Opinion
CV 05-6279 RSWL (JCx)
08-30-2011
Darryl Brown, Plaintiff, v. C. Terhune, et al., Defendants.
ORDER RE: Defendant Kate Macias' Motion for
Summary Judgment; Request for Leave to
Amend Defendant's Answer [182]
On August 23, 2011, Defendant Kate Macias' Motion for Summary Judgment and Request for Leave to Amend Defendant's Answer [182] came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:
I. BACKGROUND
This Action centers around a claim brought by Plaintiff Darryl Brown ("Plaintiff") against six employees of the California State Prison-Los Angeles County ("CSP-LAC") pursuant to 42 U.S.C. § 1983 for the alleged violation of Plaintiff's rights under the Eighth Amendment to the United States Constitution.
Plaintiff is a California state inmate who was incarcerated at CSP-LAC, specifically Lancaster State Prison (the "Prison"), at the time of the events giving rise to this Action. Plaintiff claims to suffer from vision impairment caused by his diabetes. Plaintiff alleges that in February 2004, he was injured when he fell on metal stairs while incarcerated at the Prison due to the alleged failure of prison officials and medical personnel to follow a medical prescription to place him in a lower tier/lower bunk, prevent him from falling down stairs and sustaining physical injuries, and provide him with adequate medical treatment after the fall.
Specifically, Plaintiff alleges that on February 1, 2004, he spoke to a correctional officer, N. Jackson, at Plaintiff's cell and told him he was suffering from blurred vision, dizziness and low sugar. Stephanie Johnson, a Medical Technical Assistant ("M.T.A."), told Plaintiff to report his problems at the infirmary when he received his daily insulin shot. Plaintiff, who claims he was wearing his "vision impairment" vest that day, avers that Defendant Kate Macias ("Defendant"), a correctional officer with the California Department of Corrections who was the control booth officer in Plaintiff's yard at the time, instructed Plaintiff to go to the infirmary for his insulin shot. Plaintiff then left his cell to go to the infirmary, unescorted by prison personnel.
As he walked down a metal staircase, Plaintiff lost his balance and fell. Plaintiff was then taken to the prison infirmary, where he was examined and then assessed by Pryor, a registered nurse. Plaintiff stated he had severe pain in his shoulder and back, and that his left hand was numb. Soon after, Dr. Haniffa Cassim ("Dr. Cassim"), the physician on call, called in response to a page from Pryor. Dr. Cassim instructed Pryor to administer Motrin and schedule a follow up examination for the next day. Pryor discharged Plaintiff to the custody of a correctional officer, Weier, who brought Plaintiff to his housing unit.
Plaintiff again saw Dr. Cassim on March 15, 2004, and Dr. Cassim examined Plaintiff at this time. During this examination Plaintiff complained he was suffering from pain in his back, left shoulder and arm, and that he was also suffering from poor vision. Plaintiff requested Dr. Cassim order x-rays or an MRI, but Dr. Cassim advised him these were not necessary. As such, based on this examination, Dr. Cassim diagnosed Plaintiff as a diabetic who had complaints of back pain, but concluded that no further treatment related to the fall was necessary. On March 29, 2004, Dr. Cassim examined Plaintiff a second time, and Plaintiff alleges that during this examination he complained he had pain from the fall and that he also renewed his request for x-rays.
On February 3, 2004, Plaintiff filed a prison grievance inmate "Form 602" appeal ("Form 602") regarding the alleged denial of medical treatment for his injuries related to his February 1, 2004 fall. On February 8, 2004, Plaintiff filed a second grievance requesting a single cell due to his disabilities and alleging that the Prison had violated the Americans with Disabilities Act ("ADA"). The two appeals were combined and partially granted at the first level of review on March 16, 2005. Plaintiff was given a lower bunk and lower tier cell, but his request for further medical evaluation was denied, as was his request for a special diabetic diet.
Plaintiff was also evaluated by an optometrist, and a decision was made to transfer him to a disability placement.
