(PC) Cofield v. Miranda, et al.,, No. 2:2012cv03060 - Document 55 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/07/15 recommending that the clerk of the court terminate defendants' motion to strike plaintiff's surreply 52 , that defendants' motion for summary judgment 46 be granted, that judgment be entered in defendants' favor and that this action be closed. Motions 46 and 52 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
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(PC) Cofield v. Miranda, et al., Doc. 55 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT E. COFIELD, 12 Plaintiff, 13 14 No. 2:12-cv-3060-KJM-EFB P v. FINDINGS AND RECOMMENDATIONS MIRANDA, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. He alleges that defendants Miranda, Abdur-Rahman, and Lee were deliberately 19 indifferent to his medical needs in violation of the Eighth Amendment. Defendants move for 20 summary judgment, arguing inter alia, that plaintiff failed to exhaust his administrative remedies 21 before filing suit. ECF No. 46. Plaintiff opposes defendants’ motion and defendants have filed a 22 reply.1 ECF Nos. 49, 50. For the following reasons, defendants’ motion must be granted. 23 24 25 26 27 28 I. Exhaustion under the PLRA The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions [under section 1983 of this title] until such administrative 1 The court has not considered plaintiff’s unauthorized surreply (ECF No. 51) in resolving defendants’ motion, as neither the Federal Rules of Civil Procedure nor the court’s local rules provide for such a response. The Clerk of the Court should therefore terminate defendants’ motion to strike plaintiff’s surreply (ECF No. 52). 1 Dockets.Justia.com 1 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Prison conditions” subject to 2 the exhaustion requirement have been defined broadly as “the effects of actions by government 3 officials on the lives of persons confined in prison . . . .” 18 U.S.C. § 3626(g)(2); Smith v. 4 Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d 5 Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the 6 claims the plaintiff has included in the complaint, but need only provide the level of detail 7 required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. 8 Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials “time 9 and opportunity to address complaints internally before allowing the initiation of a federal case”). 10 Prisoners who file grievances must use a form provided by the California Department of 11 Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the 12 action requested. The grievance process, as defined by California regulations, has three levels of 13 review to address an inmate’s claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, 14 § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a 15 “Director’s Level Decision,” or third level review, with respect to his issues or claims. Id. 16 § 3084.1(b). 17 Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 18 741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other 19 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be 20 “available,” there must be the “possibility of some relief . . . .” Booth, 532 U.S. at 738. Relying 21 on Booth, the Ninth Circuit has held: 22 23 24 25 26 27 28 [A] prisoner need not press on to exhaust further levels of review once he has received all “available” remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones v. Bock, 549 U.S. 199, 204, 216 (2007). To bear this burden: a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so 2 1 demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, “available.” 2 3 4 5 6 Brown, 422 F.3d at 936-37 (citations omitted). 7 If under the Rule 56 summary judgment standard, the court concludes that plaintiff has 8 failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. 9 Wyatt v. Terhune, 315 F.3d 1108, 1120, overruled on other grounds by Albino v. Baca, 747 F.3d 10 11 1162 (9th Cir. 2014) (en banc). II. 12 Summary Judgment Standard Summary judgment is appropriate when there is “no genuine dispute as to any material 13 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 14 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 15 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 16 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 17 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 18 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 19 motion asks whether the evidence presents a sufficient disagreement to require submission to a 20 jury. 21 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 22 or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 23 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 24 trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 25 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, 26 under summary judgment practice, the moving party bears the initial responsibility of presenting 27 the basis for its motion and identifying those portions of the record, together with affidavits, if 28 any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 3 1 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving 2 party meets its burden with a properly supported motion, the burden then shifts to the opposing 3 party to present specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 4 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 5 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 6 to summary judgment procedures. Depending on which party bears that burden, the party seeking 7 summary judgment does not necessarily need to submit any evidence of its own. When the 8 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 9 need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National 10 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 11 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 12 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 13 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 14 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 