United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES (DOC. 54)
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
Torres, Alvarado-Torres, and Gamboa move for summary judgment
on the grounds that Plaintiff Morales failed to exhaust
administrative remedies prior to filing suit. (Doc. 54.)
Plaintiff filed an opposition to Defendants' motion on
November 19, 2019, and Defendants filed a reply. (Docs. 65,
66.) For the reasons set forth below, the Court recommends
that Defendants' motion be granted and this action
dismissed without prejudice.
SUMMARY OF FACTS
October 25, 2015, Plaintiff injured his leg in the
recreational yard of California State Prison, Corcoran
(CSP-COR). (Morales Decl., ¶ 3, Doc. 65-1 at 1-2.) Dr.
Wahi diagnosed Plaintiff with a left ankle fracture and
prescribed crutches, (id., ¶ 4; Plaintiff's
Statement of Undisputed Facts (Pl.'s SUF), No. P1, Doc.
65-2 at 2). Upon returning to CSP-COR, Plaintiff received a
medical “chrono” for the use of crutches.
(Morales Decl., ¶ 6, Doc. 65-1 at 2.) On October 28,
2015 Plaintiff was placed in administrative segregation
(ad-seg). (Pl.'s SUF, No. P3, Doc. 65-2 at 5.) While
Plaintiff was in ad-seg, Correctional Officers Gamboa and
Alvarado-Torres refused to provide him with crutches, and
Plaintiff was forced to hop around his cell. (Id.,
October 30, 2015, Dr. Khin found a displaced distal fibular
fracture and again prescribed Plaintiff crutches. (Morales
Decl., ¶ 10, Doc. 65-1 at 3.) The next day, Dr. Aye
observed increased leg swelling and ordered a medical
emergency transfer. (Id., ¶ 11.) On November 3,
Nurse Practitioner Rouch issued a second medical chrono for
the use of crutches. (Id., ¶ 12.) Plaintiff
then met with the Administrative Classification Committee to
discuss his housing accommodations, during which he presented
the two chronos he had received at that point. (Pl.'s SUF,
No. P6, Doc. 65-2 at 5.) After the meeting, Alvarado-Torres
again refused to provide Plaintiff with crutches. (Morales
Decl., ¶ 14, Doc. 65-1 at 2.) Plaintiff underwent
surgery on his ankle on November 18, 2015. (Pl.'s SUF,
No. P7, Doc. 65-2 at 5.)
December 15, 2015, Plaintiff submitted an administrative
grievance to CDCR. (Id., No. P10; Gates Decl.,
¶ 3, Doc. 54-3 at 13.) In his grievance, Plaintiff
states, “On 10-25-15 I broke my leg. (My fibula) On the
29/30 I rebroke my [sic] due to custody taking away medically
prescribed walking devices. (Crutches).” (Gates Decl.,
Ex. A, Doc. 54-3 at 21.) Plaintiff further complains about
waiting 18 days for his prescribed surgery, about the pain
medication he is receiving, and about not having the dressing
on his wound changed post-surgery. (Id. at 23.) In
his request for relief, Plaintiff asks for monetary
compensation, that his dressing be changed, and to be sent to
“pain management to be properly medicated.”
(Id. at 21, 23.)
March 15, 2016, Plaintiff filed a request seeking the status
of his appeal. (Pl.'s SUF, No. P11, Doc. 65-2 at 6.) In
that request, Plaintiff states “I placed in 602's
(staff complaints, denial of medical supply) around November
on officers Alvarado-Torres and also Officer R. Torres
… for maliciously taking my crutches away ….
which ultimately caused my leg to be broken.” (Morales
Decl., Ex. C, Doc. 65-1 at 18.)
Correctional Health Care Services (CCHCS) issued a
first-level response dated March 4, 2016 (but signed April
28, 2016), in which it addressed Plaintiff's requests for
proper pain medication and management, for monetary
compensation, and that his appeal be deemed an emergency.
(Gates Decl., Ex. A., Doc. 54-3 at 25-26.) The response did
not address Plaintiff's complaints about his crutches.
(See id.) CCHCS granted in part and denied in part
Plaintiff's requests. (See id.)
appealed the first-level decision on May 10, 2016. (Pl.'s
SUF, No. P13, Doc. 65-2 at 6.) In the appeal, Plaintiff
states that he is dissatisfied with having waited 30 days to
have his bandages cleaned and staples removed following
surgery. (Morales Decl., Ex. F, Doc. 65-1 at 26.) Plaintiff
does not mention being denied crutches or complaints against
Alvarado-Torres and Torres. In its second-level review, CCHCS
granted in part and denied in part Plaintiff's appeal.
(Gates Decl., Ex. A, Doc. 54-3 at 27-28.) The decision is
dated June 28, 2016 (but signed August 24, 2016).
appealed the second-level decision on August 30, 2016.
(Pl.'s SUF, No. P15, Doc. 65-2 at 6.) In his appeal,
Plaintiff states that staff downplayed his injuries, and
again complains about waiting 18 days for surgery and about
his staples not being removed for 30 days post-surgery.
(Morales Decl., Ex. F, Doc. 65-1 at 26-27.) Plaintiff further
states, “…[I] made the prison aware of custody
officers taking away my crutches and still they did nothing.
Never taking my claims serious.” (Id. at 27.)
CCHS denied the appeal in its third-level review on December
2, 2016. (Defendants' Statement of Undisputed Facts
(Defs.' SUF), ¶10, Doc. 54-3 at 3.) In its denial,
CCHCS does not address Plaintiff's complaint regarding
his crutches. (See Gates Decl., Ex. A, Doc. 54-3 at
brought suit on December 13, 2017. (Doc. 1.) Plaintiff's
operative claims are against Correctional Sergeant Gamboa for
taking away his crutches and against Correctional Officers
Torres and Alvarado-Torres for failing to provide him
crutches. (Doc. 19 at 1.)
judgment is appropriate when the moving party “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). The moving party “initially bears
the burden of proving the absence of a genuine issue of
material fact.” In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The moving party may accomplish this by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations …,
admissions, interrogatory answers, or other materials,
” or by showing that such materials “do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When
the non-moving party bears the burden of proof at trial,
“the moving party need only prove that there is an
absence of evidence to support the non-moving party's
case.” Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325); see also Fed. R.
Civ. P. 56(c)(1)(B).
judgment should be entered 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. See Celotex,
477 U.S. at 322. “[A] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23. In such a circumstance, summary
judgment should be granted, “so long as whatever is
before the district court demonstrates that the standard for
the entry of summary judgment … is satisfied.”
Id. at 323.
Exhaustion of ...