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Andrews v. Hodges

United States District Court, S.D. California

October 21, 2019

ERIC ANDREWS, Plaintiff,
v.
DR. J. HODGES, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [DOC. NOS. 17, 19, 25]

          HON. MICHAEL M. ANELLO United States District Judge.

         Plaintiff Eric Andrews, a California state prisoner proceeding pro se, commenced this action on March 12, 2018, seeking relief under 42 U.S.C. § 1983 against prison medical personnel for a violation of his Eighth Amendment right to adequate medical care. Defendants move to dismiss Plaintiff's First Amended Complaint for failure to exhaust his administrative remedies prior to filing suit and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. Nos. 17, 19, 25. For the reasons set forth below, the Court GRANTS Defendants' motions.

         Background

         Plaintiff is a prisoner proceeding pro se on his complaint filed pursuant to 42 U.S.C. § 1983 against medical professionals J. Hodges, M.D., M. Garcia, R.N., P. Shakiba, M.D., J. Hoffman, M.D., N. Bogle, R.N, and R. Cross, M.D. The following description of events is taken from the pleadings and is not to be construed as findings of fact by the Court.[1]

         On June 24, 2017, Plaintiff suffered a leg injury while playing basketball at Donovan Correctional Facility. Plaintiff immediately sought medical attention. During the examination, Plaintiff explained that he “felt a snap, ” lost all strength in his leg, and was experiencing numbness. Id. An X-ray revealed no bone fracture, and then diagnosed Plaintiff with a possible ankle sprain. Id. Plaintiff received crutches and a bandage to wrap the ankle and was instructed to continue taking pain medication which he previously had been prescribed for an unrelated medical issue. Id.

         Over the next four to five weeks, Plaintiff experienced increasing pain and difficulty performing work activities. Id. In September 2017, Plaintiff was transferred to Pelican Bay Prison. After requesting health services for his worsening ankle, on January 12, 2018, the results of Plaintiff's MRI revealed he had suffered a large high grade distal Achilles tendon tear. See Doc. No. 9, at 9. According to Plaintiff, a correct initial diagnosis and timely treatment with a long leg cast or surgery “would have dramatically shortened [his] healing time, ” and the lack of those treatments “led to many more months of pain, suffering, rehabilitation and inability to engage in athletic and other physical pursuits.” Id. at 10.

         On March 12, 2018, Plaintiff filed this action in the Southern District of California alleging violation of his Eighth Amendment right to adequate medical care, as well as California state law claims for professional negligence, medical malpractice, and failure to provide or summon immediate medical care, against Defendants Hodges and Garcia. See Doc. No. 1. Plaintiff stated in his complaint that he had filed inmate appeals regarding his medical care which remained pending at the second level of review. See id. at 56.

         On April 27, 2018, Plaintiff filed a First Amended Complaint, realleging his Eighth Amendment and state law claims against Defendants Hodges and Garcia, and adding claims against Defendants Shakiba, Hoffman, Bogle, and Cross. See Doc. No. 9. Plaintiff stated in his First Amended Complaint that his inmate appeals arising out of the relevant events and related to his claims in this action remained pending at the final level of review. See id. at 13.

         Failure to Exhaust Administrative Remedies

         Defendants Hodges, Garcia, Shakiba, Hoffman, and Bogle move to dismiss Plaintiff's claims based on Plaintiff's failure to exhaust his administrative remedies prior to instituting this action.

         1. Legal Standard

         The Prison Litigation Reform Act (“PLRA”) requires that prisoners exhaust “such administrative remedies as are available before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a) (emphasis added). A court must dismiss a case without prejudice “when there is no presuit exhaustion, ” even if there is exhaustion while suit is pending. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). The failure to exhaust is an affirmative defense, and the defendant bears the burden of raising and proving the absence of exhaustion. See 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).” Id. at 1166. Otherwise, the defendant must move for summary judgment and produce evidence proving the failure to exhaust. See id.

         2. Analysis

         Defendants argue that the failure to exhaust is “clear from the face of the complaint.” Id. Defendants point to Plaintiff's statement in his First Amended Complaint: “I have been awaiting a response from the final level of review on appeal number 17000088 for over four months.” Doc. No. 9 at 13. Importantly, Plaintiff does not dispute that he failed to exhaust his claims prior to initiating this action. Plaintiff instead responds that he exhausted his administrative remedies after filing ...


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