(PC) King v. Gant

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JERRY LEE KING, Case No. 1:23-cv-00640-JLT-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 TO GRANT DEFENDANTS’ MOTION FOR v. SUMMARY JUDGMENT REGARDING 13 EXHAUSTION OF ADMINISTRATIVE GANT, et al., REMEDIES 14 Defendants. 15 (ECF No. 34) 16 OBJECTIONS, IF ANY, 17 DUE WITHIN 30 DAYS 18 Plaintiff Jerry Lee King is proceeding pro se and in forma pauperis in this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s Eighth Amendment 20 claim for deliberate indifference to Plaintiff’s serious medical needs against Defendants Gant 21 and Vitto, registered nurses, based on allegations that Defendants refused medical treatment to 22 Plaintiff. (ECF Nos. 3, 9). 23 On November 6, 2023, Defendants moved for summary judgement, arguing that 24 Plaintiff failed to exhaust his administrative remedies prior to filing of his lawsuit. (ECF No. 25 34). Plaintiff opposed the motion. (ECF No. 42). 26 For the reasons stated below, the Court recommends that Defendants’ motion for 27 summary judgment (ECF No. 34) be granted. 28 I. BACKGROUND 1 2 This action was severed from King v. Villegas, No. 1:17-cv-00676-JLT-EPG (E.D. Ca) 3 (King I), on April 26, 2023. (ECF No. 5). In King I, Plaintiff proceeds on claims of excessive 4 force in violation of the Eighth Amendment against R. Villegas and P. Cruz. King I, ECF Nos. 5 1, 14, & 20. During the pendency of King I, Plaintiff moved to amend the complaint to add 6 additional defendants and claims related to his medical care following the injuries from the 7 excessive force incident at issue in that case. The motion was granted in part, and the Court in 8 King I permitted Plaintiff to file his amended complaint as a separate case—the instant action— 9 with respect to Plaintiff’s “Eighth Amendment claims against Grant and Vitto for failing to 10 provide medical care after the alleged excessive force incident.” (ECF No. 5 at 2, n.1). 11 The Court screened Plaintiff’s amended complaint (ECF No. 3) on May 17, 2023. The 12 Court found Plaintiff stated a cognizable Eighth Amendment claim against Defendants Gant 13 and Vito, registered nurses, based on his allegations that Defendants refused to provide him 14 medical care after an alleged use of force incident on August 17, 2016. (ECF No. 9 at 4–5, 7). 15 The case then proceeded past screening and onto discovery. (ECF Nos. 9, 29, 30). 16 In their Answer, Defendants asserted affirmative defense that “Plaintiff failed to 17 adequately exhaust administrative remedies as required by 42 U.S.C. section 1997(e)(a).” (ECF 18 No. 19 at 7, ¶ 8). 19 II. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 20 On November 6, 2023, Defendants moved for summary judgment, arguing that Plaintiff 21 failed to exhaust his administrative remedies prior to filing suit. (ECF No. 34). The motion and 22 accompanying declaration from S. Gates (“Gates declaration”), Chief of the Health Care 23 Correspondence and Appeals Branch, set forth the administrative grievance process that was 24 available to Plaintiff at the time of the incident. (ECF No. 34 at 4; ECF No. 34-3 at 2). To 25 initiate the grievance process, “an inmate was required to submit a CDCR Form 602 that 26 specifically describes the issue and the action requested.” (ECF No. 34 at 4). At the time of the 27 incident, in August of 2016, “health care appeals were governed by sections 3084–3086 of the 28 California Code of Regulations . . . Under that process, health care appeals were subject to 1 three levels of review before administrative remedies were deemed exhausted. Cal. Code Regs. 2 tit. 15, § 3084.7(d)(3).” (ECF No. 34-3 at 2). Plaintiff’s health care appeal/grievance records 3 show that King did not submit any healthcare appeals nor health care grievances between July 4 2016 and October 2019. (ECF No. 34 at 5; ECF No. 34-3 at 3). Therefore, Plaintiff’s suit is 5 barred by failure to exhaust as required by Section 1997e(a) of the Prison Litigation Reform 6 Act of 1995 (PLRA). (ECF No. 34 at 5). 7 In his response, Plaintiff does not dispute the assertion that he did not file a healthcare 8 grievance or appeal related to Defendants’ failure to provide him medical care on August 17, 9 2016. (ECF No. 42). Instead, he recounts procedural history of his litigation, including the 10 Court allowing him to bring the instant medical care claim in a separate suit. (Id. at 1). He 11 states that “PLRA states Defendants only need to be put on notice which the Courts did when 12 they split the cases before summary judgment was granted.” (Id. at 2). Plaintiff asks that the 13 Court either deny Defendants’ motion or dismisses this case without prejudice “so Plaintiff can 14 file administrative remedies which will be denied at every level for failure to meet time 15 restraints.” (Id.) 16 Defendants filed a Reply, where they assert that “Filing a lawsuit, even with Court 17 approval and at the Court’s direction, does not comply with California’s procedural 18 requirements for exhausting claims by inmates.” (ECF No. 43 at 2). 