Olive v. Narayan

Filing 31

FINDINGS and RECOMMENDATIONS Recommending That Defendant's Motion to Dismiss for Failure to Exhaust Remedies be Granted, signed by Magistrate Judge Gary S. Austin on 8/13/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMIEN DWAYNE OLIVE,

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Plaintiff,

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vs.

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PRATAP LAKSHMI NARAYAN,

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Defendant.

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1:15-cv-01645-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT’S
MOTION TO DISMISS FOR FAILURE TO
EXHAUST REMEDIES BE GRANTED
(ECF No. 17.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

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I.

BACKGROUND

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Damien Dwayne Olive (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on October 30, 2015. (ECF No. 1.) This action now proceeds with the

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First Amended Complaint filed on April 28, 2016, against sole defendant Dr. Pratap Lakshmi

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Narayan (“Defendant”), on Plaintiff’s Eighth Amendment medical claim. (ECF No. 11.)

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On January 26, 2017, Defendant filed a motion to dismiss this case for failure to state a

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claim and failure to exhaust administrative remedies before filing suit. (ECF No. 17.) On

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February 28, 2017, Plaintiff filed an opposition to the motion. (ECF No. 20.) On March 7,

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2017, Defendant filed a reply to the opposition. (ECF No. 22.)
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On April 13, 2017, the court provided Plaintiff with a Rand1 Notice and Warning,

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pursuant to the Ninth Circuit’s requirement in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012),

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informing Plaintiff of his rights and responsibilities in opposing Defendant’s motion to dismiss.

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(ECF No. 24.) In light of the Rand Notice, the court allowed Plaintiff an opportunity to

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withdraw his February 28, 2017, opposition and file an amended opposition. (Id.)

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On May 5, 2017, Plaintiff withdrew his February 28, 2017, opposition and filed an

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amended opposition to Defendant’s motion to dismiss. (ECF No. 28.) On May 9, 2017,

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Defendant filed a reply to the amended opposition. (ECF No. 30.)

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Defendant’s motion to dismiss has been submitted upon the record without oral

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argument pursuant to Local Rule 230(l), and for the reasons that follow, Defendant’s motion

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should be granted.

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II.

ALLEGATIONS IN THE FIRST AMENDED COMPLAINT (FAC)

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Plaintiff is presently incarcerated at the R.J. Donovan Correctional Facility in San

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Diego, California. The events at issue occurred at the California Substance Abuse Treatment

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Facility and State Prison (SATF) in Corcoran, California, when Plaintiff was incarcerated there.

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Plaintiff alleges as follows in his amended complaint. During the time period relevant

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to the FAC, defendant Dr. Pratap Lakshmi Narayan was a psychiatrist contracted by the

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California Department of Corrections and Rehabilitation. On October 13, 2015, Plaintiff had

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an appointment with Defendant for treatment of bipolar disorder and medication management.

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During the appointment, Plaintiff advised Defendant that he had recently been experiencing

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numerous psychiatric symptoms including depression, recent suicide attempts, frequent suicidal

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ideation, loss of appetite, feelings of despondency, insomnia, and extreme happiness at cycling

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intervals. He also complained that he had recently been hearing voices.

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Defendant “flatly refused” to prescribe any medication to treat Plaintiff’s mental health

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issues. ECF No. 11 at 4. Defendant told Plaintiff that his primary care provider had already

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prescribed medications that would “resolve and diminish” his psychiatric symptoms. Id. at 5.

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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).
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Plaintiff told Defendant that he had been getting worse, and that when he is unmedicated, he is

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more likely to be placed into a mental health crisis bed. Defendant stated that he would be

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willing to put Plaintiff back on lithium carbonate, even though Defendant is aware that lithium

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caused Plaintiff problems in the past. He also stated that he would prescribe an anti-depressant.

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Plaintiff told him that in the past anti-depressants had escalated his depressive symptoms.

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Plaintiff suggested that Defendant prescribe psychotropic medications for him since

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they had been helpful in the past. Defendant refused. Plaintiff has a clear and documented

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history of suicide attempts since the age of nine, and Defendant is aware of this history as well

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as Plaintiff’s mental health history. Defendant had access to Plaintiff’s medical records in

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which Dr. Turner-Tree stated, “It is absolutely essential that Mr. Olive be maintained on his

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medication, which include Lithium and Trazadone (as needed for sleep) while incarcerated [and

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w]ithout these medications, Mr. Olive will be unable to function in any capacity and will likely

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suffer from additional manic episodes which could endanger him and/or other inmates.” (FAC,

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ECF. No. 111 at 6:12-17.)

