(PC)Garbarini v. Ulit et al, No. 1:2014cv01058 - Document 90 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Defendant Wang's 68 MOTION for SUMMARY JUDGMENT be Denied for Failure to Exhaust the Administrative Remedies, signed by Magistrate Judge Stanley A. Boone on 10/31/16. Referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH GARBARINI, 12 Plaintiff, 13 14 15 v. WAYNE ULIT, et al., Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01058-AWI-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT WANG’S MOTION FOR SUMMARY JUDGMENT BE DENIED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF No. 68] Plaintiff Ralph Garbarini is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction; 19 therefore, this action was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 22 Currently before the Court is Defendant Wang’s motion for summary judgment for failure to exhaust the administrative remedies, filed March 8, 2016. 23 I. 24 RELEVANT HISTORY 25 26 27 28 This action proceeds against Defendants against W. Ulit, J. Moon, D. Smith, and J. Wang for deliberate indifference to a serious medical need in violation of the Eighth Amendment. Defendants filed an answer to the complaint on December 7, 2015. On December 9, 2015, the Court issued the discovery and scheduling order. 1 1 2 3 On December 21, 2015, Plaintiff filed a motion for summary judgment. Plaintiff’s motion was denied in its entirety on June 1, 2016. (ECF Nos. 70, 77.) On March 8, 2016, Defendant Dr. Wang filed the instant motion for summary judgment for 4 failure to exhaust the administrative remedies. (ECF No. 68.) Plaintiff filed an opposition on March 5 28, 2016, and Defendant filed a reply on April 4, 2016. (ECF Nos. 71, 72.) Thus, the motion is 6 deemed submitted for review without oral argument. Local Rule 230(l). 7 On October 17, 2016, the Court granted Defendants’ request to extend the dispositive motion 8 deadline to thirty days following the final ruling on the instant motion for summary judgment. (ECF 9 No. 89.) 10 II. 11 LEGAL STANDARD 12 A. Statutory Exhaustion Requirement 13 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such 14 administrative remedies as are available” before commencing a suit challenging prison conditions.” 15 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016) (“An inmate need 16 exhaust only such administrative remedies that are ‘available.’”). Exhaustion is mandatory unless 17 unavailable. “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains 18 ‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the prisoner 19 need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis 20 in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 21 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. 22 Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the 23 prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 24 unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing 25 Porter, 534 U.S. at 524). 26 The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising 27 and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare 28 event that a failure to exhaust is clear from the face of the complaint, a defendant may move for 2 1 dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce 2 evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only 3 if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to 4 exhaust. Id. B. 5 Summary Judgment Standard 6 Any party may move for summary judgment, and the Court shall grant summary judgment if 7 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 8 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 9 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 10 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 11 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 12 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 13 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 14 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 15 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco 16 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 17 F.3d 1011, 1017 (9th Cir. 2010). 18 The defendants bear the burden of proof in moving for summary judgment for failure to 19 exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative 20 remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendants 21 carry their burden, the burden of production shifts to the plaintiff “to come forward with evidence 22 showing that there is something in his particular case that made the existing and generally available 23 administrative remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in 24 the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary 25 judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment 26 should be denied, and the district judge rather than a jury should determine the facts.” Id. 27 /// 28 /// 3 1 III. 2 DISCUSSION Description of CDCR’s Administrative Remedy Process 3 A. 4 Plaintiff is a state prisoner in the custody of the California Department of Corrections and 5 Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate grievances. 