(PC) Rowe v. Montoya, No. 1:2007cv00272 - Document 44 (E.D. Cal. 2010)
Court Description: ORDER DENYING 36 Plaintiff's Dispositive Motion; ORDER GRANTING 37 Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies or, in the Alternative, for Summary Judgment; ORDER DISMISSING CASE With Prejudice for Failure to Exhaust Administrative Remedies; ORDER DIRECTING Clerk of the Court to Enter Judgment, signed by District Judge Cindy K. Jorgenson on 2/24/2010. CASE CLOSED. (Jessen, A)
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(PC) Rowe v. Montoya 1 Doc. 44 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DANIEL ROWE, 11 Plaintiff, 12 vs. 13 MONTOYA, et al. 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) No. 1:07-CV-272-CKJ ORDER 16 Pending before the Court is Plaintiff’s Dispositive Motion [Doc. # 36] and 17 Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies or, in the 18 Alternative, for Summary Judgment [Doc. # 37]. 19 20 Factual and Procedural Background 21 On February 20, 2007, Plaintiff Daniel Rowe (“Rowe”) filed a pro se civil rights 22 Complaint pursuant to 42 U.S.C. § 1983. On March 17, 2008, the court screened and 23 dismissed the Complaint and granted Rowe 30 days to file an amended complaint. On April 24 4, 2008, Rowe filed a First Amended Complaint. On April 10, 2008, the court screened and 25 dismissed the First Amended Complaint and granted Rowe 30 days to file a second amended 26 complaint. 27 On May 5, 2008, Rowe filed a Second Amended Complaint (“SAC”). Rowe alleged 28 that he was denied medical treatment on October 11, 2006, by Registered Nurse Montoya Dockets.Justia.com 1 (“Montoya”). Rowe asserts that he had an appointment on that day for examination and refill 2 of prescriptions. Rowe asserts that he was suffering from “difficult breathing, watery eyes, 3 runny nose, [and] coughing.” SAC, p. 4. Rowe alleges that he told Montoya his allergies 4 “were in motion and [he] needed refills on [his] nasal spray and some more medication. 5 Montoya told [Rowe] that [there] was nothing that she could do and sent [Rowe] back to [his] 6 housing unit without any renewals.” Id., pp. 4-5. Rowe also alleged: 7 8 9 Doctor T. Hasadsri is a doctor in medical at Corcoran State Prison, and had knowledge of myself, Daniel Rowe of having allerg[ies] , and my sufferings. Hasadsri had previously examined me and denied me treatment, Doctor Hasadsri had access to my medical records, and his view of my files documenting my medical conditions gave him the responsibility of my treatment and care. That involves Doctor T. Hasadsri as medical doctor at Corcoran State Prison. 10 Id., pp. 5-6. 11 Rowe’s October 11, 2006, Inmate/Parolee Appeal Form, as produced to Defendants 12 in discovery, states: 13 14 15 16 On October 11, 2006, [Rowe] appeared in doctor line on 4B yard medical clinic for my allergy concerns. RN Montoya, old lady with glasses, saw me and was very unprofessional. I told her that I was suffering allergy indications, water eyes, breaking out, itching, runny nose, sneezing, and stuffy nose, difficult to breath[e]. I told her I need a refill on my nasal. And that the pills I received didn’t help. RN Montoya told me that it was nothing she could do. Prisoners rights by law states: prison officials see attac[hed.] 17 Declaration of Reager [Doc. # 38], Ex. A; see also Opposition, Ex. 3. The attachment has 18 been provided by Rowe. See Opposition [Doc. #40], Ex. 3. Rowe’s Ex. 3 includes a CDC 19 602. That form indicates that Rowe was interviewed by T. Hasadsri, M.D. (“Hasadsri”), on 20 December 4, 2006. Hasadsri stated: 21 22 It is the policy and procedure of CDCR that the I/M is seen by yard RN first (for a non life threatening condition). Today you refused to be examined by me. 23 Opposition [Doc. # 40], Ex. 3. The CDC 602 includes the following December 12, 2006, 24 statement from Rowe: 25 26 California Prisoners Handbook 7.2 – Prisoners have a constitutional right to adequate medical & mental healthcare; inadequate medical or mental health care can constitute cruel & unusual punishment in violation of the 8th Amendment. See attached. 27 Opposition [Doc. # 40], Ex. 3. Additionally, section G of the form states “refused to 28 answer[.]” Id. Rowe has also included his additional December 12, 2006, statement: -2- 1 2 3 4 5 6 I have had allergy symptoms majority of my life, water[y] eyes, runny nose, stuffy nose, sneezing, breaking out, breathing difficulties. In 2000, [I] was tested in Corcoran State Prison’s ACH by medical staffs, and was told that [I] have the allergies. The symptoms [I] was having had got worse so [I] wanted to get checked out to see what was wrong with me. And found out it was allergies all along. Butt as seen on this 602 appeal [I] am being denied treatment, and appropriate attention, by Corcoran State Prison medical staffs. Id. The parties have both provided a copy of CDC Form 695, which states: 7 This appeal constitutes an abuse of the appeal process pursuant to CCR 3084.4. Refusal to interview or cooperate with reviewer shall result in cancellation of the appeal per CCR 3084.4(d). 