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On October 16, 2015, and again on December 3, 2015, Plaintiff was admitted to a

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mental health crisis bed because of mixed manic/depressive episodes. Plaintiff attempted

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suicide and has permanent scars on his wrist from the suicide attempt. Plaintiff alleges that

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Defendant had no particular interest in treating his mental health condition or any concern for

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his mental health. Plaintiff also alleges that Defendant could have placed him into a mental

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health crisis bed that day knowing that he was contemplating suicide. Plaintiff alleges that

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Defendant failed to take necessary steps to prevent a suicide attempt.

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Based on these allegations, the court found that Plaintiff stated an Eighth Amendment

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claim against Defendant. Plaintiff seeks monetary damages and injunctive relief.

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III.

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MOTION TO DISMISS BASED ON EXHAUSTION
A.

Legal Standards
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Statutory Exhaustion Requirement

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Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that

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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners

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are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock,

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549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-

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1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and

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regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct.

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1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life,

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Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002).

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“[T]o properly exhaust administrative remedies prisoners ‘must complete the

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administrative review process in accordance with the applicable procedural rules,’ [ ]—rules

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that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S.

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at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368

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(2006)). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California

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prison system's requirements ‘define the boundaries of proper exhaustion.’”). An untimely or

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otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford,

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548 U.S. at 90.

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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if

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he establishes that the existing administrative remedies were effectively unavailable to him.

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See Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate’s administrative

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grievance is improperly rejected on procedural grounds, exhaustion may be excused as

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“effectively unavailable.” Sapp, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d 1217,

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1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s administrative remedies

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“effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012)

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(exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005)

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(plaintiff not required to proceed to third level where appeal granted at second level and no

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further relief was available); Marella, 568 F.3d 1024 (excusing an inmate’s failure to exhaust

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because he did not have access to the necessary grievance forms to timely file his grievance).

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A California prisoner is required to submit an inmate appeal at the appropriate level and

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proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183

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(9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002); see also Cal. Code Regs.

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tit. 15, § 3084.1(b) (explaining that a cancellation or rejection of an inmate’s appeal “does not

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exhaust administrative remedies”).

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2.

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California Department of Corrections and Rehabilitation (CDCR)
Administrative Grievance System

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The court takes judicial notice of the fact that the State of California provides its

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prisoners and parolees the right to appeal administratively “any policy, decision, action,

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condition, or omission by the department or its staff that the inmate or parolee can demonstrate

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as having a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs.

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tit. 15, § 3084.1(a). The process is initiated by submitting a CDCR Form 602. Id. at §

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3084.2(a).

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California prisoners are required to submit appeals within thirty calendar days of the

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event being appealed, and the process is initiated by submission of the appeal at the first level.

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Id. at '§ 3084.7(a), 3084.8(c) Three levels of appeal are involved, including the first level,

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second level, and third level. Id. at ' 3084.7. The third level of review exhausts administrative

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remedies. Id. at § 3084.7(d)(3). A final decision at the third level2 of review satisfies the

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exhaustion requirement under 42 U.S.C. § 1997e(a). Lira v. Herrera, 427 F.3d 1164, 1166 (9th

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Cir. 2005). In order to satisfy § 1997e(a), California state prisoners are required to use this

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process to exhaust their claims prior to filing suit.

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McKinney, 311 F.3d. at 1199-1201.

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Woodford, 548 U.S. at 85 (2006);

Motion to Dismiss for Failure to Exhaust

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The failure to exhaust in compliance with section 1997e(a) is an affirmative defense

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under which defendants have the burden of raising and proving the absence of exhaustion.

