BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Anthony Craig Huckabee ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff's fifth amended complaint against Defendants Enenmoh, Jimenez, Wu and McGuinness for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment.
On December 15, 2017, Defendants Enenmoh, Jimenez, and Wu filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing Plaintiff has failed to exhaust his administrative remedies.
On January 2, 2018, Plaintiff filed an opposition to Defendant McGuinness' joinder in the motion as untimely.
On June 8, 2018, during the pendency of the motion for summary judgment for failure to exhaust administrative remedies, Defendants filed a joint motion to modify the scheduling order and vacate the existing discovery and non-exhaustion dispositive motion deadlines. (ECF No. 268.) The Court granted the request on June 13, 2018, finding that a response from Plaintiff was unnecessary. (ECF No. 269.)
On June 20, 2018, Plaintiff filed his opposition to Defendants' motion. (ECF No. 270.) On June 28, 2018, Plaintiff filed an opposition to the Court's order granting the motion to modify the scheduling order, as well as a renewed motion seeking leave to file a sixth amended complaint. (ECF No. 271.) No opposition or response was filed by any Defendant, and Plaintiff's filings are deemed submitted. Local Rule 230(1).
In his opposition and motion to amend, Plaintiff raises arguments previously addressed by the Court. Specifically, Plaintiff contends that the granting of Defendants' motion before Plaintiff had the opportunity to be heard demonstrates an "appearance of unfairness," and on that basis renews his motion seeking leave to file a sixth amended complaint. (ECF No. 271.) Plaintiff generally reiterates his argument that his original motion to file a sixth amended complaint, filed September 25, 2017, was timely presented, and was inappropriately denied on the basis that it would cause significant prejudice and undue delay. Plaintiff argues that since that time, Defendants have repeatedly requested extensions of time and otherwise delayed this action, over Plaintiff's objections. (Id.)
As explained in the Court's November 7, 2017 order denying Plaintiff's motion to amend, leave to amend was denied because Plaintiff's proposed amended complaint sought to revive claims and defendants previously dismissed by the Court, and further amendment would be futile. (ECF No. 235.) As Plaintiff has presented no new information in his motion that would change the Court's determination that further amendment at this late date would be futile, the motion is denied.
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).
Prisoners are required to exhaust the available administrative remedies prior to filing suit.
Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process,
The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion.
Defendants must first prove that there was an available administrative remedy and that Plaintiff did not exhaust that available remedy.
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);
The defendants bear the burden of proof in moving for summary judgment for failure to exhaust,
The California Department of Corrections and Rehabilitation ("CDCR") has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. Pursuant to this system, an inmate may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his . . . health, safety, or welfare." Id. at § 3084.1(a).
The process is initiated by submitting a CDCR Form 602, Inmate/Parolee Appeal. Id. at § 3084.2(a). In the appeal form, prisoners must list all staff members involved and describe their involvement in the issue. Id. at § 3084.2(a)(3). If the inmate does not have the requested identifying information about the staff member, he must provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member in question. Id.
Three levels of review are involved—a first level review, a second level review and a third level review. Id. at §§ 3084.5(c)-(e), 3084.7. Bypassing a level of review may result in rejection of the appeal. Id. at § 3084.6(b)(15). Under the PLRA, a prisoner has exhausted his administrative remedies when he receives a decision at the third level.
Plaintiff was housed at the California Substance Abuse Treatment Facility ("CSATF") from 2000 to 2012. While there, he was diagnosed with Open Angle Glaucoma ("OAG") and placed on a treatment program. Plaintiff asserts that OAG is a serious medical condition that, if left undiagnosed and treated, would lead to blindness. Plaintiff further alleges that Defendants Wu, Jimenez, and Enenmoh are not eye specialists or equipped to handle Plaintiff's OAG, so they repeatedly required and requested services from eye specialists. Defendants allegedly denied or delayed the necessary treatment for Plaintiff on a regular basis, without consulting specialists or documenting the reasons for their alleged deviations from standard procedure.
