with Local Rule 260(b).
it is well-established that the pleadings of pro se litigants
are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam).
Nevertheless, "[p]ro se litigants must follow the same
rules of procedure that govern other litigants."
King v. Atiyeh. 814 F.2d 565, 567 (9th Cir. 1987),
overruled on other grounds, Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012) (en banc). That
said, an inmate's choice to proceed without counsel
"is less than voluntary" and is subject to
"the handicaps . . . detention necessarily imposes upon
a litigant," such as "limited access to legal
materials" as well as "sources of proof."
Jacobsen v. Filler, 790 F.2d 1362, 1364-65 & n.4
(9th Cir. 1986). Therefore, prisoners should not be held to a
standard of "strict literalness" with respect to
the requirements of the summary judgment rule. Id.
the Ninth Circuit has cautioned that district courts are to
"construe liberally motion papers and pleadings filed by
pro se inmates and should avoid applying summary judgment
rules strictly." Thomas v. Ponder, 611 F.3d
1144, 1150 (9th Cir. 2010). The non-moving party's
evidence "is to be believed, and all justifiable
inferences are to be drawn in [his] favor .... [his] version
of any disputed issue of fact is thus presumed correct."
Eastman Kodak Co. v. Image Technical Services, Inc.,
504 U.S. 451, 456 (1992) (internal quotation marks omitted).
Accordingly, the court considers the record before it in its
entirety despite plaintiff's failure to be in strict
compliance with the applicable rules. However, only those
assertions which have evidentiary support in the record are
opposition, plaintiff generally complains that the
administrative appeals process of the California Department
of Corrections and Rehabilitation ("CDCR) is futile
because of delays and how long it takes to complete three
levels of review. He argues that he should be excused from
exhaustion because administrative remedies were not
contends that the unique circumstances of his case made the
filing of a 602 appeal regarding the repeated and unnecessary
delays in medical treatment moot because plaintiff was
repeatedly told by medical staff that he would be going out
for surgery, citing exhibits he did not provide in connection
with this motion. (ECF No. 46 at 1.) Plaintiff claims that
his appeal log no. 15047222 became moot because he had
surgery before he could send his appeal for third level
review. Plaintiff states that he did file appeals
as to the delay in surgery, but was unable to complete the
third level review "due to the timing by CDCR
reviewers." (ECF No. 46 at 1.)
regard to Dr. Soltanian-Zadeh, plaintiff contends that while
being improperly fed by syringe into his small intestines, he
was suffering horrible, excruciating distress, including
pain, vomiting, severe weight loss, and nausea, and was
transferred six times in four months, rendering any available
administrative remedies unavailable. (ECF No. 46 at 3.)
Plaintiff recounts the following transfers:
a. To UCD for the esophagectomy on October 22, 2015.
b. Returned to MCSP on November 2, 2015.
c. To UCD for stabilization on November 27, 2015.
d. Returned to MCSP on November 30, 2015.
e. Transferred to High Desert State Prison on December 1,
f. Transferred to California Medical Center in Vacaville on
December 31, 2015.
g. Returned to MCSP on February 22, 2016.
(ECF No. 46 at 3-4.) Plaintiff concedes that the transfers to
UCD were not punitive, but claims his second hospitalization
was due to his deterioration caused by Dr.
Soltanian-Zadeh's failure to order the proper feeding
procedure. (ECF No. 46 at 4.)
"Final Statement," plaintiff argues that all of his
past appeals demonstrate that the CDCR appeals process
"is no more than a pro-forma and substanceless [sic]
form of documentary subterfuge," and is "futile and
irrelevant." (ECF No. 50 at 2.) He states it can take
more than nine months to take an appeal through the third
level of review. Given such delay, plaintiff argues it was
futile for him to file an appeal as to the J-tube feeding.
(ECF No. 50 at 2.) Plaintiff argues that his subsequent
transfers then made it "effectively impossible" to
file an appeal within the filing deadlines. (Li at 3.)
Plaintiff argues that the delays in receiving appeal
responses, in addition to CDCR rarely granting any of the
appeals, demonstrates there is no viable administrative
appeal process available. (Id. at 4.)
their reply, defendants argue that plaintiffs general
criticism of the CDCR's appeals process is unavailing
because the appeals procedure was available to plaintiff, and
it is undisputed that plaintiff used it for two of his claims
in this action. Defendants dispute that plaintiffs transfers
made it impossible for him to file appeals. Defendants argue
that plaintiff is not entitled to an exception to the
exhaustion requirement because there is no evidence that the
inmate grievance system at MCSP was a simple dead end or
incapable of use. It is undisputed that both MCSP and CDCR at
all times had an administrative appeal process available for
inmates to submit medical and non-medical appeals, and the
process includes a comprehensive electronic database to log
and track inmate appeals at all levels. (ECF No. 51 at 3.)
Indeed, plaintiff routinely used the appeals process at MCSP,
submitting more than fifteen health care appeals since 2014,
and received relief or third level appeal responses on
multiple occasions. (ECF No. 51 at 3, citing ECF No. 38-4 at
point out that plaintiff does not argue that he was
physically unable to prepare an appeal, or did not have
access to the appeals process at any time, but that even if
he had, the appeals process allows additional time for such
circumstances. (ECF No. 51 at 3.) For example, a late appeal
may be accepted where the inmate was medically incapacitated
and unable to file. Cal. Code Regs. tit. 15, §
plaintiffs J-tube feeding claim, it is undisputed that
plaintiff did not submit an appeal on this issue. Yet,
plaintiff submitted many appeals on other issues. (UDF Nos.
6, 7, 10, 11, 12, 13; see also ECF No. 38-4 at 7-15
(grievance history printout).) Thus, defendants argue it is
clear that plaintiff failed to use the administrative appeal
process available to him to exhaust his claim as to Dr.
defendants argue that it is undisputed that plaintiff did
file an appeal as to the alleged delayed cancer diagnosis and
treatment claim, but he failed to pursue such appeal through
the third level of review. (ECF No. 51 at 4.) Following the
second rejection of this appeal, plaintiff submitted no
further appeals concerning such issues. Plaintiff failed to
address the rejection of this appeal, and does not explain
why he did not comply with the instructions included in the
rejection notice. Moreover, this appeal was rejected in
January and February of 2017, long after plaintiffs cancer
surgery in 2015, and after he was transferred back to MCSP in
sur-reply, plaintiff argues that the administrative appeal
process is ineffective, and is futile given the delays.
Plaintiff claims that when an inmate is transferred, it can
take months for mail to catch up with the inmate. When an
inmate is hospitalized in an outside hospital, he is not
allowed any correspondence, including legal mail. Plaintiff
argues that simply because an appeal process is available
does not make it effective. (ECF No. 52 at 3.) Plaintiff
argues that he was unable to use the process for the 27 days
he was being force fed by Dr. Soltanian-Zadeh. Finally,
plaintiff claims that any administrative appeal about the
delay in surgery would have been after the fact, and would
not have gotten him an earlier surgery, particularly where it
takes months and months to get a final decision. (ECF No. 52
Legal Standards for Summary Judgment
judgment is appropriate when it is demonstrated that the
standard set forth in Federal Rule of Civil Procedure 56 is
met. "The court shall grant summary judgment if the
movant shows 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).
Under summary judgment practice, the moving party always
bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those
portions of "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any," which it ...