At the second level of review, Plaintiff's February 3, 2004 grievance was denied. On December 17, 2004, Plaintiff's inmate appeals were reviewed at the third level of review, the Director's Level. Plaintiff again argued that he was in pain and suffering, and requested to receive x-rays, be provided with a diabetic diet, and that he be given a walking stick, a low bunk/low tier assignment and single cell privileges. The review "determined that the staff had acted appropriately on the Plaintiff's requests" and that Plaintiff's administrative remedies with respect to those appeals had been exhausted. [Decl. of Paul F. Arentz ("Decl. Arentz"), Ex. C, p. 94-95.]
In the second level of review, Plaintiff stated he was dissatisfied with the first level response in that he still had not receive x-rays of the injuries sustained during the fall.
On December 15, 2006, Plaintiff filed the operative Second Amended Complaint ("SAC") pursuant to 42 U.S.C. § 1983, raising an Eighth Amendment Claim against six employees of the Prison, seeking monetary, declaratory and injunctive relief. Specifically, Plaintiff filed suit against Defendants Dr. Cassim, Pryor, Johnson, Macias, Jackson and Weier. Plaintiff alleges that Defendants' conduct violated his right to be free from cruel and unusual punishment under the Eighth Amendment, and sued all Defendants in their individual and official capacities.
On April 30, 2008, the Court denied Defendants' Motion to Dismiss as to all claims with the exception of Plaintiff's claim for monetary relief against Defendants in their official capacities [61]. On November 10, 2009, this Court granted Summary Judgment on Plaintiff's Section 1983 claim as to all Defendants,with the exception of Defendant Macias [141]. Specifically, the Court found that triable issue of fact remained regarding Defendant Macias' liability on Plaintiff's Section 1983 claim. As such, Plaintiff's Section 1983 claim against Defendant Macias is the sole remaining claim in this Action.
The Court also granted summary judgment in favor of all Defendants on Plaintiff's claim that Defendants violated the Americans with Disabilities Act.
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party can satisfy this burden by: (1) presenting evidence that negates an essential element of the non-moving party's case or (2) demonstrating that the non-moving party failed to establish an essential element of the non-moving party's case on which the non-moving party bears the burden of proving at trial. Id. at 322-23.
Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the non-moving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 322. However, the non-moving party is required by Federal Rules of Civil Procedure, Rule 56(e) to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id. at 324. Conclusory allegations unsupported by factual allegations are insufficient to create a triable issue of fact so as to preclude summary judgment. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993)(citing Marks v. Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978)). A non-moving party who has the burden of proof at trial must present enough evidence that a "fair-minded jury could return a verdict for the [opposing party] on the evidence presented." Anderson, 477 U.S. at 255.
The Federal Rules of Civil Procedure were amended on December 01, 2010. Federal Rules of Civil Procedure, Rule 56(e) has now been codified as Federal Rules of Civil Procedure, Rule 56(c).
B. Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that once the time frame to amend a pleading as a matter of course has lapsed, a party may amend its pleading only by obtaining leave of the Court. Fed. R. Civ. P. 15(a). Leave shall be "freely given when justice so requires." Id. See Foman v. Davis, 371 U.S. 178, 182 (1962). Courts consider the following factors in determining whether to grant leave to amend: undue delay, bad faith or dilatory motive, futility of amendment, prejudice to the opposing party and/or repeated failure to cure deficiencies by previous amendments. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). "The party opposing the amendment has the burden of demonstrating why leave to amend should not be granted." Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989) (citing Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 667 (Fed. Cir. 1986)).
C. The Prison Litigation Reform Act
"The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Harry v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010) (quoting Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a))). The exhaustion requirement under the Prison Litigation Reform Act is mandatory, and requires "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). As such, a prisoner must "complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (quoting Ngo, 548 U.S. at 88). The defense of failure to exhaust is an affirmative defense as to which a defendant bears the burden of proof. Jones v. Bock, 549 U.S. 199, 216 (2007); Wyatt, 315 F.3d at 1119.
III. DISCUSSION
A. Plaintiff's Request for Judicial Notice Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of adjudicative facts only. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either 1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A court must take judicial notice if a party requests it and supplies the court with the requisite information. Fed. R. Evid. 201(d).
The Court GRANTS Plaintiff's request for judicial notice, but takes judicial notice of only the authenticity and existence of the requested documents. See United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 975 (E.D. Cal. 2004)(noting that a court can only take judicial notice of the existence or authenticity of a particular order, motion, pleading or judicial proceeding, and not of the veracity or validity of the document's contents).