From October 19, 2000, to February 7, 2006, Plaintiff states that the pressure in his left eye degenerated from a stable pressure of 17 to a critical 38. He lost his eyesight on September 15, 2006. He subsequently had several eye surgeries, but on April 28, 2010, he was diagnosed with "uncontrolled glaucoma," which required further surgery. On May 4, 2010, Plaintiff's eye pressure rose to 50,
On August 25, 2004, the pressure in Plaintiff's eyes had risen to 32 in his left eye and 22 in his right eye. The contract optometrist referred Plaintiff to an ophthalmologist, but Defendant Wu allegedly did not process the Request for Services, despite knowledge of the rise in pressure.
On December 21, 2004, without consultation from an ophthalmologist, Defendant Wu reduced Plaintiff's prescribed OAG medication, Timilol, from original strength of .5% to .25%. Plaintiff contends that the pressure in his eyes had not dropped to a safe level to justify such a change. Since June of 2000, Plaintiff had been receiving Timilol at .5% strength. All succeeding PCP's followed Defendant Wu's lead and continued to prescribe the lower dosage until September 15, 2006, when Plaintiff lost vision in his left eye. The attending ophthalmologist raised the strength of Timilol from .25% back to the original .5%.
On February 11, 2005, Plaintiff requested to see an eye specialist because his eye condition was worsening.
On March 9, 2005, Defendant Wu submitted a physician Request for Services for an ophthalmologist. The first request was denied, and it is unclear whether a second request was submitted.
On May 23, 2005, Plaintiff requested renewal of his Glaucoma medication, which was scheduled to expire on June 7, 2005. Plaintiff again requested renewal on June 8 and July 12, 2005, but the medication was not renewed until August 12, 2005.
On July 12, 2005, Plaintiff submitted another refill request and spoke with Defendant Jimenez. Plaintiff informed Defendant Jimenez that he suffered from glaucoma, the pressure in his left eye had been steadily increasing, he suffered pain from the pressure and he feared going blind. Defendant Jimenez assured Plaintiff that he would personally handle the refill request. This assurance was given again on July 14 and July 18, 2005, but Plaintiff's glaucoma medication was not refilled.
On July 21, 2005, Plaintiff submitted an inmate grievance complaining about not receiving his glaucoma medication.
On August 5, 2005, Plaintiff was informed, via the appeal responses, that his medication would not be renewed without a physician's order, and it was suggested that he visit the clinic's sick call window.
On August 11, 2005, Plaintiff submitted another grievance noting that he was informed at the sick call window that, if he wanted his medication renewed, he would have to submit a sick call or refill request, which Plaintiff had been doing for months. Additionally, Plaintiff was told that the medical staff was too busy to see him unless it was an emergency.
On August 12, 2005, Plaintiff's medication was renewed. Plaintiff alleges that Defendant McGuiness was aware of this two-month delay, and that her response to Plaintiff's appeal expressed indifference to Plaintiff's worsening eye conditions.
On January 27, 2006, Plaintiff informed medical staff that he had not seen a physician or primary care provider for six months. He was not scheduled to see a primary care provider until March 27, 2006.
Plaintiff went two months without his prescribed glaucoma medications, and had to file a grievance to receive a prescription. Plaintiff alleges that Defendant McGuinness was aware of the two-month delay, and that her response to the grievance expressed indifference to the violation of inmate medical services policies and procedures.
On May 22, 2006, after going without his prescribed glaucoma medication for over two months, Plaintiff submitted a medical Request for Services, seeking emergency treatment because of extreme pain and loss of vision in his left eye.
On May 25, 2006, Dr. Salmi submitted an urgent Request for Services for an ophthalmology consultation. Defendant McGuinness approved the request on May 30, 2006, but failed to ensure that Plaintiff was scheduled or seen by the specialist within the fourteen-day limit prescribed by policies and procedures. Defendant McGuinness received notice of this violation by June 21, 2006. Plaintiff was seen three and one-half months later.
