(PC) Barnhardt v. Tilton, et al., No. 1:2007cv00539 - Document 53 (E.D. Cal. 2009)
Court Description: ORDER GRANTING Defendants' 33 43 Motion to Dismiss for Failure to Exhaust Administrative Remedies and DISMISSING Action Without Prejudice signed by Magistrate Judge Dennis L. Beck on 10/13/2009. CASE CLOSED(Figueroa, O)
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(PC) Barnhardt v. Tilton, et al. Doc. 53 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARCUS J. BARNHARDT, Case No. 1:07-cv-00539-DLB (PC) 11 13 JAMES E. TILTON, et al., ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND DISMISSING ACTION WITHOUT PREJUDICE 14 (Docs. 33, 43) 12 Plaintiff, v. Defendants. 15 / 16 17 Plaintiff Marcus J. Barnhardt (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 19 on Plaintiff’s first amended complaint against defendants Felix Igbinosa, Das Pac, K. Vilaysane, 20 and Bryan Huy Phi for deliberate indifference to a serious medical need in violation of the Eighth 21 Amendment.1 22 On April 24, 2009, Defendants Pac Das and Felix Igbinosa filed a motion to dismiss for 23 failure to exhaust administrative remedies pursuant to the unenumerated portion of Federal Rule 24 of Civil Procedure 12(b). (Doc. 33, Defs. Das and Igbinosa’s Mot. To Dismiss.) On July 16, 25 2009, Defendants K. Vilaysane and Huy Phi filed a motion to dismiss for failure to exhaust 26 27 28 1 Defendants Igbinosa, Vilaysane, and Huy Phi were erroneously named in Plaintiff’s amended complaint as “Igbignosa,” “Vilasane,” and “Hui Phi,” respectively. The Court will use the correct spelling of defendants’ names throughout this Order. 1 Dockets.Justia.com 1 administrative remedies. (Doc. 43, Defs. Vilaysane and Huy Phi’s Mot. To Dismiss.) On 2 August 7, 2009, after receiving an extension of time, Plaintiff filed his opposition to Defendants’ 3 motions. (Doc. 51, Pl.’s Opp’n.)2 No reply was filed. The matter is deemed submitted pursuant 4 to Local Rule 78-230(m). 5 I. Summary of Plaintiff’s Amended Complaint 6 Plaintiff alleges that he is an insulin dependent diabetic, and his medical history includes 7 macular proliferative retinopathy, peripheral neuropathy, chronic hyoglycemia and 8 hyperglycemia, and “trigger thumb.” Plaintiff alleges that he had previously been scheduled for 9 surgery for an implanted insulin pump by the previous chief medical officer. While housed at 10 Pleasant Valley State Prison (“PVSP”), Defendant Huy Phi told Plaintiff that he would not 11 follow these orders. Plaintiff claims that Defendant Igbinosa also refused to follow this order, 12 and sent Plaintiff to several different doctors, which resulted in conflicting medical orders and 13 mixed-up prescriptions. Plaintiff alleges that Defendant Igbinosa prescribed inadequate pain and 14 diabetes medication, and failed to order a proper diabetic diet. Plaintiff alleges that Defendant 15 Vilaysane informed Plaintiff that PVSP does not do the insulin pump surgery. Defendant 16 Vilaysane allegedly failed to order a medical transfer and failed to provide adequate diabetes 17 medication and a proper diet. Defendant Pac Das allegedly told Plaintiff that he would be better 18 off at a medical facility with an insulin pump and proper diet, but failed to order or recommend a 19 transfer for fear of being fired. Plaintiff also alleges that Defendant Vilaysane failed to transfer 20 Plaintiff from PVSP despite the presence of valley fever, which diabetic inmates are more likely 21 to contract. 22 II. Failure to Exhaust Administrative Remedies 23 24 1. Legal Standard Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 25 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 26 confined in any jail, prison, or other correctional facility until such administrative remedies as are 27 2 28 Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on February 4, 2009. W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc. 19.) 2 1 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 2 administrative remedies prior to filing suit. Jones v. Bock, 127 S. Ct. 910, 918-19 (2007); 3 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 4 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 5 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all 6 prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 7 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 8 defense under which defendants have the burden of raising and proving the absence of 9 exhaustion. Jones, 127 S. Ct. at 921; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 10 The failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to 11 an unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d 12 at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 13 Cir. 1988) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative 14 remedies, the court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 15 315 F.3d at 1119-20. If the court concludes that the prisoner has failed to exhaust administrative 16 remedies, the proper remedy is dismissal without prejudice. Id. 17 The California Department of Corrections has an administrative grievance system for 18 prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (Deering 2009). The process is initiated 19 by submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal are involved, including 20 the informal level, first formal level, second formal level, and third formal level, also known as 21 the “Director’s Level.” Id. § 3084.5. Appeals must be submitted within fifteen working days of 22 the event being appealed, and the process is initiated by submission of the appeal to the informal 23 level, or in some circumstances, the first formal level. Id. §§ 3084.5, 3084.6(c). In order to 24 satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their 25 claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 86 (2006); McKinney, 311 F.3d at 26 1199-1201. 