Opinion
Case No.: 1:18-cv-01565 DAD JLT (PC)
09-03-2020
PEDRO RODRIGUEZ, Plaintiff, v. WARDEN FISHER, et al, Defendants.
ORDER GRANTING MOTIONS FOR EXTENSION OF TIME; AND
ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS ENTIRE ACTION; AND
MODIFIED FINDINGS AND RECOMMENDATIONS TO DISMISS EIGHTH AMENDMENT CLAIM FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
(Docs. 8, 13, 14)
FOURTEEN-DAY DEADLINE
Plaintiff proceeds in this civil rights action pursuant to 42 U.S.C. § 1983 on an Eighth Amendment medical indifference claim against several employees of the California Department of Corrections and Rehabilitation. During the screening of Plaintiff's complaint, it became apparent from the face of the pleading that Plaintiff did not exhaust his administrative remedies on his Eighth Amendment claim prior to suit, as is required by the Prison Litigation Reform Act (42 U.S.C. § 1997e(a)). Thus, the Court ordered Plaintiff to show cause why this action should not be dismissed. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). When Plaintiff failed to respond to the order to show cause, the undersigned issued findings and recommendations to dismiss this action for failure to exhaust. (Doc. 8.)
Plaintiff has now filed a response to the order to show cause, in which he cites to Butler v. Adams, 397 F.3d 1181 (9th Cir. 2005), and California Code of Regulations, title 15, § 3085, for the proposition that his filing of a CDCR 1824 reasonable accommodation form satisfies the PLRA's exhaustion requirement for claims brought pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (See Doc. 15.) But Plaintiff is not proceeding in this action pursuant to the ADA. Rather, he has specifically enumerated only a single claim under the Eighth Amendment. As such, the filing of a CDCR 1824 form does not satisfy the PLRA's exhaustion requirement as to the medical indifference claim. See Hampton v. Haynie, No. 2:15-cv-2038-TLN-KJN, 2016 WL 8731362, at *9 (E.D. Cal. Jan. 15, 2016) ("Filing a request for accommodation under the ADA does not exhaust administrative remedies for the purpose of bringing a § 1983 action in federal court."). For Plaintiff's constitutional claim, the CDCR 1824 form is an informal request for ADA accommodations and is to be filed prior to pursuing the formal grievance process. Warzek v. Onyeje, 1:17-cv-1452-AWI-SAB, 2019 WL 1130471, at *7 (E.D. Cal. Mar. 12, 2019). On review then, Plaintiff has failed to show why his Eighth Amendment claim should not be dismissed for failure to exhaust. However, because it appears that Plaintiff now intends to assert an ADA claim, the Court will recommend that Plaintiff be granted leave to amend his complaint. Accordingly, the Court orders as follows:
1. Plaintiff's motions for extension of time (Docs. 13-14) are GRANTED;
2. Plaintiff's response to the order to show cause (Doc. 15) is deemed timely filed;
3. The findings and recommendations to dismiss this entire action (Doc. 8) are VACATED; and
The Court RECOMMENDS that Plaintiff's Eighth Amendment medical indifference claim be dismissed for failure to exhaust administrative remedies and Plaintiff be granted leave to amend his complaint to assert a claim under the Americans with Disabilities Act.
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 fourteen days after being served with these 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." The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: September 3 , 2020
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE