MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Avery and Akano on Plaintiff's Eighth Amendment medical indifference claim. (ECF No. 19.)
On September 9, 2014, Defendant Avery moved for summary judgment on the ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 49.) Plaintiff filed an opposition (ECF No. 51), and Defendant filed a reply (ECF No. 54). Plaintiff filed a sur-reply (ECF No. 57), and Defendant moved to strike the sur-reply (ECF No. 60). These matters are deemed submitted.
Absent leave of court, no briefing on Defendant's motion is permitted beyond the opposition and reply. The Court did not grant Plaintiff leave to file a sur-reply and does not desire any further briefing on the motion. The sur-reply has not been considered in these findings and recommendations.
Accordingly, Defendant's motion to strike Plaintiff's sur-reply (ECF No. 60) should be granted, and Plaintiff's sur-reply (ECF No. 57) should be stricken from the record.
A motion for summary judgment is the proper means to raise a prisoner's failure to exhaust administrative remedies.
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). In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
The allegations in Plaintiff's second amended complaint (ECF No. 17) may be summarized, in relevant part, as follows:
Plaintiff submitted a medical request for a lower bunk and was seen on February 16, 2011 by Defendant Akano, a medical doctor at KVSP. Defendant Akano prescribed Motrin for Plaintiff's pain but refused to honor the Accommodation Chrono.
On April 22, 2011, Plaintiff fell while attempting to get down from his upper bunk. He was taken to the hospital and received stitches for a head laceration. Upon his return, he passed out while climbing into his bunk. He returned to the hospital and later was returned to his cell.
On April 25, 2011, Plaintiff saw Defendant Avery, who he describes as a medical doctor at KVSP.
On April 27, 2011, Plaintiff saw Defendant Akano, who ordered a lower bunk. Plaintiff was not moved to a lower bunk until June 21, 2011. The Court screened Plaintiff's complaint and found that he sufficiently alleged an Eighth Amendment claim against Defendants Akano and Avery for failure to provide Plaintiff a lower bunk. (ECF Nos. 18 & 19.)
Based on the submissions of the parties (ECF Nos. 49, 51, & 54), the Court finds the following facts to be undisputed.
Plaintiff exhausted six appeals related to the claims presented in his second amended complaint. None of the appeals directly reference Defendant Avery. For purposes of this motion, the Court finds it necessary to discuss only one of the six appeals in detail.
Appeal No. KVSP-HC-11029543 was submitted on April 25, 2011. (ECF No. 49-8 at 5.) Plaintiff complained that he was seen by Defendant Akano on April 4, 2011, and that Akano was indifferent to Plaintiff's need for a lower bunk and referral to an ophthalmologist. In the first level review, the reviewer noted that Plaintiff was provided the opportunity to expand upon his complaints but offered no further comments. The first level appeal was denied because the relief requested (monetary compensation for his injuries) was outside the scope of the appeal process. (ECF No. 49-8 at 8.) At the second level, Plaintiff reiterated his complaints regarding Defendant Akano's indifference. The second level appeal also was denied, both on the ground that the requested relief was outside the scope of the appeal process and because Plaintiff by that time had been assigned a lower bunk. (ECF No. 49-8 at 9-10.) At the third level, Plaintiff again reiterated his complaints regarding Defendant Akano, and the appeal again was denied on the same grounds. (ECF No. 49-8 at 2-3.)
Defendant Avery argues that Plaintiff failed to exhaust his administrative remedies because none of Plaintiff's exhausted appeals reference Defendant Avery or his alleged conduct. (ECF No. 49-1.)
Plaintiff argues that he discussed Defendant Avery's conduct in interviews relating to his appeals but that this information was omitted from appeal records. (ECF No. 51.)
Defendant replies that information conveyed by Plaintiff during interviews is not relevant because, under California regulations, administrative remedies are not exhausted for persons not included in the initial appeal form. (ECF No. 54.)
The Prison Litigation Reform Act ("PLRA") provides, "No 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). Therefore, prisoners are required to exhaust all available administrative remedies prior to filing suit.
"The primary purpose of a [prisoner's administrative] grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation."
Defendants have the burden of proving Plaintiff failed to exhaust available administrative remedies.
Plaintiff's Appeal No. KVSP-HC-11029543 informed prison officials of Plaintiff's dissatisfaction with an upper bunk and his claimed medical need for a lower bunk. Thus, it "alert[ed] the prison to the nature of the wrong for which redress is sought," and gave the prison an opportunity "to reach the merits of the issue."
That the grievance did not mention Defendant Avery is of no moment. Plaintiff was not required to name the official whose conduct was at issue.
Accordingly, Defendant has not shown that Plaintiff failed to exhaust his administrative remedies and his motion for summary judgment should be denied.
The Court finds that Defendant Avery failed to meet his burden of proving that Plaintiff failed to exhaust available administrative remedies. Accordingly, the Court HEREBY RECOMMENDS that Defendant's motion for summary judgment (ECF No. 49) be DENIED. The Court FURTHER RECOMMENDS that Defendant's motion to strike Plaintiff's sur-reply (ECF No. 60) be GRANTED, and that the sur-reply (ECF No. 57) be stricken from the record.
The 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 fourteen (14) days after being served with the findings and recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.