(PC) Brookins v. McDonald, No. 2:2009cv00841 - Document 24 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/21/10 ORDERING the clerk of the court is directed to assign a district judge to this case. U.S. District Judge Frank C. Damrell randomly assigned to this case. Also, RECOMMENDING that Defendants' 03/08/10 motion to dismiss 19 be granted in part and denied in part as follows: Defendants' motion to dismiss plaintiff's claims arising from HDSP 08-0502 be granted; and Defendants' motion to dismiss plaintiff's claims arising from HDSP 08-0757 be denied. Defendants' motion to dismiss plaintiff's remaining claims as unexhausted be granted. Plaintiff's injunctive relief claims be dismissed. Plaintiff's 05/04/ 09 complaint be dismissed and plaintiff be granted 30 days from any order adopting these findings and recommendations to file an amended complaint that complies with the instant findings and recommendations. MOTION to DISMISS 19 referred to Judge Frank C. Damrell. Objections due within 21 days. (Plummer, M)
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(PC) Brookins v. McDonald Doc. 24 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 MELVIN BROOKINS, 10 Plaintiff, 11 12 vs. MICHAEL MCDONALD, et al., 13 ORDER AND Defendants. 14 15 No. 2:09-cv-0841 KJN P FINDINGS AND RECOMMENDATIONS / I. Introduction 16 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with 17 an action filed pursuant to 42 U.S.C. § 1983. On March 8, 2010, defendants filed a motion to 18 dismiss on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing 19 the instant action. On March 31, 2010, plaintiff filed an opposition to the motion to dismiss in 20 which he states he is a Plata1 class member, and that because he is a Plata class member he has 21 exhausted his administrative remedies. (Dkt No. 21 at 2 & 3.) In their April 5, 2010 reply, 22 defendants contend plaintiff’s complaint should be dismissed because his membership in the 23 Plata class does not relieve him of his obligation to first exhaust administrative remedies. (Dkt. 24 No. 22.) 25 26 1 Plata v. Schwarzenegger, No. C 01-1351 THE (N.D. Cal.). 1 Dockets.Justia.com 1 II. Motion to Dismiss 2 Background 3 Plaintiff is proceeding on his original complaint against defendants S. M. Roche, 4 G. Dudley, M. Miller, D. Swingle, and Michael McDonald (collectively “defendants”). Therein, 5 he alleges as follows: In January of 2007, plaintiff began having problems with his knee after a 6 full knee replacement. Due to an alleged lack of adequate medical care and alleged improper 7 post-operative care at High Desert State Prison (“HDSP”), plaintiff avers he was in severe pain 8 by October 2007, and that “gangrene, staphyloccus, and all kinds of infections set in the knee.” 9 (Complt. at 5.) Plaintiff’s leg was amputated from above the knee in December 2007. 10 On January 11, 2008, Dr. Parlasca recommended the following plan: 11 I [Dr. Parlasca] need aggressive stump or prosthetic fitting. We want to begin as soon as possible to get that on so we can get him up and get him walking. I am going to see him back here in 2 weeks just to make sure that we are getting started with his prosthetic fittings. 12 13 14 (Complt., Ex. C.) Plaintiff has been confined to a wheelchair since his amputation. Plaintiff 15 alleges the prosthetic fitting was started, but not completed, and does not yet fit correctly. 16 Plaintiff states he is unable to walk. 17 Plaintiff further contends that High Desert State Prison lost its contract with the 18 company providing prosthetics and fittings, and alleges that prison officials want to transfer 19 plaintiff to another institution. Plaintiff alleges that such a transfer would place him at the 20 bottom of the medical list for treatment and, due to prison overcrowding, would mean it will be 21 years before he receives “adequate, or at least medical treatment again.” (Complt. at 6.) 22 23 Plaintiff seeks declaratory and injunctive relief, monetary and punitive damages. (Complt. at 8-9.) 24 Legal Standard 25 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e 26 to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. 2 1 § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 2 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 3 Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 4 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding the conditions of 5 their confinement, whether they involve general circumstances or particular episodes, and 6 whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532. 7 Exhaustion of all “available” remedies is mandatory; those remedies need not 8 meet federal standards, nor must they be “plain, speedy and effective.” Id. at 524; Booth v. 9 Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in 10 grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 11 U.S. at 741. A prisoner “seeking only money damages must complete a prison administrative 12 process that could provide some sort of relief on the complaint stated, but no money.” Id. at 13 734.2 14 A prisoner need not exhaust further levels of review once he has either received 15 all the remedies that are “available” at an intermediate level of review, or has been reliably 16 informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 17 926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief 18 remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief 19 remained available, whether at unexhausted levels or through awaiting the results of the relief 20 already granted as a result of that process. Brown, 422 F.3d at 936-37. 