Specifically, the Court takes judicial notice of the authenticity and existence of the following documents: 1) a copy of the Complaint filed by Plaintiff in this Action on August 26, 2005; 2) a copy of the First Amended Complaint, filed by Plaintiff in this Action on November 10, 2005; 3) a copy of the Second Amended Complaint, filed by Plaintiff in this Action on December 15, 2006, 4) a copy of Defendant's Motion to Dismiss the Second Amended Complaint, filed by Defendant on September 28, 2007; 5) a copy of Magistrate Judge Jacqueline Choolijian's Report and Recommendation denying Defendant's Motion to Dismiss, dated March 25, 2008, and the Court's Order adopting the Report and Recommendation on April 30, 2008; 6) a copy of Magistrate Judge Jacqueline Choolijian's Case Management and Scheduling Order pertaining to this Action, dated March 26, 2008; 7) Defendant's Answer to the Second Amended Complaint, filed by Defendant on May 16, 2008; 8) a copy of Magistrate Judge Jacqueline Choolijian's Report and Recommendation denying Defendant's Motion for Summary Judgment dated October 8, 2009 and the Court's Order adopting the Report and Recommendation on November 10, 2009; and 9) a copy of the Court's Order regarding the Parties' joint stipulation for a final continuance of the Trial and related dates, setting the Trial date in this Action for December 13, 2011.
B. Evidentiary Objections
The Court OVERRULES Plaintiff's evidentiary objections Nos. 1 and 3. With respect to Plaintiff's objection No. 2, the Court SUSTAINS Plaintiff's objection to the statement in paragraph 8 of the Declaration of Paul F. Arentz in which Paul F. Arentz states that "[i]t was therefore obvious to both parties from the outset that Plaintiff's inmate appeals, and Plaintiff's exhaustion of administrative remedies under the PLRA, were issues in this case," but OVERRULES Plaintiff's objection to the remainder of the statement at issue in this paragraph.
The Court SUSTAINS Defendant's evidentiary objection Nos. 1 and 5 insofar as Defendant objects to the excerpts of Plaintiff's deposition testimony regarding the Prison's lockdown and escort procedures, specifically Defendant's objection to p.54:1-19 and p.24:8-13 of Exhibit H of the Declaration of Julie L. Chen. The Court OVERRULES Defendant's objections Nos. 1 and 5 insofar as Defendant objects to Plaintiff's Statements of Undisputed Facts Nos. 10, 11, 31, 32, 33, 36 and 55 and Plaintiff's Statement of Additional Material Facts No 12. The Court OVERRULES Defendants objections Nos. 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 and 13.
C. Defendant's Motion For Leave To Amend
The Court GRANTS Defendant Leave to Amend her Answer to Plaintiff's SAC pursuant to Federal Rule of Civil Procedure 15 in order to assert the affirmative defense of failure to exhaust administrative remedies.
The Ninth Circuit has held that, absent prejudice to the plaintiff, an affirmative defense may be raised for the first time in a motion for summary judgment. See Panaro v. City of N. Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005); Rivera v. Anaya, 726 F.2d 564 (9th Cir. 1984); Healy Tibbitts Constr. Co. v. Ins. Co. of N. America, 679 F.2d 803 (9th Cir. 1982); Medtronic, Inc. v. AGA Med. Corp., 2009 WL 1163976 (N.D. Cal., April 28, 2009). As such, the Court finds that Defendant is not precluded from requesting leave to amend her Answer at this summary judgment stage.
The Court finds that Plaintiff has not met his burden to establish that leave to amend pursuant to Federal Rule of Civil Procedure 15(a) should not be granted here.
While Plaintiff argues that Defendant is seeking to amend the March 26, 2008 Case Management and Scheduling Order, and therefore that Federal Rule of Civil Procedure 16(b) applies here and requires Defendant to make a showing of "good cause," the Court finds this argument unpersuasive and that Federal Rule of Civil Procedure 15(a) instead applies here. Specifically, the Court finds that the March 26, 2008 Order is not the controlling Scheduling Order in this Action, but instead that the July 22, 2010 Scheduling Order issued by the Court now controls this Action against Defendant, given it set forth new discovery and motion filing cut-off dates, as well as a pre-trial and trial date. As the July 22, 2010 Order did not contain a cut-off date for the amendment of pleadings, the Court finds that Defendant is not requesting leave to amend this July 22, 2010 Order and therefore Federal Rule of Civil Procedure 16 does not apply here. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992)(noting that Rule 16 is applicable in a request for leave to amend only when the scheduling conference sets forth a deadline to amend the pleadings and a party seeks leave to amend after this deadline).
