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Gaines v. California Dept. of Corrections

United States District Court, E.D. California

September 5, 2019



         Thurman Gaines (“Plaintiff”), a state prisoner, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendant's motion for summary judgment on the grounds of failure to exhaust administrative remedies.[1] For the reasons discussed below, it is recommended that Defendants' motion for summary judgment be denied without prejudice and the matter be referred for an evidentiary hearing.



         This action has a lengthy procedural history. Plaintiff filed this action on April 16, 2015. (ECF No. 1.) On August 28, 2015, the matter was reassigned to Chief Judge Ralph R. Beistline for all proceedings. (ECF No. 9.) On October 10, 2015, a screening order was filed dismissing Plaintiff's complaint for failure to state a claim and granting Plaintiff an opportunity to file an amended complaint by October 30, 2015. (ECF No. 10.)

         After being granted several extensions of time, Plaintiff filed an amended complaint on February 5, 2016. (ECF No. 15.) On February 11, 2016, an order issued dismissing the federal claims for failure to state a claim and granting Plaintiff leave to file a second amended complaint by March 31, 2016. (ECF No. 16.)

         Plaintiff filed a second amended complaint on April 11, 2016. (ECF No. 19.) On April 14, 2016, a screening order was filed finding that Plaintiff's second amended complaint stated a deliberate indifference claim against Dr. E. Horowitz (“Defendant”). (ECF No. 20.) Defendant filed a waiver of service and an answer was filed on August 18, 2016. (ECF Nos. 25, 27.) A discovery and scheduling order issued on this same date. (ECF No. 28.) The scheduling order was amended on September 9, 2016 and November 3, 2016. (ECF Nos. 30, 34.)

         On November 1, 2016, Defendant filed a motion to compel and a request for an extension of time to file a motion regarding exhaustion until after Plaintiff responded to discovery. (ECF Nos. 32, 33.) On November 3, 2016, Defendant's request for an extension of time was granted. (ECF No. 34.) On December 14, 2016, this matter was reassigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Stanley A. Boone. (ECF No. 36.)

         On December 17, 2016, Defendant filed a motion to modify the scheduling order. (ECF No. 37.) On July 14, 2017, Defendant's motion to compel was granted in part and denied in part and the motion to amend the scheduling order was granted. (ECF No. 38.) A new discovery and scheduling order issued. (ECF No. 39.)

         On August 24, 2017, Defendant filed a motion for sanctions based on Plaintiff's failure to comply with the July 14, 2017 order. (ECF No. 40.) On September 18, 2017, Plaintiff filed a notice of voluntary dismissal. (ECF No. 42.) On September 21, 2017, findings and recommendations issued recommending granting Plaintiff's motion for dismissal contingent upon him producing the requested discovery. (ECF No. 43.) On October 17, 2017, the findings and recommendations was adopted and Plaintiff was ordered to produce the discovery and file a notice of compliance within thirty days at which time the matter would be dismissed without prejudice and that if Plaintiff failed to comply the matter would be dismissed with prejudice. (ECF No. 44.) On November 13, 2017, Plaintiff filed a motion for an extension of time which was granted. (ECF Nos. 45, 46.) On December 7, 2017, Plaintiff filed a notice of compliance and a motion for withdrawal of his voluntary dismissal of this action. (ECF Nos. 47, 48.)

         On December 18, 2017, Defendant filed a second motion for sanctions. (ECF No. 49.) On December 20, 2017, Defendant's August 24, 2017 motion for sanctions was denied without prejudice. (ECF No. 50.) On March 22, 2018, a findings and recommendations issued recommending that evidentiary sanctions be issued for Plaintiff's failure to provide discovery and to comply with the orders that he produce supplemental discovery responses. (ECF No. 59.) Plaintiff filed objections and on April 9, 2018, an order was filed adopting the findings and recommendations in part and finding that terminating sanctions were appropriate, the action was dismissed, and judgment was entered against Plaintiff. (ECF Nos. 60, 61, 62.)

         On April 20, 2018, Plaintiff filed a notice of appeal which was forwarded to the Ninth Circuit. (ECF Nos. 65, 66.) On December 3, 2018, the Ninth Circuit reversed the imposition of terminating sanctions and a mandate issued on April 2, 2019. (ECF Nos. 71, 72.) On April 4, 2019, an amended scheduling order issued. (ECF No. 73.)

         On May 10, 2019, Defendant filed the instant motion for summary judgment. (ECF No. 77.) After receiving an extension of time, Plaintiff filed an opposition on July 1, 2019. (ECF No. 81.) After receiving an extension of time, Defendant filed a reply on July 19, 2019. (ECF No. 84.)



         At the time of the incidents alleged in the complaint, Plaintiff was sixty-one years old and suffered from back pain in the lumbar spine; arthritis in both hips, the left foot, and knees; hypertension; hepatitis C; sleep apnea; and had a learning disability. Plaintiff also ambulated with the use of a cane. Defendant Horowitz was Plaintiff's primary care physician while he housed at Mule Creek State Prison (“MCSP”).

