Kelly v. Sogge et al
Filing
39
ORDER signed by Circuit Judge Carlos T. Bea on 05/04/10 GRANTING 35 Motion to Dismiss ; DENYING 13 Motion for Medical Attention. CASE CLOSED. (Williams, D)
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Jam es Kelly v. Dr. Sogge, et al., CV 08-1823 CTB O rd er re Motion to Dismiss P la in tif f James Kelly ("Kelly"), a California prisoner proceeding pro se, su ed prison doctors, Sogge and Bakewell, and prison nurses, Edmondson and D u n n , for deliberate indifference and negligence as to his rectal bleeding, in v io latio n of 42 U.S.C. § 1983 and California Government Code section 845.6. At th e preliminary screening stage, the Court dismissed Kelly's negligence claims for failu re to state a claim upon which relief can be granted, and ordered service of p ro cess on the defendants as to Kelly's deliberate indifference claims. Defendants B ak ew ell, Edmondson, and Dunn now move to dismiss Kelly's deliberate in d ifferen ce claims under Federal Rule of Civil Procedure 12(b) for failure to e x h a u s t administrative remedies.1 Kelly has failed to file an opposition. The Court G R A N T S the motion to dismiss, DENIES Kelly's motion for medical attention as m o o t, and ORDERS the Clerk of Court to close this case. I. B ack g ro u n d
K elly's complaint alleged as follows. After a prison anal rape in May 2003, K elly suffered rectal bleeding and constipation. (Compl. 4.) In December 2005, K e lly sought medical treatment from the defendants, who were doctors and nurses at California State Prison, Sacramento ("CSP-SAC") where Kelly was imprisoned. (Id. at 5.) Dr. Bakewell prescribed Kelly medication but, by December 2006, Dr. B a k e w e ll and Nurse Edmondson were "well aware that prescriptions alone was [sic] not effective" to cure Kelly's rectal bleeding. (Id.) In March 2007, Dr. Sogge sch ed u led a colonoscopy for Kelly in July 2007, but the colonoscopy did not take p lace until April 2008, in part because Nurse Dunn misinformed prison officials th at Kelly had received his colonoscopy in July 2007. (Id. at 67.) Kelly got "sick er" due to the delay in his colonoscopy, which finally confirmed his need for su rg ery to treat a "colon polyp, tubular adenoma, polypoid fragment of colonic m u co sa with hyperplastic changes and severe cautery artifact." (Id. at 8.) Kelly seek s over a million dollars in actual and punitive damages. (Id. at 18.) On April 20, 2010, the summons was returned unexecuted as to Defendant S o g g e. (Docket No. 37.) The Court does not ask Kelly for further information to e ff ec t service of process on Sogge, as in the normal course, because the Court d is m is se s Kelly's complaint without prejudice.
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In April 2007, Kelly filed an inmate grievance with prison officials at the C S P -S A C . This grievance, attached as Exhibit A to Kelly's complaint, reads: I put in sick call slips, but to no reveal [sic] on getting my medication. A laxative, and high blood pressure medication with Aprodine syrup, fo r allige [sic] I have, and cough. I would like a log number and my m ed icatio n with a completion of This 602 Though [sic] All levels 1, 2, [an d ] 3[.] (Id ., Ex. A.) Elsewhere on the grievance form Kelly mentions he has had problems w ith bowel movement, and that he has run out of laxatives. (See id.) Prison o fficials assigned Kelly's grievance log number 07-00964, provided Kelly with m ed icatio n , and allowed him to appeal his grievance to the Director of the C alifo rn ia Department of Corrections, who denied his appeal because "the co n ten tio n that [Kelly] has not received adequate medical care is refuted by the m e d ic al records and professional staff familiar with the appellant's medical h isto ry." (Id.) The Director mistakenly noted that Nurse "Dunn confirmed that on Ju ly 2, 2007, [Kelly] had a colonoscopy[.]" (Id.) K elly filed a pro se complaint against Defendants Sogge, Bakewell, E d m o n d s o