First, the Court notes that while there is a presence of delay here on part of Defendant in requesting this leave to amend, delay alone is insufficient to deny leave to amend. See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999)(noting that "[u]ndue delay by itself ... is insufficient to justify denying a motion to amend"). Instead, courts also consider factors such as prejudice to the opposing party, bad faith and futility of the amendment, with prejudice being the most important factor. See id.; Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)(stating that "[t]he law is well settled that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile. . . . Delay alone is an insufficient reason to deny leave to amend"). As such, the Court finds that the presence of delay in and of itself is insufficient to deny Defendant leave to amend.
The Court finds that the relevant factors weigh in favor of granting leave to amend here. First, the Court finds that Plaintiff has failed to establish the presence of bad faith or dilatory motive on part of Defendant in bringing this request for leave to amend. Specifically, Defendant puts forth a Declaration of Paul F. Arentz, the Deputy Attorney General for the State of California assigned to represent Defendant, in which he avers that he was unaware of the fact that this affirmative defense had not been specifically pled in the Answer and "promptly filed this Motion" upon learning the defense had not been specifically pleaded. [Decl. Arentz, ¶ 8.] See Owens v. Kaiser Found. Health Plan Inc., 244 F.3d 708, 712 (9th Cir. 2001). Plaintiff fails to proffer evidence of bad faith or dilatory motive here on part of Defendant in requesting this leave to amend, and therefore the Court finds that these factors weigh in favor of granting leave to amend. Moreover, as discussed below, the Court finds that leave to amend would not be futile here, as Defendant has met her burden to establish that Plaintiff failed to exhaust his administrative remedies with respect to his claim against Defendant in this present Case.
The Court also finds that Plaintiff has not met his burden to establish that he will be substantially prejudiced by granting Defendant leave to amend. "Prejudice is the touchstone of the inquiry under Rule 15(a)," and in order to justify denial of leave to amend, "the prejudice must be substantial." Breakdown Servs., Ltd. v. Now Casting, Inc., 550 F. Supp. 2d 1123, 1132 (C.D. Cal. 2007). First, the Court finds that Plaintiff has been on notice that Plaintiff's alleged failure to exhaust would be an issue in this Case, as Defendants had previously filed a Motion to Dismiss the SAC based in part on Plaintiff's alleged failure to fully exhaust his administrative remedies. See Sierra Club v. Union Oil Co. of California, 813 F.2d 1480, 1493 (9th Cir. 1987)(noting that "where a defendant is on notice of the facts contained in an amendment to a complaint, there is no prejudice to defendant in allowing the amendment"). Moreover, the Court finds that Plaintiff has conducted discovery regarding the issue of exhaustion and the Prison's appeal process, as well as Plaintiff's specific prison appeal forms, and therefore will not be substantially prejudiced in granting Defendant leave to amend. Specifically, Plaintiff conducted discovery regarding the inmate appeal and grievances process, requesting specific documents on Plaintiff's appeal forms. [Decl. Arentz, Ex. E.] Moreover, Plaintiff has taken the deposition of John Curiel, the appeals coordinator, and asked him questions regarding the appeal and exhaustion process, specifically Plaintiff's own appeal. [Decl. Arentz, Ex. C.] See Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999)(finding defendant would not be prejudiced by allowing leave to amend the complaint, as the allegations sought to be added derived from evidence obtained during discovery); Duhn Oil Tool, Inc. v. Cooper Cameron Corp., 2010 WL 596312, at *11 (E.D. Cal. Feb. 16, 2010)(finding leave to amend would not prejudice to defendant given it was on notice of the potential new claim because both parties had conducted discovery relevant to the issue).
Specifically, Defendants argued in this Motion that Plaintiff had failed to exhaust his administrative remedies because he had only exhausted the first two of the four requisite administrative procedures. The Court denied this Motion to Dismiss on the basis that Defendants had failed to put forth sufficient evidence of Plaintiff's alleged failure to exhaust.
