Morales v. R. Torres

          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

         Defendants 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.

         I. SUMMARY OF FACTS

         On 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., Nos. P4-P5.)

         On 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.^[1] (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.)

         On 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.)

         On 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.)

         California 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.)

         Plaintiff 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). (Id.)

         Plaintiff 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 17-18.)

         Plaintiff 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.)

         II. LEGAL STANDARDS

         A. Summary Judgment

         Summary 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).

         Summary 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.

         B. Exhaustion of ...