Singleton, Sr. v. Biter, et al.

Filing 83

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion for Summary Judgment Based on Failure to Exhaust; ORDER DENYING Defendants' Motion to Strike Surreply, signed by Magistrate Judge Dennis L. Beck on 11/6/2014, referred to Judge Ishii. Thirty Day Deadline. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMAR SINGLETON, SR.,

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Plaintiff,

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v.
M. D. BITER, et al.,

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Defendants.

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Case No.: 1:12cv00043 AWI DLB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT BASED ON FAILURE
TO EXHAUST
(Document 30)
THIRY-DAY OBJECTION DEADLINE
ORDER DENYING DEFENDANTS’
MOTION TO STRIKE SURREPLY
(Document 44)

Plaintiff Lamar Singleton (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action on January 9, 2012. This action is proceeding against
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Defendants Biter and Lopez for violation of the Eighth Amendment.
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A.

PROCEDURAL HISTORY

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On November 21, 2013, Defendants filed an unenumerated Rule 12(b) motion to dismiss based
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on exhaustion. Plaintiff opposed the motion on December 30, 2013, and Defendants filed their reply
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on January 6, 2014. On January 13, 2014, Plaintiff filed a “Rebuttal of Defendants’ Reply.”

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On February 4, 2014, the Court issued Findings and Recommendations that Defendants’
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motion be granted. However, based on the Ninth Circuit’s decision in Albino v. Baca, 747 F.3d 1162

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(9th Cir. 2014), the Court vacated the Findings and Recommendations on April 17, 2014, and

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converted the motion into a motion for summary judgment.1 The Court also instructed the parties to

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inform the Court as to whether any discovery related to exhaustion was necessary.

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On April 30, 2014, Defendants indicated that no further discovery was necessary.

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On July 10, 2014, the Court granted Plaintiff’s request for limited discovery related to

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exhaustion under Federal Rule of Civil Procedure 56(d) and set a supplemental briefing schedule.
On September 24, 2014, Plaintiff filed his supplemental briefing. Defendants did not file any

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additional briefing.
Accordingly, the motion is deemed submitted pursuant to Local Rule 230(l).

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B.

Plaintiff is currently incarcerated at Kern Valley State Prison (“KVSP”) where the events at

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PLAINTIFF’S ALLEGATIONS

issue occurred.
Plaintiff alleges that Defendant Biter, the warden at KVSP, is responsible for providing clean

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water to Plaintiff. Plaintiff alleges that the arsenic levels in the water at KVSP are above federal

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standards and that Defendant Biter has a history of noncompliance.
Plaintiff, a chronic care patient, states that he arrived at KVSP on September 9, 2010. He

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alleges that Defendant Biter refused to implement a system to ensure that chronic care patients are not

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exposed to contaminated water.
Plaintiff further alleges that MRIs and ultrasounds have revealed tumors on both kidneys.

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Plaintiff’s physician, Dr. Patel, told him that the next few procedures would be critical in his

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diagnosis. When he next visited Dr. Patel, he told Plaintiff that Defendant Lopez, Chief Medical

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Officer at KVSP, had cancelled all further MRIs and biopsy procedures. Defendant Lopez said that

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the only option was removal of both kidneys.
Finally, Plaintiff alleges that Defendant Lopez was aware that the water contained high levels

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of arsenic, but that she nonetheless denied Plaintiff’s request for a transfer.

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The Court provided Plaintiff with the requirements for opposing a motion for summary judgment. Rand v. Rowland, 154
F.3d 952 (9th Cir. 1998); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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C.

SURREPLY

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Defendants moved to strike Plaintiff’s surreply on January 29, 2014.

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Parties do not have the right to file surreplies and motions are deemed submitted when the time

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to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a

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surreply with disfavor. Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v.

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Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005)). However, district courts

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have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health

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Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit

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“inequitable surreply”); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008)

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(district court did not abuse discretion in denying leave to file surreply where it did not consider new

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evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may

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not be considered without giving the non-movant an opportunity to respond).
As discussed below, Plaintiff’s surreply does not change the outcome of this motion.

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Therefore, the Court will address the filing and Defendants’ motion is DENIED.

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D.

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LEGAL STANDARD
The failure to exhaust is subject to a motion for summary judgment in which the court may

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look beyond the pleadings. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). If the Court

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concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones,

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549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

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“If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to

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exhaust, a defendant is entitled to summary judgment under Rule 56.” Albino, 747 F.3d at 1166.

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However, “[i]f material facts are disputed, summary judgment should be denied, and [following such

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denial] the district judge rather than a jury should determine the facts.” Id. The Albino court specified

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that the court should act as the finder of fact in connection with an exhaustion challenge “in a

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preliminary proceeding” and, “if feasible, before reaching the merits of a prisoner’s claim.” Id. at

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1168, 1170.

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In judging the evidence at the summary judgment stage, the Court may not make credibility
determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984
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(9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most

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favorable to the nonmoving party and determine whether a genuine issue of material fact precludes

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entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,

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942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The

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Court determines only whether there is a genuine issue for trial, and Plaintiff’s filings must be liberally

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construed because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)

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(quotation marks and citations omitted).

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E.