As such, the Court finds that Plaintiff has failed to show that he will be substantially prejudiced by granting leave to amend here, as the Court finds Plaintiff was on notice of this affirmative defense and was not prejudiced in his ability to develop evidence on this issue of exhaustion. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074 (9th Cir. 1990).
Therefore, the Court GRANTS Defendant leave to amend her Answer to the SAC in order to assert the affirmative defense of failure to exhaust administrative remedies.
D. Defendant's Motion For Summary Judgment
Defendant moves for summary judgment on the basis that Plaintiff failed to properly exhaust his administrative remedies as to his Section 1983 claim against Defendant, as required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).
As a threshold matter, the Court finds that Ninth Circuit case law establishes that a prisoner's failure to exhaust administrative remedies is a matter of abatement, and therefore the proper pretrial motion for raising non-exhaustion is an unenumerated motion under Federal Rule of Civil Procedure 12(b), not a summary judgment motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003); Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam). As such, courts in this Circuit have held that the defense of failure to exhaust administrative remedies is to be raised in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b), or is to be treated as such if raised in a motion for summary judgment. Williams v. Servin, 2011 WL 2837490, at *3 (C.D. Cal. May 20, 2011). See also Morton v. Hall, 455 F. Supp. 2d 1066 (C.D. Cal. 2006).
Accordingly, as this Motion is predicated upon Plaintiff's failure to exhaust his administrative remedies, the Court treats this Motion as an unenumerated Motion to Dismiss under Federal Rule of Civil Procedure 12(b). See Seneca v. Arizona, 345 Fed. Appx. 226, 229 (9th Cir. 2009).
The Court notes that in determining whether Defendant has met her burden to show failure of exhaustion, the Court can look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119-20. As such, the Court may consider the declarations and exhibits presented in determining whether Defendant has met her burden here. Chatman v. Felker, 2010 WL 3431806 (E.D. Cal. Aug 31, 2010). Moreover, the Court finds that this Motion is not time-barred under Federal Rule of Civil Procedure 12(b), as the timing requirement in Rule 12(b) only applies to the enumerated defenses listed in Rule 12(b). Fed. R. Civ. P. 12(b). As such, this timing requirement does not apply to the instant Motion for failure to exhaust. See Jensen v. Knowles, 621 F. Supp. 2d 921, 925-26 (E.D. Cal. 2008).
The exhaustion requirement under the PLRA requires a prisoner to "properly" exhaust all available administrative remedies, meaning that "a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). "Prisoners need comply only with the prison's own grievance procedures to properly exhaust under the PLRA." Id. "The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Morton v. Hall, 599 F.3d 942, 944 (9th Cir. 2010). In California, the administrative appeals system is described in Title 15 of the California Code of Regulations. California Code of Regulations, title 15, section 3084.2 requires an inmate to "describe the specific issue under appeal and the relief requested." Cal.Code Regs. tit. 15, § 3084.2(a). Where a "prison's grievance procedures are silent or incomplete as to factual specificity," as is the case with California's procedures here, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Morton, 599 F.3d at 944. (quotation omitted). Moreover, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim." Grifin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Instead, "[t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id.
The appeals process itself is a four-step process. First, an inmate must complete a Form 602 to initiate the grievance process. This appeal must be submitted within 15 days after the occurrence of the event or decision being appealed. Cal. Code Regs. tit. 15, § 3084.6(c). Then, an inmate must complete a four-step process to exhaust his or her administrative remedies. Brown v. Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005). The inmate must proceed through the informal level, first formal level, second formal level, and then the third formal level, also known as the "Director's Level." Id. A prisoner ordinarily must exhaust his or her administrative appeals to the highest available level of review, the "Director's Level." See Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997); Brown, 422 F.3d at 934, 937-38. Defendant does not argue that Plaintiff failed to avail himself of this process, but instead argues that Plaintiff did not properly appeal his claim against Defendant here.
An inmate must completely exhaust these administrative remedies prior to filing any papers with a federal court to initiate the lawsuit. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006). The requirement of exhaustion applies to all claims alleged by the plaintiff. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). As such, no unexhausted claims asserted in a complaint may be considered by the Court.