21 22 As noted above, the PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion demands compliance with an 23 24 25 26 2 The fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records). 3 1 agency's deadlines and other critical procedural rules because no adjudicative system can 2 function effectively without imposing some orderly structure on the course of its proceedings.” 3 Id. at 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to 4 properly exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied “by filing an 5 untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84. 6 The State of California provides its prisoners the right to appeal administratively 7 “any departmental decision, action, condition or policy which they can demonstrate as having an 8 adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them 9 the right to file appeals alleging misconduct by correctional officers and officials. Id. at 10 § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner 11 must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal 12 on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and 13 (4) third level appeal to the Director of the California Department of Corrections and 14 Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal.Code 15 Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the 16 exhaustion requirement under § 1997e(a). Id. at 1237-38. 17 Non-exhaustion under § 1997e(a) is an affirmative defense which should be 18 brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil 19 Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court 20 may look beyond the pleadings to determine whether a plaintiff exhausted his administrative 21 remedies. Id. at 1119-20. 22 Analysis 23 a. HDSP 08-0502 24 On February 11, 2008, plaintiff signed a “Reasonable Modification or 25 Accommodation Request,” in which plaintiff sought physical therapy and to be medically 26 unassigned. (Dkt. No. 19-3 at 25.) This document was stamped by HDSP Appeals on February 4 1 20, 2008, and assigned log number HDSP-08-0502. (Id.) On March 8, 2008, plaintiff’s HDSP 2 08-0502 was denied at the first level of review. (Dkt. No. 19-3 at 22-23.) 3 Defendants have provided evidence that plaintiff failed to appeal HDSP 08-0502 4 to the second or third level of review. Plaintiff failed to rebut this evidence. Moreover, the first 5 level appeal response notes that a new Comprehensive Accommodation Chrono was completed, 6 and plaintiff’s statement that this problem had been resolved was attached to the appeal denial. 7 (Dkt. No. 19-3 at 22.) 8 9 Accordingly, plaintiff’s claims contained in HDSP 08-0502 were not exhausted prior to filing the instant action and should be dismissed. 10 b. HDSP-08-0757 11 Defendants contend plaintiff failed to exhaust his administrative remedies because 12 he did not appeal grievance HDSP-08-0757 to the final level of review. 13 On March 16, 2008, plaintiff filed a “Reasonable Modification or 14 Accommodation Request,” asking prison officials to provide the prosthetic fitting as ordered by 15 Dr. Robert Parlasca on January 11, 2008. (Dkt. No. 19-3 at 11.) This request was stamped May 16 1, 2008, by HDSP Appeals and assigned log number HSDP-08-0757. (Id.) Plaintiff received a 17 second level response partially granting the appeal dated May 12, 2008. (Dkt. No. 19-3 at 7.) 18 Dr. Swingle, Chief Medical Officer, stated that the 19 Speciality Clinic has been notified that the orthotic provider wants to fit prosthetic devices at their facility instead of at the prison due to the availability of the equipment needed to properly fit these devices. The Specialty Clinic is in the process of scheduling these appointments as soon as possible. It is noted that you currently have the use of wheelchair as an interim accommodation. 20 21 22 23 (Dkt. No. 19-3 at 7.) 24 However, almost one year later, plaintiff avers that the prosthetic leg is not 25 completed and not yet fitted correctly, and that he is unable to walk. (May 4, 2009 Complt. at 6.) 26 //// 5 1 Defendants argue that plaintiff’s claims concerning his prosthetic device must be 2 dismissed because plaintiff failed to appeal HSDP-08-0757 to the third level of review. But 3 defendants have failed to demonstrate what further relief would have been available to plaintiff at 4 the third level of review. Had plaintiff taken an appeal within fifteen days from the second level 5 decision, as required by Cal. Code Regs., tit. 15, § 3084.6(c), his appointment for prosthetic 6 device would have been in the midst of scheduling or the fitting would be in the early stages. 