REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS1
On September 7, 2011, Plaintiff, a state prisoner, filed a "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983," accompanied by Plaintiff's declaration and exhibits. The caption of the original Complaint identified the Defendant as the "Los Angeles County Jail Sheriff," but the body of the pleading named three sheriff's deputies, deputies E. Morales, J. Bleau and M. Mariscal-Cruz, all sued in their individual and official capacities. On December 5, 2011, the Court issued an "Order Dismissing Complaint with Leave to Amend." On March 7, 2012, Plaintiff filed a "Motion Amend Complaint for Mental Health, etc." to which was attached a document titled "Amended Complaint," which the Court construed as Plaintiff's First Amended Complaint. On April 24, 2012, the Court issued an "Order Dismissing First Amended Complaint with Leave to Amend." On August 28, 2012, Plaintiff filed a Second Amended Complaint. On the same date, the Court issued an "Order Dismissing Second Amended Complaint with Leave to Amend."
On September 11, 2012, Plaintiff filed a Third Amended Complaint, which is the operative pleading. The body of the Third Amended Complaint identifies the Defendants as J. Bleau, E. Morales, and Dr. Zasorin.
On January 7, 2013, Defendant Justin Bleau filed an Answer. On April 22, 2013, Defendant Dr. Nina Zasorin filed an Answer. On April 23, 2013, the Court issued an Order to Show Cause requiring Plaintiff to show cause why Defendant Morales should not be dismissed from the action for lack of timely service of process upon Morales.
On May 13, 2013, Defendants Bleau and Zasorin ("Defendants") filed a Motion for Judgment on the Pleadings, alleging that Plaintiff had failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act of 1995 (Pub. L. No. 104-134, 110 Stat. 1321), 42 U.S.C. § 1997e(a) ("PLRA"). On May 13, 2013, the Court issued a Minute Order advising Plaintiff that, in deciding this motion, the Court could look beyond the pleadings and decide disputed issues of fact, and that unless the motion failed as a matter of law Plaintiff was required to submit evidence demonstrating that Plaintiff had satisfied the exhaustion requirement. See Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir.), cert. denied, 540 U.S. 810 (2003).
Plaintiff filed various documents in opposition to the Motion for Judgment on the Pleadings. On August 6, 2013, the Court issued a Minute Order requiring Plaintiff and Defendants to lodge with the Court copies of all inmate complaints, inmate grievances or administrative appeals submitted to jail personnel by or on behalf of Plaintiff concerning a wheelchair, Plaintiff's alleged segregation confinement and/or Plaintiff's medical care, including but not limited to: (1) any inmate complaints, inmate grievances, or administrative appeals concerning any disciplinary conviction or convictions allegedly suffered by Plaintiff for failing to walk; and (2) all "inmate complaints" mentioned in the "Declaration of Deputy Adam Kennedy" attached to Defendants' Motion for Judgment on the Pleadings.
On August 13, 2013, Defendants Bleau and Zasorin filed "Defendants' Response to Court's August 6, 2013 Order, etc." On August 21, 2013, Plaintiff filed a "Motion of All Copies of Inmate Complaints [sic]," constituting Plaintiff's response to the August 6, 2013 Order.
On October 11, 2013, the Court issued an "Order re Pending Motions," denying Defendants' Motion for Judgment on the Pleadings with respect to Plaintiff's claims concerning his wheelchair, but otherwise granting that Motion. The Court dismissed without prejudice as unexhausted all of Plaintiff's claims other than his claims concerning his wheelchair. The Court also dismissed the action as against Defendant Morales without prejudice.
On October 28, 2013, Plaintiff filed a "Motion for Summary Judgment, etc." On November 14, 2013, Defendants filed an Opposition to that Motion. On December 2, 2013, the Court denied Plaintiff's Motion for Summary Judgment.
On December 27, 2013, Plaintiff filed a "Motion for Leave to Amend Complaint." On January 16, 2014, Defendants filed an Opposition to that Motion. On February 5, 2014, the Court issued an Order denying Plaintiff's "Motion for Leave to Amend Complaint."
On March 10, 2014, Plaintiff filed another "Plaintiff's Motion for Summary Judgment." On March 12, 2014, Defendants filed "Defendants, Deputy Justin Bleau and Dr. Nina Zasorin's Notice of Motion and Motion for Summary Judgment," limited to the claims the Court deemed to have been exhausted in its October 11, 2013 Order. On March 27, 2014, Plaintiff filed an Opposition to Defendants' Motion for Summary Judgment. On April 3, 2014, Defendants filed an Opposition to Plaintiff's Motion for Summary Judgment and a Reply in support of Defendants' Motion for Summary Judgment.
Also on April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued an en banc decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), pet. for cert. filed (July 2, 2014) (No. 14-82) ("Albino"). Albino overruled Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) ("Wyatt"), to the extent that Wyatt had permitted a defendant to raise the defense of failure to exhaust in an "unenumerated Rule 12(b) motion." Albino, 747 F.3d at 1166, 1168. Albino directed that the exhaustion defense usually should be raised in a summary judgment motion, a proceeding in which the Court may not decide disputed issues of material fact. Id. at 1168, 1170-71.
In light of Albino, on April 16, 2014, the Court issued an order vacating the portion of the Court's October 11, 2013 Order that had granted Defendants' Motion for Judgment on the Pleadings on exhaustion grounds. Because the parties' pending summary judgment motions appeared to have presupposed the dismissal of the claims deemed unexhausted in the Court's October 11, 2013 Order, the Court denied those motions without prejudice. The Court reopened discovery for the limited purpose of taking further discovery on the exhaustion issues. The Court extended until July 11, 2014, the deadline for filing summary judgment motions on all issues, including but not limited to the exhaustion issues. The Court authorized each party to file one, and only one, motion for summary judgment on or before July 11, 2014.
