Herrera v. Rouch

Filing 110

ORDER (1) DENYING 105 Motion for Reconsideration, and GRANTING 107 Motion for Extension of Time, signed by Magistrate Judge Michael J. Seng on 2/24/2015. (Marrujo, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERTO HERRERA , 11 12 13 Plaintiff, v. ROUCH, 14 CASE NO. 1:13-cv-00289-LJO-MJS (PC) ORDER (1) DENYING MOTION FOR RECONSIDERATION (ECF No. 105), AND (2) GRANTING MOTION FOR EXTENSION OF TIME (ECF No. 107) Defendant. 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 7 & 17.) The action 18 proceeds against Defendant Rouch on Plaintiff’s Eighth Amendment inadequate medical 19 care claim. (ECF No. 18.) Specifically, Plaintiff alleges that he suffers from chronic pain 20 in his leg that worsens in cold weather, and that Defendant Rouch was deliberately 21 indifferent to this serious medical need by refusing to provide thermal underwear. (ECF 22 No. 17.) 23 On August 19, 2014, Defendant filed a motion for summary judgment on the 24 ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 81.) The motion 25 advised Plaintiff of his obligation to file an opposition within twenty-one days. (Id.) On 26 August 27, 2014, Plaintiff filed a motion for the appointment of an expert to oppose 27 Defendant’s summary judgment motion and a motion for appointment of counsel. (ECF 28 1 1 No. 84.) He did not timely file an opposition to Defendant’s motion or seek an extension 2 of time to do so. 3 On December 11, 2014, the Court denied Plaintiff’s motion for the appointment of 4 counsel and motion for appointment of an expert. (ECF No. 103.) The Court ordered 5 Plaintiff to file an opposition to the motion for summary judgment within twenty-one days. 6 (Id.) Plaintiff failed to do so. Accordingly, on January 15, 2015, the undersigned issued 7 findings and a recommendation to dismiss Plaintiff’s action for failure to obey a court 8 order and failure to prosecute. (ECF No. 104.) 9 On January 29, 2015, Plaintiff filed a motion for reconsideration of the findings 10 and recommendations. (ECF No. 105.) On February 3, 2015, the Court took Plaintiff’s 11 motion under advisement and afforded Plaintiff an opportunity to show cause why his 12 time to oppose the summary judgment motion should be extended. Plaintiff filed his 13 response on February 19, 2015. (ECF No. 109.) 14 Also before the Court is Plaintiff’s February 4, 2015 motion for an extension of 15 time to file objections to the findings and recommendations. (ECF No. 107.) Plaintiff filed 16 his objections along with the motion. (ECF No. 108.) Plaintiff’s motion for reconsideration and motion for extension of time are deemed 17 18 submitted. 19 I. MOTION FOR RECONSIDERATION 20 Plaintiff’s motion seeks reconsideration on the following grounds: Plaintiff states 21 that he attempted to submit a motion for extension of time on January 1, 2015 by 22 delivering said motion to prison officials. He further states that he was unable to file his 23 opposition following the Court’s December 11, 2014 order due to his recent and ongoing 24 medical conditions (including Hepatitis A, Hepatitis B, cocci, a lung infection, headaches, 25 dizziness, and pain) and three hospitalizations. (ECF No. 105.) 26 In taking the matter under advisement, the Court noted that Defendant’s motion 27 for summary judgment has been pending since August 19, 2014, without an opposition 28 2 1 or request for extension of time being filed by Plaintiff. (ECF No. 106.) The Court further 2 noted that Plaintiff has suffered from serious medical conditions throughout the litigation, 3 but nonetheless had filed more than twenty motions, and there was no reason to believe 4 Plaintiff’s medical conditions would have kept him from filing a timely opposition or 5 request for additional time. Finally, the Court noted that Defendant’s motion addresses 6 only whether Plaintiff exhausted his administrative remedies in the twelve day interval 7 between the incident at issue (February 15, 2013) and the initiation of this action 8 (February 27, 2013). In light of argument submitted on Defendants’ earlier motion to 9 dismiss, it appeared Plaintiff has not exhausted his administrative remedies and that 10 granting an extension of time would serve no useful purpose. Nevertheless, the Court 11 afforded Plaintiff an additional fourteen days to show cause why his time to oppose the 12 motion for summary judgment should be extended, supported at least by a summary of 13 the evidence and arguments he would make if additional time to respond were granted. 14 In his response to the Court’s order, Plaintiff states that he exhausted his 15 administrative remedies by filing several 602 administrative complaints regarding his 16 chronic pain. Plaintiff states that he exhausted complaints regarding his chronic pain 17 both before and after filing this suit. He wishes to conduct discovery to obtain his 18 administrative appeal records from April 17, 2009 to February 15, 2012. Plaintiff argues 19 that, pursuant to Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), he is not required to 20 exhaust administrative remedies for “each specific incident.” 21 Plaintiff’s response does not provide cause for granting the motion for 22 reconsideration. The instant action is limited to Defendant Rouch’s denial of Plaintiff’s 23 request for thermal underwear on February 15, 2013. It does not involve Plaintiff’s more 24 general complaints regarding the allegedly ineffective nature of the pain management he 25 has received, and reportedly continues to receive, at California State Prison – Corcoran. 26 “[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress 27 is sought.” Griffing v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting Strong v. 28 3 1 David, 297 F.3d 646, 650 (7th Cir. 2002)). Under this standard, Plaintiff may not 2 necessarily be required to file and exhaust a separate grievance each time he allegedly 3 receives inadequate medical care for his ongoing chronic pain. See Gomez v. Winslow, 4 177 F. Supp. 2d 977, 982 (N.D. Cal. 2001). Nevertheless, any grievances generally 5 addressing Plaintiff’s pain management would not be sufficient to alert prison officials to 6 Plaintiff’s complaint regarding the denial of thermal underwear, and thus would not 7 exhaust the claim presented in this action. Accordingly, an extension of time to oppose 8 the motion for summary judgment to provide evidence of prior grievances would serve 9 no useful purpose and will be denied. 10 Similarly futile is Plaintiff’s claim that he exhausted administrative remedies after 11 initiating this action. Dismissal is mandatory if Plaintiff failed to exhaust his administrative 12 remedies prior to bringing suit, even if exhaustion occurred while the litigation was 13 pending. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam). 14 In sum, Plaintiff provides no basis for reconsidering the findings and 15 recommendations, and his motion will be denied. 16 II. MOTION FOR EXTENSION OF TIME 17 Plaintiff states that he either forgot to timely mail his objections due to his medical 18 condition or he did not complete his objections by the time prison staff passed by to pick 19 up the mail on the date of the filing deadline. (ECF No. 107.) Plaintiff’s medical 20 conditions provide good cause for a brief extension of time. Accordingly, Plaintiff’s 21 deadline for filing objections to the findings and recommendations will be extended nunc 22 pro tunc to February 4, 2015. 23 III. 24 CONCLUSION AND ORDER Based on the foregoing, it is HEREBY ORDERED that: 25 1. Plaintiff’s motion for reconsideration (ECF No. 105) is DENIED; 26 2. Plaintiff’s motion for extension of time (ECF No. 107) is GRANTED; and 27 3. Plaintiff’s deadline for filing objections to the findings and recommendations 28 4 1 is extended nunc pro tunc to and including February 4, 2015. 2 3 4 IT IS SO ORDERED. Dated: February 24, 2015 /s/ 5 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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