8 Your appeal is cancelled for failure to cooperate – CCR 3084.4. 9 Declaration of Reager [Doc. # 38], Ex. B; Opposition [Doc. # 40], Ex. 3. 10 On July 15, 2008, the court found Rowe had stated a claim against Defendants 11 Montoya and Hasadsri. On October 16, 2008, the court ordered the United States Marshal 12 Service to serve Defendants Montoya and Hasadsri. 13 On November 24, 2008, this matter was reassigned to this Court. 14 On October 10, 2009, Rowe filed a Dispositive Motion [Doc. # 36]. Rowe’s 15 Dispositive Motion discusses his settlement position and requests that, if a settlement is not 16 reached, this matter be set for a jury trial. 17 18 On October 13, 2009, Defendants filed a Motion to Dismiss for Failure to Exhaust Administrative Remedies or, in the Alternative, for Summary Judgment [Doc. # 37]. 19 20 Motion to Dismiss for Failure to Exhaust Administrative Remedies 21 Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not 22 exhaust the administrative remedies available to them. Patsy v. Bd. of Regents, 457 U.S. 496, 23 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). However, Congress replaced this “general rule 24 of non-exhaustion,” with a “general rule of exhaustion” for all prisoner suits based on federal 25 law. Porter v. Nussle, 534 U.S. 516, 525 n. 4, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). 26 Indeed, prisoners are required to exhaust administrative remedies before bringing suit under 27 42 U.S.C. § 1983: 28 No action shall be brought with respect to prison conditions under section 1983 of this -3- 1 title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 2 42 U.S.C. § 1997e(a); see also Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). 3 Exhaustion in cases subject to §1997e is mandatory. Porter, 534 U.S. at 524, 122 S.Ct. at 4 983; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Further, “proper exhaustion 5 demands compliance with an agency’s deadlines and other critical procedural rules.” 6 Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Moreover, futility or other exceptions to the 7 exhaustion requirement do not apply. Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 8 1819, 1825, 149 L.Ed.2d 958 (2001) 9 Exhaustion is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 10 910, 166 L.Ed.2d 798 (2007). A defendant bears the burden of raising and proving the 11 absence of exhaustion. Wyatt, 315 F.3d at 1119. Because exhaustion is a matter of abatement 12 in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide 13 disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the method 14 to be used in resolving the factual dispute. Ritza v. Int’l Longshoremen’s & Warehousemen’s 15 Union, 837 F.2d 365, 369 (9th Cir. 1988), quotation omitted. Further, a plaintiff’s 16 allegations of exhaustion are not presumed to be true. Ritza, 837 F.2d at 368-69. 17 Additionally, the Ninth Circuit has determined that the claims must be exhausted before 18 filing suit. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (permitting 19 exhaustion pendente lite will inevitably undermine them). 20 Defendants point out that, in his SAC, Rowe checked the box (Section II(C)) 21 admitting that he did not complete the appeal process prior to filing the action. SAC, p. 3. 22 Indeed, Rowe states that the “602 appeal was denied and cancel[led] so it wouldn’t go further 23 to higher authorities.” Id. Defendants assert that, during discovery, Rowe was asked to 24 produce the documents showing that he had exhausted his administrative remedies. 25 According to the 602 appeal, on December 4, 2006, Hasadsri interviewed Rowe and tried to 26 examine him but Rowe “refused to be examined” by Hasadsri. Opposition [Doc. # 40], Ex. 27 3. Rowe’s 602 appeal was thereafter dismissed for “refusal to interview or cooperate with” 28 -4- 1 the reviewer. Declaration of Reager [Doc. # 38], Ex. B; Opposition [Doc. # 40], Ex. 3. 2 Defendants point out that Rowe did not appeal the rejection of his claim or assert that he 3 would submit to an examination so that the appeal process could continue. 4 Additionally, Defendants point out that the subject of Rowe’s appeal was the 5 allegation that Nurse Montoya had refused to refill his prescriptions – Rowe has not 6 presented a 602 appeal with regard to any alleged acts or omissions by Hasadsri. 