Powell v. Madden, et al.

Filing 59

ORDER GRANTING 44 Motion to Dismiss signed by Chief Judge Ralph R. Beistline on 4/2/2014. Rodrigo Ogues, Dr. Franco (Medical Facility) and Lourdes Mettry terminated. (Sant Agata, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TONY EDWARD POWELL,
Case No. 1:13-cv-00057-RRB
Plaintiff,
ORDER GRANTING
MOTION AT DOCKET 44

vs.
MADDEN, et al.,
Defendants.

I.

BACKGROUND
At Docket 44 Defendants Jon Franco, M.D., Lourdes Mettry and Rodrigo Ogues

moved to dismiss Plaintiff’s Eighth Amendment medical indifference claim on the basis that
Plaintiff Tony Edward Powell failed to properly exhaust his administrative remedies. Powell
has opposed the motion1 and Defendants have replied.2 The matter is ripe for decision
and is submitted on the moving and opposing papers.3
Powell’s lawsuit arises out of a slip and fall incident that occurred on May 12, 2012.
As relevant to the motion before the court, Powell has alleged that Defendants Jon Franco,

1

Docket 56.

2

Docket 58.

3

In rendering its decision, the Court considered the request to take judicial
notice at Docket 57.
ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 1

M.D., Lourdes Mettry, and Rodrigo Ogues were deliberately indifferent to his serious
medical needs.
II.

APPLICABLE LAW
A prisoner must exhaust his administrative remedies prior to filing suit, not during

the pendency of the suit.4 Exhaustion is required irrespective of the relief sought by the
prisoner and regardless of the relief provided by the process;5 is an affirmative defense
to be raised and proven by the defense;6 although not jurisdictional, exhaustion is
nonetheless mandatory, and there is no discretion to excuse it.7 “Proper exhaustion”
means “complet[ing] the administrative review process in accordance with the applicable
rules.”8 “The level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but it is the prison's
requirements, and not the PLRA, that define the boundaries of proper exhaustion.”9

4

42 U.S.C. § 1997e(a) (mandating that “[n]o action shall be brought . . . until
[the prisoner’s] administrative remedies . . . are exhausted.”); McKinney v. Carey, 311 F.3d
1198, 1199 (9th Cir. 2002) (per curiam).
5

Booth v. Churner, 532 U.S. 731, 742 (2001).

6

Jones v. Bock, 549 U.S. 199, 212–17 (2007); Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003).
7

Porter v. Nussle, 534 U.S. 516, 524 (2002).

8

Jones, 549 U.S. at 218.

9

Id.

ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 2

A defendant has the initial burden to show that “(1) a grievance procedure existed
and (2) [the plaintiff] did not exhaust the grievance procedure.”10 Once a defendant has
met this burden, the burden shifts to the plaintiff to demonstrate that the grievance
procedure was not available.11
Administrative exhaustion is a defense that “should be treated as a matter in
abatement subject to an unenumerated Rule 12(b) motion.”12 “In deciding a motion to
dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the
pleadings and decide disputed issues of fact.”13 If a court finds that a plaintiff has failed
to exhaust, “the proper remedy is dismissal of the claim without prejudice.”14
III.

FACTS
Powell attempted to raise his deliberate indifference claim in two separate

administrative grievances: 683052 and 695858. As relevant to the issue before the Court,
the following summary of these administrative proceedings is provided.15
Grievance 683052: Powell initiated this grievance on March 12, 2012, two months
prior to his slip and fall. At the first level Powell contended that Defendant Mettry had

10

Albino v. Baca, 697 F.3d 1023, 1032 (9th Cir. 2012).

11

Id.

12

Wyatt, 315 F.3d at 1119

13

Id. at 1120.

14

.

Id.

15

As established by the evidence submitted by the Defendants as moving
parties. Powell does not dispute this evidence.
ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 3

denied him his cholesterol medication, and that he was being denied medical shoes or
boots. On May 7, 2012, the Warden responded, noting that Powell had refused to allow
further monitoring of his cholesterol level which resulted in the discontinuance of his
medication. The Warden granted his request with respect to the medical shoes or boots.16
Disagreeing with the Warden’s finding vis-a-vis the cholesterol medication, Powell
appealed to the Regional Director. The Regional Director denied Powell’s appeal, providing
Powell with copies of three treatment refusal forms.17 In his appeal to the Central Office
Powell changed his complaint, substituting his medical indifference claim arising out of the
May 12, 2012, incident. Powell did not raise the issues he presented in the lower levels.
The Central Office provided a information response indicating Powell had received
appropriate medical care.18
Grievance 695858: Powell initiated this grievance on June 28, 2012, requesting an
investigation into the slip and fall incident, but does not raise any issue concerning the
adequacy of the medical care. This grievance was rejected on the basis that, under the
regulations, only one request was permitted per grievance.19 Powell’s appeal to the
Regional Director was rejected with directions to follow the instructions provided by the
institution.20 Powell’s further appeal to the Central Office was rejected stating: “You
16

Motion, Vickers Declaration, Attachment 5, Docket 44-3, pp. 23–31.