The Court finds that Defendant has met her burden to establish that Plaintiff failed to properly exhaust his administrative remedies with regard to his Section 1983 claim against Defendant.
On February 3, 2004, Plaintiff filed his first inmate appeal Form 602. In this first appeal form, Plaintiff stated he was vision impaired and a diabetic, that he was supposed to be housed on a lower bunk, and that on February 1, 2004 "I inform the morning M.T.A. that my eyes was hurting and I could not see proper. 30 minutes later they open my door for me to go take a diabetic shot, as I was going down the stairs, I feel down and as I tumbled my legs got caught in the railing." [Decl. Arentz, Ex. C. at 85.] He then stated in this form he was still hurting from falling down the stairs and was dissatisfied because he had not gotten any medical treatment, specifically stating that "I addressed this problem as an (emergency) and I clearly ask for x-rays because I was hurting and all that I got was wheelchaired back and carried back up stairs." [Id. at 86.] He also stated that a correctional officer, Cole, had laughed at him when originally responding to his fall, and then went on to request medical treatment, a lower bunk and lower tier chrono, and alleged that the M.T.A. was refusing to bring him his insulin. On February 8, 2004, Plaintiff filed his second appeal form, requesting single cell privileges due to his illnesses and alleging that the Prison was violating the ADA. [Id. at 88.] In this present Action, Defendant brings a Section 1983 claim against Defendant alleging that Defendant violated his Eighth Amendment rights by deliberately disregarding Plaintiff's disabilities and safety in opening his door and permitting him to walk to the infirmary unescorted during a lockdown, resulting in his fall and subsequent injury.
The Court finds these appeal forms were insufficient to put the Prison on notice of the nature of the wrongs for which Plaintiff seeks redress against Defendant in this Action. See Grifin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Specifically, the Court finds that the two forms focus on Plaintiff's request for medical care and the allegation that he had not received his requested medical care, as well as his request for a different bunk and cell assignment based on his disabilities. Plaintiff's forms fail to mention sufficient facts or allegations regarding wrongdoing on part of a control booth officer or correctional officer here in the opening of Plaintiff's cell door or in the fact he was permitted to leave unescorted. Instead, the February 3, 2004 appeal form simply states that the door was opened and only mentions a wrongdoing on part of the correctional officer Cole, who allegedly laughed at him after he fell, with the February 8, 2004 form focusing on Plantiff's request for a different cell and the Prison's alleged ADA violation. As such, while Plaintiff's claim against Defendant in this Action asserts that she was deliberately indifferent to his rights and safety in opening his door, the Court finds that this alleged indifference is not sufficiently mentioned in the appeal forms here. See Griffin, 557 F.3d at 1120 (finding plaintiff had failed to exhaust administrative remedies because his appeal form did not provide enough information to allow prison officials to take appropriate responsive measures).
Plaintiff himself acknowledges in his deposition that he filed his appeal "to get medical treatment." [Decl. Arentz, Ex. A at 28.]
Moreover, Defendant offers the deposition testimony of John Curiel, in which Curiel states that in his review of the appeal, Plaintiff's appeal did not contend that any officer acted improperly, with the exception of Cole. [Decl. Arentz, Ex. C.] See Coley v. Cassim, 2008 WL 2073949, at *5 (E.D. Cal. May 14, 2008) (pointing to the fact that the prison officials "clearly understood what plaintiff was complaining about and what relief he was seeking" in finding that plaintiff had sufficiently exhausted his administrative remedies); Morton v. Hall, 455 F. Supp. 2d 1066, 1074-75 (C.D. Cal. 2006) (finding plaintiff had failed to exhaust his administrative remedies with regard to his assault claim, noting that the inmate appeals coordinator had determined that plaintiff's appeal form had only been related to an alleged denial of visitation rights, and not the assault claim). In addition, the appeal records submitted by Defendant establish that at the various stages of appeal, Plaintiff kept grieving about his lack of medical treatment and repeated his request for x-rays and a different bunk or cell assignment. [Decl. Arentz, Ex. C., p. 92-95.] As such, the Court finds that the appeal forms do not "contend that Defendant[] [was] deliberately indifferent to [his] safety," nor do they set forth facts or details regarding any impropriety on part of Defendant that would put the prison officials on notice as to the type of claim that is now being asserted against Defendant in this Action. Imboden v. Hornbeak, 2011 WL 590457, at *1 (E.D. Cal. Feb. 10, 2011)(finding plaintiff had failed to exhaust her administrative remedies because her appeals stated nothing about the defendants' alleged improper conduct in failing to protect her from an attack).