7 The State of California, through the California Department of Corrections (“CDCR”), 8 provides its prisoners and parolees with the right to appeal administratively “any department 9 decision, action, condition or policy perceived by those individuals as adversely affecting 10 their welfare.” Cal. Code Regs. Tit. 15, § 3084.1(a). “An appellant must submit the appeal 11 within 15 working days of the event or decision being appealed, or of receiving an 12 unacceptable lower level appeal decision.” Cal. Code Regs. Tit. 15, § 3084.6(c). 13 The CDCR inmate appeal process has several levels of appeal: informal resolution, 14 formal written appeal on a CDCR Form 602, second level appeal to the institution level, and 15 third level appeal. See Cal. Code Regs. Tit. 15, § 3084.5. The decision of the Director of 16 CDCR at the Inmate Appeals Branch (for appeals received prior to August 2008) or the 17 decision of the Office of Third Level Appeals - Health Care for medical appeals (for 18 decisions received as of August 2008 or as of November 2008 for medical staff complaints) 19 constitutes exhaustion of the administrative remedies available to an inmate within the 20 Department of Corrections and Rehabilitation. 21 As to Montoya, Rowe has not pursued to completion any grievances/appeals relating 22 to his claims. Rather, the documents submitted by the parties establish that Rowe’s appeal 23 was cancelled because of Rowe’s lack of cooperation. As to Hasadsri, the documents 24 submitted by the parties indicate that Rowe did not pursue any administrative appeal as to 25 any alleged acts or omissions by Hasadsri. Rowe asserts, however, that he did file an inmate 26 602 appeal on Hasadsri, but that it was never “returned, answered, and evidently trashed.” 27 Opposition [Doc. # 40], p. 4. Rowe has submitted documents to show the defects of the 28 appeal process. See Opposition [Doc. # 40], Ex. 2, California Prison Focus Survey (“Having -5- 1 interviewed numerous prisoners at your prison, it is apparent to us that the 602 appeals 2 process is not working. It seems that the appeals most often fail at the informal level due to 3 lost or unanswered appeals.”). 4 Rowe’s opposition clearly acknowledges that Rowe did not further pursue an inmate 5 602 appeal after cancellation. See Opposition [Doc. # 40], p. 3. Rowe asserts that, because 6 of the institution’s cancellation of his appeal, he filed a § 1983 action. Defendants point out, 7 however, that to the extent that Rowe denies that he refused to cooperate, Rowe could have 8 appealed the decision to either the Second Level or the Director’s Level and provided 9 evidence that he was willing to consent to an interview and medical examination. 10 Defendants also assert that, if an appeal regarding Hasadsri was lost or not returned, Rowe 11 could have bypassed the informal level appeal and submitted the appeal to the First Level of 12 the formal appeals process. 13 The Court also considers, however, that Defendants have not submitted an affidavit 14 to establish that a search of records, e.g., the Inmate/Parolee Appeals Tracking System, was 15 conducted and failed to show that Rowe pursued a grievance/appeal to completion. 16 Additionally, Defendants have not addressed Rowe’s assertion that the appeal process is 17 flawed.1 Nonetheless, the Court finds it appropriate to place significant weight on Rowe’s 18 acknowledgment that he did not pursue the grievance/appeal process to completion as to 19 Montoya and his failure to assert that he made any effort to bypass the informal level appeal 20 as to Hasadsri.2 The Court finds Defendants have established the Rowe has failed to exhaust 21 22 1 The Court notes that the California Prison Focus Survey indicates that the alleged flaws are at the informal level. 23 2 24 25 26 27 28 The United States Supreme Court has cautioned that it “will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth, 532 U.S. at 741 n. 6; see also Porter, 534 U.S. at 524 (“[E]xhaustion in cases covered by § 1997e(a) is now mandatory. All ‘available’ remedies must now be exhausted; those remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.’”). In this case, prison officials unquestionably had the authority to act on Rowe’s administrative appeal and to provide some form of relief. See Booth, 532 U.S. at 736 n. 4, 121 S.Ct. 1819 (suggesting that where prison officials lack authority “to provide any relief or to take any -6- 1 his claims. See e.g., Chelette v.. Harris, 229 F.3d 684, 688 (8th Cir.2000) (concluding that 2 section 1997e(a) does not permit the court to consider an inmate's subjective beliefs in 3 determining whether administrative procedures are “available”); Jones v. Smith, 266 F.3d 4 399, 399 (6th Cir.2001) (concluding that dismissal for failure to exhaust was proper because 5 the plaintiff failed to allege that the prison official who refused to provide a grievance form 6 was the only source of those forms or that plaintiff made other attempts to obtain a form or 7 file a grievance without a form). Dismissal is appropriate. 