6 Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state 7 prisoners are required to exhaust CDCR’s administrative remedy process prior to filing suit in federal 8 court. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 9 2010). Inmates are required to submit appeals on a standardized form (CDCR Form 602), attach 10 necessary supporting documentation, and submit the appeal within thirty days of the disputed event. 11 Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). In 2009, the timeline for submitting inmate 12 appeals fifteen working days, not thirty days. Cal. Code Regs. tit. 15, § 3084.6(c) (2009). Inmates 13 appeals must be submitted timely, and an appeal may be rejected when the “time limits for submitting 14 the appeal are exceeded and the appellant had the opportunity to file within the prescribed time 15 constraints.” Cal. Code Regs. tit. 15, § 3084.3(c)(6) (2009). Summary of Allegations Underlying Plaintiff’s Constitutional Claims 16 B. 17 With regard to Defendant Dr. Wang (the only Defendant moving for summary judgment in the 18 instant motion), Plaintiff contends that on January 14, 2014, Dr. Jeffrey Wang approved a pain 19 committee recommendation that denied Plaintiff’s request for appropriate narcotic pain medications 20 for Plaintiff’s severe chronic pain caused by a massive tendon tear in Plaintiff’s right rotator cuff. Dr. 21 Wang had actual knowledge of Plaintiff’s serious medical need and refused to provide effective 22 treatment for his serious medical need. Dr. Wang was also deliberately indifferent to Plaintiff’s 23 serious medical needs when he denied Healthcare Appeal Log number 1305558 on February 6, 2014, 24 and Healthcare Appeal Log number 13054741 on February 19, 2014. Defendant’s Motion 25 C. 26 Defendant Dr. Wang argues that the undisputed evidence shows that Plaintiff failed to exhaust 27 the administrative remedies against Dr. Wang prior to filing his first amended complaint, and 28 summary judgment is appropriate. 4 Plaintiff’s Opposition 1 D. 2 Plaintiff argues that Dr. Wang acted deliberately indifferent to Plaintiff’s serious medical needs 3 when he denied the two healthcare appeals and denied narcotic pain medication on January 14, 2014, 4 which was grieved during the administrative appeals process. Defendant’s Reply 5 E. 6 Defendant argues that although Plaintiff opposed the motion for summary judgment, he failed 7 to meet his burden because he does not dispute that he failed to submit any grievances regarding his 8 allegations against Dr. Wang, and summary judgment is warranted. 9 10 11 12 F. Findings on Motion The Court finds that Plaintiff exhausted the administrative remedies with respect to his deliberate indifference claims against Defendant Dr. Wang. In appeal log number COR HC 13054558, Plaintiff sought pain medication be reinstated to 13 help alleviate unnecessary suffering associated with his severe chronic right shoulder, lower back and 14 right knee pain. The appeal was denied at the second level review by Defendant Dr. Wang. (Opp’n, 15 Ex. A17, ECF No. 71.) The appeal was denied at the third level of review on May 18, 2014, based, in 16 relevant part, as follows: 17 18 19 20 21 22 23 Documentation is supportive of you receiving Primary Care Provider (PCP) evaluation and treatment as determined medically indicated for your appeal issues. You received PCP followup evaluation and treatment related to your chronic pain up to May 5, 2014. Records indicate you have refused recommended physical therapy services and physical examination regarding your chronic pain. You were seen by your PCP on February 18, 2014, where the pain management committee recommendation for non-narcotic analgesics was discussed with you. Your CDCR 7410, Comprehensive Accommodations Chrono dated May 7, 2014, authorizes you a bottom bunk, right knee brace, and physical limitations to job assignments. 24 25 26 27 28 Your pharmacy profile indicates you are prescribed ibuprofen for pain management as of May 16, 2014. You will continue to be evaluated and treatment will be provided based on your clinician’s evaluation, diagnosis, and recommended treatment plan, in accordance with appropriate policies and procedures. 5 1 2 (Id.) In appeal log number COR HC 13054741, Plaintiff requested effective medical care for his 3 torn right rotator cuff. The appeal was denied was partially granted at the second level review by 4 Defendant Dr. Wang. (Id., Ex. A20.) The appeal was denied at the third level of review, as follows: 5 6 7 8 9 10 11 12 13 14 Documentation is supportive of you receiving Primary Care Provider (PCP) evaluation and treatment as determined medically indicated for your appeal issues. You received PCP followup evaluation and treatment related to your rotator cuff surgery to May 27, 2014. You were seen by Physical Therapy on November 27, 2013, where you were provided instruction in exercises to perform in your cell. You received orthopedic follow-up care regarding your rotator cuff surgery on October 11, 2013, where recommendations were to follow up as needed. Your case was evaluated by the Pain Management Committee on January 14, 2014. On May 5, 2014, a CDCR 128-C3, Medical Classification Chrono was completed to indicate limited duty. In addition, a CDCR 7410, Comprehensive Accommodation Chrono was issued on May 7, 2014, for bottom bunk, waist chains and physical imitations to job assignments. (Id., Ex. A20.) 