ERICA P. GROSJEAN, Magistrate Judge.
Darrell Wayne King ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 29, 2012. (ECF No. 1.) This action now proceeds with the First Amended Complaint filed on September 2, 2014, alleging that Defendants J. Chokatos and M. Stringer were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment and also liable for medical malpractice under California state law. (ECF No. 33.)
On January 28, 2016, Chokatos and Stringer filed a motion for summary judgment under Rule 56 on the grounds that the undisputed facts establish that Plaintiff failed to exhaust his available administrative remedies with respect to (1) all claims asserted against Stringer, and (2) any claims against Chokatos for conduct that occurred prior to October 31, 2011. (ECF No. 46.) On March 21, 2016, Plaintiff filed an opposition to the motion. (ECF No. 50.) Defendant Stringer filed a reply on May 12, 2016 (ECF No. 60), and Defendant Chokatos filed a reply on May 16, 2016 (ECF No. 62). Defendants' motion for summary judgment is now before the Court.
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), presently incarcerated at Pleasant Valley State Prison ("PVSP"), where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff's factual allegations follow.
In 2008, Plaintiff injured his spine and his injury worsened over the next three years. Plaintiff was prescribed pain medication. On July 25, 2011, Plaintiff collapsed when his legs lost function due to severe back pain. Plaintiff was placed on a stretcher and transported to the prison's medical clinic. On July 28, 2011, Plaintiff was examined by Dr. Chokatos. Plaintiff reported severe spinal pain, numbness of his left leg and foot, and professed a need for a wheelchair. Dr. Chokatos failed to provide Plaintiff with a wheelchair or pain medication. Dr. Chokatos ordered an X-ray of Plaintiff's lumbar spine. This X-ray revealed disc narrowing of the L1-L5 vertebrae and spondylosis.
Plaintiff was again seen by Dr. Chokatos on August 2, 2011. Dr. Chokatos failed to order an MRI of Plaintiff's spine and falsely stated in his notes that there were no abnormal orthopedic or neurological findings. On August 31, 2011, Plaintiff was examined by J. Fortune, PA-C. Mr. Fortune ordered an MRI of Plaintiff's lumbar spine and issued an order that authorized Plaintiff a lower tier and bunk assignment, and the use of a cane. Plaintiff's pain and symptoms worsened over the next few weeks. An MRI revealed several degenerative changes, including a left disc extrusion that caused moderate to severe spinal stenosis in the left lateral recess and impingement of the left exiting nerve roots.
On September 23, 2011, Randolph Wilson, PA-C, reviewed the MRI results and examined Plaintiff. Mr. Wilson provided Plaintiff with an order that authorized the use of a cane and wheelchair for three months. Mr. Wilson also renewed Plaintiff's prescription of pain medication. In addition, Mr. Wilson referred Plaintiff to a neurologist and ordered that at work Plaintiff must avoid prolonged standing, walking, and lifting over fifteen pounds.
On September 24, 2011, Plaintiff approached Stringer to receive his daily pain medication. Stringer informed Plaintiff that his medication had not been refilled. Plaintiff became frustrated with Stringer, because this was the fourth time she failed to send a timely refill order to the pharmacy. Stringer then became irritated and said "you don't need to take any meds." From September 24, 2011, to September 26, 2011, Plaintiff did not receive pain medication, leaving him in severe pain.
On September 28, 2011, Plaintiff was seen by Dr. Chokatos. Dr. Chokatos informed Plaintiff that "the LVN assigned to your building said that she saw you run up and down the stairs. I am taking your wheelchair and pain medication, because you don't need them." Dr. Chokatos declined Plaintiff's request to call Plaintiff's housing unit officers to confirm that Plaintiff's condition had left him unable to ambulate without assistance. However, Dr. Chokatos wrote in his notes that "no one with Plaintiff's condition could run up and down a flight of stairs." Dr. Chokatos ordered that Plaintiff's pain medication be discontinued, his wheelchair and cane be confiscated, and that his lower cell and bunk assignments be revoked. Dr. Chokatos also changed King's job limitations from "avoid prolonged standing, walking, and lifting" to "cannot continuously squat, crouch, crawl." On October 13, 2011, Dr. Chokatos wrongfully removed Plaintiff from the disability placement program by falsely stating that there was "no evidence of a significant mobility impairment."