8 As previously stated, “[a]n appellant must submit the appeal within 15 working days 9 of the event or decision being appealed, or of receiving an unacceptable lower level appeal 10 decision.” Cal. Code Regs. Tit. 15, § 3084.6(c). In other words, Rowe’s time for filing an 11 administrative grievance has lapsed. 12 administrative remedies, and the time for filing an administrative grievance has lapsed, a 13 procedural default results. Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995). In Marsh, the 14 Fifth Circuit Court of Appeals stated: 15 16 Where a prisoner-plaintiff fails to exhaust Without the prospect of a dismissal with prejudice, a prisoner could evade the exhaustion requirements by filing no administrative grievance or by intentionally filing an untimely one, thereby foreclosing administrative remedies and gaining access to a federal forum without exhausting administrative remedies. 17 53 F.3d at 710. While Marsh addressed section 1997e prior to the enactment of the Prison 18 Litigation Reform Act of 1995, Congress’s enactment of a more restrictive statute does not 19 permit circumvention under its less restrictive predecessor. See Booth, 532 U.S. at 741 20 (“obviously broader exhaustion requirement” intended by Congress). 21 Prior to the Supreme Court’s decision in Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 22 2378, 165 L.Ed.2d 368 (2006), Ninth Circuit law directed the district court to dismiss a 23 complaint without prejudice to allow the prisoner a chance to exhaust his administrative 24 remedies. Wyatt, 315 F.3d at 1120 (“If the district court concludes that the prisoner has not 25 26 27 28 action whatsoever in response to a complaint,” leaving the inmate “[w]ithout the possibility of relief,” there might be “nothing to exhaust”). Rowe has not shown that he was foreclosed from pursuing review. -7- 1 exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without 2 prejudice.”); see also McKinney v. Carey, 311 F.3d at 1198, 1199-1200 (9th Cir. 2002). 3 However, Woodford now forecloses any untimely exhaustion. The exhaustion requirement 4 may not be satisfied “by filing an untimely or otherwise procedurally defective 5 administrative grievance or appeal.” Woodford, 126 S.Ct. at 2382. Proper exhaustion 6 requires compliance with an agency's deadlines and other critical procedural rules. Id. at 7 2386; see e.g., Janoe v. Garcia, 2007 WL 1110914, at *8-9 (S.D.Cal. March 29, 2007) 8 (dismissing Complaint with prejudice where a prisoner did not pursue the three-step formal 9 review process, and had no time to exhaust); Regan v. Frank, 2007 WL 106537, at *4-5 10 (D.Haw .Jan.9, 2007) (dismissing plaintiff's claims with prejudice for failure to timely 11 exhaust administrative remedies as required under 42 U.S.C. § 1997e(a) prior to filing suit). 12 The CDCR administrative appeals process requires that prisoner administrative appeals be 13 submitted within fifteen days of receiving an adverse determination. Rowe did not pursue 14 further appeal remedies as to Montoya after being advised that the appeal had been cancelled. 15 Further, Rowe did not attempt to bypass the informal appeal after not receiving any response 16 to his appeal regarding conduct/omissions of Hasadsri. 17 administrative remedies. Under Woodford, it is impossible for Rowe to cure this defect. 18 Therefore, the dismissal based upon failure to exhaust is with prejudice. Rowe did not exhaust his 19 20 Motion for Summary Judgment3 21 Summary judgment may be granted if the movant shows “there is no genuine issue 22 as to any material fact and that the moving party is entitled to judgment as a matter of law.” 23 Rule 56(c), Federal Rules of Civil Procedure. The moving party has the initial responsibility 24 25 26 27 3 Alternatively, Defendants request that summary judgment be granted in their favor. Although the Court has determined that Defendants have sustained their burden in establishing that Rowe has failed to exhaust his administrative remedies, the Court finds it appropriate to address Defendants’ alternate argument. 28 -8- 1 of informing the court of the basis for its motion, and identifying those portions of “the 2 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 3 affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material 4 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). 