On June 21, 2006, Defendant McGuinness responded to Plaintiff's grievance of February 28, 2006. At the second level review, Defendant McGuinness admitted that an urgent Request for Services was submitted on May 25, 2006. Defendant McGuinness allegedly was fully aware that Plaintiff's rights were being violated for failure to comply with policies and procedures, and she made no effort to correct the violations.
On July 21 and 27, and again on August 18, 2006, Plaintiff was seen by Dr. Salmi. Dr. Salmi noted that Plaintiff had not been seen by the ophthalmologist for glaucoma, and that he had left messages for the request to be processed. Plaintiff alleges that Defendant McGuinness failed to ensure that Plaintiff was scheduled to be seen within fourteen days.
On September 10, 2006, Plaintiff alerted medical staff of approximately 80% vision loss in his left eye and severe pain. Five days later, Plaintiff was taken for an emergency consultation with Dr. Yaplee. After examining Plaintiff, Dr. Yaplee informed Plaintiff that he had severe nerve damage and loss of vision caused by increased pressure build-up in his left eye. Dr. Yaplee prescribed medications at an increased strength: Timilol at .5% and Xalatan at .5%. Dr. Yaplee also recommended a laser procedure within one month to repair the nerve damage in Plaintiff's left eye.
On October 3, 2006, Dr. Salmi submitted a Request for Services to comply with the recommended laser procedure.
On July 31, 2007, Plaintiff states he was compelled to submit a grievance to accomplish the laser surgery.
On April 4, 2008, Defendant Enenmoh responded to Plaintiff's July 31, 2007 grievance, stating that there was no documentation from Dr. Yaplee or any other doctor recommending the laser surgery. Plaintiff alleges that Defendant Enenmoh was familiar with Plaintiff's health record, which held copies of Dr. Yaplee's recommendations, but that Defendant Enenmoh expressed indifference to Plaintiff's medical needs, resulting in delayed treatment and increased pain and suffering.
On January 8, 2008, Plaintiff states he was again compelled to submit a grievance because he had not been receiving his prescribed OAG medication in a timely manner, going for months without it. The grievance was granted and procedures for issuing medications were renewed. Plaintiff states that it took him over eighty days to get his medication, and that he had to utilize the inmate grievance procedure to do so, which allegedly violates procedures for issuing medication. Plaintiff states that these medications had been prescribed eight years earlier, but alleges that Defendants Jimenez and Wu had not been following procedures for issuing medications.
On January 27, 2008, Plaintiff submitted a grievance regarding the substitution of his originally prescribed Xalatan for a less effective concentration of Timilol; that his OAG refill orders were delayed for months; and that medical staff was responding with indifference to his medical condition. The first response to his grievance took seven months, while the second level review took six months to respond. Defendant Enenmoh reviewed the allegations and concluded that no procedures had been violated. Plaintiff alleges that Defendant Enenmoh denied any wrongdoing because he was implicated in this matter.
On July 9, 2010, Plaintiff's OAG medication was still being delayed or denied. Plaintiff states that the prescription renewals had been promised to be automatic since January of 2008.
On September 15, 2011, Plaintiff states he was still not being scheduled for regular ninety-day visits with the specialist, as required by procedures. Plaintiff further states that Defendant Enenmoh was the chief medical officer at the time, and alleges that it was his responsibility to track all specialist referrals, to do a quarterly review of the specialty referral tracking log, and to ensure that consultations are completed within the required timeframes.
As of the filing of this amended complaint, Plaintiff continues to receive treatment for his OAG.
Plaintiff asserts causes of action for deliberate indifference to serious medical needs in violation of the Eighth Amendment, a state law cause of action for intentional infliction of emotional distress, and discusses the continuing violations doctrine. Plaintiff seeks compensatory, punitive, and exemplary damages.
