United States District Court, E.D. California
DANIEL M. COSTON, Plaintiff,
MAJID RAHIMIFAR, et al., Defendants.
ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT FOR FAILURE TO EXHAUST ECF NOS. 37, 42
a state prisoner proceeding without counsel in this civil
rights action brought under 42 U.S.C. § 1983, complains
about his post-operative medical care following major back
surgery in November 2015. Plaintiff alleges that on the same
day of his surgery at Bakersfield Hospital, November 23,
2015, he was discharged and forced to load himself into a
prison sedan, despite his delicate, post-surgical condition.
Plaintiff was transported to the prison, which did not have a
bed capable of stabilizing and controlling his symptoms. He
was discharged from the prison and returned to the hospital
the next day, causing more discomfort. Plaintiff has stated
Eighth Amendment medical deliberate indifference claims
against (1) defendant Rahimifar, who advised plaintiff prior
to the surgery that he would require a two- to three-day
hospital stay for post-operative recovery and then discharged
plaintiff on the day of the surgery, and (2) defendant Ahmed,
discharged plaintiff from the hospital upon re-admittance the
day after surgery. See ECF No. 12 at 6-7. Both
defendants are physicians at Bakersfield Hospital.
move for summary judgment based upon an alleged failure to
exhaust administrative remedies. ECF Nos. 37, 42. In
response, plaintiff provides documentation of his
administrative exhaustion process for his claims of medical
deliberate indifference against defendants. ECF Nos. 47, 48,
49. Defendants replied, renewing their exhaustion arguments
and asserting that plaintiff's signed statement is
inadmissible. ECF Nos. 50, 51. This matter is now ripe for
initial matter, defendants' evidentiary objection that
plaintiff's signed declaration must be sworn under
penalty of perjury is meritless for multiple reasons. First,
plaintiff is the non-moving party on the instant motions and
does not bear the burden of proof. His evidence, though it
should be substantively admissible, need not be presented in
admissible form. See Fed. R. Civ. P. 56(c)(2)
(allowing evidentiary objections only if the asserted facts
“cannot be presented in a form that would be admissible
in evidence”); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986) (recognizing that the nonmoving party
does not need to “produce evidence in a form that would
be admissible at trial in order to avoid summary
judgment”). Second, “courts should 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). Finally, attorneys, as officers
of the court, have an obligation to narrow issues and
facilitate the process, not hinder it with unfounded
objections. See Fed. R. Civ. P. 1. For these
reasons, defendants' evidentiary objections are
overruled, and I will consider plaintiff's declaration.
“purpose of summary judgment is to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Matsushita Elec. Indus.
Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citation omitted). Summary judgment is
appropriate when 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).
judgment should be entered “after adequate time for
discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the “initial responsibility” of
demonstrating the absence of a genuine issue of material
fact. Id. at 323. An issue of material fact is
genuine only if there is sufficient evidence for a reasonable
fact finder to find for the non-moving party. A fact is
material if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A party
demonstrates that summary judgment is appropriate by
“informing the district court of the basis of its
motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any,'
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323
(quoting Fed.R.Civ.P. 56(c)).
moving party meets its initial burden, the burden shifts to
the opposing party to present specific facts that show there
to be a genuine issue of a material fact. See Fed R.
Civ. P. 56(e); Matsushita, 475 U.S. at 586. An
opposing party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 587. The party
is required to tender evidence of specific facts in the form
of affidavits, and/or admissible discovery material, in
support of its contention that a factual dispute exists.
Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586
n.11. The opposing party is not required to establish a
material issue of fact conclusively in its favor; it is
sufficient that “the claimed factual dispute be shown
to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Electrical Serv., Inc. v. Pacific Elec. Contractors
Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However,
“failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323.
court must apply standards consistent with Rule 56 to
determine whether the moving party demonstrated there to be
no genuine issue of material fact and showed judgment to be
appropriate as a matter of law. See Henry v. Gill Indus.,
Inc., 983 F.2d 943, 950 (9th Cir. 1993). “[A]
court ruling on a motion for summary judgment may not engage
in credibility determinations or the weighing of
evidence.” Manley v. Rowley, 847 F.3d 705, 711
(9th Cir. 2017) (citation omitted). The evidence must be
viewed “in the light most favorable to the nonmoving
party” and “all justifiable inferences”
must be drawn in favor of the nonmoving party. Orr v.
Bank of America, NT & SA, 285 F.3d 764, 772 (9th
summary judgment motion for failure to exhaust, the defendant
has the initial burden to establish “that there was an
available administrative remedy, and that the prisoner did
not exhaust that available remedy.” Albino v.
Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the
defendant carries that burden, “the burden shifts to
the prisoner 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. The ultimate burden
of persuasion remains with defendant, however. Id.
the Prison Litigation Reform Act of 1995, “[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). This statutory
exhaustion requirement “applies to all inmate suits
about prison life, ” Porter v. Nussle, 534
U.S. 516, 532 (2002), regardless of the relief sought by the
prisoner or the relief offered by the process, Booth v.
Churner, 532 U.S. 731, 741 (2001). Unexhausted claims
require dismissal. See Jones v. Bock, 549 U.S. 199,
211 (2007). In this case the administrative remedy process of
the California Department of Corrections and Rehabilitation
(“CDCR”) is applicable. See Cal. Code
Regs. tit. 15, § 3084.1 (2016). To exhaust available
remedies during the relevant time period, an inmate must
proceed through three formal levels of review unless
otherwise excused under the regulations. Id. §
3084.5. A prisoner initiates the exhaustion process by
submitting a CDCR Form 602 “Inmate/Parolee
Appeal” (“grievance”). Id.
§§ 3084.2(a), 3084.8(b) (quotation marks omitted).
grievance must “describe the specific issue under
appeal and the relief requested, ” and the inmate
“shall list all staff member(s) involved and shall
describe their involvement in the issue.” Id.
§ 3084.2(a). Furthermore, the inmate “shall state
all facts known and available to him/her regarding the issue
being appealed at the time of submitting the Inmate/Parolee
Appeal Form, and if needed, the Inmate Parolee/Appeal Form
Attachment.” Id. § 3084.2(a)(4).
PLRA recognizes no exception to the exhaustion requirement,
and the court may not recognize a new exception. See Ross
v. Blake, 136 S.Ct. 1850, 1862 (2016). The one
significant qualifier is that “the remedies must indeed
be ‘available' to the prisoner.” Id.
at 1856. If the court concludes that plaintiff has failed to
exhaust available remedies, the proper remedy is dismissal
without prejudice of the portions of the ...