n , and Dunn for deliberate indifference and negligence as to his rectal b leed in g in violation of § 1983 and California Government Code section 845.6. (Docket No. 1.) This case was assigned to a magistrate judge and then a district c o u r t judge before being reassigned on December 23, 2008 to Judge Carlos T. Bea o f the Ninth Circuit, who sits by designation. (Docket No. 8.) A t the preliminary screening stage, the Court dismissed Kelly's negligence c la im s for failure to state a claim upon which relief can be granted, and ordered s er v ic e of process on all of the defendants as to Kelly's deliberate indifference claim s. (Docket No. 22.) On April 5, 2010, Defendants Bakewell, Edmondson, a n d Dunn moved to dismiss the remaining deliberate indifference claims under R u le 12(b) for failure to exhaust administrative remedies. The Clerk of Court s er v e d this motion on Kelly by mail on the same day. Kelly did not file an o p p o sitio n by the April 26, 2010 deadline. L.R. 230(l) (providing that a prisoner's "[ o ]p p o s itio n , if any, . . . shall be served and filed by the responding party not more th an twenty-one (21) days after the date of service of the motion."). Twenty-eight d a y s have passed since the motion was filed and, therefore, the motion is deemed su b m itted . L.R. 135, 230(l).
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I I.
L e g a l Standard
U n d er the Prison Litigation Reform Act of 1995, "[n]o action shall be b r o u g h t with respect to prison conditions under section 1983 . . . by a prisoner co n fin ed in any jail, prison, or other correctional facility until such administrative re m ed ies as are available are exhausted." 42 U.S.C. § 1997e(a). This requires "a p riso n er [to] exhaust administrative remedies even where the relief sought . . . can n o t be granted by the administrative process." Woodford v. Ngo, 548 U.S. 81, 8 5 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). T h e Ninth Circuit has articulated two primary purposes for this exhaustion req u irem en t. The first is to protect an administrative agency's authority by giving th e agency the first opportunity to resolve a controversy before a court intervenes in the dispute. Ngo v. Woodford, 403 F.3d 620, 624 (9th Cir. 2005). The second is to promote judicial efficiency by either resolving the dispute outside of the co u rts, or by producing a factual record that can aide the court in processing a p lain tiff's claim. Id. Thus, exhaustion must occur prior to filing the suit and the p riso n er may not exhaust while the suit is pending. McKinney v. Carey, 311 F.3d 1 1 9 8 , 1199-1201 (9th Cir. 2002). T h e California Department of Corrections' administrative grievance system fo r prisoner complaints states that "[a]ny inmate or parolee under the department's ju r is d ic tio n may appeal any departmental decision, action, condition, or policy w h ich they can reasonably demonstrate as having an adverse effect upon their w elfare." Cal. Code Regs. tit. 15, § 3084.1(a). There are four levels of appeal: ( 1 ) informal level, (2) first formal level, (3) second formal level, and (4) third fo rm al level, also known as the "Director's Level." Id. § 3084.5. A final decision fro m the Director's Level satisfies the exhaustion requirement. Id. In Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), the Ninth Circuit h eld that exhaustion of administrative remedies is an affirmative defense, and the p r o p e r method for defendants to establish nonexhaustion is to file an unenumerated R u le 12(b) motion to dismiss, rather than a motion for summary judgment. In d ecid in g a motion to dismiss for failure to exhaust, "the court may look beyond the p le ad in g s and decide disputed issues of fact." Id. at 1120. If the Court concludes th at the prisoner has not exhausted administrative remedies, the proper remedy is d ism issal of the claim without prejudice. Id.
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III.