Defendants contend that Plaintiff's claims against Defendants are limited to a small number of discrete encounters, as follows:
Plaintiff claims that Dr. Wu did not process an August 25, 2004 referral to an ophthalmologist, reduced the strength of Plaintiff's prescription eye drops on December 21, 2004, and submitted a request on March 9, 2005 for Plaintiff to see an ophthalmologist that was denied. (DSF 7-9.) Plaintiff claims that on July 12, 14, and 18, 2005, Nurse Jimenez promised to personally ensure Plaintiff's eye drops were renewed, but the prescription was not renewed until August 12, 2005. (DSF 10, 12, 16.) Plaintiff claims that Dr. Enenmoh responded to two administrative appeals at the second level of review, one on April 4, 2008, in which Plaintiff requested laser surgery, and one on January 23, 2009, in which he complained about issues with his prescription eye drops. (DSF 25, 27, 35, 38.) Plaintiff also claims that Dr. Enenmoh approved an urgent request for services on October 31, 2008, and Plaintiff received the surgery fourteen days later. (DSF 42-44.) Plaintiff further claims that Dr. Enenmoh disregarded a May 4, 2010 urgent request for services, and Plaintiff was not seen until eight days later. (DSF 45.) And, Plaintiff claims that as of September 15, 2011, Dr. Enenmoh was responsible for tracking all specialist referrals, but Plaintiff was not being scheduled for regular ninety-day appointments with a specialist. (DSF 46.)
With respect to Defendant McGuinness, Plaintiff alleges that Dr. McGuinness was aware of the delay in his glaucoma medication in May 2005 and February 2006, Dr. McGuinness was aware of the delay of Plaintiff seeing a specialist in May 2006; and Dr. McGuinness failed to ensure that Plaintiff was seen by Dr. Salmi within fourteen days in July and August 2006. (DSF 66.)
Defendants contend that Plaintiff was required to exhaust all claims against all Defendants before April 28, 2009, when he initiated this lawsuit. Defendants have provided twenty-three administrative appeals exhausted by Plaintiff between 2000 and 2012, when Plaintiff was housed at CSATF. Defendants argue that Plaintiff did not fully exhaust any appeal regarding the claims at issue in this suit, and that none of the appeals that Plaintiff did exhaust complained about any of to specific allegations against Defendants presented in the fifth amended complaint. Furthermore, Defendants emphasize that many of the appeals were not fully exhausted until well after the filing of the original complaint.
In opposition, Plaintiff argues that he was not required to list all of his 602 inmate appeals in the complaint in order to demonstrate that he exhausted all grievance procedures. Plaintiff notes that throughout the administrative grievance process, the Department of Corrections affirmed that monetary damages are beyond the scope of the appeal process, and therefore argues that his requests for monetary damages should be deemed denied before he filed his complaint in this action, due to the unavailability of the relief requested.
Plaintiff also discusses the continuing violations doctrine, and argues that Defendants would have him file five to ten lawsuits based on the same violations, due to the length of time between submission of administrative appeals and the receipt of a final denial.
In reply, Defendant McGuinness argues that Plaintiff does not dispute that the inmate appeals presented do not serve to exhaust Plaintiff's administrative remedies, because none of the exhausted appeals relate to this lawsuit. Defendant McGuinness further contends that Plaintiff's general arguments that monetary damages are beyond the scope of the appeal process, or that he suffers a continuing violation, cannot excuse Plaintiff from the exhaustion requirement. Finally, Defendant McGuinness argues that Plaintiff is unable to point to any grievance where there is a specific connection to the allegations against Dr. McGuinness, or show that the institution was on notice or had an opportunity to resolve the issue.
Defendants argue throughout their motion that Plaintiff's administrative grievances did not fully exhaust the claims at issue in this suit because Plaintiff did not specifically complain in his appeals about actions taken by any of the remaining Defendants, (DSF 24, 30, 32, 42, 54, 60, 64), or because the appeals are unrelated to the allegations against Defendants in the fifth amended complaint, (ECF No. 251, p. 2).
However, pursuant to CDCR's applicable regulations, Plaintiff was not required to list all staff members involved and expressly describe their involvement until the regulations were changed on January 28, 2011. (ECF No. 246-1, p. 15.) Further, as noted by Defendant McGuinness, Plaintiff's failure to specifically name each specific defendant is not fatal to the exhaustion process. (ECF No. 261, p. 4.) Rather, a grievance "suffices if it alerts the prison to the nature of the wrong for which redress is sought."