On October 19, 2011, Plaintiff appeared before the Clinical Case Management Review Committee ("CCMRC") regarding his continued complaints of pain. The CCMRC reviewed the medical evidence and concluded that Plaintiff's complaints of pain and symptoms were consistent with all objective medical evidence. The CCMRC recommended that Plaintiff see a neurosurgeon, remain in a wheelchair, and receive pain medication. Dr. Chokatos ignored the CCMRC's orders.
On October 28, 2011, a neurosurgeon, Majid Rahimifar, M.D., evaluated Plaintiff and reviewed the medical records. Dr. Rahimifar diagnosed Plaintiff with spinal stenosis and a left foot drop resulting from a ruptured L4-L5 disc. Dr. Rahimifar recommended Plaintiff receive lower back surgery. Dr. Chokatos received Dr. Rahimifar's medical report, but did not refer Plaintiff for lower back surgery.
On October 31, 2011, Plaintiff attended a medical appointment with Dr. Chokatos. Dr. Chokatos made Plaintiff sit and wait outside the medical clinic for over five hours. On two occasions, other inmates complained that Plaintiff's back pain was progressively worsening. Each time an inmate complained, Dr. Chokatos stated "[Plaintiff] can either wait for his appointment or refuse it." Dr. Chokatos was observed standing at the clinic door watching Plaintiff while laughing with the other medical staff. Plaintiff's back pain became so severe that when he stood his legs gave out and he collapsed. The medical staff did not respond and Dr. Chokatos was observed watching Plaintiff through a window. Officers sounded the alarm for a medical emergency and strapped Plaintiff to a stretcher. Plaintiff was taken into Dr. Chokatos's office. Plaintiff begged Dr. Chokatos to allow him to lie on his side instead of his back, which made the pain worse. Plaintiff's pleas were ignored and he lost consciousness. Dr. Chokatos ordered medical staff to wheel Plaintiff's gurney into the clinic holding cage. Plaintiff lost consciousness again because of the pain. He regained consciousness in the back of an ambulance in route to the hospital. At the hospital, Plaintiff was evaluated by Mr. Wilson, PA-C. Mr. Wilson ordered that Plaintiff be transferred to Bakersfield Memorial Hospital ("BMH"). At BMH, Plaintiff received emergency surgery to remove a herniated disc.
Section 1997e(a) of the Prison Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit.
An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement.
The test for deciding whether a grievance procedure was unavailable uses an objective standard.
Because "there can be no absence of exhaustion unless some relief remains available, 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."
The Court takes judicial notice of the fact that the State of California provides its prisoners and parolees the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal.Code Regs. tit. 15 § 3084.1(a). The process is initiated by submitting a CDCR Form 602 ("602 form"). Id. at § 3084.2(a).
At the time of the events giving rise to the Complaint in this action, California prisoners were required to submit appeals within thirty calendar days of the event being appealed, and the process was initiated by submission of the appeal at the first level.
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion.
Summary judgment is appropriate when it is demonstrated that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove "that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy."
Defendants argue that Plaintiff failed to exhaust his administrative remedies for (1) all claims asserted against Stringer; and (2) any claims against Chokatos that occurred prior to October 31, 2011.
Defendants provide evidence that between July 28, 2011 and November 29, 2012, Plaintiff submitted six appeals that were received by the PVSP Appeals Office. (DUF 3; Morgan Declaration, ¶ 4; Navarro Declaration, ¶ 3.) Only appeal number PVSP-SC-11000300 was fully exhausted. (ECF No. 46-1 at 9:3-4.)
Defendants claim that PVSP-SC-11000300 does not address or place at issue any of the alleged conduct of Stringer or any of Chokatos' conduct that occurred prior to October 31, 2011. In addition, Defendants argue that Plaintiff failed to properly exhaust this appeal because PVSP-SC-11000300 was submitted more than thirty days after such conduct occurred.
Plaintiff claims that PVSP-SC-11000300 addressed the allegations regarding Stringer. In order to support his assertion, Plaintiff points to his third level appeal and supplemental documents that were submitted with the grievance. This includes an interview Plaintiff had with prison officials regarding the appeal, and a medical report indicating that an LVN reported that Plaintiff does not require pain medication or a wheel chair. In addition, Plaintiff asserts he filed an additional 602 form on October, 29, 2011. This grievance alleged that Stringer made false statements and refused to provide Plaintiff his prescribed medication. Plaintiff states that this appeal was improperly rejected by prison officials and as a result his administrative remedies were effectively unavailable. Plaintiff also argues that the 602 forms filed for the second and third level for appeal number PVSP-SC-11000300, and supporting documents attached to the 602 forms should have alerted prison officials to Chokatos' alleged conduct that occurred prior to October 31, 2011.