D is c u s s io n
T h e Court deems Kelly's failure to oppose the motion to dismiss for failure to exhaust as consent to the granting of the motion. See L.R. 230(l) ("Failure . . . to file an opposition . . . may be deemed a waiver of any opposition to the granting o f the motion[.]"). The Court also grants the motion on its merits. K elly alleged the defendants allowed him to go untreated for rectal bleeding b efo re a belated colonoscopy test revealed his need for surgery to treat a variety of a ilm e n ts . (Compl. 18.) On this factual basis, Kelly alleged deliberate indifference in violation of the Eighth Amendment and California law. Defendants Bakewell, E d m o n d so n , and Dunn offer evidence that Kelly has not exhausted administrative r em e d ie s because he has not received a final decision from the Director's Level as to any inmate grievance regarding rectal bleeding or failure to receive a co lo n o sco p y. In a signed declaration dated April 5, 2010, the Chief of Inmate A p p e als for California states: "Kelly has not received a third level decision for a c o m p la in t regarding rectal bleeding, and failure to receive colonoscopy surgery b etw een 2007 and 2008." (Mot., Foston Decl. ¶ 4.) T h e r e is no evidence before the Court to refute this fact. Kelly's grievance lo g number 07-00964, attached as Exhibit A to Kelly's complaint, does not raise th e same issues as in Kelly's complaint. As the Director's Level decision itself n o te s, Kelly claimed only that h e has submitted several sick call slips for laxatives, high blood p ressu re, cough syrup and allergy medication. [Kelly] claims that he n eed s laxatives immediately since he has not had a bowel movement fo r six days. [Kelly] requests the following on appeal. 1) To have this ap p eal assigned a log number. 2) To have his medications filled. 3) To have his appeal processed through all levels. (C o m p l., Ex. A.) While Kelly clearly exhausted his grievance log number 070 0 9 6 4 , it makes no mention of Dr. Bakewell and Nurse Edmondson's alleged failu re to provide effective treatment. Nor does it mention that Dr. Bakewell, E d m o n d so n , and Dunn (or even Sogge) failed to treat Kelly's rectal bleeding from 2 0 0 5 to 2008. Moreover, although the Director's Level decision mistakenly found th at Kelly had received a colonoscopy in July 2007--when, in fact, he did not r ec eiv e a colonoscopy until April 2008--that finding does not alter the substance
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o f Kelly's grievance: Kelly did not complain about the failure to receive a co lo n o sco p y in the face of rectal bleeding, but rather about the failure to receive m e d ic atio n in the face of constipation. (See Mot., Foston Decl. ¶ 3, "Kelly's rectal b le ed in g was not addressed at any level of review.") D efen d an ts Bakewell, Edmondson, and Dunn also offer evidence that, in D ecem b er 2007, Kelly later submitted a grievance log number 08-0109 "requesting to be re-scheduled for a colonoscopy test, and to be given effective pain medication u n til the test," but this grievance "was canceled on January 24, 2008 at the first lev el of review by [a] Health Care Appeals Coordinator, pursuant to Title 15 § 3084.4(d) based on Kelly's lack of cooperation during the interview process on th at date." (Mot., Pereira Decl. ¶ 3.) This evidence is inadmissible because it a p p e a r s in an unsigned, undated declaration. (Id.) Even if the Court assumes that K elly did submit such a grievance, the dispositive fact is that "Kelly has not r ec eiv e d a third level decision for a complaint regarding rectal bleeding, and failure to receive colonoscopy surgery between 2007 and 2008." (Mot., Foston Decl. ¶ 4, em p h asis added.) Therefore, Kelly has not exhausted his administrative remedies, an d the Court must dismiss his remaining deliberate indifference claims without p r e ju d ic e . IV . C o n c lu s io n
F o r the reasons set out above, the Court GRANTS Defendants Bakewell, E d m o n d so n , and Dunn's motion to dismiss Kelly's complaint for failure to exhaust ad m in istrativ e remedies. The Court DISMISSES Kelly's complaint without p reju d ice. Before Kelly may refile his complaint, he must exhaust administrative r em e d ie s as to his grievances regarding rectal bleeding and failure to receive a c o lo n o s c o p y . T h e Court therefore DENIES Kelly's motion for medical attention (Docket N o . 13) as moot, and ORDERS the Clerk of Court to close this case. Dated: May 4, 2010 /s/ Carlos T. Bea United States Circuit Judge
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