United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DOC. NOS. 39,
50)
Plaintiff
Lendward Alton Mixon, Jr. is a state prisoner proceeding
pro se and in forma pauperis in this civil
rights action under 42 U.S.C. § 1983. The matter was
referred to a United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302.
On
October 30, 2019, the assigned magistrate judge issued
findings and recommendations, recommending that the motion
for summary judgment filed on behalf of defendants Metts and
Jimenez be granted due to plaintiff's failure to exhaust
his administrative remedies prior to filing suit as is
required. (Doc. No. 50.) The findings and recommendations
were served on the parties and contained notice that any
objections thereto were to be filed within fourteen (14) days
after service of the findings and recommendations.
(Id. at 13.) On November 15, 2019, plaintiff timely
filed written objections to the findings and recommendations.
(Doc. No. 51.)
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, including plaintiff's objections to the findings
and recommendations, the court finds the findings and
recommendations to be supported by the record and by proper
analysis.
The
pending findings and recommendations conclude that plaintiff
failed to exhaust his administrative remedies prior to filing
suit with regard to his claim for deliberate indifference to
his serious medical needs. (Doc. No. 50 at 12.) Specifically,
plaintiff submitted two health care inmate appeals related to
his requests to be assigned to a lower bunk to accommodate
his disabled leg. (Id.) Plaintiff's first health
care appeal, SATF-HC-16063382, which referenced plaintiff
falling from his assigned upper bunk and requested assignment
to a bottom bunk, was rejected on June 3, 2016, however, a
“rejection decision does not exhaust administrate
remedies.” (Id. at 8- 9; see also
Cal. Code Regs. tit. 15, §§ 3084.1(b),
3084.7(d)(3).) Plaintiff did not attempt to cure the defects
in his first inmate appeal that resulted in its rejection and
no further submissions of that inmate appeal were made by
plaintiff. (Doc. No. 50 at 9.) Thus, the magistrate judge
found that plaintiff failed to exhaust his administrative
remedies on his first health care related inmate appeal.
Plaintiff's second health care inmate appeal,
SATF-HC-16063767, which referenced plaintiff's second
fall from his upper bunk and requested a lower-tier and bunk
chrono, was granted at the second level of review on
September 21, 2016, but plaintiff submitted that decision to
the third level for review on October 5, 2016. (Id.
at 9, 11-12). While plaintiff's inmate appeal to the
third level was pending, he filed his original complaint in
this action on December 14, 2016. Plaintiff's inmate
appeal was denied at the third level on January 17,
2017-after he filed his original complaint in this action.
(Id.) Accordingly, the magistrate judge found that
plaintiff also failed to exhaust his administrative remedies
prior to filing suit with regards to his second health care
inmate appeal.
In his
objections to the pending findings and recommendations,
plaintiff asserts that although he submitted his second
health care inmate appeal to the third level of review, he
was not dissatisfied with the decision granting his requests
at the second level of review. (Doc. No. 51 at ¶¶
5, 8.) Rather, plaintiff contends that “[t]he statement
to the director/third level was seeking to inform the
administration that plaintiff suffered from a permanent
disability” and he was “making a statement to the
director's level seeking clarity . . ..”
(Id. at ¶ 8.) As noted by the magistrate judge,
however, after receiving notice that his requests to be
assigned to a bottom bunk on the ground floor were granted by
the institutional (second) level of review, plaintiff
submitted a CDCR 602 HC appeal form for a third level review.
(Doc. No. 50 at 11-12.) This form directed plaintiff to
explain why he is dissatisfied with the institutional level
response, and he stated that “temporary lower bunk
lower tier chrono has been granted. I suffer from severe
nerve and musle [sic] damage which is permanent a
temporary solution is not what this situation calls for when
I suffer from permanent damages.” (Doc. No. 39-4 at
26.) The undersigned agrees with the magistrate judge's
conclusion that “the evidence before the Court
establishes that Plaintiff was not satisfied with the
Institutional, or second, level grant of relief and that
there was some relief available at the
Headquarters', or third, level of review. (Doc. No. 50 at
12.) Plaintiffs inmate appeal was denied at the third level
on January 17, 2017, and it was at that point he had
exhausted his administrative remedies. (Doc. No. 39-4 at 3,
¶ 9.) Because plaintiff filed his original complaint in
this civil action on December 14, 2016, the undersigned
agrees with the magistrate judge's finding that plaintiff
failed to exhaust his administrative remedies prior to filing
suit as is required.
Accordingly,
1. The findings and recommendations issued on October 31,
2019 (Doc. No. 50) are adopted in full;
2.
Defendants' motion for summary judgment based upon
plaintiff s failure to exhaust his administrative remedies,
with respect to the claims presented in this action, prior to
filing suit as required (Doc. No. 39) is granted;
3. This
case is dismissed without prejudice;
4. The
Clerk of the Court is ...