The Court finds Morton v. Hall persuasive here. In Morton, the Ninth Circuit upheld the district court's finding that the plaintiff prisoner had failed to exhaust his administrative remedies with respect to his Section 1983 assault claim. 599 F.3d 942, 945 (9th Cir. 2010). The plaintiff had argued he had exhausted his remedies by virtue of exhausting his challenge to the prison's decision to deny him visitation with minors, arguing that the denial of visitation arose out of the same facts and circumstances as the Section 1983 assault claim. Id. However, the Ninth Circuit found that the "Form 602 [Plaintiff] filed relating to the visitation restriction does not even mention the assault or theorize that the visitation restriction imposed was related to the assault," and therefore was insufficient to put prison officials on notice of the plaintiff's complaint that prison-staff conduct contributed to his assault. Id. at 946.
Here, as noted above, the Court finds that Plaintiff's two appeal forms focus on the fact that Defendant received inadequate medical attention after his fall and his request for medical treatment and a different housing assignment, and fail to mention wrongdoing or any deliberate indifference to his disabilities on part of Defendant in the fact that his door was opened and he was permitting to leave his cell unescorted. As such, like the grievance at issue in Morton, the Court finds the forms here insufficient to put Prison officials on notice of Plaintiff's complaint against Defendant for deliberate indifference of his Eighth Amendment rights.
Plaintiff argues that the contents of the appeal forms combined with the circumstances surrounding his fall at the time were sufficient to put the Prison on notice of Plaintiff's claim against Defendant in this Action. Specifically, Plaintiff argues that the substance of his Section 1983 claim against Defendant was apparent based on the appeal language, the fact Defendant was the control booth officer at the time, the fact that Plaintiff suffered from a vision impairment and wore a vision impairment vest and also because the prison was on a lockdown at the time.
The Court finds this argument unpersuasive, as Plaintiff fails to show that the Prison would have been on notice here based on the contents of the form and the surrounding circumstances at the time of the fall. First, Defendant puts forth deposition testimony establishing that while a control booth officer was responsible for the overall safety and for controlling the movement of the inmates, Defendant would not have been solely responsible for determining whether to open Plaintiff's cell door and when he required an escort to be moved out of his cell. Therefore, the Court finds that the fact Defendant was the control booth officer at the time of the fall does not establish that the Prison would have been on notice of this claim against Defendant based on the statement in the form that his cell door was opened. See Porter v. Howard, 2011 WL 3298885, at *4 (S.D. Cal. June 14, 2011).
Specifically, Defendant testified in her deposition that she was only supposed to open the door when instructed to do so, and both Defendant and Calvin Campbell, III, a sergeant at the Prison who was familiar with the role of a control booth officer, testified in their depositions that a control booth officer was not responsible for determining whether an inmate could safely move from his cell to the infirmary, with or without an escort. [Decl. Arentz, Ex. B, p. 56:9-19, 56; Ex. D, p. 111.]