5 Once the moving party has met the initial burden, the opposing party must "go beyond 6 the pleadings" and "set forth specific facts showing that there is a genuine [material] issue 7 for trial." Id., 477 U.S. at 248, 106 S.Ct. at 2510, internal quotes omitted. The nonmoving 8 party must demonstrate a dispute “over facts that might affect the outcome of the suit under 9 the governing law” to preclude entry of summary judgment. Anderson v. Liberty Lobby Inc., 10 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Further, the disputed facts 11 must be material. Celotex Corp., 477 U.S. at 322-23. In opposing summary judgment, a 12 plaintiff is not entitled to rely on the allegations of his complaint, Fed.R.Civ.P. 56(e), or upon 13 conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th 14 Cir. 1992). Further, "a party cannot manufacture a genuine issue of material fact merely by 15 making assertions in its legal memoranda." S.A. Empresa de Viacao Aerea Rio Grandense 16 (Varig Airlines) v. Walter Kiddle & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). 17 The dispute over material facts must be genuine. Anderson, 477 U.S. at 248, 106 18 S.Ct. at 2510. A dispute about a material fact is genuine if “the evidence is such that a 19 reasonable jury could return a verdict for the nonmoving party.” Id. A party opposing a 20 properly supported summary judgment motion must set forth specific facts demonstrating a 21 genuine issue for trial. Id. Mere allegation and speculation are not sufficient to create a 22 factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th 23 Cir. 1995) (per curiam). “If the evidence is merely colorable or is not significantly probative, 24 summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511. 25 However, the evidence of the nonmoving party is to be believed and all justifiable inferences 26 are to be drawn in his favor. Id. at 255. Further, in seeking to establish the existence of a 27 factual dispute, the non-moving party need not establish a material issue of fact conclusively 28 in his favor; it is sufficient that “the claimed factual dispute be shown to require a jury or -9- 1 judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 2 F.2d 626, 631 (9th Cir. 1987). 3 Additionally, the Court is only to consider admissible evidence. Moran v. Selig, 447 4 F.3d 748, 759-60 (9th Cir. 2006) (pleading and opposition must be verified to constitute 5 opposing affidavits); FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) 6 (declarations and other evidence that would not be admissible may be stricken). 7 A claim of inadequate medical care constitute cruel and unusual punishment when the 8 mistreatment rises to the level of “deliberate indifference to serious medical needs.” Estelle 9 v. Gamble, 429 U.S. 97, 106 (1976). A prison official violates the Eighth Amendment only 10 when two requirements are met. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 11 1977, 128 L.Ed.2d 811 (1994). First, the alleged constitutional deprivation must be, 12 “objectively, ‘sufficiently serious,’” in that the official’s “act or omission must result in the 13 denial of ‘the minimal civilized measure of life's necessities.’” Id. 511 U.S. at 834, 114 S. 14 Ct. at 1977, quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 15 271 (1991) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Second, the prison official 16 must have a “sufficiently culpable state of mind,” such that he acts with “deliberate 17 indifference” to inmate health or safety. Farmer, 511 U.S. at 834, 114 S. Ct. at 1977, quoting 18 Wilson, 501 U.S. at 302-303, 111 S.Ct. at 2326. This sufficiently culpable state of mind 19 entails more than mere negligence, but less than conduct undertaken for the very purpose of 20 causing harm. Farmer, 511 U.S. at 837. The United States Supreme Court has established 21 a subjective test for the deliberate indifference inquiry: 22 23 [T]he official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 24 Id., 511 U.S. at 837. A plaintiff “need not show that a prison official acted or failed to act 25 believing that harm would actually befall an inmate; it is enough that the official acted or 26 failed to act despite his knowledge of a substantial risk of serious harm.” Id. 511 U.S. at 842, 27 114 S.Ct. at 1981. Moreover, the indifference to the inmate's medical needs must be 28 substantial; inadequate treatment due to negligence, inadvertence, or differences in judgment - 10 - 1 between an inmate and prison medical personnel regarding appropriate medical diagnosis or 2 treatment are not enough to state a deliberate indifference claim. Estelle v. Gamble, 429 U.S. 3 at 105-06; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Sanchez v. Vild, 891 4 F.2d 240, 242 (9th Cir. 1989). 5 “Because society does not expect that prisoners will have unqualified access to health 6 care, deliberate indifference to medical needs amounts to an Eighth Amendment violation 7 only if those needs are ‘serious.’“ Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 8 L.Ed.2d 156 (1992). The Ninth Circuit has stated that a “serious” medical need exists if the 9 failure to treat a prisoner's condition “could result in further significant injury or the 10 unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 11 2006). Indications that a prisoner has a serious need for medical treatment include the 12 existence of an injury that a reasonable doctor or patient would find important and worthy 13 of comment or treatment, the presence of a medical condition that significantly affects an 14 individual's daily activities, or the existence of chronic and substantial pain. See, e.g., Wood 15 v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.1990) (citing cases); Hunt v. Dental Dept., 16 865 F.2d 198, 200-01 (9th Cir.1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th 17 Cir.1992), overruled on other grounds. The Court also considers whether a plaintiff can 18 establish more than one isolated instance of neglect. Wood, 900 F.2d at 1334 (Ninth Circuit 19 looks at facts for substantial indifference in individual case, indicating more than mere 20 negligence or isolated occurrences of neglect). Moreover, a showing of medical malpractice 21 or negligence does not establish a constitutional deprivation or deliberate indifference under 22 the Eighth Amendment. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004); Wood, 900 23 F.2d at 1334. 24 In this case, Rowe asserts that Montoya refused to refill his prescriptions on October 25 11, 2006. Defendants, in their Motion for Summary Judgment, have not provided any 26 evidence to dispute this. However, the question is whether this is a material fact. Rowe has 27 not presented any evidence that Montoya’s actions were anything other than an isolated 28 incident. Further, although Rowe has presented some literature regarding allergies, he has - 11 - 1 not provided any documentation that his allergies constituted a serious medical need. Indeed, 2 Rowe has not provided any evidence that the symptoms complained of by him (e.g., watery 3 eyes, breaking out, itching, runny nose, sneezing, and stuffy nose, difficulty breathing) are 4 not routine and require medical treatment. See e.g., Hutchinson v. United States, 838 F.2d 5 390 (9th Cir. 1988) (expert medical opinion testimony is necessary to establish deliberate 6 indifference in cases involving complex medical issues). Additionally, Rowe has not 7 provided any evidence that Montoya knew of any particular medical issues in Rowe’s case 8 that would cause his allergies to be any different than those regularly experienced by the 9 average person. Moreover, Rowe has not provided any evidence that Montoya was even 10 authorized, as a non-physician, to order prescription medications for patients. Similarly, 11 Rowe has not provided any evidence to establish that he suffered any injury as a result of 12 Montoya’s actions as opposed to the normal symptoms he experienced as a result of his 13 allergies. 14 Rowe also asserts that Hasadsri had previously examined Rowe and denied him 15 treatment. Rowe asserts that Hasadsri had access to his medical records and that Hasadsri 16 was responsible for Rowe’s treatment and care. Rowe has not provided any evidence to 17 support this conclusory allegation. Moreover, the CDC 602 form provided by Rowe 18 indicates that Hasadsri stated that “it is the policy and procedure of CDCR that the I/M is 19 seen by yard RN first (for a non life threatening condition). Today you refused to be 20 examined by me.” Opposition, Ex. 3. Rowe has not provided any evidence to establish that 21 Hasadsri knew of any risk of harm to Rowe or that Hasadsri disregarded any such risks 22 resulting in injury to Rowe. 23 The Court finds that there is no issue of material fact in dispute. Summary judgment 24 in favor of Defendants is appropriate. The Court having previously determined that Rowe 25 failed to exhaust his administrative remedies, however, the Court will dismiss the action. 26 27 28 Plaintiff’s Dispositive Motion Rowe’s Dispositive Motion discusses his settlement position and requests that, if a - 12 - 1 settlement is not reached, this matter be set for a jury trial. Because the Court has found 2 dismissal is appropriate, the Court will deny Plaintiff’s motion. 3 4 Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Dispositive Motion [Doc. # 36] is DENIED. 6 2. Defendants’ Motion to Dismiss for Failure to Exhaust Administrative 7 8 9 10 11 12 Remedies or, in the Alternative, for Summary Judgment [Doc. # 37] is GRANTED. 3. This matter is DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies. 4. The Clerk of the Court shall enter judgment and shall then close its file in this matter. DATED this 24th day of February, 2010. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -
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