APPEALS PROCESS
The California Department of Corrections and Rehabilitation has an administrative grievance

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system for prisoners to appeal any departmental decision, action, condition, or policy having an

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adverse effect on prisoners’ welfare. Cal. Code Regs. tit. 15, § 3084.1. During the relevant times, an

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inmate is not required to seek resolution at the informal level, but they must continue to secure review

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at all three formal levels of review, culminating in a third-level decision. Cal. Code Regs. tit. 15, §

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3084.7. In order to satisfy section 1997e(a), California state prisoners are required to use this process

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to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378

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(2006); McKinney, 311 F.3d at 1199-1201.

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F.

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DISCUSSION
Defendants argue that Plaintiff failed to submit any appeals to the Third Level of Review

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between September 1, 2010, the date he arrived at KVSP, and January 9, 2012, the date he filed this

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action. Zamora Decl. ¶ 5. Defendants point out that Plaintiff filed one appeal, KVSP-34-11-11125, in

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which he describes his kidney problems and the high arsenic levels at KVSP. Voss Decl. Ex. B.

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Defendants argue that the appeal, dated June 13, 2011, did not address all of his claims in this action.

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Even if the appeal did address all of the allegations at issue, Defendants contend that Plaintiff only

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appealed to the Second Level of Review. Voss Decl. Ex. B; Zamora Decl. ¶ 5. Based on these facts,

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Defendants argue that none of the claims in Plaintiff’s complaint are exhausted.

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Indeed, according to Defendants’ exhibits, Plaintiff did not appeal any grievance to the Third
Level of Review. Plaintiff does not contest Defendants’ facts.

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It is therefore undisputed that Plaintiff did not file any grievance to the Third Level of Review.

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Defendants have met their burden as the moving party by demonstrating the absence of any evidence

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that complete exhaustion occurred prior to the initiation of this action. Wyatt, 315 F.3d at 1119.

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The burden now shifts to Plaintiff to produce evidence demonstrating either exhaustion or the

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existence of circumstances excusing exhaustion. Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir.

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2010); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).

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In his opposition and supplemental briefing, Plaintiff contends that he faced “unfair and

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uncontrollable burdens” during the exhaustion process because he was extremely sick. ECF No. 32, at

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2; ECF No. 82, at 1. He argues that his physical condition, as well as the mental and emotional

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complications associated with his sickness, contributed to his inability to properly exhaust his claims.

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Plaintiff sets out his medical treatment from May 2, 2012, through October 22, 2013, in his

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opposition. Since the filing of this action, Plaintiff has been diagnosed with kidney cancer, and he

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explains why he believes that this diagnosis excuses him from exhaustion in his supplemental briefing.

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It is undisputed that Plaintiff was able to file at least one appeal after his arrival at KVSP and

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before the filing of this action. On June 13, 2011, Plaintiff filed an appeal in which he complained of

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tumors and cysts on his kidneys, and argued that KVSP’s high levels of arsenic in the water increased

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his chances of developing cancer. Plaintiff requested that the arsenic levels be tested and that he be

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reviewed for a possible medical transfer. Plaintiff received a First Level Response on July 11, 2011.

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The reviewer explained that a doctor from the California Poison Control System reviewed the arsenic

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levels at KVSP and concluded that the levels were insignificant. Plaintiff pursued the appeal to the

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Second Level of Review, and received a denial from the Second Level of Review on October 28,

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2011. Voss Decl. Ex. B.

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While Plaintiff may have been ill during the exhaustion period, the above appeal demonstrates

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that he was able to pursue the appeal to the Second Level of Review. This undermines Plaintiff’s

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argument that he was too sick and/or distracted to properly exhaust the claims at issue in this action

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prior to filing suit. In fact, Plaintiff was able to draft the operative complaint and file it in January

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2012, just over two months after he received a denial at the Second Level of Appeal.

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Plaintiff also argues that he “did everything in his power” to exhaust the issues in the action.

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ECF No. 32, at 1. Plaintiff believes that Defendants misled inmates during the grievance period by

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downplaying the dangers of arsenic in the water. He argues that he cannot be expected to file a

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grievance when he is being factually misled.
However, despite Plaintiff’s claim that he was being “misled” about the arsenic levels, he was

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able to file a grievance addressing the arsenic levels in June 2011.
Insofar as Plaintiff argues that a prisoner does not have to exhaust his administrative remedies

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prior to filing suit, he is incorrect. Plaintiff cites cases that preceded the enactment of the Prison

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Litigation Reform Act of 1996. It is well established law, as explained above, that exhaustion is now

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required prior to bringing an action under section 1983.
Plaintiff also submitted a surreply, which the Court will, in its discretion, address. He points to

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an additional grievance in which he suggested that his last three appeals had gone unanswered, and

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continues to cite unfair and uncontrollable burdens. Plaintiff’s additional grievance, however, only

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undermines his position that he was unable to file for various reasons. While Plaintiff may have

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indicated in an appeal that prior appeals went unanswered, he provides no facts in support of his claim

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in either his opposition, surreply or supplemental briefing.
The Court therefore finds that Plaintiff has failed to carry his burden and that the undisputed

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facts show that his claims are unexhausted.

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G.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Defendants’ motion for summary judgment, filed November 21, be GRANTED; and

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2.

This action be DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to exhaust.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” A party may respond to another party’s objections by filing a response within

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fourteen (14) days after being served with a copy of that party’s objections. The parties are advised
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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

November 6, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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