15 The primary purpose of the grievance system is to provide prison officials with a “fair 16 opportunity to correct their own errors.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016); see also 17 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In Reyes, the prisoner plaintiff filed an inmate 18 grievance complaining of changes to his pain medication regimen. Reyes, 810 F.3d at 655-656. After 19 exhausting his available remedies by proceeding through California’s three-level inmate grievance 20 appeal process, plaintiff filed a § 1983 action naming a number of prison officials as defendants, 21 including two doctors not previously named in his inmate grievance. Id. at 656. The Ninth Circuit, 22 reversing the district court’s order dismissing plaintiff’s claims against the two doctors explained, in 23 relevant part, as follows: 24 25 26 27 28 The California prison grievance system has three levels of review; and inmate exhausts administrative remedies by obtaining a decision at each level. Cal. Code Regs. tit. 15, § 3084.1(b) (2011); Harvey v. Jordan, 65 F.3d 681, 683 (9th Cir. 2010). It is uncontested that Reyes obtained a decision at all three levels. The issue is whether he nevertheless failed to exhaust administrative remedies because his grievance did not name all staff members involved in his case. See Cal. Code Regs. tit. 15, § 3084.2(a) (2015). … 6 1 2 3 4 5 When prison officials opt not to enforce a procedural rule but instead decide an inmate’s grievance on the merits, the purposes of the PLRA exhaustion requirement have been fully served: prison officials have had a fair opportunity to correct any claimed deprivation and an administrative record supporting the prison’s decision has been developed. Dismissing the inmate’s claim for failure to exhaust under these circumstances does not advance the statutory goal of avoiding unnecessary interference in prison administration. Rather, it prevents the courts from considering a claim that has already been fully vetted within the prison system. 6 … 7 8 9 10 11 12 [A] prisoner exhausts “such administrative remedies as are available,” 42 U.S.C. § 1997e(a), under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process. Id. at 657-658. Thus, under Reyes, a procedural error does not always prevent a plaintiff from exhausting the 13 administrative remedies, if the description of the issue in the appeal is sufficient to put the prison on 14 notice of his claims for purposes of exhaustion and the appeal is addressed and fully exhausted on the 15 merits. Taking into consideration the primary purpose of exhaustion, it is clear that Plaintiff grieved 16 the fact that pain committee of which Defendant Dr. Wang was a member denied his request for 17 appropriate medication, and that Dr. Wang improperly denied him medical treatment by way of denial 18 of his inmate grievances. Because prison officials reviewed and decided Plaintiff’s inmate grievances 19 in appeal log numbers COR HC 13054558 and COR HC 13054741 at every level of the administrative 20 process on the merits, the Ninth Circuit held in Reyes that the plaintiff had adequately exhausted all of 21 his administrative remedies prior to bringing suit as required under the PLRA even though his inmate 22 grievance did not name all prison staff members involved in his case. Id. Here, as in Reyes, 23 Defendant Dr. Wang’s involvement in the alleged constitutional violation relating to improper medical 24 treatment was equally plain to prison officials, because he reviewed and decided the merits of 25 Plaintiff’s appeals at the second level review and was a member of the pain management committee 26 who denied narcotic pain medication on January 14, 2014. (Opp’n Exs. A17 & A20.) Defendant 27 cannot simply overlook the grievances that Plaintiff filed and the responses thereto, and argue that 28 Plaintiff conceded he failed to exhaust. Indeed, it is Defendant who bears the initial and ultimate 7 1 burden of proof as to exhaustion of the administrative remedies. Albino, 747 F.3d at 1172. 2 Accordingly, Defendant Dr. Wang’s motion for summary judgment should be denied. 3 IV. 4 RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Dr. Wang’s motion 5 6 for summary judgment for failure to exhaust the administrative remedies be DENIED. 7 This Findings and Recommendation will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 9 being served with this Findings and Recommendation, the parties may file written objections with the 10 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 Recommendation.” The parties are advised that failure to file objections within the specified time may 12 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 13 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. 16 Dated: 17 October 31, 2016 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.