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Tenore v. Horowitz

United States District Court, E.D. California

July 8, 2019

MICHAEL TENORE, Plaintiff,
v.
E. HOROWITZ, et al, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STALES MAGISLRALE JUDGE.

         Plaintiff 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.

         I. Plaintiffs Operative Pleading

         This 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.)

         Once 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.)

         Plaintiff 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.)

         II. Plaintiffs Motion for Summary Judgment

         On 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.[1] 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.

         The 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.

         III. Plaintiffs Sur-reply

         Defendants 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).

         Defendants' 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.

         Moreover, 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, [2] 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' motion.

         IV. Defendants' Motion for Summary Judgment

         A. The Parties' Positions

         1. Defendants' Motion

         Defendants 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.

         2. Plaintiffs Opposition and Reply

         Initially, 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).

         However, 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.

         Further, 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 considered.[3]

         In his 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 available.

         Plaintiff 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.[4] 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.)

         With 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, 2015.
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.)

         In his "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.)

         3. Defendants' Reply

         In 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 3, 7-15.)

         Defendants 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, § 3084.6(a)(4).

         As to 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. Soltanian-Zadeh.

         Finally, 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 early 2016.

         4. Plaintiffs Sur-Reply

         In his 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 at 4.)

         B. Legal Standards for Summary Judgment

         Summary 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 ...

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