         Around June 30, 2014, Plaintiff fell while exiting his cell. His lower back and legs were numb and Plaintiff was unable to get up off the floor. Plaintiff was initially treated by Dr. Rudas and requested a chrono for ground floor housing and a lower bunk which was denied.

         Plaintiff was seen by Defendant on July 3, 2014 for a follow-up appointment. Plaintiff asked Defendant to initiate a chrono for ground floor housing and a lower bunk. Defendant responded that she could not do anything about Plaintiff's housing because it was up to custody staff. Defendant prescribed medication and referred Plaintiff to physical therapy.

         Around July 20, 2014, Plaintiff's left side went numb and he collapsed while he was going down the stairs. Plaintiff sought the assistance of another inmate to file an administrative appeal, but it disappeared and he did not see it again.

         Plaintiff was transported to Sutter Amador Hospital. Plaintiff filed a separate administrative appeal grieving Defendant's interference with his prescribed medication. On July 23, 2014, Defendant saw Plaintiff for a follow-up and Plaintiff was given a chrono for ground floor housing and a lower bunk, along with a single point cane, mobility vest, and no stairs.

         On August 6, 2014, Defendant interviewed Plaintiff regarding Plaintiff's appeal that Defendant had interfered with his medication. Defendant reminded Plaintiff that she had granted his request for ground floor housing and a lower bunk chrono and the appeal was granted in part. Plaintiff attempted to address the chrono issue in his appeal regarding the denial of medication but was informed that he could not add any new issues. Plaintiff sought the advice of other inmates who told him that he did not need to further appeal the chrono issue because his request had been granted.



         A. Statutory Exhaustion Requirement

         The Prison Litigation Reform Act (“PLRA”) of 1995, requires that prisoners exhaust “such administrative remedies as are available” before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. 136 S.Ct. 1850 (June 6, 2016) (“An inmate need exhaust only such administrative remedies that are ‘available.'”). Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.' Once that is no longer the case, then there are no ‘remedies . . . available,' and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

         This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth, 532 U.S. at 741, and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).

         The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.

         B. Summary Judgment Standard

         Any party may move for summary judgment, and 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) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         The defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, ” id. at 1172. If the defendants carry their burden, the burden of production shifts to the plaintiff “to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id.



         Defendant moves for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies. Defendant contends that none of the administrative grievances that Plaintiff filed addressed the failure to provide him with a lower tier, lower bunk accommodation. Defendant argues that although Plaintiff alleges that he filed an administrative grievance that was lost, he still had administrative remedies available and did not attempt to refile or find the administrative grievance. Defendant further moves for an evidentiary hearing should the Court find that it would be required to resolve any genuine disputes of material fact as to exhaustion.

         Plaintiff counters that he is a recognized disabled and mentally handicapped individual and therefore, since he is in a protected class, California Department of Corrections and Rehabilitation (“CDCR”) was required to assist him in preparing and filing his administrative grievance. Further, Plaintiff states that it is obvious that Defendant received his administrative grievance because she stated that he had already received a lower tier, lower bunk chrono in addressing his grievance that he was denied medication. Plaintiff contends that he exhausted those administrative remedies that were available to him and no further exhaustion was possible or required under the circumstances. Plaintiff argues that, since he is a disabled inmate, the failure to assist him in filing an appeal thwarted his ability to exhaust administrative remedies. Plaintiff contends that he has raised a genuine issue of material fact to preclude summary judgment. He contends that once his appeal was granted he had no warning of the need to appeal further.

         Defendant replies that Plaintiff has presented no evidence that his “lost” grievance was ever received by prison officials. Plaintiff has not presented a copy of the grievance and there is no record of it being filed. Defendants contend that Plaintiff has not shown that administrative remedies were unavailable, and he did not make any efforts to follow up on the “lost” grievance. Defendant argues that an inmate cannot avoid exhaustion by claiming that his grievance was lost.

         A. Defendant's Objection to Plaintiff's Evidence in Support of Opposition

          In support of his opposition to Defendant's motion for summary judgment Plaintiff submits the declarations of other inmates to show that he filed an administrative grievance. Defendant objects to the declarations filed by Plaintiff in support of his opposition. Defendant states that Plaintiff's failure to comply with his discovery obligations was the reason that this action was originally dismissed. Since the Ninth Circuit reversed the dismissal of the action as a sanction, Defendant requests that the Court preclude Plaintiff from offering the declarations filed in support of his opposition as a sanction for Plaintiff's failure to comply with the discovery orders issued in this action.

         Defendant propounded discovery requests on the issue of exhaustion to Plaintiff on September 8, 2016. (Decl. of Annakarina De La Torre-Fennell in Support of Defendant's Motion to Compel Discovery Responses ¶ 4 and Exhibit A, ECF No. 33-1.) Plaintiff's responses were served on October 10, 2016. (Id. at Exhibit B.) Defendant filed a motion to compel further responses on November 1, 2016. (ECF No. 33.) On July 14, 2017, this Court issued an order granting in part ...

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