17

Motion, Vickers Declaration, Attachment 6, Docket 44-3, pp. 32–43.

18

Motion, Vickers Declaration, Attachment 7, Docket 44-3, pp. 44–54.

19

Motion, Vickers Declaration, Attachment 1, Docket 44-2, pp. 8–15.

20

Motion, Vickers Declaration, Attachment 2, Docket 44-2, pp. 16–23.

ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 4

submitted your request or appeal to the wrong level. You should have filed at the
institution, regional office, or central office level.”21
IV.

DISCUSSION
This Court agrees with Defendants that, with respect to his deliberate indifference

claim, Powell has not properly exhausted his administrative remedies. As relevant to this
case, the applicable regulations provide:
The inmate shall place a single complaint or a reasonable number of closely
related issues on the form. If the inmate includes on a single form multiple
unrelated issues, the submission shall be rejected and returned without
response, and the inmate shall be advised to use a separate form for each
unrelated issue. For DHO and UDC appeals, each separate incident report
number must be appealed on a separate form.22
(1) Appeals to the Regional Director shall be submitted on the form
designed for regional Appeals (BP–10) and accompanied by one complete
copy or duplicate original of the institution Request and response. Appeals
to the General Counsel shall be submitted on the form designed for Central
Office Appeals (BP–11) and accompanied by one complete copy or duplicate
original of the institution and regional filings and their responses. Appeals
shall state specifically the reason for appeal.
(2) An inmate may not raise in an Appeal issues not raised in the lower level
filings. An inmate may not combine Appeals of separate lower level
responses (different case numbers) into a single Appeal.23
The record presented to this court conclusively establishes that Powell has not
properly exhausted his administrative remedies. In Grievance 683052 Powell, although
he raised a deliberate indifference claim at each of the three levels, the claim presented
21

Motion, Vickers Declaration, Attachment 3, Docket 44-2, pp. 24–45.

22

28 C.F.R. § 542.14(c)(2).

23

28 C.F.R. § 542.15(b).

ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 5

to the Central Office level arose out of an entirely separate incident, both in time and
factually, than did the claim presented at the first two levels. In Grievance 695858 Powell
improperly attempted to combine two separate issues into a single grievance. Instead of
separating his appeals, as instructed at the first level, Powell continued to pursue his
procedurally improper grievance. Powell’s failure to properly exhaust his administrative
remedies is a result of his own failure, despite clear, explicit instructions to adhere to the
procedural requirements prescribed by the regulations; not a denial of due process by
officials of the Bureau of Prisons.24
More importantly, however, even if it may be found that Powell properly exhausted
his administrative remedies, the evidence conclusively establishes that Powell is not
entitled to relief as a matter of law on the undisputed facts. In his opposition, as evidence
that he had exhausted his administrative remedies, Powell attached a copy of the
January 18, 2013, response by the Central Office in Grievance 683052.
This is in response to your Central Office Administrative Remedy Appeal
wherein you allege inadequate medical care and unethical treatment for your
back pain. Specifically, you claim you are experiencing pain to your lower
back, which runs down your right hind leg, but are not being provided
appropriate treatment and pain management for your condition. For relief,
you are requesting proper medication, an MRI and an examination by an
outside specialist.
We have reviewed documentation relevant to your appeal and, based on
information gathered, concur with the manner in which the Warden and
Regional Director addressed your concerns at the time of your Request for

24

The Court agrees with Defendants that Powell’s contention that prison
officials somehow engaged in affirmative misconduct that thwarted his efforts to exhaust
his administrative remedies is devoid of any factual support.
ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 6

Administrative Remedy and subsequent appeal. Our review reveals you
have been diagnosed with peripheral neuropathy. On October 16, 2012, you
reported to sick call with continued complaint of low back pain with radiation
to both lower extremities and with pins and needle sensation in your feet. Xrays performed revealed mild degenerative joint disease and osteoarthritis
of the right hip.
You have been prescribed Gabapentin and Naproxen for your peripheral
neuropathy and are currently being followed in the Orthopedic/Rheumatology
Chronic Care Clinic (CCC). During your last CCC visit of December 17,
2012, a request was submitted for you to undergo an MRI of the spine and
pelvis-lumbar spinal canal. Once the MRI has been performed, a
determination will be made as to future treatment plans. Should you have
questions or concerns regarding the MRI procedure, you are encouraged to
discuss your concerns with medical staff through normal sick call
procedures.
You have failed to provide evidence to substantiate your allegation of being
denied adequate medical treatment, or that you have suffered vindictive and
unethical treatment toward you condition. The record reflects you received
medical care and treatment in accordance with evidence based standard of
care and within the scope of services of the Federal Bureau of Prisons.25
In holding that the infliction of unnecessary suffering on prisoners violated the Eighth
Amendment, the Supreme Court stated:
[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner’s serious illness or injury
states a cause of action under § 1983. 26