7 Thus, any timely-filed third level appeal would have been either denied as the appointment- 8 making or fitting was in progress, or partially granted for the same reasons. 9 This case is similar to Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005). Although 10 Brown’s claim alleged excessive force, like plaintiff herein Brown’s second level appeal was 11 partially granted. Brown did not file a third level review. Id. at 931. On appeal, the Court of 12 Appeals for the Ninth Circuit found that defendants failed to prove some relief remained 13 available to Brown beyond the second level of review. Id. at 940. 14 There is a distinction between Brown’s case and plaintiff’s case because at 15 Brown’s second level of review his case was turned over for a separate investigation. Id. at 938- 16 39. However, this distinction does not alter the fact that defendants have not demonstrated 17 plaintiff had further relief available at the third level of review. 18 Dr. Swingle’s statement that plaintiff could appeal the second level decision to the 19 Director’s Level Review if plaintiff was dissatisfied with the second level decision did not make 20 it clear whether plaintiff would be permitted to file at the third level outside the fifteen-day 21 deadline, or once it became apparent prison officials would not continue with the prosthetic 22 fitting. Plaintiff should not be required to file a new grievance once it became apparent, almost a 23 year later, that the fittings would not continue. 24 In their reply, defendants argue that plaintiff only requested a preliminary 25 injunction to “preserve the status quo” with regard to HDSP-08-0757, citing plaintiff’s complaint 26 at 2. (Reply at 5.) Defendants’ reading is too narrow. Initially, plaintiff filed a motion for 6 1 injunctive relief to maintain the status quo. (Dkt. No. 1.) The statement to which defendants 2 refer is located in the “Exhaustion of Administrative Remedies” portion of the complaint and in 3 response to question “C. Is the grievance process completed?” plaintiff responds: “Request for 4 preliminary injunction/TRO to preserve the status quo. (See Exhibit - D).” (Complt. at 2.) 5 In addition, however, in his statement of facts portion of his opposition, plaintiff states, 6 The circumstances as they are “at present” will cause plaintiff to be subjected to further irreparable harm. Plaintiff requested a Temporary Restraining Order and requests for preliminary relief because Mike McDonald and his prison officials [have] failed to “preserve the status quo.” 7 8 9 (Opp’n at 2.) These statements do not express a desire to solely seek injunctive relief. Plaintiff 10 also seeks monetary and punitive damages. (Complt. at 9.) Although plaintiff is a Plata class 11 member, he may bring an individual action for money damages. See McNeil v. Guthrie, 945 12 F.2d 1163, 1166 n.4 (10th Cir. 1991). 13 This court finds that defendants have not demonstrated that plaintiff failed to 14 exhaust all administrative remedies that were available to him through HDSP-08-0757. 15 Accordingly, defendants’ motion to dismiss plaintiff’s claims based on HDSP-08-0757 should be 16 denied. 17 c. Other Unexhausted Issues 18 Defendants argue that plaintiff has filed no administrative grievances concerning 19 the delay in his knee replacement surgery, his housing placement in the gymnasium, or his 20 generalized claims regarding alleged Eighth Amendment violations concerning lack of or 21 inadequate medical care. (Mot. at 4.) Defendants have provided evidence that demonstrate such 22 failure to exhaust. (Robertson Decl., Attachment A.) Plaintiff has failed to rebut this evidence. 23 Accordingly, these claims should be dismissed and this action should proceed solely on 24 plaintiff’s claims adequately exhausted by HDSP-08-0757. 25 //// 26 //// 7 1 III. Plata 2 Plaintiff concedes he is a Plata class member. A plaintiff who is a member of a 3 class action for equitable relief from prison conditions may not maintain a separate, individual 4 suit for equitable relief involving the same subject matter of the class action. See Crawford v. 5 Bell, 599 F.2d 890, 892-93 (9th Cir. 1979); see also McNeil, 945 F.2d at 1165 (“Individual suits 6 for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be 7 brought where there is an existing class action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 8 (5th Cir. 1988) (en banc) (“To allow individual suits would interfere with the orderly 9 administration of the class action and risk inconsistent adjudications.”). 10 A class action in the United States District Court for the Northern District of 11 California, Plata v. Schwarzenegger, No. C 01-1351 THE, involves a constitutional challenge to 12 the adequacy of medical care provided throughout the California state prison system. That is the 13 same subject matter addressed by plaintiff’s claims for equitable relief in this action. In this 14 regard, plaintiff seeks broad injunctive relief requiring provision of a prosthesis for his leg and 15 prohibiting prison officials from transferring plaintiff to a different institution. 