(PC) Jackson v. Naseer et al, No. 2:2013cv00548 - Document 40 (E.D. Cal. 2013)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/4/13 ORDERING that clerk is directed to randomly assign this case to a district judge; it is RECOMMENDED that defendants motions to dismiss (ECF Nos. 27 , 28 ) be granted, that all outstanding motions be denied, and that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
Download PDF
<![CDATA[
(PC) Jackson v. Naseer et al Doc. 40 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GEORGE JACKSON, 11 Plaintiff, 12 13 No. 2:13-cv-548-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS1 SAHIR NASEER, et al., 14 Defendants. 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. He alleges that defendants Naseer, Tseng, and Smith were deliberately indifferent 18 to plaintiff’s medical needs in violation of the Eighth Amendment when they failed to treat him 19 on March 22, 2012 for a medical condition known as “Raynaud’s Syndrome.” Defendants move 20 to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b), on the ground that plaintiff 21 failed to exhaust his administrative remedies prior to filing suit.2 ECF Nos. 27, 28. Plaintiff 22 opposes defendants’ motions. ECF No. 31. 23 1 24 25 26 27 28 Defendants did not respond to the court’s order directing them to complete and return the form indicating either their consent to jurisdiction of the magistrate judge or request for reassignment to a district judge. Accordingly, the clerk will be directed to randomly assign this case to a district judge. 2 Defendants’ motions included notice to plaintiff informing him of the requirements for opposing a motion to dismiss for failure to exhaust available administrative remedies. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Stratton v. Buck, 697 F.3d 1004, 1006 (9th Cir. Sept. 2012); Wyatt v. Terhune, 315 F.3d 1108, 1115, 1120 n.15 (9th Cir. 2003). 1 Dockets.Justia.com 1 2 3 For the following reasons, defendants’ motions must be granted. I. Exhaustion under the PLRA The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 4 with respect to prison conditions [under section 1983 of this title] until such administrative 5 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Prison conditions” subject to 6 the exhaustion requirement have been defined broadly as “the effects of actions by government 7 officials on the lives of persons confined in prison . . . .” 18 U.S.C. § 3626(g)(2); Smith v. 8 Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d 9 Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the 10 claims the plaintiff has included in the complaint, but need only provide the level of detail 11 required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. 12 Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials “time 13 and opportunity to address complaints internally before allowing the initiation of a federal case”). 14 Prisoners who file grievances must use a form provided by the California Department of 15 Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the 16 action requested. The grievance process, as defined by California regulations, has three levels of 17 review to address an inmate’s claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, 18 § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a 19 “Director’s Level Decision,” or third level review, with respect to his issues or claims. Id. 20 § 3084.1(b). 21 Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 22 741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other 23 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be 24 “available,” there must be the “possibility of some relief . . . .” Booth, 532 U.S. at 738. Relying 25 on Booth, the Ninth Circuit has held: 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). 2 1 In the Ninth Circuit, motions to dismiss for failure to exhaust administrative remedies are 2 normally brought under Rule 12(b) of the Federal Rules of Civil Procedure. See Albino v. Baca, 3 697 F.3d. 1023, 1029 (9th Cir. 2012). Nonetheless, it remains well established that credibility of 4 witnesses over material factual disputes cannot be resolved on paper. Thus, when ruling on an 5 exhaustion motion requires the court to look beyond the pleadings in the context of disputed 6 issues of fact, the court must do so under “a procedure closely analogous to summary judgment.” 7 Wyatt v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). Doing so ensures that a process is 8 followed to test whether disputes over facts pertaining to whether plaintiff actually exhausted 9 available remedies are truly genuine and material and therefore warrant live testimony, or 10 whether the dispute(s) may be disposed of by unrefuted declarations and exhibits. Therefore, 11 following the suggestion in Wyatt, and because care must be taken not to resolve credibility on 12 paper if it pertains to disputed issues of fact that are material to the outcome, the undersigned 13 applies the Rule 56 standards to exhaustion motions that require consideration of materials 14 extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL 15 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010). 16 Failure to exhaust is an affirmative defense in the sense that defendants bear the burden of 17 proving plaintiff did not exhaust available remedies. Wyatt, 315 F.3d at 1119. To bear this 18 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 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.” 19 20 21 22 23 24 25 Brown, 422 F.3d at 936-37 (citations omitted). 