On May 7, 2014, Plaintiff filed "Plaintiff T. Alexander's Motion for Summary Judgment." On June 4, 2014, Defendants filed an Opposition to that Motion. On June 12, 2014, the Court denied that Motion.
On July 9, 2014, Defendants filed "Defendants Justin Bleau and Dr. Nina Zasorin's Notice of Motion and Motion for Summary Judgment, etc," accompanied by declarations and exhibits. This Motion contends that Plaintiff has not exhausted his claims under the PLRA and that Plaintiff's claims fail on the merits. On July 9, 2014, the Court issued a Minute Order inter alia advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999).
On July 17, 2014, Plaintiff filed an unsworn document titled "Plaintiff T. Alexander's Motion of Opposition to the Defendants' Summary Judgment" ("Opposition I"). Plaintiff attached to this Opposition exhibits and an unsworn statement of Plaintiff. On July 23, 2014, Plaintiff filed an unsworn "Motion — Supporting Opposition Summary Judgment, etc.," accompanied by exhibits, constituting a further opposition to Defendants' Motion for Summary Judgment ("Opposition II"). On July 30, 2014, Plaintiff filed an unsworn "Motion for Opposition, etc.," constituting a further opposition to Defendants' Motion for Summary Judgment (Opposition III).2
GOVERNING LEGAL STANDARDS
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). The party opposing the motion must submit evidence sufficient to establish the elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. at 322.
The Court must "view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party." Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d at 988. "At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (citation omitted).
A factual dispute is "genuine" only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" only if it might affect the outcome of the lawsuit under governing law. Id.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
I. The Third Amended Complaint
In the Third Amended Complaint, Plaintiff alleges the following:
Defendants Bleau and Morales shoved Plaintiff out of his wheelchair, causing Plaintiff to fall to the floor and suffer pain and swollen knees (Third Amended Complaint, p. 2). Plaintiff was confined in a dark solitary confinement cell without his wheelchair for weeks and was forced to crawl on the floor, in violation of the Eighth Amendment, the Americans with Disabilities Act, 42 U.S.C. section 12321 et seq. ("ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. section 794 (id., pp. 1-3). A doctor gave Plaintiff a wheelchair, but Plaintiff's cell was not compliant with the ADA (id., p. 1). Defendant Dr. Zasorin examined Plaintiff and, without performing any medical tests, said Plaintiff did not need a wheelchair (id., p. 2). Other jail doctors said Plaintiff needed a wheelchair (id., p. 3). Dr. Zasorin also denied Plaintiff valley fever medication (id.). Plaintiff seeks compensatory and punitive damages and an order requiring the replacement of Plaintiff's wheelchair and the provision of valley fever medication (id., pp. 4-5).
II. Plaintiff's Declaration Attached to the Original Complaint
Plaintiff attached to his original Complaint a portion of a declaration Plaintiff previously filed in another action in this Court (see Complaint, Attached "Declaration of Terry Alexander," ECF Docket No. 3, pp. 7-12). Plaintiff previously filed this declaration in support of "Plaintiffs' Ex Parte Application for Temporary Restraining Order, etc." filed on May 5, 2011, in Johnson v. Los Angeles County Sheriff's Department, et al., CV 08-3515-DDP(SHx) ("Johnson"), a class action alleging disability discrimination at the Los Angeles County Jail.3 The plaintiffs in Johnson sought a temporary restraining order inter alia enjoining the defendants in that case, including the Los Angeles County Sheriff's Department and Sheriff Lee Baca, from subjecting Plaintiff to discipline for Plaintiff's alleged failure or inability to get out of his wheelchair, unless and until the defendants provided Plaintiff with an independent medical examination (see "Plaintiffs' Ex Parte Application for Temporary Restraining Order, etc." filed on May 5, 2011, in Johnson v. Los Angeles County Sheriff's Department, et al., CV 08-3515-DDP(SHx), ECF Docket No. 143). On May 12, 2011, the District Judge denied the application, ruling, inter alia, that Plaintiff no longer was in Defendants' custody (having been transferred to state prison on May 9, 2011), and that the evidence indicated that Plaintiff was "capable of walking" (see "Order Denying Application for Temporary Restraining Order, filed on May 12, 2011, in Johnson v. Los Angeles County Sheriff's Department, et al., CV 08-3515-DDP(SHx), ECF Docket No. 151).4
In the portion of Plaintiff's Declaration attached to the original Complaint, Plaintiff alleged the following:5
Plaintiff used a wheelchair for some time following a car accident in the 1990's, and then a forklift accident in 2003 compelled Plaintiff to use the wheelchair permanently [Complaint, Attached "Declaration of Terry Alexander," ECF Docket No. 3, pp. 7-12, ¶¶ 4-5]. Plaintiff's spine condition deteriorated after Plaintiff contracted Valley Fever in prison in 2005 or 2006 [id., ¶ 6]. When Plaintiff left prison in March of 2010, a doctor diagnosed Plaintiff as unable to walk and recommended physical therapy [id., ¶ 9]. Plaintiff was supposed to begin the physical therapy in June 2010, but instead went to jail [id.].
Plaintiff arrived at the jail in his personal aluminum wheelchair [id., ¶ 10]. At the Inmate Reception Center, a deputy took the wheelchair and threw it in a corner with other wheelchairs, causing the frame of the wheelchair to break [id.]. Plaintiff received an examination by a doctor, who said Plaintiff needed to use a wheelchair and sent Plaintiff to the "wheelchair floor" [id., ¶ 11]. A deputy took Plaintiff and three other inmates in wheelchairs to the "8100 unit" of the jail, the wheelchair floor [id.]. Plaintiff was able to use a wheelchair to get to the shower, but needed help showering [id., ¶ 13]. Plaintiff requested help periodically from nurses or trustees, who refused to help Plaintiff to shower [id., ¶ 13]. Deputy Bleau told Plaintiff: "You don't need a wheelchair. I saw you standing." [id.]. Although Plaintiff sometimes stands to transfer from the wheelchair to a bed, that does not mean that he can walk [id.].
After two months, Plaintiff met with Zasorin, who told Plaintiff he did not need a wheelchair [id., ¶¶ 14-15]. Zasorin said she would declassify Plaintiff, meaning his wheelchair would be taken away [id., ¶ 15]. Zasorin also said Valley Fever did not show up in Plaintiff's blood work and told Plaintiff she was taking Plaintiff off Diflucan [id.].
Deputies Skinner, Blue [sic] and Munoz came to Plaintiff's cell in unit 8100 [id., ¶ 16]. One of the deputies told Plaintiff to get out of his wheelchair or Plaintiff would go to the "hole" [id.]. Skinner took Plaintiff to the "hole," where Plaintiff was confined for two or three weeks [id.]. A couple of weeks later, another doctor examined Plaintiff, said Plaintiff needed a wheelchair, and reinstated the Diflucan prescription [id., ¶ 18]. Approximately two weeks after that, Zasorin again said Plaintiff did not need a wheelchair and refused to prescribe Diflucan [id., ¶ 19]. In October 2010, Zasorin confirmed that Plaintiff had had Valley Fever, but nevertheless refused to prescribe the Diflucan [id., ¶ 21]. Zasorin said that Plaintiff did not need a wheelchair because Plaintiff could move his legs [id.]. After that, Plaintiff was called to the "declass line" two more times, but Plaintiff refused to see Zasorin (id., ¶ 22). Rather, Plaintiff "would wheel [himself] back to [his] cell" [id.]. Plaintiff never received an MRI or CAT scan while at the jail [id., ¶ 25].
Deputies Mariscal-Cruz, Bleau and Morales authored false disciplinary reports, resulting in Plaintiff's multiple disciplinary convictions for failing to follow orders [id., ¶¶ 26-29]. Deputy Mariscal-Cruz wrote Plaintiff up on January 7, 2011 [id., ¶ 26]. Deputy Morales wrote Plaintiff up on February 1, 2011 [id., ¶ 27].
On April 14, 2011, Deputy Bleau picked Plaintiff up without Plaintiff's permission, put Plaintiff in a chair, and took away Plaintiff's wheelchair [id., ¶ 24]. Plaintiff was upset and coughing because his wheelchair had been taken away [id.]. A Lieutenant told a Sergeant to get Plaintiff another wheelchair [id.]. Bleau wrote Plaintiff up for "Creating a Disturbance, Insubordination/Refuse to Follow Orders" and "Other" [id., ¶ 28].
As a result of these disciplinary write-ups, Plaintiff was confined in the "hole" and received a disciplinary diet [id., ¶¶ 26-28]. In the "hole," Plaintiff had no privileges, and there were no rails or grab bars in the small space [id., ¶¶ 29-30]. The lack of rails made it difficult for Plaintiff to transfer to the toilet and to the bed [id., ¶ 29]. The cell was small, and Plaintiff had no telephone, no canteen access, no food with sugar, and no visits [id., ¶¶ 29-30].
(See Complaint, ECF Docket No. 3, pp. 7-12).
Although the last page of this declaration is not attached to the original Complaint, the copy of the declaration filed in the Johnson case shows that Plaintiff signed the declaration on May 3, 2011, at a time when he allegedly still was in the "hole" (see "Declaration of Terry Alexander," Exhibit C to "Plaintiffs' Ex Parte Application for Temporary Restraining Order, etc." filed on May 5, 2011, in Johnson v. Los Angeles County Sheriff's Department, et al., CV 08-3515-DDP(SHx), Docket No. 143-2, p. 16).
DISCUSSION
I. Based on Plaintiff's Failure to Exhaust Administrative Remedies, Defendants Are Entitled to Summary Judgment on All of Plaintiff's Claims Other Than the Claims Regarding Plaintiff's Personal Wheelchair.
A. Governing Legal Standards
Under the PLRA, a prisoner must exhaust available administrative remedies before bringing an action in federal court challenging prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1199-2000 (9th Cir. 2002).6 "Proper exhaustion" is required, which means that the inmate must use "all steps that the agency holds out." Woodford v. Ngo, 548 U.S. 81, 90, 93-94 (2006).
Exhaustion is an affirmative defense as to which a defendant bears the burden of proof. Jones v. Bock, 549 U.S. 199, 212-17 (2007). A defendant moving for summary judgment on exhaustion grounds must carry an initial burden of showing that an available administrative remedy existed and that the prisoner did not exhaust that remedy. Albino, 747 F.3d at 1172. Once the defendant has carried that burden, the plaintiff must come forward with evidence "showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. (citation omitted). The ultimate burden of proof remains with the defendant, however. Id.