16 Indeed, it appears plaintiff specifically seeks, inter alia, an order requiring 17 defendants to come into compliance with Plata rulings. (Complaint at 3.) As a member of the 18 Plata class, however, plaintiff must bring his “claims for equitable relief . . . through the class 19 representative until the class action is over or the consent decree is modified.” McNeil, 945 F.2d 20 at 1166. See also, e.g., Crawford, 599 F.2d at 892-93; Frost v. Symington, 197 F.3d 348, 359 21 (9th Cir. 1999). Accordingly, plaintiff’s claims for injunctive relief should be dismissed. 22 IV. Consent 23 Plaintiff filed a consent to the jurisdiction of a United States Magistrate Judge on 24 April 8, 2009. Defendants have not responded to the court’s December 7, 2009 Order re 25 Consent. Accordingly, the Clerk of Court will be directed to assign a district judge to this action. 26 //// 8 1 V. Conclusion 2 In light of the above, this action shall proceed solely as to those claims exhausted 3 through HDSP-08-0757, specifically, defendants’ failure to provide plaintiff with a prosthetic 4 device as requested by Dr. Parlasca on January 11, 2008. However, review of plaintiff’s May 4, 5 2009 complaint demonstrates that plaintiff has failed to specifically identify which defendants he 6 alleges were responsible for this failure. 7 While plaintiff may state a cognizable claim, he must connect the named 8 defendants clearly with the claimed denial of his rights. Farmer v. Brennan, 511 U.S. 825, 837, 9 843 (1994) (official’s liability for deliberate indifference to assault requires that official know of 10 and disregard an “excessive risk”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“liability 11 under section 1983 arises only upon a showing of personal participation by the defendant 12 (citation omitted) . . . [t]here is no respondeat superior liability under section 1983.”); Johnson v. 13 Duffy, 588 F.3d 740, 743-44 (9th Cir. 1978) (discussing “requisite causal connection” in section 14 1983 cases between named defendant and claimed injury); Barren v. Harrington, 152 F.3d 1193, 15 1194-95 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999) ("A plaintiff must allege facts, not 16 simply conclusions, that show that an individual was personally involved in the deprivation of 17 his civil rights."). The court cannot determine from the complaint what role, if any, defendants 18 McDonald, Roche, Dudley, Swingle or Miller played in the alleged deprivation of plaintiff’s 19 rights with regard to the claims included in HDSP-08-0757. 20 Moreover, because the complaint contains unexhausted allegations and focuses on 21 plaintiff’s requests for injunctive relief that this court cannot address in light of Plata, plaintiff’s 22 complaint must be dismissed with leave to file an amended complaint that seeks relief for only 23 those claims asserted in HDSP-08-0757, specifically links each defendant with the claimed 24 denial of his rights, omits any request for injunctive relief, and limits his request for damages to 25 monetary relief. 26 //// 9 1 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 2 conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights. 3 Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms 4 how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 5 unless there is some affirmative link or connection between a defendant’s actions and the 6 claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 7 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official 8 participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 9 268 (9th Cir. 1982). 10 In addition, plaintiff is informed that the court cannot refer to a prior pleading in 11 order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 12 complaint be complete in itself without reference to any prior pleading. This requirement exists 13 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 14 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 15 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 16 original complaint, each claim and the involvement of each defendant must be sufficiently 17 alleged. 18 19 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and 20 IT IS HEREBY RECOMMENDED that: 21 1. Defendants’ March 8, 2010 motion to dismiss (Dkt. No. 19) be granted in part 22 and denied in part as follows: 23 24 a. Defendants’ motion to dismiss plaintiff’s claims arising from HDSP 08-0502 be granted; and 25 26 b. Defendants’ motion to dismiss plaintiff’s claims arising from HDSP 08-0757 be denied. 10 1 2 c. Defendants’ motion to dismiss plaintiff’s remaining claims as unexhausted be granted. 3 2. Plaintiff’s injunctive relief claims be dismissed. 4 3. Plaintiff’s May 4, 2009 complaint be dismissed and plaintiff be granted thirty 5 days from any order adopting these findings and recommendations to file an amended complaint 6 that complies with the instant findings and recommendations. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 9 one days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: June 21, 2010 16 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 /broo0841.mtd 21 22 23 24 25 26 11
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