Lopez v. Nichols

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TITO LOPEZ, Case No. 21-cv-06521-JSW 8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. SUMMARY JUDGMENT; DENYING MOTION TO STAY 10 J. NICHOLS, et al., Re: Dkt. Nos. 15, 16 Defendants. 11 12 INTRODUCTION 13 Plaintiff is a California prisoner. Proceeding pro se, he filed this civil rights action under 14 42 U.S.C. § 1983 against prison officials, claiming that they violated his Eighth Amendment rights 15 by failing to adequately address his abdominal pain. Defendants filed a motion for summary 16 judgment on exhaustion grounds. Plaintiff has not opposed the motion, although he was cautioned 17 about the potential consequences of non-opposition. For the reasons discussed below, 18 Defendants’ motion is GRANTED. 19 BACKGROUND 20 Plaintiff alleges that in January 2021, he told Correctional Officers Callison, Nichols, and 21 Sullivan that he was suffering abdominal pain, but they did not summon emergency medical care. 22 He alleges that Nichols told him to fill out a medical request form, that Nichols, Callison, and 23 Sullivan all arranged for him to be taken to the prison medical clinic. 24 DISCUSSION 25 I. Standard of Review 26 Summary judgment is proper where the pleadings, discovery and affidavits show that there 27 is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a 1 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material fact is 2 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 3 party. 4 The moving party for summary judgment bears the initial burden of identifying those 5 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 6 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving party 7 has met this burden of production, the nonmoving party must go beyond the pleadings and, by its 8 own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. 9 If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, 10 the moving party wins. Ibid. 11 A district court may not grant a motion for summary judgment solely because, as is the 12 case here, the opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 13 1494-95 & n.4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that 14 there are no material issues of fact). The court may, however, grant an unopposed motion for 15 summary judgment if the movant's papers are themselves sufficient to support the motion and do 16 not on their face reveal a genuine issue of material fact. See Carmen v. San Francisco Unified 17 School District, 237 F.3d 1026, 1029 (9th Cir. 2001). A verified complaint, such as the complaint 18 filed here, may be used as an opposing affidavit under Rule 56, as long as it is based on personal 19 knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 20 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 21 II. Discussion 22 Exhaustion must ordinarily be decided in a summary judgment motion. Albino v. Baca, 23 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). If undisputed evidence viewed in the light most 24 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment 25 under Rule 56. Id. 26 The Prison Litigation Reform Act (“PLRA”) provides that "[n]o action shall be brought 27 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 1 available are exhausted." 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is 2 mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-40 3 & n.5 (2001). The PLRA exhaustion requirement requires proper exhaustion. Woodford v. Ngo, 4 548 U.S. 81, 92 (2006). "Proper exhaustion demands compliance with an agency's deadlines and 5 other critical procedural rules because no adjudicative system can function effectively without 6 imposing some orderly structure on the course of its proceedings." Id. at 90-91 (footnote omitted). 7 The CDCR provides its inmates the right to administratively grieve and appeal “applied 8 health care policies, decisions, actions, conditions, or omissions that have a material adverse effect 9 on their health or welfare.” 15 Cal. Code Regs. § 3999.226(a).1 At the time of the events alleged 10 here and for the type of health-care issues about which Plaintiff complains, inmates must use a 11 form CDCR-602 HC. 15 Cal. Code Regs. § 3999.227. At the first level, the inmate completed 12 Section A of the form CDCR-602 HC to describe the specific complaint that relates to his health 13 and submits the form to the Health Care Grievance Office. Id. at § 3999.227(b). If dissatisfied 14 with the disposition of the grievance at the institutional level, the inmate may appeal the 15 disposition by completing Section B of the form CDCR 602 HC and submitting the package to the 16 Health Care Correspondence and Appeal Branch (HCCAB) at CDCR headquarters. Id. at 17 § 3999.229(a).2 A substantive decision at the headquarters level exhausts CDCR’s administrative 18 remedies. (Monroy Decl. at ¶ 4; Mosely Decl. at 5). 19 There is no dispute that Plaintiff has not filed any administrative grievance regarding the 20 events complained of here. All appeals and grievances the CTF Grievance Office receives—even 21 those that are rejected, canceled, or fail to comply with applicable CDCR regulations—are 22 assigned a log number and are recorded in a CDCR maintained database. (Monroy Decl. at ¶ 7.) 23 The CDCR has no record of any grievance filed by Plaintiff since January 2021, when he first 24 complained to Defendants about his abdominal pain. There is also no dispute that the grievance 25 1 The regulations regarding inmate health care appeals were renumbered, effective August 6, 2018. 26 2 The grievance process changed in January 2022, such that all grievances are now reviewed by a 27 centralized screening team who identifies each claim within each grievance. (Monroy Decl. at ¶ 1 process was available to him. He had filed administrative grievances previously, including one in 2 || August 20201, only four months before the events complained of here. There is no evidence that 3 || the administrative grievances were any less available to him in January 2021 than they were in 4 || August 2020. Accordingly, there are no triable issues as to whether Plaintiff exhausted his 5 available administrative remedies on the claim he raises here, and the undisputed evidence shows 6 || that he did not. 7 CONCLUSION 8 Defendants’ motion for summary judgment is GRANTED. The complaint is DISMISSED 9 || without prejudice to filing in a new action after Plaintiff has properly exhausted his claims. In 10 light of this conclusion, the motion to stay discovery is DENIED as unnecessary. 11 The Clerk shall enter judgment and close the file. IT IS SO ORDERED. 13 |) Dated: April 28, 2022 ( i] bhin AWE: ls fq □□ 16 AEEFREY S. WHITE / Unitgd Statesistrict Judge 18 19 20 21 22 23 24 25 26 27 28