B. Undisputed Facts Related to Exhaustion Issue
Defendants rely on the Declaration of Deputy Adam Kennedy, allegedly the custodian of records for the Men's Central Jail (see Defendants Exhibit A, Declaration of Deputy Adam Kennedy, ¶ 3). According to Kennedy, at all times prior to the filing of this action, the jail had an Inmate Complaint policy permitting all inmates to file written complaints while in jail (id., ¶¶ 6, 8 & Ex. A-1 thereto). Blank complaint forms were "openly available to inmates in each housing area of every facility" (id., ¶ 9). The forms were located in "inmate accessible self-service bins, so that inmates [were] not required to request forms from the staff" (id.). Completed forms could be turned in to any sworn personnel or placed in one of the facility complaint boxes (id., ¶ 10). Each floor sergeant checked the boxes at least once per shift and delivered any complaints to the Watch Commander for review, signature and delivery to the Inmate Complaint Coordinator (id., ¶ 11). The Coordinator assigned a reference number and entered each complaint into a "Facilities Automated Statistical Tracking ("F.A.S.T.") System, which records inmate complaints, investigations and dispositions (id., ¶¶ 11, 14). The Coordinator then forwarded the complaint to the appropriate unit commander for investigation (id.).
The grievance form contained three pages: a white top sheet, a yellow copy and a pink copy (id., ¶ 11). The inmate received the pink copy at the time he or she submitted the grievance, and received the yellow copy upon disposition of the grievance (id.).
Kennedy's review of Plaintiff's custody information showed that Plaintiff was incarcerated in the jail on June 4, 2010, and released on May 9, 2011 (id., ¶ 13). On January 4, 2013, Kennedy searched the F.A.S.T. system for any inmate complaints submitted by Plaintiff (id., ¶ 15). Kennedy found only two complaints. In the first complaint, submitted on June 21, 2010, and apparently assigned on June 29, 2010, Plaintiff alleged that a "County Sheriff" had taken and broken Plaintiff's wheelchair (id., ¶¶ 15-16; Ex. A-4). The second complaint, submitted by the ACLU on Plaintiff's behalf, dated January 21, 2011, faxed February 1, 2011, and apparently assigned February 8, 2011, sought Plaintiff's personal wheelchair for Plaintiff (id., ¶ 17; Ex. A-5).
Defendants also have submitted a copy of the jail's alleged inmate complaint procedures and a document titled "Inmate Information" showing that Plaintiff reportedly arrived at the jail on June 4, 2010, and was assigned on June 5, 2010, to the "8100" floor (which Plaintiff alleges was the floor for wheelchair users) (Defendants' Exs. A-1, A-2).
Plaintiff's opposition does not dispute the fact that the jail had a grievance procedure and does not dispute the facts contained in the "Inmate Information" document. Furthermore, Plaintiff attached to his original Complaint documents titled "MCJ Notice of Disciplinary Review" purportedly memorializing Plaintiff's alleged disciplinary proceedings, each of which states at the bottom:
In accordance with Men's Central Jail Unit Order 5-22-00, you may appeal the findings and/or actions to the Unit Commander immediately by informing the Discipline Officer/Deputy that you wish to appeal the decision. This decision must be immediate.
(see Complaint, Exhibits, ECF Docket No. 3, pp. 15, 17-20).
Defendants and Plaintiff both have submitted a document titled "Inmate Search Results" recording that Plaintiff assertedly filed two inmate grievances: (a) a grievance "assigned" on June 29, 2010; and (b) a grievance "assigned" on February 8, 2011 (Plaintiff's Ex. A; Defendants' Ex. A-3). Both Plaintiff and Defendants have submitted copies of these two grievances, which are detailed below:
1. Plaintiff's "Inmate Complaint/Service Request" form, dated June 21, 2010, and Assigned June 29, 2010 (Plaintiff's Ex. B; Defendants' Ex. A-4)
Plaintiff signed this grievance on June 21, 2010 and it was apparently assigned to "Sgt. Roberts" on June 29, 2010. In the section provided for identification of the person or entity with whom the complainant wished to speak, Plaintiff checked the box marked "Other" and wrote: "Property my wheelchair." Plaintiff stated his complaint as follows: "My wheelchair was broken by County Sheriff on 6-4-10. I have a received [sic] for my wheelchair. [¶] To: The Property Sheriff! [¶] My Property was Damaged and I need my wheelchair." In the section marked "Request to Speak with the Appropriate Person Regarding:" Plaintiff apparently checked the box stating "Attending substance abuse treatment while in custody." On Plaintiff's copy of this document, the "Disposition" section states: "PROPERTY (OTHER) I/M Alexander was issued a wheelchair from medical. I/M Alexander's wheelchair is on [sic] his property at IRC [Inmate Reception Center]."7
2. ACLU "Complaint" submitted on Plaintiff's behalf, dated January 21, 2011, and Assigned February 8, 2011 (Plaintiff's Ex. C; Defendants' Ex. A-5)
The ACLU complaint stated its inquiry as follows:
"Inmate reports that he has a court order for his personal wheelchair and still has not been provided with it. Please ensure that inmate receives his personal wheelchair. Thank you." In the section of the form provided for "Result of Inquiry/Treatment Rendered," the reviewer wrote: "Inmate was seen by the Jail neurologist[.] [H]er examinations concluded that he doesn't need wheelchair. He previously claimed that he has coccidiomycosis [sic] of the spine but all tests were negative for coccidimycosis [sic]."
Defendants also have submitted copies of Plaintiff's jail medical records (Defendants' Ex. C), which show that, on June 5, 2010, Plaintiff was assigned to the 8100 floor (which Plaintiff alleges was the floor for wheelchair users) (Defendants' Ex. C, pp. 1-2). Plaintiff's medical records contain multiple entries between June 5, 2010, and December 22, 2010, showing that Plaintiff was then using a wheelchair (see id., pp. 4, 5, 8, 9, 10, 12).
C. Discussion
Defendants have met their burden to show that a grievance procedure existed.8 For the following reasons, Defendants also have met their burden to show that Plaintiff did not exhaust any claim other than claims regarding the alleged deprivation of his personal wheelchair.
"A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress." Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010); see also Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Plaintiff's June, 2010 grievance complained of the taking and breaking of Plaintiff's personal wheelchair, and hence sufficed to put Defendant Bleau on notice that Plaintiff was complaining about the loss of that personal wheelchair. The June, 2010 grievance did not suffice, however, to put Bleau on notice that Plaintiff was complaining about supposedly having been denied any wheelchair at all, or about any other alleged wrongdoing by Bleau, including any alleged excessive force, alleged submission of purportedly falsified disciplinary charges, alleged denial of medical care or alleged infliction of cruel and unusual punishment in the "hole."9
The January, 2011 ACLU complaint requested the return of Plaintiff's personal wheelchair. That complaint did not give notice that Plaintiff was asserting that any jail official, including Defendants, had denied Plaintiff the use of any wheelchair at all, and did not give notice regarding any other claim such as a claim for alleged excessive force, alleged submission of purportedly falsified disciplinary charges, alleged denial of medical care or alleged infliction of cruel and unusual punishment. Accordingly, the ACLU grievance sufficed to exhaust Plaintiff's claims that Defendants deprived Plaintiff of his personal wheelchair, but did not suffice to exhaust any other claim of Plaintiff.
In his Opposition I, Plaintiff contends that he did exhaust all of his claims. Plaintiff alleges that he filed two inmate complaints, referencing four of his exhibits attached to the Opposition I (Opposition I, ECF Docket No. 225, p. 3 et seq.).9 These exhibits are: (1) the "Inmate Search Results" document reflecting the two grievances discussed above;10 (2) the June, 2010 grievance discussed above; (3) the 2011 ACLU complaint discussed above; and (4) the "Declaration of Terry Hill, M.D." filed in support of "Plaintiff's Ex Parte Application for Temporary Restraining Order, etc." filed on May 5, 2011, in the Johnson case. As discussed above, the first three exhibits show only that Plaintiff exhausted his claims that Defendant Bleau allegedly took and broke Plaintiff's personal wheelchair (Plaintiff's Ex. B) and that Defendants allegedly deprived Plaintiff of his personal wheelchair (Plaintiff's Ex. C). None of the exhibits show that Plaintiff exhausted any of his other claims. Any filing in the Johnson case, including the Declaration of Terry Hill, did not satisfy the requirement that Plaintiff exhaust "such administrative remedies as are available" under section 1997e(a) (emphasis added). Cf. Jenkins v. Morton, 148 F.3d 257, 259-60 (3d Cir. 1998) (section 1997e(a)'s exhaustion requirement means that administrative remedies, not judicial remedies, must be exhausted).
Plaintiff also contends that he exhausted his claim concerning allegedly inadequate medical services, referencing the Johnson case and the ACLU complaint (Opposition I, ECF Docket No. 225, p. 2). Again, any filing in Johnson did not satisfy the PLRA's exhaustion requirement, and Plaintiff's ALCU complaint exhausted only his claim of alleged deprivation of his personal wheelchair. Although the person who reviewed the ACLU complaint did comment that Plaintiff had previously claimed to suffer "coccidiomycosis [sic] of the spine," the complaint itself said nothing about allegedly inadequate medical treatment. The complaint sought only the return of Plaintiff's personal wheelchair.
In an attachment to Opposition I, Plaintiff states the following:
Defendants failed to address any of my inmate complaints, the Plaintiff T. Alexander put 5 complaints in the inmate complaint box on the 8000 floor in the Los Angeles County jail and never got an answer back. Plaintiff T. Alexander also sent inmate complaints to Sheriff Leroy Baca[`s] office for excessive force by deputy J. Bleau. Never got an answer back from the Sheriff's office of Leroy Baca.
(Opposition I, ECF Docket No. 225, p. 28).
As discussed above, Plaintiff's own evidence shows jail officials did respond to the June, 2010 inmate complaint and to the 2011 ACLU complaint (see Plaintiff's Exs B, C). Plaintiff provides no evidence supporting his vague allegation that he submitted "5" unspecified complaints to jail officials. Plaintiff does not dispute Defendants' evidence that inmates receive a pink copy of a complaint upon submission and a yellow copy upon disposition, yet provides no such documents to attempt to prove that he submitted the purported "5 complaints." Moreover, Plaintiff does not describe the content of these alleged complaints or state when he submitted them. Such vague and conclusory allegations are insufficient to meet Plaintiff's burden to produce evidence showing that he complied with the PLRA's exhaustion requirement with respect to his remaining claims or that prison officials assertedly prevented him from doing so. See Patterson v. Greeley, 325 Fed. App'x 541, 542 (9th Cir. 2009) (conclusory allegations that prison officials frustrated plaintiff's ability to exhaust insufficient to survive motion to dismiss); Otto v. Fed. Bureau of Prisons, 2014 WL 497279, at *4 (C.D. Cal. Feb. 6, 2014) ("[c]ourts have routinely held that plaintiffs cannot rely solely on conclusory allegations in the face of concrete evidence that they have failed to exhaust") (citations and internal quotations omitted); Reneau v. Messerli, 2012 WL 6967256, at *6 (C.D. Cal. Dec. 21, 2012), adopted, 2013 WL 395040 (C.D. Cal. Jan. 31, 2013) (conclusory allegation that Plaintiff exhausted "insufficient to overcome the detailed showing by Defendants of Plaintiff's failure to exhaust"); see generally Columbia Pictures, Inc. v. Fung, 710 F.3d 1020, 1043 (9th Cir.), cert. dism'd, 134 S.Ct. 624 (2013) ("conclusory allegations, standing alone, are insufficient to prevent summary judgment") (citation, internal quotations and footnote omitted).