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Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3,

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The third level is sometimes known as the Director’s level.
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2014, the Ninth Circuit issued a decision overruling Wyatt with respect to the proper

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procedural device for raising the affirmative defense of exhaustion under § 1997e(a). Albino

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(“Albino II”), 747 F.3d at 1168–69. Following the decision in Albino II, defendants may raise

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exhaustion deficiencies as an affirmative defense under § 1997e(a) in either (1) a motion to

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dismiss pursuant to Rule 12(b)(6)3 or (2) a motion for summary judgment under Rule 56. Id. If

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the court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without

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prejudice of the portions of the complaint barred by § 1997e(e). Jones, 549 U.S. at 223–24;

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Lira, 427 F.3d at 1175–76.

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B.

Defendant Narayan’s Motion

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Defendant argues that Plaintiff did not properly exhaust administrative remedies as

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required by the PLRA prior to filing suit, as acknowledged on the face of the First Amended

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Complaint. Defendant asserts that Plaintiff has pleaded that there was an inmate appeal or

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administrative remedy process available to him at his institution, but he openly acknowledges

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that he has not filed an appeal or grievance concerning all of the facts contained in the FAC.

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Plaintiff alleges in the FAC that “[t]he appeals process is grossly inadequate to remedy a

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complaint of this magnitude” and that “any attempt to obtain administrative remedies would be

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futile.” (ECF No. 11 at 3.)

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to exhaust.

Defendant argues that allegations of futility do not excuse failure

Plaintiff’s Opposition

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C.

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Plaintiff argues that the administrative remedy process is not available in this case

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because Defendant is not an employee of the California Correctional Health Care Services or

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the CDCR and is therefore beyond the reach and scope of the CDCR’s administrative appeals

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process. Plaintiff asserts that he was advised by Dr. Gill, Chief of Psychiatry, that Defendant is

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under contract by the CDCR. Plaintiff argues that the appeals process only works if the

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defendant is a state employee and the action can be remedied by the appeals process. Plaintiff

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Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure to
exhaust is clear on the face of the complaint.” Albino II, 747 F.3d at 1162.
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asserts that Defendant Narayan is not a state employee, and that money damages are not

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something that can be awarded by the appeals process, so using the appeal process would be

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futile.

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D.

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Defendant responds that Plaintiff’s arguments overlook that under Porter v. Nussle, 534

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U.S. 516, 532 (2002); “the PLRA’s exhaustion requirement applies to all inmate suits about

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prison life;” under West v. Atkins, 487 U.S. 42, 55-56 (1988), a contract physician is a state

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actor even though not a state employee because “it is the physician’s function within the state

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system, not the precise terms of his employment, that determines whether his actions can fairly

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be attributed to the State;” and under Booth v. Churner, 532 U.S. 731, 741 (2001), all available

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remedies must be exhausted prior to filing suit, even when the prisoner seeks relief not

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available in grievance proceedings, notably money damages. The court agrees.

Discussion

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The fact that Defendant is employed by the CDCR as a contract physician, and not a

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state employee, does not cause the appeals process to be unavailable to Plaintiff. To state a

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claim under § 1983, a plaintiff must allege that a right secured by the Constitution or laws of

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the United States was violated and that the alleged violation was committed by a person acting

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

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County, 811 F.2d 1243, 1245 (9th Cir. 1987). There is no question that prison officials act

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“under color of state law” when housing and providing medical care to prisoners. See West v.

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Atkins, 487 U.S. 42, 49-50 (1988). Generally, a public employee acts under color of state law

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while acting in his official capacity or while exercising his responsibilities pursuant to state

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law. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); Dang Vang v. Vang Xiong X.

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Toyed, 944 F.2d 476, 479 (9th Cir. 1991).

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West also holds that a “private physician or hospital,” like Dr. Narayan is alleged to be

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in this case, “act[s] under color of law for purposes of § 1983,” when as Plaintiff alleges, he “is

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under contract by the CDCR.” (ECF No. 28 at 2:16-17.) “[A] private physician employed by

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the state on a contract basis to provide medical services to inmates act[s] under color of state

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law when treating a prisoner’s injuries.” Florer v. Congregation Pidyon Shevuyim, N.A., 639
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F.3d 916, 925 (9th Cir. 2011) (citing West v. Atkins, 487 U.S. 42, 54 (1988)); Rodriguez v.

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Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th Cir. 2009) (“[W]hen a person accepts

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employment with a private entity that contracts with the state [for medical services to inmates],

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he understands that he is accepting the responsibility to perform his duties in conformity with

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the Constitution.”); Maggio v. Shelton, No. 14-cv-01682-SI, 2015 WL 5126567, at *6-7 (D.