Based on an examination of Defendant's Undisputed Facts and the evidence in the record, the Court finds that Defendants have meet their burden and Plaintiff did not exhaust the appeals process for all claims against Stringer and any claims against Chokatos that occurred prior to October 31, 2011.
It is uncontested that appeal number PVSP-SC-11000300 obtained a decision at all three levels. The Ninth Circuit Court of Appeals has held that a prisoner has exhausted his or her administrative remedies "if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process."
In this case, prison officials addressed the merits of appeal number PVSP-SC-11000300 and did not enforce any procedural bar. Therefore, the Defendants' argument that summary judgment should be granted because PVSP-SC-11003000 was untimely fails.
Defendants also argue that appeal number PVSP-SC-11000300 does not address any of Stringer's conduct and any of Chokatos' conduct that occurred prior to October 31, 2011. Under the PLRA, a grievance "`suffices [to exhaust a claim] if it alerts the prison to the nature of the wrong for which redress is sought.'"
It is undisputed that in Plaintiff's initial 602 form for appeal number PVSP-SC-11000300, Plaintiff failed to name Stringer or address any of Stringer's conduct. (ECF No. 46-6 at 11-12.) While an inmate is not required to "identify responsible parties or otherwise to signal who ultimately be sued" (
In opposition, Plaintiff argues that his claim against Stringer was exhausted because during an interview during the appeal process, he mentioned Stringer's conduct. In addition, Plaintiff identified Stringer at the third level in the appeal process. However, this is not sufficient to exhaust his administrative remedies with regard to Stringer.
Similarly, the Court finds that Plaintiff did not exhaust his remedies concerning any of Chokatos' conduct which occurred prior to October 31, 2011. Plaintiff argues that in his third level appeal he referenced misconduct by Chokatos that occurred prior to October 31, 2011. However, as discussed above, a prisoner does not exhaust administrative remedies when he includes new issues from one level of review to another. Plaintiff also states that documents attached to his grievance concerned misconduct that occurred prior to October 31, 2011. The Court disagrees that attaching documents referencing other incidents can exhaust issues regarding those incidents. The supporting documents attached to the initial appeal did not sufficiently alert prison officials to a grievance regarding Chokatos' conduct that occurred prior to October 31, 2011 given that they were not referenced in the grievance itself.
Plaintiff also argues that prison officials improperly rejected a grievance filed on October 29, 2011. (Plaintiff's Opposition, ECF No. 50, 34:8-10). Plaintiff asserts the grievance was rejected by prison staff and returned without a response. (Plaintiff's Declaration, ECF No. 50, 10:7-8). In the grievance, Plaintiff alleged that Stringer failed to deliver Plaintiff's medication and made false statements to Chokatos. (Plaintiff's Declaration, Exhibit 6, ECF No. 50, 24). As a result of the prison staff's error, Plaintiff argues that he was not required to fully exhaust this appeal.
Exhaustion is not required under the PLRA when improper screening of an inmate's grievances renders administrative remedies unavailable.
It appears on the face of this appeal that it was untimely. The grievance mentions making a complaint to Stringer on September 24, 2011 and then learning that Stringer had supplied false information to Chokatos on September 28, 2011. The appeal is dated October 29, 2011, which is more than 30 days after the underlying events. The CDCR was thus within their discretion to reject the appeal.
Moreover, Plaintiff has not presented any evidence demonstrating that he attempted to challenge the rejection of this grievance. "If Plaintiff had taken steps to challenge the rejection of [this grievance], but [the PVSP] Appeals Coordinator refused to review his appeal, such evidence might suggest that Plaintiff's failure to exhaust should be excused."
Defendant has met his burden of demonstrating that under the undisputed facts, Plaintiff failed to exhaust his remedies for all his claims against Stringer and any claims against Chokatos that for conduct that occurred prior to October 31, 2011. Therefore,
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being served with these findings and recommendations, any party may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