26 ///// 27 ///// 28 ///// 3 1 II. 2 Discussion3 Plaintiff alleges that he suffers from Raynaud’s Disease, a condition that causes him to get 3 “painfully cold extremities.” ECF No. 13 at 3. He claims that his exposure to cold drafts 4 exacerbated his condition and caused him pain. Id. He claims that on March 22, 2012, after 5 explaining to defendants his pain and need for treatment, they denied him medical care. Id. 6 These allegations form the basis for plaintiff’s claim that defendants were deliberately indifferent 7 to his medical needs in violation of the Eighth Amendment. ECF No. 17. Defendants’ evidence 8 shows that plaintiff failed to submit any grievances prior to filing suit that addressed these 9 allegations. See ECF No. 27-3 (“Simmons Decl.”) ¶¶ 5-6; ECF No. 28-4 (“Altschuler Decl.”) 10 ¶ 5, Ex. A. 11 From March 22, 2012, the date plaintiff’s claims against defendants allegedly arose, to 12 March 11, 2013, the date plaintiff filed the operative complaint, plaintiff submitted only two 13 inmate appeals regarding health care. See Simmons Decl. ¶¶ 5-7. The first appeal, MCSP HC 14 12042103, did not concern the allegations giving rise to plaintiff’s claims against defendants. See 15 id., Ex. A (requesting medical chronos for appropriate housing when transferred); Altschuler 16 Decl., Ex. C (same). Even if it had, it would not satisfy the exhaustion requirement because 17 plaintiff failed to properly pursue it to the final level of review. See Simmons Decl. ¶ 7, Ex. A 18 (Aug. 7, 2012 notice to plaintiff that appeal was cancelled at second level of review); Altschuler 19 Decl., Ex. C (same); see also ECF No. 27-2 (Zamora Decl.) ¶¶ 7-8 (stating that the only health 20 care appeal pursued by plaintiff to the third level of review between March 22, 2012 and March 21 11, 2013, was MCSP HC 12042200, discussed below). 22 The second appeal, MCSP HC 12042200, alleged that defendant Tseng’s behavior during 23 an interview on April 24, 2012 was “unprofessional” and “unacceptable.” Simmons Decl. ¶ 7, 24 Ex. B. Plaintiff claimed that Tseng had “deliberately refus[ed] to assist [him] in anyway 25 possible,” and requested a thorough investigation into Tseng’s behavior. Id. Although this 26 27 28 3 Plaintiff’s “Motion in Responce [sic] to Defendants Objections,” ECF No. 35, which appears to be plaintiff’s response to defendants’ reply brief, was not considered by the court, as surreplies are neither authorized by the Federal Rules of Civil Procedure nor the court’s Local Rules. 4 1 appeal contains allegations against defendant Tseng, it concerns an April 24, 2012 interview, and 2 not a denial of medical care on March 22, 2012. Thus, this appeal would not been sufficient to 3 put prison officials on notice of plaintiff’s Eighth Amendment claims against Tseng, or either of 4 the other named defendants in this action. See Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 5 2009) (A grievance must “provide enough information . . . to allow prison officials to take 6 appropriate responsive measures.”) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir. 7 2004)). 8 9 Because neither of the two grievances filed during the relevant time period concern defendants’ alleged failure to provide plaintiff with medical care on March 22, 2012, defendants 10 have met their initial burden of showing that plaintiff failed to properly exhaust his administrative 11 remedies prior to commencing this lawsuit. See Albino, 697 F.3d at 1031 (“A defendant’s burden 12 of establishing an inmate’s failure to exhaust is very low,” and “[a] defendant need only show the 13 existence of remedies that the plaintiff did not use.”). The burden now shifts to plaintiff to 14 produce evidence that demonstrates either exhaustion or circumstances excusing exhaustion. See 15 Sapp v. Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010). 16 In his opposition, plaintiff claims to have “filed a 602 appeal . . . with regards to his 17 serious medical condition . . . , [which] was denied at all levels of review.” ECF No. 31 at 1. 18 Though plaintiff does not identify the appeal to which he refers, he may be referring to appeal 19 number MCSP-C-09-02180, which he referenced in his complaint, and which defendant Naseer 20 discussed in his motion to dismiss. See ECF Nos. 13, 28-2. In MCSP-C-09-02180, plaintiff 21 complained of mobility impairment due to degenerative joint disease and requested housing in a 22 lower bunk and lower tier, an extra mattress, and adequate pain medication. See Altschuler Decl., 23 ¶ 6, Ex. B (sections A and B of plaintiff’s CDC Form 602). This appeal pre-dates the allegations 24 raised in the instant complaint by over two years and makes no mention of Raynaud’s syndrome 25 or any of the defendants. Thus, it could not have satisfied the exhaustion requirement for the 26 claims raised in this suit. 27 28 At the third level of review for MCSP-C-09-02180, plaintiff claimed for the first time that he was “prone to getting frostbite in his fingers and toes,” and requested an opinion from a 5 1 specialist to determine if this could be contributing to his disc disease and back pain. See id. 2 (section H of plaintiff’s CDC Form 602). In the April 7, 2010 Director’s Level Appeal Decision, 3 this new issue and request was specifically excluded because it is against CDCR regulations to 4 expand an appeal beyond the initial problem and requested action. Id.; see also Cal. Code Regs. 5 tit. 15, § 3084.2(a) (2009) (requiring that prisoners “describe the problem and action requested” in 6 Sections A and B of the CDC Form 602). Plaintiff was expressly instructed to present the new 7 issue to officials at his institution and to allow medical staff an opportunity to resolve it. See 8 Altschuler Decl., ¶ 6, Ex. B. There is no evidence that plaintiff ever complied with this 9 instruction. 10 Plaintiff claims that “filing a second 602 regarding the issue would be futile.” ECF No. 11 31 at 1. Exhaustion, however, is mandatory. Plaintiff’s apparent belief that it would be futile is 12 no excuse. See Booth 532 US at 741 n. 6 (stating courts should not read “futility or other 13 exceptions” into § 1997e(a)); Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Even when the 14 prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion 15 is a prerequisite to suit”); id. (“All ‘available’ remedies must . . . be exhausted; those remedies 16 need not meet federal standards, nor must they be ‘plain, speedy, and effective.’”). 17 Under this standard plaintiff has failed to properly exhaust available administrative 18 remedies prior to filing suit, and IT IS HEREBY RECOMMENDED that defendants’ motions to 19 dismiss (ECF Nos. 27, 28) be granted, that all outstanding motions be denied, and that this action 20 be dismissed without prejudice. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 26 ///// 27 ///// 28 ///// 6 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: December 4, 2013. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