15 should be entered, after adequate time for discovery and upon motion, against a party who fails to 16 make a showing sufficient to establish the existence of an element essential to that party’s case, 17 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 18 circumstance, summary judgment must be granted, “so long as whatever is before the district 19 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 20 To defeat summary judgment the opposing party must establish a genuine dispute as to a 21 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 22 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 23 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 24 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 25 determined by the substantive law applicable for the claim in question. Id. If the opposing party 26 is unable to produce evidence sufficient to establish a required element of its claim that party fails 27 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 28 ///// 4 1 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 2 at 322. 3 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 4 the court must again focus on which party bears the burden of proof on the factual issue in 5 question. Where the party opposing summary judgment would bear the burden of proof at trial on 6 the factual issue in dispute, that party must produce evidence sufficient to support its factual 7 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 8 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 9 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 10 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 11 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such 12 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 13 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 14 The court does not determine witness credibility. It believes the opposing party’s 15 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 16 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 17 proponent must adduce evidence of a factual predicate from which to draw inferences. American 18 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., 19 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at 20 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th 21 Cir. 1995). On the other hand, “[w]here the record taken as a whole could not lead a rational trier 22 of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 23 U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any 24 reasonable inferences that might be drawn from it could not support a judgment in favor of the 25 opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any 26 genuine dispute over an issue that is determinative of the outcome of the case. 27 28 Defendants’ motion included notice to plaintiff informing him of the requirements for opposing a motion for summary judgment, including the warning that if plaintiff failed to submit 5 1 evidence in opposition, his case could be dismissed and there would be no trial. See Woods v. 2 Carey, 684 F.3d 934 (9th Cir. 2012); Stratton v. Buck, 697 F.3d 1004, 1006 (9th Cir. Sept. 2012); 3 see also Albino, 747 F.3d at 1166 (providing that a motion for summary judgment, and not a 4 motion to dismiss, is the proper means of asserting the defense of failure to exhaust, where 5 evidence extrinsic to the complaint is submitted). 6 III. 7 Discussion Plaintiff proceeds on his claims of Eighth Amendment deliberate indifference to medical 8 needs against defendants Miranda, Abdur-Rahman, and Lee. The claims arise from the following 9 allegations: (1) that Miranda took plaintiff’s medications, asthma inhalers and medical appliances 10 when plaintiff arrived at High Desert State Prison on March 28, 2012; (2) that Drs. Abdur- 11 Rahman and Lee refused to follow the recommendations of a pulmonary specialist, refused to 12 examine plaintiff, and refused to give plaintiff needed x-rays; and (3) that Dr. Lee interfered with 13 plaintiff’s medical treatment by cancelling a sleep study and titration that Dr. Abdur-Rahman had 14 ordered. See ECF Nos. 29 (operative complaint, dated November 20, 2013); ECF No. 31 15 (February 19, 2014 Screening Order). 16 Plaintiff initially asserted the claims against defendants Miranda and Abdur-Rahman in 17 his first amended complaint, which he delivered to prison staff for mailing on March 14, 2013.2 18 ECF No. 14 at 69. That complaint did not include the claims against Dr. Lee, who was not added 19 as a defendant until plaintiff submitted another amended complaint for mailing on June 5, 2013. 20 See ECF No. 20 at 18-22. Accordingly, the court must determine: (1) whether plaintiff exhausted 21 his administrative remedies regarding his claims against Miranda and Abdur-Rahman prior to 22 March 14, 2013; and (2) whether plaintiff exhausted his administrative remedies regarding his 23 claims against Lee prior to June 5, 2013.3 See Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 24 2 25 26 27 28 Because this complaint did not comply with Rule 11 of the Federal Rules of Civil Procedure, the court did not screen it pursuant to 28 U.S.C. § 1915A. ECF No. 19. Plaintiff subsequently complied with the court’s order to file an amended complaint correcting this defect. ECF No. 20. 3 Defendants argue that plaintiff was required to exhaust all of his claims, including those against Lee, prior to March 14, 2013 because the March 14, 2013 complaint “raised [the] 6 1 2014) (“new” claims added to a lawsuit via amendment that are exhausted prior to the amendment 2 comply with the exhaustion requirement). If plaintiff did not exhaust his administrative remedies 3 prior to these dates, the court must determine whether plaintiff may be excused from the pre- 4 filing exhaustion requirement. See Sapp v. Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010). 5 Defendants’ evidence shows that plaintiff failed to complete the exhaustion process as 6 required by the PLRA. As noted, plaintiff presented the court with his claims against defendants 7 Miranda and Abdur-Rahman on March 14, 2013, and against defendant Lee on June 5, 2013. 