In sum, Defendants have met their burden of showing that Plaintiff did not exhaust available administrative remedies with respect to any of Plaintiff's claims other than the claims that Defendants deprived Plaintiff of his personal wheelchair. Thus, Defendants are entitled to summary judgment on all claims other than the claims for deprivation of Plaintiff's personal wheelchair.
II. Defendants Are Entitled to Summary Judgment on the Merits of Plaintiff's Claims Regarding His Personal Wheelchair.
To the extent Plaintiff alleges that Defendants violated due process by purportedly taking (and in Defendant Bleau's case, allegedly breaking) Plaintiff's personal wheelchair, Plaintiff asserts no more than a random and unauthorized property deprivation which does not constitute a denial of due process if state law provides an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). California law provides an adequate post-deprivation remedy for random and unauthorized property deprivations. See Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994).
To the extent Plaintiff contends Defendants supposedly exhibited deliberate indifference to Plaintiff's purportedly serious medical needs by allegedly depriving Plaintiff of his personal wheelchair, Defendants are also entitled to summary judgment. The Eighth Amendment's prohibition against cruel and unusual punishment applies only after conviction. Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1042 (9th Cir.), cert. denied, 519 U.S. 1006 (1996). Although the same standards apply to pretrial detainees under the Due Process Clause, (see Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010); Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003)), Defendants are entitled to summary judgment under these standards, as discussed below.
Jail officials can violate the constitution if they are "deliberately indifferent" to an inmate's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003). "A `serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (citation omitted); see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (examples of "serious medical needs" include "a medical condition that significantly affects an individual's daily activities," and "the existence of chronic and substantial pain"; citation and internal quotations omitted).
To be liable for "deliberate indifference," a jail official must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. at 837. "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment." Id. at 838. Allegations of negligence do not suffice. Estelle v. Gamble, 429 U.S. at 105-06; Lopez v. Smith, 203 F.3d at 1131.
Plaintiff has produced no evidence to show that he had a serious medical need for his personal wheelchair, as opposed to a jail-issued wheelchair. Moreover, as discussed below, Plaintiff has produced no evidence to show that either Defendant was subjectively aware that the taking (and in Bleau's case the alleged breaking) of Plaintiff's personal wheelchair would expose Plaintiff to any risk of serious harm.
A. Defendant Bleau
As reflected in Plaintiff's first grievance, after the alleged June 4, 2010 taking of Plaintiff's personal wheelchair, jail officials issued Plaintiff a wheelchair "from medical" (see Plaintiff's Ex. B). It is also undisputed that Plaintiff then was assigned to the 8100 floor, the floor for wheelchair users. Indeed, as set forth above, Plaintiff alleged in the declaration attached to his original Complaint that, after his assignment to the 8100 floor, deputies assertedly refused to help Plaintiff shower even though Plaintiff allegedly was wheelchair-bound. Plaintiff has produced no evidence from which a rational jury could infer that, in allegedly taking and breaking Plaintiff's personal wheelchair on June 4, 2010, Defendant Bleau did so with subjective knowledge that Plaintiff had a serious medical need for a wheelchair and otherwise would have no access to any wheelchair.
In his Opposition, Plaintiff purports to allege that Bleau supposedly took Plaintiff's wheelchair on the order of Defendant Zasorin (Opposition I, ECF Docket No. 225, p. 1). However, the medical records show that Zasorin first examined Plaintiff on June 7, 2010, which was three days after the alleged June 4, 2010 taking of Plaintiff's personal wheelchair (see Defendants' Ex. C, p. 2). It thus appears that the allegations in Plaintiff's Opposition must refer to the April 14, 2011 incident in which Bleau allegedly took a wheelchair from Plaintiff. It is doubtful Plaintiff is alleging that Bleau took Plaintiff's personal wheelchair on this later occasion. In any event, even assuming arguendo the truth of Plaintiff's apparent allegation that Zasorin supposedly instructed Bleau to take Plaintiff's wheelchair and leave Plaintiff without any wheelchair, the claim against Bleau fails as a matter of law. It is undisputed that "LASD custody personnel do not exercise any control over or influence" decisions whether an inmate has medical need for a wheelchair, which decisions assertedly are the province of "licensed medical professionals" (see Defendants' Ex. B, Declaration of Lt. Steven Wilson, executed May 10, 2011, filed in Johnson v. Los Angeles County Sheriff's Department, et al., CV 08-3515-DDP(SHx), at ¶ 6). Correctional officials "who are not trained medical professionals are entitled to rely on the treatment chosen by the prison doctors, unless the inadequacy of the treatment is obvious to a lay person." Pabon v. Ryan, 2007 WL 2404294 at *10 (S.D. Cal. Aug. 19, 2007) (citations omitted); see also Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) ("If a prisoner is under the care of medical experts . . . a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. . ."). Plaintiff has produced no evidence to show that Defendant Bleau was a trained medical professional capable of determining whether Plaintiff should or should not have the use of a wheelchair, or that Bleau was aware of any facts which would lead a person without medical training to conclude that depriving Plaintiff of a wheelchair would impose an unreasonable risk of harm to Plaintiff.