Upon review of the administrative grievances submitted by Plaintiff, two relate to the allegations at issue. In Appeal Log No. SATF-M-08-02566, Plaintiff states that since his intake into CDC in 1998, he had been prescribed Xalatan eye drops to treat his glaucoma. Upon his transfer to SATF, Plaintiff was given the weaker Timilol eye drops, and at a reduced .25% solution. Further, Plaintiff alleges that there have been "dozens of occasions" when he could not get his eye drops refilled or renewed, sometimes for months at a time, and that he is again experiencing a hardship in trying to renew and refill his meds. (Lewis Decl., Ex. D.; ECF No. 249, pp. 51-52.) This appeal was submitted on January 27, 2008. Though the allegations do not identify any individual defendant by name, as noted above, Plaintiff was not required to do so under the CDCR regulations at that time. Where a prison's grievance process does not specifically require a prisoner to identify offending prison staff in an inmate appeal, the failure to do so will not be seen as a per se failure to exhaust a claim against a defendant who was not named in the prison grievance process.
In Appeal Log No. SATF HC 10001124, which was filed on October 27, 2009, Plaintiff similarly complains that his eye drop medications for his glaucoma were not being timely refilled, and he was running out of his medications between refills. (Lewis Decl., Ex. C.; ECF No. 249, p. 42.) The Court finds that this grievance, which was denied at the third level of review on May 4, 2010, was also sufficient to place the institution on notice of Plaintiff's continuing difficulties renewing and refilling his eye drop medications.
The Court did not find any other fully exhausted grievances discussing the other allegations raised in the fifth amended complaint, specifically, denials of requests for an ophthalmology referral, denials of requests for laser surgery, failure to ensure Plaintiff was timely seen by specialists, or any Defendant's response to a particular grievance. Thus, the Court finds that Plaintiff has failed to exhaust his administrative grievances with respect to these other claims. Remaining are Plaintiff's claims that: Defendant Wu reduced the strength of Plaintiff's
prescription eye drops on December 21, 2004; Defendant Jimenez promised to personally ensure Plaintiff's eye drops were renewed on July 12, 14, and 18, 2005, but the prescription was not renewed until August 12, 2005; and Defendant McGuinness was aware of the delay in Plaintiff's glaucoma medication in May 2005 and February 2006. There are no claims remaining against Defendant Enenmoh.
Defendants next contend that because Plaintiff is required to exhaust available administrative remedies prior to filing suit, Plaintiff must have fully exhausted all appeals before the filing of the original complaint. However, Defendants have overlooked the exception which permits a plaintiff to proceed on new claims raised in an amended complaint, if those new claims were fully exhausted before the amended complaint was filed. Even if the new claims arose before the date the initial complaint was filed, the claims can proceed so long as they were not alleged in the initial complaint, and are fully exhausted prior to the filing of the amended complaint.
In determining whether Plaintiff fully exhausted his administrative remedies, the Court looks to whether the claims were first raised in an amended complaint filed after Plaintiff fully exhausted his appeal. As discussed above, the applicable appeals are SATF-M-08-02566, which was exhausted on January 22, 2010, and SATF HC 10001124, which was exhausted on May 4, 2010.
The original complaint in this action was filed on April 28, 2009. Plaintiff named as defendants Does employed as Chief Medical Officers, Medical Staff, and Pharmacy Staff at CSATF. (ECF No. 1.) Plaintiff did not identify a single defendant by name, and none of the current Defendants were identified in the original complaint. In screening the complaint, the Court found that Plaintiff had made no allegations linking specific actions or omissions by specific Defendants to a deprivation of Plaintiff's rights, and therefore failed to state any cognizable claims. (ECF No. 12.) Given this lack of specificity, the Court finds that none of the remaining claims at issue in this action were first raised in the original complaint.
Plaintiff thereafter filed five amended complaints, four of which were screened by the Court. All of the amended complaints were filed after Plaintiff had fully exhausted Appeal Log Nos. SATF-M-08-02566 and SATF HC 10001124.
Accordingly, IT IS HEREBY RECOMMENDED that:
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.