8 Although plaintiff filed an appeal regarding the claim he now asserts against Miranda in this 9 action (log number HDSP HC 12026036), that appeal was not resolved at the final level of review 10 until April 22, 2013, over a month after he presented that claim to this court. See ECF No. 46-4 11 (“Robinson Decl.”) ¶ 8, Ex. B. He also submitted several appeals that relate, at least in part, to 12 his claim against Abdur-Rahman. See ECF No. 54 (“Silkwood Decl.”) ¶¶ 5-9 Exs. C, D, and G 13 (log numbers HDSP HC 12026829 and HDSP HC 12026601), Ex. E (log number HDSP HC 14 13027216), Ex. F (log number HDSP HC 13027251); see also ECF No. 20 at 94 (log number 15 HDSP HC 13027178 and log number HDSP ADA 13021236); ECF No. 29 at 49-50 (log number 16 HDSP HC 13027178). However, none of those appeals was decided at the third level of review 17 before March 14, 2013. Silkwood Decl., Ex. A; Robinson Decl. ¶¶ 9-13. And, with respect to the 18 claim against defendant Lee, the record shows that plaintiff did not file any appeal that was 19 resolved at third level of review prior to June 5, 2013. Robinson Decl., ¶ 9, Ex. A.4 Thus, 20 defendants have shown that plaintiff filed this action prematurely, before resolution of any 21 appeals addressing the incidents giving rise to these claims. There is simply no dispute as to any 22 genuine issue of material fact regarding this question. 23 24 25 deliberate indifference claims against Defendants.” ECF No. 46-2 at 9-10 & n. 3. Review of that complaint does not support defendants’ position. The March 14, 2013 complaint does not raise a claim against defendant Lee. See ECF No. 14. 4 26 27 28 As noted, defendants’ motion erroneously argues that plaintiff was required to exhaust all of his claims, including those against defendant Lee, by March 14, 2013. Defendants are able to meet their burden on summary judgment, notwithstanding this error, because the evidence submitted with their motion demonstrates that plaintiff did not exhaust his administrative remedies for his claim against defendant Lee prior to June 5, 2013. 7 1 As discussed above, to defeat summary judgment plaintiff must demonstrate that there is a 2 genuine dispute over a material issue of fact as to whether he actually exhausted available 3 remedies, or as to whether he should be excused from the exhaustion requirement. He does not 4 claim to have actually exhausted his administrative remedies. He does, however, point to various 5 causes for his failure to exhaust. First, he blames his housing situation, stating that on some 6 unknown date, he was housed in a cell with poor ventilation and poor sanitation, that he was then 7 transferred to an isolation cell, and then housed in a cold and wet cell. ECF No. 49 at 3. He does 8 not explain how, if at all, this should excuse his failure to exhaust. 9 Next, he claims that defendants retaliated against him for “trying to get his medical issues 10 resolved” and intentionally delayed their responses to his appeals to see if plaintiff would 11 “succumb to the constant attacks and retaliations.” Id. at 3, 8, 9. Plaintiff does not explain how he 12 was retaliated against or how any purported act of retaliation prevented him from exhausting his 13 administrative remedies for the claims raised in this action. 14 In addition, plaintiff fails to show how any particular response to an appeal was delayed. 15 Nor does he link these vague and generalized accusations to a specific appeal that could have 16 served to exhaust his administrative remedies for the claims presented in this case but for the 17 circumstances that he allegedly faced. Plaintiff appears to concede that he only pursued his 18 appeals through the second level of review, claiming that thereafter, his appeals “simply 19 disappeared” and that he was transferred to another institution. Id. at 9. Plaintiff offers no details 20 regarding appeals that “disappeared,” nor does he explain how being transferred to another 21 institution prevented him from exhausting his administrative remedies. Notably, plaintiff does 22 not claim to have ever even attempted to submit an appeal to the third level of review. For these 23 reasons, plaintiff fails to demonstrate that there is a genuine dispute over a material issue of fact 24 as to whether he should be excused from the exhaustion requirement. He provides no evidence to 25 counter defendants’ evidence that he did not exhaust available remedies. Nor does he present 26 evidence which demonstrates that exhaustion should be excused. Thus, there is no genuine 27 dispute as to any material facts as to whether plaintiff has exhausted the administrative remedies 28 that were available to him prior to presenting his claims to this court. 8 1 In light of the absence of and genuine dispute that plaintiff failed to comply with the 2 exhaustion procedure, or that his failure in this regard should not be excused, defendants’ 3 summary judgment motion must be granted.5 See McKinney v. Carey, 311 F.3d 1198, 1200 (9th 4 Cir. 2002) (“Congress could have written a statute making exhaustion a precondition to judgment, 5 but it did not. The actual statue makes exhaustion a precondition to suit.”); Vaden v. Summerhill, 6 449 F.3d 1047, 1051 (9th Cir. 2006) (prisoner brings an action for purposes of 42 U.S.C. § 1997e 7 when he submits his complaint to the court). 8 9 Accordingly, IT IS HEREBY RECOMMENDED that the Clerk of the Court terminate defendants’ motion to strike plaintiff’s surreply (ECF No. 52), that defendants’ motion for 10 summary judgment (ECF No. 46) be granted, that judgment be entered in defendants’ favor, and 11 that this action be closed. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: October 7, 2015. 20 21 22 23 24 25 26 27 28 5 For this reason, and because exhaustion is a prerequisite to suit (42 U.S.C. § 1997e(a)), the court need not address defendants’ alternative grounds for summary judgment. 9
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