27 Plaintiff does not have to name each defendant in his grievance form. See Jones v. Bock, 28 549 U.S. 218-19 (2007) (“The level of detail necessary in a grievance to comply with the 3 1 grievances procedures will vary from system to system and claim to claim, but it is the prison’s 2 requirements, and not the PLRA, that define the boundaries of proper exhaustion . . . . 3 [E]xhaustion is not per se inadequate simply because an individual later sued was not named in 4 the grievances.”). The inmate appeal form CDC-602 does not require identification of specific 5 individuals. See Cal. Code Regs., tit. 15 § 3084.2(a). 6 III. Arguments 7 Defendants contend that Plaintiff failed to exhaust administrative remedies for all his 8 claims prior to filing this action.3 Plaintiff filed this action on April 6, 2007, and as required by 9 the PLRA, must have exhausted administrative remedies before filing. Defendants contend that 10 Plaintiff filed several grievances concerning the claims raised in this action, but none of these 11 claims were exhausted at the Director’s Level prior to the filing of this suit. (Doc. 33, Mot. To 12 Dismiss 5:11-12.) Defendants submit Plaintiff’s grievances that concerned conditions at PVSP. 13 Grievance No. PVSP-A-06-02989 concerned Plaintiff’s request for a medical transfer. 14 (Doc. 33, Exh. B, pp.2-3.) It was received on September 24, 2006. (Exh. B, p. 2.) The 15 Director’s Level issued its review of grievance No. PVSP-A-06-02989 on June 8, 2007. (Doc. 16 33, Exh. A, Attach. 1.) 17 Grievance No. PVSP-A-07-00084 concerned Plaintiff’s request for adequate pain 18 medication and a medical mattress. (Exh. B, pp. 4-5.) It was received on December 13, 2006. 19 (Exh. B, p. 4.) The Director’s Level issued its review of this grievance on July 27, 2007. (Exh. 20 A, Attach. 1.) 21 Grievance No. PVSP-A-07-02346 concerned Plaintiff’s request for treatment for his 22 thumb. (Exh. B, pp. 6-7.) It was received on July 2, 2007. (Exh. B, p. 6.) The Director’s Level 23 issued its review on December 20, 2007. (Exh. A, Atach. 1.) 24 Grievance No. PVSP-A-02774 was a CDCD 1824 (reasonable modification or 25 accommodation request) for an insulin pump and transfer to a medical facility. (Exh. B, pp. 826 11.) It was submitted on August 28, 2007, and reviewed on September 11, 2007 at the First 27 3 28 Defendants Vilaysane and Huy Phi’s motion to dismiss raises the same arguments as Defendants Das and Igbinosa’s motion to dismiss. The Court will thus cite to Defendants Das and Igbinosa’s motion only. 4 1 Level. (Exh. B, pp. 8-9.) As of March 11, 2009, the Director’s Level has not issued a review. 2 Based on the submitted evidence, Defendants have met their burden of demonstrating that 3 Plaintiff failed to exhaust administrative remedies prior to filing this action. The burden thus 4 shifts to Plaintiff to rebut Defendants’ arguments. 5 Plaintiff contends that any premature filing on his part was fixed because he filed his 6 amended complaint in March 11, 2008. (Doc. 51, Pl.’s Opp’n 1.) Plaintiff contends that he has a 7 partial grant of grievance No. PVSP-A-02774 as of September 11, 2007. (Pl.’s Opp’n 1.) 8 Plaintiff contends that he has filed numerous 602 appeals concerning his medical care, but the 9 prison administration lost or threw them away. (Pl.’s Opp’n 2.) Plaintiff contends that a Fresno 10 Superior Court in ruling on Plaintiff’s habeas corpus petition found that he had exhausted 11 administrative remedies. (Pl.’s Opp’n, Exh. 4.) Plaintiff contends that numerous divisions of the 12 CDCR are aware of Plaintiff’s medical issues. (Pl.’s Opp’n, Exh. 6.) 13 “[A]n action is ‘brought’ for purposes of § 1997e(a) when the complaint is tendered to 14 the district clerk . . . .” Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (quoting Ford 15 v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004)). Here, Plaintiff brought this action on April 7, 16 2007. (See Doc. 1, Pl.’s Compl.) It does not matter that Plaintiff later filed an amended 17 complaint; that did not change the date of the filing of this action. 18 Furthermore, in order to satisfy § 1997e(a), California state prisoners are required to use 19 the inmate grievance process to exhaust their claims prior to filing suit. Ngo, 548 U.S. at 86. 20 Plaintiff’s notification of his medical issues to other divisions of CDCR does not exempt 21 Plaintiff from having to exhaust administrative remedies using the inmate grievance process. 22 The finding by the Fresno Superior Court that Plaintiff exhausted administrative remedies does 23 not cure the deficiencies here. The Fresno Superior Court found that Plaintiff had exhausted 24 administrative remedies for the claims alleged therein as of June 7, 2007. (Pl.’s Opp’n, Exh. 4.) 25 As previously stated, Plaintiff brought this action on April 7, 2007, well before exhaustion 26 occurred. Plaintiff’s contention that numerous other 602 appeals were lost or destroyed is 27 unsupported by any evidence. The Court finds that Plaintiff has failed to exhaust administrative 28 remedies, and therefore the proper remedy is dismissal without prejudice. Wyatt, 315 F.3d at 5 1 1119-20. 2 IV. Conclusion and Order 3 Based on the foregoing, the Court HEREBY ORDERS that: 4 1) 5 6 administrative remedies, filed on April 24, 2009, is GRANTED; 2) 7 8 Defendants Das and Igbinosa’s motion to dismiss for failure to exhaust Defendants K. Vilaysane and Bryan Huy Phi’s motion to dismiss for failure to exhaust administrative remedies, filed on July 16, 2009, is GRANTED; and 3) 9 This action is DISMISSED without prejudice for failure to exhaust administrative remedies. 10 11 12 IT IS SO ORDERED. Dated: 3b142a October 13, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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