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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA ,

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Plaintiff,
v.
ROUCH,

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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.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 7 & 17.) The action
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proceeds against Defendant Rouch on Plaintiff’s Eighth Amendment inadequate medical

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care claim. (ECF No. 18.) Specifically, Plaintiff alleges that he suffers from chronic pain
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in his leg that worsens in cold weather, and that Defendant Rouch was deliberately
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indifferent to this serious medical need by refusing to provide thermal underwear. (ECF
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No. 17.)
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On August 19, 2014, Defendant filed a motion for summary judgment on the
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ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 81.) The motion
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advised Plaintiff of his obligation to file an opposition within twenty-one days. (Id.) On
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August 27, 2014, Plaintiff filed a motion for the appointment of an expert to oppose
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Defendant’s summary judgment motion and a motion for appointment of counsel. (ECF

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No. 84.) He did not timely file an opposition to Defendant’s motion or seek an extension

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of time to do so.

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On December 11, 2014, the Court denied Plaintiff’s motion for the appointment of

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counsel and motion for appointment of an expert. (ECF No. 103.) The Court ordered

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Plaintiff to file an opposition to the motion for summary judgment within twenty-one days.

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(Id.) Plaintiff failed to do so. Accordingly, on January 15, 2015, the undersigned issued

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findings and a recommendation to dismiss Plaintiff’s action for failure to obey a court

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order and failure to prosecute. (ECF No. 104.)

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On January 29, 2015, Plaintiff filed a motion for reconsideration of the findings

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and recommendations. (ECF No. 105.) On February 3, 2015, the Court took Plaintiff’s

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motion under advisement and afforded Plaintiff an opportunity to show cause why his

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time to oppose the summary judgment motion should be extended. Plaintiff filed his

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response on February 19, 2015. (ECF No. 109.)

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Also before the Court is Plaintiff’s February 4, 2015 motion for an extension of

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time to file objections to the findings and recommendations. (ECF No. 107.) Plaintiff filed

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his objections along with the motion. (ECF No. 108.)
Plaintiff’s motion for reconsideration and motion for extension of time are deemed

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submitted.

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I.

MOTION FOR RECONSIDERATION

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Plaintiff’s motion seeks reconsideration on the following grounds: Plaintiff states

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that he attempted to submit a motion for extension of time on January 1, 2015 by

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delivering said motion to prison officials. He further states that he was unable to file his

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opposition following the Court’s December 11, 2014 order due to his recent and ongoing

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medical conditions (including Hepatitis A, Hepatitis B, cocci, a lung infection, headaches,

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dizziness, and pain) and three hospitalizations. (ECF No. 105.)

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In taking the matter under advisement, the Court noted that Defendant’s motion

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for summary judgment has been pending since August 19, 2014, without an opposition

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or request for extension of time being filed by Plaintiff. (ECF No. 106.) The Court further

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noted that Plaintiff has suffered from serious medical conditions throughout the litigation,

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but nonetheless had filed more than twenty motions, and there was no reason to believe

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Plaintiff’s medical conditions would have kept him from filing a timely opposition or

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request for additional time. Finally, the Court noted that Defendant’s motion addresses

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only whether Plaintiff exhausted his administrative remedies in the twelve day interval

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between the incident at issue (February 15, 2013) and the initiation of this action

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(February 27, 2013). In light of argument submitted on Defendants’ earlier motion to

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dismiss, it appeared Plaintiff has not exhausted his administrative remedies and that

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granting an extension of time would serve no useful purpose. Nevertheless, the Court

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afforded Plaintiff an additional fourteen days to show cause why his time to oppose the

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motion for summary judgment should be extended, supported at least by a summary of

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the evidence and arguments he would make if additional time to respond were granted.

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In his response to the Court’s order, Plaintiff states that he exhausted his

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administrative remedies by filing several 602 administrative complaints regarding his

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chronic pain. Plaintiff states that he exhausted complaints regarding his chronic pain

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both before and after filing this suit. He wishes to conduct discovery to obtain his

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administrative appeal records from April 17, 2009 to February 15, 2012. Plaintiff argues

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that, pursuant to Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), he is not required to

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exhaust administrative remedies for “each specific incident.”

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Plaintiff’s response does not provide cause for granting the motion for

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reconsideration. The instant action is limited to Defendant Rouch’s denial of Plaintiff’s

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request for thermal underwear on February 15, 2013. It does not involve Plaintiff’s more

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general complaints regarding the allegedly ineffective nature of the pain management he

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has received, and reportedly continues to receive, at California State Prison – Corcoran.

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“[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress

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is sought.” Griffing v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting Strong v.

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David, 297 F.3d 646, 650 (7th Cir. 2002)). Under this standard, Plaintiff may not

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necessarily be required to file and exhaust a separate grievance each time he allegedly

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receives inadequate medical care for his ongoing chronic pain. See Gomez v. Winslow,

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177 F. Supp. 2d 977, 982 (N.D. Cal. 2001). Nevertheless, any grievances generally

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addressing Plaintiff’s pain management would not be sufficient to alert prison officials to

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Plaintiff’s complaint regarding the denial of thermal underwear, and thus would not

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exhaust the claim presented in this action. Accordingly, an extension of time to oppose

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the motion for summary judgment to provide evidence of prior grievances would serve

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no useful purpose and will be denied.

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Similarly futile is Plaintiff’s claim that he exhausted administrative remedies after

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initiating this action. Dismissal is mandatory if Plaintiff failed to exhaust his administrative

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remedies prior to bringing suit, even if exhaustion occurred while the litigation was

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pending. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam).

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In sum, Plaintiff provides no basis for reconsidering the findings and

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recommendations, and his motion will be denied.

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II.

MOTION FOR EXTENSION OF TIME

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Plaintiff states that he either forgot to timely mail his objections due to his medical

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condition or he did not complete his objections by the time prison staff passed by to pick

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up the mail on the date of the filing deadline. (ECF No. 107.) Plaintiff’s medical

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conditions provide good cause for a brief extension of time. Accordingly, Plaintiff’s

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deadline for filing objections to the findings and recommendations will be extended nunc

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pro tunc to February 4, 2015.

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III.

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CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 105) is DENIED;

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2. Plaintiff’s motion for extension of time (ECF No. 107) is GRANTED; and

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3. Plaintiff’s deadline for filing objections to the findings and recommendations

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is extended nunc pro tunc to and including February 4, 2015.

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IT IS SO ORDERED.
Dated:

February 24, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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