19 III. LEGAL STANDARDS 20 A. Summary Judgment 21 A party may move for summary judgment on a claim or defense. Fed. R. Civ. P. 56(a). 22 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as to 23 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 24 56(a); Albino v. Baca (Albino II), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is 25 a genuine dispute about material facts, summary judgment will not be granted.”). A party 26 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 27 of materials in the record, including depositions, documents, electronically stored information, 28 affidavits or declarations, stipulations (including those made for purposes of the motion only), 1 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 2 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 3 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 4 A party moving for summary judgment “bears the initial responsibility of informing the 5 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 6 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 7 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 8 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 9 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 10 determine whether a fair-minded jury could reasonably find for the non-moving party. 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 12 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 13 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 14 concerning an essential element of the nonmoving party’s case necessarily renders all other 15 facts immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion 16 cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” 17 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 18 In reviewing the evidence at the summary judgment stage, the Court “must draw all 19 reasonable inferences in the light most favorable to the nonmoving party.” Comite de 20 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). 21 It need only draw inferences, however, where there is “evidence in the record . . . from which 22 a reasonable inference . . . may be drawn”; the court need not entertain inferences that are 23 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he 24 evidence of the non-movant is to be believed.” Anderson, 477 U.S. at 255. 25 In reviewing a summary judgment motion, the Court may consider other materials in 26 the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); 27 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 28 B. Exhaustion 1 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that 2 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 3 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 4 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 5 Prisoners are required to exhaust the available administrative remedies prior to filing 6 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 119–1201 7 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to 8 prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the 9 relief sought by the prisoner and regardless of the relief offered by the process, unless “the 10 relevant administrative procedure lacks authority to provide any relief or to take any action 11 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736 (2001); see Ross 12 v. Blake, 578 U.S. 632, 643 (2016). 13 On a defendant’s motion for summary judgment for failure to exhaust, the defendant 14 has the initial burden to prove “that there was an available administrative remedy, and that the 15 prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendant 16 carries that burden, “the burden shifts to the prisoner to come forward with evidence showing 17 that there is something in his particular case that made the existing and generally available 18 administrative remedies effectively unavailable to him.” Id. However, “the ultimate burden of 19 proof remains with the defendant.” Id. “If material facts are disputed, summary judgment 20 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 21 1166. 22 There are no “special circumstances” exceptions to the exhaustion requirement. Ross, 23 578 U.S. at 648. The one significant qualifier is that “the remedies must indeed be ‘available’ 24 to the prisoner.” Id. at 639. The Ross Court described this qualification as follows: 25 [A]n administrative procedure is unavailable when (despite what 26 regulations or guidance materials may promise) it operates as a simple 27 dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates . . .. 