Plaintiff also argues that the contents of the appeal form were sufficient to put Prison officials on notice of the harm being grieved against Defendant here, as Prison officials would have been on notice of Defendant's wrongdoing based on the fact that Plaintiff was permitted to leave his cell unescorted, during a lockdown, despite the fact that he was wearing a vision impairment vest. However, the Court finds this argument unpersuasive. First, the Court finds that the mere fact Plaintiff was permitted to leave his cell unescorted the day of his fall would not put Prison officials on notice of potential wrongdoing on part of Defendant. Specifically, Defendant puts forth evidence establishing that the Prison was on a modified lockdown at the time of the fall, and therefore the escort of prisoners without handcuffs was permitted at this time and some movement was allowed. [Decl. Arentz, Ex. B, p. 42, 44-45, 51-52, 60-61; Ex. D, p. 112-13.] As such, contrary to Plaintiff's argument here, Plaintiff's movement was not required to be facilitated by an escort and with handcuffs at all times during the day of the fall. Therefore, the Court finds that Prison officials would not have been on notice of Defendant's alleged wrongdoing here based on the fact that Plaintiff stated in his form that he was let out of his cell. Moreover, the Court finds that Plaintiff fails to establish that his vision impairment would have put the Prison on notice of Defendant's alleged deliberate indifference here based on the fact he stated in the form that his cell door was opened. Specifically, both Defendant and Calvin Campbell, III testified in their depositions that the Prison's escort procedures did not change for an inmate that was disabled or had a vision impairment vest, and therefore the evidence indicates that Plaintiff was not required to be escorted in handcuffs at all times during the time of the fall. [Decl. Arentz, Ex. B, p. 49:15-25; Ex. D, p. 123:7-17, 125:3-7.] Therefore, the Court finds that Plaintiff fails to establish that the circumstances at the time of the fall, combined with the contents of the form, were sufficient to put Prison officials on notice of the nature of Plaintiff's claim against Defendant in this Action.
Plaintiff attempts to establish that at the time of the fall, the Prison was in a lockdown that required Plaintiff's movement to be facilitated by an escort and with handcuffs at all times. However, the Court finds this argument unpersuasive, as the sole evidence offered by Plaintiff in support of this argument is Plaintiff's own testimony, which the Court finds inadmissible on the basis of lack of foundation and personal knowledge.
The Court also finds that the evidence establishes that during a modified lockdown, an escort was not required to meet the inmate at his cell door and escort him from there, and that generally an escort would meet an inmate at the front door of the housing unit. [Decl. Arentz, Ex. B at 55.]
Moreover, the Court finds that these alleged circumstances do not change the fact that the appeal forms themselves make no reference to a claim against a control booth officer or Prison official for wrongdoing stemming from the fact Plaintiff was let out of his cell unescorted, nor do the forms mention that an officer knew of his disability and deliberately let him leave the cell unescorted, resulting in his fall. The forms simply state that Plaintiff's door was opened and that he left the cell. As such, the Court finds that Plaintiff's grievances fail to set forth sufficient facts and description here to put the Prison on notice of the wrongs for which redress is sought in this Action. See Johnson v. Woodford, 2010 WL 4007308, at *4 (C.D. Cal. April 20, 2010)(finding the prisoner had failed to exhaust his administrative remedies because his appeal was silent to facts underlying his deliberate indifference claim).
Therefore, the Court finds that Defendant has met her burden to establish that Plaintiff failed to properly exhaust his administrative remedies with respect to his Section 1983 Claim against Defendant.
When the district court "concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Wyatt, 315 F.3d at 1120 (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d at 368, n. 3 (9th Cir. 1988)). However, the Court may exercise its discretion and deny leave to amend when it is clear that the plaintiff cannot allege any set of facts that would entitle him or her to relief. Neitzke v. Williams, 490 U.S. 319, 327 (1989).
The Court finds that dismissal without prejudice would be futile because Plaintiff would not be able to cure the defect present here based on his failure to properly exhaust administrative remedies. See, e.g., Pough v. Grannis, 2011 U.S. Dist. LEXIS 32514, at *23-24 (S.D. Cal. Jan. 6, 2010) (finding that because plaintiff can no longer timely exhaust administrative remedies the action must be dismissed with prejudice); Coleman v. Cook, 2009 WL 3109741 at *6-7 (C.D. Cal. 2009)(same); Stutzman, 2009 WL 2901634 at *4 (same). As such, Plaintiff's 42 U.S.C. § 1983 claim against Defendant is DISMISSED with prejudice for failure to properly exhaust administrative remedies. See Coleman, 2009 WL 3109741 at *6-7.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant leave to amend her Answer to the Second Amended Complaint. Moreover, the Court finds that Defendant has met her burden to establish that Plaintiff failed to properly exhaust his administrative remedies with respect to his 42 U.S.C. § 1983 Claim against Defendant.
As such, the Court DISMISSES with prejudice Plaintiff's 42 U.S.C. § 1983 claim against Defendant.
IT IS SO ORDERED.
HONORABLE RONALD S.W. LEW
Senior, U.S. District Court Judge