BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Bernie Noriega, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 9, 2013. This action proceeds against Defendant Bunnell for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment to the United States Constitution.
On January 28, 2015, Defendant Bunnell filed a motion for summary judgment based on Plaintiff's failure to exhaust available administrative remedies.
Section 1997e(a) of the Prison Litigation Reform Act of 1995 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). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 921 (2007); Albino, 747 F.3d at 1166. "In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6)." Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows 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) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
The defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and they must "prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy," id. at 1172. If the defendants carry their burden, the burden of production shifts to the plaintiff "to 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. "If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56." Id. at 1166. However, "[i]f material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts." Id.
The California Department of Corrections and Rehabilitation (CDCR) has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The process is initiated by submitting a CDCR Form 602 describing the issue and the relief requested. Id. at § 3084.2(a). Three levels of review are involved—a first level review, a second level review and a third level review. Id. at § 3084.7. Bypassing a level of review may result in rejection of the appeal. Id. at § 3084.6(b)(15). Under § 1997e, a prisoner has exhausted his administrative remedies when he receives a decision at the third level. See Barry v. Ratelle, 985 F.Supp. 1235, 1237-38 (S.D. Cal. 1997).
In his first amended complaint, Plaintiff alleged as follows:
(ECF No. 10, pp. 3, 6.)
Plaintiff further alleged:
(ECF No. 10, p. 6.)
Plaintiff also alleged:
(ECF No. 10, p. 6.)
1. Noriega was an inmate in the custody of the CDCR. At all times relevant to this action, Noriega was housed at the California Substance Abuse Treatment Facility (SATF).
2. At the time of the alleged injury, Defendant Bunnell was employed as an LVN at SATF. She is currently retired.
3. Noriega alleges that on or about January 16, 2012, while housed at SATF, he attempted to seek treatment from Defendant LVN Bunnell following a surgical procedure at an outside hospital, but she refused to treat him, violating his Eighth Amendment rights. (ECF 10, p. 6.)
4. An inmate "may appeal any policy, decision, action, condition, or omission by the department or its staff . . . having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Appeals must be written on a standardized form, CDCR Form 602. Cal. Code Regs. tit. 15, § 3084.2(a). An inmate must submit the appeal within 30 calendar days of the occurrence of the event or decision being appealed, upon first having knowledge of the action or decision being appealed, or upon receiving an unsatisfactory departmental response to an appeal. Cal. Code Regs. tit. 15, § 3084.8 (b). An appeal can be cancelled for a number of reasons, including where time limits for submitting the appeal are exceeded even though the inmate or parolee had the opportunity to submit within the prescribed time constraints. Cal. Code Regs. tit. 15, §3084.6(c).
5. First and second level health care appeals are processed by staff located at their respective institutions, while third level appeals are processed by the Inmate Correspondence and Appeals Branch (ICAB) of the California Correctional Health Care Services (CCHCS). (Decl. of (Robinson at ¶¶ 1, 2.) Effective August 1, 2008, appeals involving inmate medical, dental and mental health care issues have been processed by the CCHCS, under the Office of the Federal Receiver appointed in the class action litigation regarding prison healthcare, Plata v. Brown, U.S. District Court for the Northern District of California, Case No. 3:01-cv-01351. Thus, the ICAB (formerly the Office of Third Level Appeals) receives, reviews, and maintains all health care appeals accepted for the third and final level of review in the inmate health care appeals process, and renders decisions on such appeals, while the Office of Appeals receives, reviews and maintains all third level inmate appeals concerning non-healthcare issues. (Id. at ¶ 3.)
6. On January 24, 2012, Noriega submitted a health care appeal, log number SATF SC 12001241, which said that he had ACL-meniscus surgery on January 11, 2012, at Corcoran Regional Hospital, and on January 16, 2012, awoke in excruciating pain, but at 7:00 p.m. that night when he went to the medical office, LVN Bunnell refused to treat him. (Robinson Dec. ¶ 8 and Ex. B, pp. 1, 3.) Noriega's appeal was bypassed at the first level and was accepted at the second level of review on February 2, 2012. (Robinson Dec. ¶ 8 and Ex. B, p. 2.)
7. On March 14, 2012, Noriega was interviewed and his appeal, log number SATF SC 12001241, was completed at the second level. (Robinson Dec. ¶ 9 and Ex. C, pp. 1-2.) The appeal was processed as a staff complaint appeal inquiry, and Noriega's allegations were investigated. (Robinson Dec. ¶ 9 and Ex. C, p. 2.) After a confidential inquiry, the reviewer was unable to determine if staff violated policy. (Robinson Dec. ¶ 9 and Ex. C, p. 2.) Defendant Bunnell was not interviewed as she was no longer employed at SATF. (Robinson Dec. ¶ 9 and Ex. C, p. 1.)
8. On April 18, 2012, Noriega submitted his health care appeal, log number SATF SC 12001241, to the third and final level of review. (Robinson Dec. ¶ 10 and Ex. B, pp. 2, 4.) On July 10, 2012, Noriega's appeal was partially granted at the third level on the basis that it is "not in the purview of inmates to request specific action" regarding staff complaints or disciplinary actions taken against personnel, and the third level reviewer found that the content of the inquiry was incomplete as not all of Noriega's allegations were addressed nor was further evidence considered. Therefore, a modification order was issued to the Chief Executive Officer at SATF for completion of the confidential inquiry to include evidence collection and consideration beyond interviews with Noriega and Defendant Bunnell, and to include a review of the alleged delay in access to care. The Chief Executive Officer was instructed to provide an amended staff complaint response, and submit copies of the completed inquiry to the third level to demonstrate compliance with the order. (Decl. of Robinson at ¶ 10 and Ex. D at pp. 4-6.) The modification order noted that if, after a review of the Unit Log Book, along with interviews of the correctional officers or inmates cited by Noriega were considered, the evidence was still inconclusive, then the conclusion of the inability to determine if policy was violated could be considered acceptable. (Decl. of Robinson at ¶ 10 and Ex. D at p. 2.)