28 Next, an administrative scheme might be so opaque that it becomes, 1 practically speaking, incapable of use . . .. 2 And finally, the same is true when prison administrators thwart 3 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation . . .. As all those courts 4 have recognized, such interference with an inmate’s pursuit of relief 5 renders the administrative process unavailable. And then, once again, 6 § 1997e(a) poses no bar. 7 Id. at 643–44 (internal citations omitted). 8 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 9 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 10 at 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005). The failure to exhaust in 11 compliance with section 1997e(a) of the PLRA is an affirmative defense that defendants have 12 the burden of raising and proving. Jones, 549 U.S. at 216. 13 IV. DISCUSSION 14 The Court finds that the following facts are undisputed:1 15 • Plaintiff filed amended complaint in this action alleging Eighth Amendment 16 claim against Defendants Gant and Vito on December 26, 2019. (ECF No. 3). 17 • The alleged incident giving rise to the events in this action occurred on August 18 17, 2016. (ECF No. 3 at 5). 19 • There was a generally available administrative remedy. (ECF No. 34-3 at 2). 20 • Plaintiff King never filed a health care grievance regarding the incident, nor has 21 he filed any grievance against Defendant Gant or Defendant Vitto. (ECF No. 22 34-3 at 2–3). 23 • Plaintiff King filed no health care grievances at all between July 2016 and 24 October 2019. (Id.) 25 26 27 1 Plaintiff failed to respond to Defendants’ Statement of Undisputed Facts (ECF No. 34-2) as required by Local Rule 260(b). However, after reviewing the parties’ filings, the Court has determined 28 that neither side disputes these facts. 1 Defendants move for dismissal of this action due to Plaintiff’s failure to exhaust 2 administrative remedies, which is evidenced by Plaintiff's health care appeal/grievance history 3 showing that he did not filed a health care grievance or appeal related to August 17, 2016 4 incident. The Court therefore finds that Defendants have met their threshold burden of 5 establishing plaintiff's failure to exhaust the available administrative remedies on his claim 6 before raising it in this action. Albino II, 747 F.3d at 1172. Because Defendants carried that 7 burden, “the burden shifts to the prisoner to come forward with evidence showing that there is 8 something in his particular case that made the existing and generally available administrative 9 remedies effectively unavailable to him.” Id. 10 Plaintiff claims Defendants were put on notice when the Court allowed him to amend 11 his complaint to include Eighth Amendment deliberate indifference claim against Defendants 12 Gant and Vito and then severed this claim from his excessive force claim against other 13 defendants. However, there is no legal support for Plaintiff’s claim that allowing him to amend 14 satisfied the exhaustion requirement. Indeed, Plaintiff’s allegations in the complaint that the 15 Court allowed to proceed incorrectly stated that Plaintiff had “exhausted his administrative 16 remedies with respect to all claims and all defendants.” (ECF No. 3 at 6). In fact, Plaintiff had 17 not done so. 18 Accordingly, the Court recommends that Defendants’ motion be granted for Plaintiff’s 19 failure to exhaust his administrative remedies. 20 V. CONCLUSION AND ORDER 21 Based on the foregoing, it is RECOMMENDED that: 22 1. Defendants’ motion for summary judgment (ECF No. 34) be GRANTED; and 23 2. All pending motions and deadlines be terminated and this action be dismissed.2 24 \\\ 25 \\\ 26 27 2 Such dismissal is without prejudice to Plaintiff refiling the claims after he exhausts 28 administrative remedies, if possible. 1 These findings and recommendations are submitted to the United States district judge 2 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty 3 || days after being served with these findings and recommendations, any party may file written 4 || objections with the court. Such a document should be captioned “Objections to Magistrate 5 || Judge’s Findings and Recommendations.” Any response to the objections shall be served and 6 || filed within fourteen days after service of the objections. The parties are advised that failure to 7 || file objections within the specified time may result in the waiver of rights on appeal. Wilkerson 8 || v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 9 || 1394 (9th Cir. 1991)). 10 ul IT IS SO ORDERED. 12 || Dated: _ June 14, 2024 [sf ey — 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28