For the foregoing reasons, Plaintiff has failed to raise a genuine issue of material fact concerning whether Defendant Bleau exhibited deliberate indifference to Plaintiff's serious medical needs by taking (or breaking) Plaintiff's personal wheelchair.
B. Defendant Zasorin
Plaintiff's only exhausted claim against Defendant Zasorin is Plaintiff's claim that Defendant supposedly deprived Plaintiff of his personal wheelchair. To show deliberate indifference, Plaintiff must show that Zasorin deprived Plaintiff of his personal wheelchair with subjective knowledge that doing so would pose a serious risk of harm to Plaintiff. Even assuming arguendo that Plaintiff had a serious medical need for a wheelchair, any alleged harm could only occur if Plaintiff was deprived of access to any wheelchair. For the following reasons, Plaintiff has produced no evidence from which a rational jury could infer that Defendant Zasorin was deliberately indifferent to Plaintiff's allegedly serious medical need for his personal wheelchair.
Defendants have produced Plaintiff's medical records, which show the following:
On June 7, 2010, Zasorin, a neurologist, examined Plaintiff, noting that he had "reportedly been observed ambulating," that the "neuro exam not c/w [consistent with] paraplegia," and that Plaintiff wanted to use his "street wheelchair" (Defendants' Ex. C, pp. 2-5). On June 9, 2010, a physician recorded that Plaintiff wanted his personal wheelchair (id., p. 5). On June 12, 2010, a nurse recorded: "print out order for personal wheelchair and place on Medical Liason [sic] mail box" (id.).
On November 10, 2010, Zasorin saw Plaintiff and recorded that Plaintiff was "sitting up straight in wheelchair" (id., p. 12). Zasorin stated: "Neuro exam not consistent with paraplegia" (id.). On November 21, 2010, a nurse recorded: "seen patient walked with steady gait around the cell 2x. Will place on MD line for declass" (id.).
On November 29, 2010, Zasorin saw Plaintiff and noted that another doctor reported that Plaintiff "had been observed repeatedly walking" (id., p. 13). On December 22, 2010, Zasorin saw Plaintiff and noted that the LASD yellow sheet in June 2010 says did not require assistance to walk [sic]" (id., p. 16). Zasorin recorded: "repeatedly seen walking, came in walking [¶] no evidence on clinical exam or medical records to support allegations of . . . `paraplegia'" (id.). Zasorin ordered Plaintiff transferred to general population, saying "store wheelchair reportedly his in property. . ." (id.).
On January 3, 2011, Zasorin saw Plaintiff and recorded that Plaintiff had been "seen walking since last visit when observed went back to bed reporting headache & upset stomach still in wheelchair. . . ." (id., p. 17). Zasorin noted that Plaintiff had been ordered to general population but was still in a wheelchair (id.).
On January 10, 2011, Zasorin saw Plaintiff and recorded that Plaintiff had been "seen walking" and that Plaintiff's "neuro exam [was] not consistent with paraplegia" (id., p. 20). Zasorin stated: "not paraplegic, walking goes back to bed when seen [¶] should be on general population" (id.). Also on January 10, 2011, another doctor recorded that Plaintiff was "able to ambulate without assistance" (id., p. 21).
On January 28, 2011, Zasorin saw Plaintiff and recorded that plaintiff was "known to be walking" (id., p. 22). She recorded again that Plaintiff had been "seen walking regularly" and that his exam was "inconsistent with need for wheelchair" (id., p. 23). Zasorin stated: "no indication for wheelchair [¶] transfer to GP" and "if WC us [sic] his own, keep in property" (id.).
On February 9, 2011, Zasorin entered a notation stating "transfer to GP put wheelchair in property" (id., p. 24). On that date, another doctor entered a notation stating "ACLU letter requesting wheelchair for inmate was answered. The wheelchair was discontinued by Dr. Zasorin, he does not need it according to her exam of the inmate" (id., pp. 24-25).
On February 15, 2011, Zasorin recorded that Plaintiff had been "walking about" (id., p. 25). On March 14, 2011, a nursing assistant recorded: "observed patient walking in module dorm without any assistance and with steady gait" and "will inform declassing md for further evaluation" (id., p. 26). On March 15, 2011, Zasorin recorded: "informed seen walking" and "has been ordered to general population many times" (id.).
On April 1, 2011, Zasorin recorded that the notes of a nurse and another doctor confirmed that Plaintiff "walks and says so himself" (id., p. 27). Zasorin continued: "numerous orders to transfer to general population have not been followed" (id.). Zasorin stated: "repeat orders: remove wheelchair to property; remove patient from 8100 and transfer to general population" (id.). Zasorin stated: "Presented information to deputy who took booking number & went to speak with 8100 nurse to facilitate transfer from ward" (id.).
On April 14, 2011, Plaintiff reported being suicidal and said he could not walk and "that's why [Plaintiff was] in a wheelchair" (id., pp. 27-28). The nurse recorded that Plaintiff was "[u]sing wheelchair for mobility and propelling self" (id., p. 28). Later that evening, Plaintiff was placed in a different cell for a "behavioral problem" (id.).
On April 18, 2011, Plaintiff reported a rash to a nurse (id., pp. 28-29). In describing Plaintiff, the nurse recorded, among other things: "Use w/c for mobility" (id.,p. 29).
On April 25, 2011, a doctor performed a chart review and noted: "This patient was declassed from having wheelchair by Dr. Zasorin" (id.).
On May 4, 2011, Plaintiff was transported to an urgent care clinic "via wheelchair" for treatment of the rash (id., pp. 30-31).