25

Docket 56, p. 8. A copy of the same document was also provided by the
moving parties. Docket 44-3, p. 45.
26

Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation
marks and citations omitted).
ORDER GRANTING MOTION AT DOCKET 44
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In Estelle the Supreme Court distinguished “deliberate indifference to serious medical
needs of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.27 In short, Eighth Amendment liability
requires “more than ordinary lack of due care for the prisoner's interests or safety.”28
In determining deliberate indifference, the court scrutinizes the particular facts and
looks for substantial indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect.29 The Ninth Circuit has spoken to the subject
of the appropriate test under Estelle:
In the Ninth Circuit, the test for deliberate indifference consists of two parts.
First, the plaintiff must show a serious medical need by demonstrating that
failure to treat a prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain. Second, the plaintiff must
show the defendant’s response to the need was deliberately indifferent. This
second prong—defendant’s response to the need was deliberately
indifferent—is satisfied by showing (a) a purposeful act or failure to respond
to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference. Indifference may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way
in which prison physicians provide medical care. Yet, an inadvertent [or
negligent] failure to provide adequate medical care alone does not state a
claim under § 1983. A prisoner need not show his harm was substantial;
however, such would provide additional support for the inmate’s claim that
the defendant was deliberately indifferent to his needs. If the harm is an
isolated exception to the defendant’s overall treatment of the prisoner [it]
ordinarily militates against a finding of deliberate indifference.30

27

Id. at 106.

28

Whitley v. Albers, 475 U.S. 312, 319 (1986).

29

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

30

Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks
and citations omitted).
ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 8

“Deliberate indifference is a high legal standard. A showing of medical malpractice
or negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”31 Powell has not even shown a difference of opinion regarding the course
of medical treatment. Even if he did, standing alone, a difference of medical opinion is
“insufficient as a matter of law, to establish deliberate indifference.”32 The evidence
submitted by Powell establishes that the medical care he received not only did not rise to
the level of deliberate indifference, but was consistent with Powell’s own request. Based
upon the undisputed facts, Powell’s medical indifference claim fails as a matter of law.
Nor, for that matter, does it appear that Powell can even plausibly plead a viable
medical malpractice claim under California law.
The elements of a cause of action in tort for professional negligence are: (1)
the duty of the professional to use such skill, prudence and diligence as
other members of his profession commonly possess and exercise; (2) a
breach of that duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional's negligence.33

31

Toguchi v. Chung, 391 F. 3d 1051, 1060 (9th Cir. 2004); see Hallett v.
Morgan, 296 F.3d 732, 744 (9th Cir. 2002); see also Wood, 900 F.2d at 1334 (stating that
even gross negligence is insufficient to establish a constitutional violation).
32

Toguchi, 391 F.3d at 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th
Cir. 1981) (noting that a disagreement between a prisoner and a medical professional over
the most appropriate course of treatment cannot give rise to a viable claim of deliberate
indifference).
33

Burgess v. Superior Court, 831 P.2d 1197, 1203–04 (Cal. 1992) (internal
quotation marks and citations omitted).
ORDER GRANTING MOTION AT DOCKET 44
Powell v. Madden, 1:13-cv-00057-RRB – 9

V.

CONCLUSION and ORDER
Powell’s medical indifference claim fails on two bases. First, it is clear that Powell

did not properly exhaust his administrative remedies with respect to the medical deliberate
indifference claim presented to this court. More importantly, Powell’s own evidence
conclusively obliterates his medical indifference claim on the merits as a matter of law.
Although normally this court in dismissing for failure to state a claim upon which relief could
be granted would do so without prejudice to curing the defect and refiling. In this case,
however, it is evident that Powell cannot truthfully plead any set of facts that would permit
granting any relief on his medical indifference claim or a medical malpractice claim.34
Accordingly, the Motion to Dismiss Eighth Amendment Claim for Failure to Exhaust
Administrative Remedies at Docket 44 is GRANTED. The First Amended Complaint as
against Defendants Jon Franco, M.D., Lourdes Mettry, and Rodrigo Ogues is DISMISSED,
with prejudice.
IT IS SO ORDERED this 2nd day of April, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

34

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130
(9th Cir. 2013) (“A district court may deny leave to amend when amendment would be
futile.”).
ORDER GRANTING MOTION AT DOCKET 44
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