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Or. Sept. 1, 2015) (collecting cases which hold that “private physicians and medical entities

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may be considered state actors for purposes of Section 1983 liability when a state has delegated

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its obligation to provide medical care for inmates to those private entities, even in the absence

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of a contract”).

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Plaintiff’s argument that he is not required to exhaust his remedies by using the prison

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appeals process because he seeks monetary damages, which the prison cannot provide, is also

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without merit. In Booth, the Supreme Court rejected Booth’s argument that the statutory

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exhaustion requirement was inapposite to his case simply because the Commonwealth’s

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administrative process could not award him the monetary relief he sought (money then being

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the only relief still requested, since Booth’s transfer to another institution had mooted his

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claims for injunctive orders). Booth, 532 U.S. at 735. Booth’s failure to avail himself of the

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later stages of the administrative process led the district court to dismiss the complaint without

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prejudice for failure to exhaust “administrative remedies . . . available” within the meaning of

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42 U.S.C. § 1997e(a). Id. As the Supreme Court explained in Booth, when Congress amended

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section 1997e(a) in 1995, “the amendments eliminated . . . the discretion to dispense with

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administrative exhaustion.” Id., 532 U.S. at 739. The Court also “stress[ed] the point . . . that

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[it] will not read futility or other exceptions into statutory exhaustion requirements where

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Congress has provided otherwise.” Id. at 741 n.6. “This inference is, to say the least, also

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consistent with Congress’s elimination of the requirement that administrative procedures must

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satisfy certain ‘minimum acceptable standards’ of fairness and effectiveness before inmates can

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be required to exhaust them, and the elimination of the courts’ discretion to excuse exhaustion

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when it would not be ‘appropriate and in the interests of justice.’” Id. at 740 n.5.

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As the Supreme Court recently explained in Ross v. Blake, 136 S.Ct. 1850, 1857, 1859
(2016), regarding the PLRA’s exhaustion requirement:
[T]hat language is “mandatory”: An inmate “shall” bring “no action” (or said
more conversationally, may not bring any action) absent exhaustion of available
administrative remedies . . . . [T]hat edict contains one significant qualifier: the
remedies must indeed be “available” to the prisoner. But aside from that
exception, the PLRA's text suggests no limits on an inmate’s obligation to
exhaust—irrespective of any “special circumstances.”

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Based on the foregoing, the court finds that it is clear on the face of Plaintiff’s

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complaint that administrative remedies were available to him and that he failed to exhaust those

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available remedies before filing this lawsuit. Accordingly, Defendant’s motion to dismiss this

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case for failure to exhaust should be granted.

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IV.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

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Defendant also brings a motion to dismiss this case for Plaintiff’s failure to state a claim

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for deliberate indifference against Defendant. Based on the court’s finding that Plaintiff did not

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exhaust his available administrative remedies prior to filing suit, the court shall not reach

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Defendant’s other arguments. “[A] suit filed by a prisoner before administrative remedies have

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been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the

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merits . . . .” See McKinney, 311 F.3d at 1200 (quoting Perez v. Wisconsin Dep=t of Corr., 182

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F.3d 532, 534 (7th Cir. 1999) (vacating judgment and remanding with instructions to dismiss

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for failure to exhaust in case where district court granted summary judgment to defendants on

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the merits and did not rule on their pending motion for dismissal based on failure to exhaust)).

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V.

RECOMMENDATIONS AND CONCLUSION

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The court finds, based on the record before it, that Plaintiff failed to exhaust his

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available administrative remedies for his Eighth Amendment claim against Defendant before

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filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

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Therefore, IT IS HEREBY RECOMMENDED that:

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1.

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Defendant Narayan’s motion to dismiss based on Plaintiff’s failure to exhaust
administrative remedies, filed on January 26, 2017, be GRANTED; and

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This case be DISMISSED without prejudice.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l).

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fourteen (14) days after being served with these findings and recommendations, any party may

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file written objections with the court. Such a document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be

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served and filed within seven (7) days after the date the objections are filed. The parties are

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advised that failure to file objections within the specified time may result in the waiver of rights

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

Within

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IT IS SO ORDERED.
Dated:

August 13, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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