9. On August 20, 2012, the amended second level response to health care appeal, log number SATF SC 12001241, was issued. (Decl. of Robinson at ¶ 11 and Ex. E.) A confidential inquiry was conducted and the reviewer noted that Defendant Bunnell could not be interviewed as she was no longer employed, and the correctional officers Noriega identified were not interviewed as they did not witness the encounter with Defendant Bunnell. (Decl. of Robinson at ¶ 11 and Ex. E at p. 1.) The Facility A3 log book was reviewed, and the reviewer also noted that on January 12, 2012, Noriega was pre-scheduled for a five-day follow-up with the primary care physician on January 17, 2012. (Decl. of Robinson at ¶ 11 and Ex. D at p. 3.)
10. The amended second level response to health care appeal, log number SATF SC 12001241, was partially granted in that pursuant to the modification order an inquiry into Noriega's allegation was conducted, and staff remained unable to determine whether or not staff violated policy. (Decl. of Robinson at ¶ 12 and Ex. E at p. 2.) Noriega was instructed that if he wished to appeal the decision, he must submit his staff complaint through the third and final level of review. (Ibid.) According to Noriega's health care appeals history, he did not submit health care appeal, log number SATF SC 12001241, to the third level for further review. (Id. at ¶ 13.)
Defendant Bunnell argues that Plaintiff did not exhaust his administrative remedies because Plaintiff failed to appeal the amended second level response, issued on August 20, 2012, to the third and final level of review in compliance with the available administrative process.
"Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). An inmate thus cannot demonstrate exhaustion where he has failed to follow the rules for submitting and pursuing an administrative appeal. It is the agency's rules and regulations, not the PLRA itself, that determines whether an inmate has properly exhausted his administrative remedies. Jones, 549 U.S. at 218.
According to the undisputed evidence, a modification order was issued at the third level of review on July 10, 2012, which sent Plaintiff's appeal issue back to the second level for modification of the decision. (DSF 8.) In compliance with the modification order, an amended second level response was issued on August 12, 2012. (DSF 9.) The amended second level response instructed Plaintiff that he must complete his appeal through all levels of review, including the third and final (or Director's) level of review, after which his appeal would be considered exhausted. (DSF 10.) Pursuant to CDCR regulations, after completion of a modification order, an inmate must submit his appeal to the next level within thirty calendar days of receiving the modification order response. Cal. Code Regs. tit. 15, § 3084.7(i)(2). The undisputed evidence establishes that Plaintiff did not submit the amended second level response to the next (third) level for further review. (DSF 10.)
The Court finds that Defendant Bunnell has carried the burden to demonstrate that there was an available administrative remedy, but Plaintiff failed to exhaust that remedy in connection with the amended second level response.
The burden therefore shifts to Plaintiff to demonstrate that the existing and generally available administrative remedy was effectively unavailable to him. The Court finds that Plaintiff has failed to carry this burden. In his opposition, Plaintiff argues that he exhausted his appeal on July 10, 2012, when he received the decision from the Office of Third Level Appeals-Health Care in Sacramento, California, and then filed this action shortly thereafter on July 24, 2012. (ECF No. 28, p. 1.) Plaintiff is incorrect. Contrary to his argument, Plaintiff did not file the instant action until September 5, 2013, which was more than a year after the amended second level response was issue. Plaintiff thus had sufficient time to submit the amended second level response to the third level for review.
Plaintiff has not otherwise demonstrated that the available administrative remedies were rendered unavailable to him through no fault of his own. See Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (prisoner's failure to exhaust excused where he took reasonable and appropriate steps to exhaust and was precluded, not through his own fault, but by the Warden's mistake); see also Albino, 747 F.3d at 1173 (exhaustion may be excused if prisoner reliably informed that the remedy was not available to him); Nunez, 591 F.3d at 1225-26; Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (district court erred in dismissing complaint for failure to exhaust administrative remedies because the prisoner had been informed that he was not permitted to appeal the decision); Miller v. Tanner, 196 F.3d 1190, 1194 (11th Cir. 1999) (inmate not required to file an appeal after being "told unequivocally that appeal . . . was precluded"). The Court acknowledges that the July 10, 2012 decision letter issued by the Office of Third Level Appeals-Health Care stated, "This decision exhausts your available administrative remedy. . . ." (Def's Ex. D, p. 6.) However, Plaintiff has not argued, nor can he, that this statement excused the exhaustion requirement. As discussed above, subsequent to the issuance of the July 2012 third level response, prison officials issued the amended second level response on August 20, 2012. (DSF 9.) In that response, prison officials expressly instructed Plaintiff that he must submit his appeal through the Director's Level of Review and informed Plaintiff that his administrative remedies would be considered exhausted "[o]nce a decision has been rendered at the Office of Third Level Appeals-Health Care." (DSF 10; Def's Ex. E.) CDCR regulations also unequivocally required Plaintiff to submit his appeal to the next level after completion of the modification order. Cal. Code Regs. tit. 15, § 3084.7(i)(2). It is undisputed that Plaintiff failed to do so. (DSF 10.)
Based on these reasons, the Court finds that Plaintiff has not exhausted his administrative remedies with regard to his claim against Defendant Bunnell and that he should not be excused from the failure to exhaust.
For the reasons stated, IT IS HEREBY RECOMMENDED that Defendant's motion for summary judgment for failure to exhaust administrative remedies, filed on January 28, 2015, be granted.
These Findings and Recommendations will be 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
IT IS SO ORDERED.