On May 6, 2011, a nurse noted that Plaintiff's discharge was being planned and that an "MD" was requesting to send Plaintiff "via temporary wheelchair" to the "NKSP [North Kern State Prison] transfer" on May 9, 2011 (id., pp. 31-32). The nurse recorded that Plaintiff was refusing to stand up and that the Chief Physician had requested a wheelchair transport "despite him [Plaintiff] being declassed from a wheelchair" (id., p. 32). Jail authorities transported Plaintiff to prison via "special transport" on May 9, 2011 (id.).
Plaintiff disputes Zasorin's conclusion that Plaintiff did not need a wheelchair. Plaintiff relies on the declaration of Dr. Terry Hill, filed on May 5, 2011, in support of "Plaintiff's Ex Parte Application for Temporary Restraining Order, etc." in the Johnson case (Plaintiff's Ex. D). In that declaration, executed on May 4, 2011, Hill stated that he had reviewed Plaintiff's medical records "which are attached to this declaration" (id., ¶7). Plaintiff does not provide the medical records which Dr. Hill purportedly reviewed.11 Hill opined that the records he reviewed from three different state correctional institutions provided "very clear evidence that Mr. Alexander had a documented need for a wheelchair (id., ¶ 10). Hill concluded that because one prison had designated Plaintiff a "Permanent Full Time Wheelchair User," physicians at that prison "must have come to a medical determination that [Plaintiff] required permanent use of a wheelchair" (id., ¶ 12). Hill disagreed with jail physicians' reported decision that Plaintiff no longer required full-time use of a wheelchair (id., ¶ 17).12
The evidence shows, at most, a difference of opinion between medical providers concerning Plaintiff's ambulatory status and purported need for a wheelchair. Where a doctor has chosen one course of action and a prisoner-plaintiff contends that the doctor should have chosen another course of action, the plaintiff "must show that the course of treatment the doctor[] chose was medically unacceptable under the circumstances, . . . and the plaintiff must show that [the doctor] chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.), cert. denied, 519 U.S. 1029 (1996) (internal citations omitted); see also Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (difference of medical opinion between medical professionals concerning what medical care is appropriate does not amount to deliberate indifference unless chosen care is "medically unacceptable"), overruled on other grounds, Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). Even assuming arguendo that Zasorin supposedly knew Plaintiff had a serious medical need for a wheelchair, Plaintiff has produced no evidence to show that Zasorin's alleged decision that Plaintiff did not need his personal wheelchair was "medically unacceptable" or that Zasorin made that alleged decision in "conscious disregard of an excessive risk" to Plaintiff's health. Accordingly, because Plaintiff has not produced evidence from which a rational juror could conclude that Zasorin exhibited deliberate indifference to Plaintiff's alleged medical need for a personal wheelchair, Zasorin is entitled to summary judgment on this claim.
III. Defendants Are Also Entitled to Summary Judgment on Plaintiff's ADA and Rehabilitation Act Claims.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To prevail under the ADA or the Rehabilitation Act, Plaintiff must show that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) this exclusion, denial, or discrimination was by reason of his disability. Townsend v. Quasim, 328 F.3d 511, 516 (9th Cir. 2003); see Walton v. U.S. Marshals Service, 492 F.3d 998, 1005 (9th Cir. 2007), cert. denied, 552 U.S. 1097 (2008) (ADA's substantive liability standards are incorporated into the Rehabilitation Act).
The PLRA's exhaustion requirement applies to Plaintiff's ADA and Rehabilitation Act claims. See O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060-61 (9th Cir. 2007). For the reasons discussed above, Plaintiff's only exhausted claims under either statute are his claims that Defendants deprived Plaintiff of his personal wheelchair.
Plaintiff has not produced evidence to show that any asserted damage to or loss of Plaintiff's personal wheelchair caused Plaintiff to be "excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity." To the extent Plaintiff alleges that Defendant Bleau took Plaintiff's personal wheelchair on June 4, 2010, the evidence, including Plaintiff's declaration attached to his original Complaint, shows Plaintiff had the use of another wheelchair immediately thereafter. To the extent Plaintiff contends Defendant Bleau assertedly took Plaintiff's wheelchair (his personal wheelchair or his jail-issued wheelchair) on April 14, 2011, Plaintiff alleged in the declaration attached to his original Complaint that thereafter a Lieutenant told a Sergeant to get Plaintiff another wheelchair. To the extent Plaintiff claims the alleged deprivation of his personal wheelchair constituted inadequate medical care, any such assertion does not show an ADA or Rehabilitation Act violation. See Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) ("The ADA prohibits discrimination because of disability, not inadequate treatment for disability.").
Furthermore, Plaintiff cannot obtain damages under the ADA from an individual Defendant in that Defendant's individual capacity. See Brewer v. Wisc. Bd. of Bar Examiners, 270 Fed. App'x 418, 421 (7th Cir.), cert. denied, 555 U.S. 1003 (2008); Williams v. McLemore, 247 Fed. App'x 1, 8 (6th Cir. 2007); Garcia v. S.U.N.Y. Health Services Center, 280 F.3d 98, 107 (2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en banc), cert. dism'd, 529 U.S. 1001 (2000); Jones v. Martel, 2011 WL 720066, at *10 (E.D. Cal. Feb. 22, 2011) (granting summary judgment for defendants on ADA claim for damages against individual Defendants); Hill v. Baca, 2010 WL 1727655, at *6 (C.D. Cal. Apr. 26, 2010); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003) (plaintiff could not sue public official in his or her individual capacity under 42 U.S.C. section 1983 for ADA violations).13
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting summary judgment in favor of Defendants; and (3) entering judgment in favor of Defendants.
