(PC) Jones v. PVSP, et al, No. 1:2001cv05287 - Document 149 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending 142 Motion to Dismiss filed by Defendants Loo, Neubarth, Huang, Ortiz, and McVicar be DENIED, signed by Magistrate Judge Sandra M. Snyder on 5/27/2010. Referred to Judge Ishii; Objections to F&R due by 6/30/2010.(Verduzco, M)
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(PC) Jones v. PVSP, et al Doc. 149 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TYRONE R. JONES, 10 Plaintiff, 11 12 CASE NO. 1:01-cv-05287-AWI-SMS PC FINDINGS AND RECOMMENDATIONS RECOMMENDING MOTION TO DISMISS FILED BY DEFENDANTS LOO, NEUBARTH, HUANG, ORTIZ, AND McVICAR BE DENIED v. PLEASANT VALLEY STATE PRISON, et al., (Doc. 142) 13 Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 14 15 / 16 Findings and Recommendations - Defendant’s Motion to Dismiss 17 I. Procedural History 18 Tyrone R. Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on March 12, 2001. (Doc. 1.) This Court screened the Complaint 21 pursuant to 28 U.S.C. § 1915A and issued an order on October 9, 2001, directing the United 22 States Marshal to serve process on Defendants G. Lewis, Ducray, L.B. McVicar, W. Buehler, 23 J.C. Smith, V.M. McKnight, W.R. Williams, L. Loo, J. Neubarth, R. Ortiz, H. Huang, C.J. 24 Sanchez, C. Murtaugh, Davis, Cantu, Tress, and Stephens.1 (Doc. 9.) 25 On November 29, 2001, Defendants filed a motion to dismiss the Complaint based on 26 Plaintiff’s failure to exhaust administrative remedies, and on March 6, 2002, Defendants filed an 27 28 1 All of these seventeen defendants have since appeared in this action, via motions to dismiss. 1 Dockets.Justia.com 1 amended motion to dismiss. (Docs. 33, 48.) On March 10, 2003, this Court denied the motion, 2 with leave to renew it in light of the Ninth Circuit’s recent decision in Wyatt v. Terhune, 315 3 F.3d 1108 (9th Cir. 2003). (Docs. 81, 91.) 4 On March 31, 2003, Defendants renewed the motion to dismiss the complaint based on 5 Plaintiff’s failure to exhaust administrative remedies. (Doc. 97.) On March 11, 2004, the 6 renewed motion was granted in part and denied in part, leaving the case to proceed only against 7 Defendants Cantu and Davis on Plaintiff’s excessive force claims, and dismissing all other 8 claims and Defendants. (Docs. 107, 109.) 9 On March 25, 2004, Defendants Cantu and Davis filed their Answer to the Complaint. 10 (Doc. 110.) On April 15, 2004, this Court issued a Discovery/Scheduling Order setting pretrial 11 deadlines. (Doc. 111.) On May 11, 2004, Defendants Cantu and Davis filed a motion to dismiss 12 the Complaint based on Plaintiff’s failure to exhaust administrative remedies on the excessive 13 force claim. (Doc. 114.) On January 19, 2005, the motion was granted, and the case was 14 dismissed in its entirety without prejudice. (Docs. 121, 122.) Judgment was entered on January 15 19, 2005. (Doc. 123.) 16 On January 31, 2005, Plaintiff filed a notice of appeal to the Court of Appeals for the 17 Ninth Circuit. (Doc. 124.) On May 26, 2009, the Ninth Circuit affirmed in part and vacated in 18 part the district court’s judgment, remanding the action. (Doc. 133.) The judgment was affirmed 19 as to the dismissal of Plaintiff’s Eighth Amendment claim against defendant Murtaugh regarding 20 sleep deprivation, Plaintiff’s excessive force claim against defendants Davis and Cantu, 21 Plaintiff’s deliberate indifference claim regarding access to prescription medication, and 22 Plaintiff’s retaliation claim concerning Plaintiff’s placement in administrative segregation. The 23 judgment was vacated as to the dismissal of Plaintiff’s deliberate indifference claims regarding 24 treatment of his bunions, hemorrhoids and skin condition, in light of the Ninth Circuit’s decision 25 in Griffin v Arpaio, 557 F.3d 1117 (9th Cir. 2009). The district court reopened the case on June 26 2, 2009. This case now proceeds only against Defendants Dr. Larry Loo, Dr. Neuberth, Dr. 27 Huang, Dr. Ortiz, and McVicar, on Plaintiff’s Eighth Amendment claims for inadequate medical 28 care related to his bunions, hemorrhoids, and skin condition. (Doc. 137.) 2 1 On February 10, 2010, Defendants Dr. Larry Loo, Dr. Neuberth, Dr. Huang, Dr. Ortiz, 2 and McVicar filed a motion to dismiss for failure to exhaust, pursuant to Fed. R. Civ. P. 12(b). 3 (Doc. 142.) Plaintiff filed an opposition on February 22, 2010. (Doc. 145.) Defendants filed a 4 reply on February 26, 2010. (Doc. 146.) The motion has been deemed submitted. Local Rule 5 230(l). 6 II. Failure to Exhaust 7 A. 8 Defendants argues that Plaintiff failed to exhaust his claims in compliance with 42 U.S.C. 9 10 Legal Standard § 1997e(a), subjecting the claims to dismissal. Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action 11 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 12 law, by a prisoner confined in any jail, prison, or other correctional facility until such 13 administrative remedies as are available are exhausted.” Prisoners are required to exhaust the 14 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); 15 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 16 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 17 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all 18 prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 19 The California Department of Corrections and Rehabilitation has an administrative 20 grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (West 2009). The 21 process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a). Four levels of appeal 22 are involved, including the informal level, first formal level, second formal level, and third 23 formal level, also known as the “Director’s Level.” Id. at § 3084.5. Appeals must be submitted 24 within fifteen working days of the event being appealed, and the process is initiated by 25 submission of the appeal to the informal level, or in some circumstances, the first formal level. 26 Id. at §§ 3084.5, 3084.6(c). In order to satisfy section 1997e(a), California state prisoners are 27 required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 28 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. 3 1 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 2 defense under which Defendant has the burden of raising and proving the absence of exhaustion; 3 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust nonjudicial 4 administrative remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) 5 motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l 6 Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curium)). In 7 deciding a motion to dismiss for failure to exhaust administrative remedies, a court may look 8 beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. If the court 9 concludes that the prisoner has failed to exhaust administrative remedies, the proper remedy is 10 11 12 13 dismissal without prejudice. Id. B. Discussion 1. Plaintiff’s Claims As previously stated, this case is proceeding only against Defendants Dr. Larry Loo, Dr. 14 Neuberth, Dr. Huang, Dr. Ortiz, and McVicar, on Plaintiff’s Eighth Amendment claims for 15 inadequate medical care related to his bunions, hemorrhoids, and a facial skin condition relative 16 to shaving. (Doc. 137.) 17 18 19 20 21 22 23 24 25 26 27 28 2. Exhaustion of Eighth Amendment Claim a. Summary of Relevant Appeals Defendants submit the following regarding Plaintiff’s inmate appeals on the three medical conditions still at issue in this action: Plaintiff filed an administrative grievance at the informal level on January 11, 2001, stating that he was not being provided treatment for his hemorrhoids. (CD 1 at Ex. 2.) This appeal was partially granted at the informal level. (Id.) Plaintiff failed to seek a first or second level review. (Duran Decl., Ex. A and A-1.) On January 27, 2000 Plaintiff filed an administrative grievance (PVSP-D-00-00586) requesting that he be fitted for and provided orthopedic shoes. (CD 1 at Ex. 3.) This appeal was partially granted at the second level of review, and Plaintiff was scheduled for an orthopedic consult. (Id.; Duran Decl., Ex. A and A-1.) Plaintiff did not seek a Director’s level review. (Duran Decl., Ex. A and A-1; Grannis Decl., Ex. B.) Plaintiff filed two administrative grievances pertaining to shaving. The first, filed on September 15, 2000, (PVSP-C-00-01812) requests that his rules violation, for not complying with grooming standards, be dismissed because the medical department issued a chrono allowing him to have a beard. (CD 1 at Ex. 14 and 11.) Plaintiff’s grievance was denied at the second level of review and he did not seek a 4 1 2 3 4 Director’s level review. (Id.; Duran Decl., Ex. A and A-1; Grannis Decl., Ex. B.) Plaintiff filed a second grievance on September 27, 2000, in which he complains that his medical chrono was not renewed by medical staff. (CD 1 at Ex. 11.) This appeal was partially granted at the informal level and Plaintiff did not seek a first or second level review. (Id. l Duran Decl., Ex. A and A-1.) (Doc. 142-2, MTD P&A,3:10-4:2.)2 5 b. Sufficiency of the Appeals 6 A grievance need not include legal terminology or legal theories unless they are in some 7 way needed to provide notice of the harm being grieved. Griffin v. Arpaio 557 F.3d 1117, 1120 8 (9th Cir. 2009). A grievance also need not contain every fact necessary to prove each element of 9 an eventual legal claim. Id. “[W]hen a prison’s grievance procedures are silent or incomplete as 10 to factual specificity, ‘a grievance suffices if it alerts the prison to the nature of the wrong for 11 which redress is sought.’” Id. citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). “The 12 primary purpose of a grievance is to notify the prison of a problem and facilitate its resolution, 13 not to lay groundwork for litigation.” Id. ref Johnson v. Johnson, 385 F.3d 503, 522 (2004) cited 14 with approval in Jones v. Bock, 549 U.S. 199, 219 (2007). A prisoner’s grievance(s) must 15 “provide enough information . . . to allow prison officials to take appropriate responsive 16 measures.” Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004). 17 In order to satisfy the exhaustion requirement, prisoners are required to comply with the 18 applicable procedural rules governing the appeals process, and it is the appeals process itself 19 which defines the level of detail necessary in an appeal. Jones, 549 U.S. at 218; Griffin, 557 20 F.3d at 1120. In California, prisoners are required only to describe the problem and the action 21 requested. Tit. 15 § 3084.2(a). Therefore, the appeal is sufficient “‘if it alerts the prison to the 22 nature of the wrong for which redress is sought,’” Griffin at 1120 (quoting Strong v. David, 297 23 F.3d 646, 650 (7th Cir. 2002) and adopting the Strong standard), which “advances the primary 24 purpose of . . . notify[ing] the prison of a problem,” id. (citation omitted). Further, a prisoner 25 exhausts the administrative process when the prison officials purport to grant relief that resolves 26 27 28 2 The Court is far from enamored with the manner in which Defendants presented their evidentiary exhibits. Grouping Exhibit C into two voluminous parts, without further sub-categorizing, or even page numbering, and then only referring to either part of Exhibit C caused the Court to review over one hundred (100) pages of material – of which only approximately twelve pages addressed any of Plaintiff’s three medical issues remaining in the case. 5 1 his due process grievance to his satisfaction. Harvey v. Jordan, --- F.3d ----, 2010 WL 1903994, 2 (9th Cir. 2010) (finding prisoner had exhausted where his inmate appeal received a “partial 3 grant”). Applying the standards set forth in Griffin, Plaintiff’s January 11, 2001 inmate appeal in 4 5 which he complained that he was not being provided treatment for his hemorrhoids would suffice 6 to notify prison personnel of the problem – i.e. that he was not receiving sufficient medical care 7 and treatment for his hemorrhoids. Plaintiff’s January 27, 2000 inmate appeal requesting that he 8 be fitted for and provided orthopedic shoes would also suffice under Griffin to notify prison 9 personnel of the problem he was having regarding his feet (even though it did not specifically 10 identify his bunions). Finally, Plaintiff’s two administrative grievances pertaining to his skin 11 condition, shaving, and Plaintiff’s desire to be able to grow a beard, filed on September 15, 2000 12 and September 27, 2000 would suffice under Griffin standards to notify prison personnel of the 13 problem he was having regarding being forced to shave despite having a facial skin condition. 14 Thus, Plaintiff sufficiently described his complaints regarding each of these three medical 15 conditions in his inmate appeals to have notified prison personnel of the problems he desired to 16 be rectified. 17 Further, the bases presented by Defendants in support of their motion show that Plaintiff 18 received a partial grant on his inmate appeals as to all three of the medical issues upon which 19 remain in this action – his hemorrhoids, the bunions on his feet, and his skin condition relative to 20 shaving. Receipt of the partial grants to Plaintiff’s inmate appeals qualified as exhausting the 21 available administrative remedies. Harvey, 2010 WL 1903994. Plaintiff properly filed suit on 22 his claims after he received partial grants to his inmate appeals. Jones v. Bock, 549 U.S. at 211. 23 Accordingly, Defendants have not met their burden of raising and proving the absence of 24 exhaustion by Plaintiff of his available administrative remedies so as to merit granting their 25 motion to dismiss. 26 III. 27 28 Conclusion and Recommendation Based on the foregoing, it is HEREBY RECOMMENDED that the Motion to Dismiss filed by Defendants Look, Neuberth, Huang, Ortiz, and McVicar, filed on February 10, 2010, be 6 1 denied. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 4 thirty (30) days after being served with these Findings and Recommendations, the parties may 5 file written objections with the court. The document should be captioned “Objections to 6 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 7 objections within the specified time may waive the right to appeal the District Court’s order. 8 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 IT IS SO ORDERED. 12 Dated: icido3 May 27, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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