Smith v. Johal, et al.

Filing 51

FINDINGS and RECOMMENDATION to Grant Defendant's 41 Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Administrative Remedies; Fourteen-Day Deadline signed by Magistrate Judge Michael J. Seng on 1/9/2018. Referred to Judge Lawrence J. O'Neill. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON SMITH,

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CASE NO. 1:15-cv-01662-LJO-MJS(PC)
Plaintiff,

v.
DR. JOHAL, et al.,
Defendants.

FINDINGS AND RECOMMENDATION TO
GRANT DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT BASED ON
PLAINTIFF’S FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(ECF NO. 41)
FOURTEEN-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42

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U.S.C. § 1983. The action proceeds against Defendant Youssef on Plaintiff’s Eighth

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Amendment claim for medical indifference arising out of alleged delay in providing

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physical therapy to Plaintiff. (ECF Nos. 19, 31.)

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Defendant has moved for summary judgment on the ground that Plaintiff failed to

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exhaust his administrative remedies on the physical therapy claim. (ECF No. 41.)

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Plaintiff opposes the motion. (ECF No. 49.) Defendant replied. (ECF No. 50.)

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For the reasons set forth below, the undersigned will recommend that Defendant’s

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motion be granted.

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I.

Relevant Procedural Background

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Plaintiff initiated this action on November 2, 2015. (ECF No. 1.) On January 19,

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2017, his second amended complaint was dismissed for failure to state a claim. (ECF

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No. 25.) Plaintiff appealed. On June 1, 2017, the Ninth Circuit Court of Appeals affirmed

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in part, vacated in part, and remanded. (ECF Nos. 31, 32) The Ninth Circuit determined

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that Plaintiff’s Eighth Amendment claim against Defendant Youssef for delay in providing

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physical therapy was sufficient to require the defendant to file an answer. (ECF No. 31.)

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In all other regards, the dismissal was affirmed. (Id.)

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II.

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Plaintiff’s Remaining Allegations after Remand
Plaintiff initially brought a variety of allegations relating to pain in his right

shoulder. As relevant here, Plaintiff’s allegations may be summarized as follows.

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On May 26, 2015, Plaintiff was seen by non-party orthopedic surgeon Dr. Paik.

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Dr. Paik recommended surgery. On June 10, 2015, Plaintiff underwent surgery and Dr.

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Paik ordered physical therapy. Plaintiff did not receive physical therapy from June 10 to

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August 10, 2015.

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On June 17, 2015, Dr. Paik changed Plaintiff’s bandage and recommended pain

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medication and urgent physical therapy. These recommendations were relayed to

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Defendant Youssef. On June 22, 2015, Dr. Paik again recommended urgent physical

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therapy. Paik advised Plaintiff that he had suffered major cartilage damage. On June 24,

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2015, the physical therapist at Plaintiff’s institution quit working and/or quit providing

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therapy to patients.

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On July 8, 2015, Plaintiff submitted a health care services request form. He
complained of pain and stiffness and lack of physical therapy.

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On July 30, 2015, and August 5, 2015, Plaintiff’s physical therapy sessions were

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cancelled. On August 10, 2015, Plaintiff saw Dr. Paik. Upon return to prison, Plaintiff’s

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medication was renewed and Plaintiff underwent his first physical therapy session.
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Thereafter, several physical therapy sessions were cancelled. Defendant Youssef

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refused to allow Plaintiff to take a therapy band to his cell to perform therapy. According

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to Plaintiff, therapy bands are permitted at other institutions. On August 31, 2015,

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Plaintiff saw Dr. Paik. Paik stated he would advise Youssef of the need for therapy to

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avoid further surgery. As a result of the lack of therapy, Plaintiff has had poor healing.

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III.

Undisputed Facts

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A.

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Plaintiff filed one inmate appeal in 2015 relating to health care, Health Care

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Appeal Log No. WSP-HC-15047897. See Decl. of J. Lewis in Supp. Defs.’ Mot. Summ.

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Health Care Appeal Log No. WSP-HC-15047897

J. (ECF No. 41-4) ¶¶ 14-17, Exs. A-B.

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The appeal was submitted on January 21, 2015, and Plaintiff requested surgery,

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an MRI, and better medication. Lewis Decl. Ex. B (ECF No. 41-4 at 10.) Plaintiff’s initial

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appeal did not mention physical therapy. (Id.) This appeal was rejected because Plaintiff

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did not specify the medication referenced; Plaintiff corrected this and re-submitted. (Id. at

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18.) On February 23, 2015, this appeal was partially granted. (Id. at 14.) The MRI was

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granted, while the requests for morphine and to be put on a list for surgery were denied,

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and Plaintiff was given a consultation with an orthopedic surgeon. (Id.) Physical therapy

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was not addressed. (Id.)

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On February 05, 2015, Plaintiff appealed to the second level and again did not

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mention physical therapy. (Id. at 13.) This appeal was denied. (Id. at 16.) The appeal

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reviewer noted that Plaintiff was under the care of an orthopedic specialist, had been

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recommended for NSAIDs and physical therapy, and was offered a shoulder injection.

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(Id.) Plaintiff’s request for morphine was denied, and his care was determined to be

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within community standards. (Id.)

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On April 20, 2015, Plaintiff appealed to the third level of review and noted that the

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physical therapy was not improving his injury and that he was continuing his requests for

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surgery and morphine. (Id. at 11.) The appeal was denied at the third level on July 21,

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2015. (Id. at 8.) It was again noted that Plaintiff had been recommended for physical

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therapy. (Id.)

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B.

Health Care Request Forms 7362

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On July 08, 2015, Plaintiff submitted a Health Care Services Request Form CDC

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7362 requesting physical therapy. (ECF No. 49, Ex. B at 12.) Plaintiff was informed that

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a physical therapist would start on July 13, 2015. (Id.) Plaintiff submitted another Form

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7362 on July 10, noting that his physical therapy had not started. (Id. at 13.) The triage

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nurse noted that physical therapy was set to begin that week. (Id.) On July 23, 2015,

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Plaintiff sent a third Form 7362 requesting physical therapy and noting that his physician

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had sent several requests regarding his urgent need for physical therapy. (Id. at 17.) He

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was informed that physical therapy would start no later than July 29. (Id.) On July 31,

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2015, Plaintiff sent another Form 7362 requesting additional pain medication and

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physical therapy. (Id. at 18.) The triage nurse noted that physical therapy had been

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scheduled for that same date but Plaintiff had been “called in” and physical therapy was

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therefore postponed to August 5. (Id.) On March 01, 2016, Plaintiff sent a Form 7362

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asking to extend his physical therapy, which was about to expire. (Id. at 21.) The triage

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nurse noted that the issue had been addressed by Plaintiff’s PCP. (Id.)

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IV.

Legal Standards

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A.

Summary Judgment Standards

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The court must grant a motion for summary judgment if the movant shows that

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there is no genuine dispute as to any material fact and the moving party is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the

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case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id.

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at 248-49.

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The party moving for summary judgment bears the initial burden of informing the

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court of the basis for the motion, and identifying portions of the pleadings, depositions,
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answers to interrogatories, admissions, or affidavits which demonstrate the absence of a

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triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet

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its burden, “the moving party must either produce evidence negating an essential

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element of the nonmoving party's claim or defense or show that the nonmoving party

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does not have enough evidence of an essential element to carry its ultimate burden of

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persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

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1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)

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(“When the nonmoving party has the burden of proof at trial, the moving party need only

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point out ‘that there is an absence of evidence to support the nonmoving party's case.’”)

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(quoting Celotex, 477 U.S. at 325).

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If the moving party meets its initial burden, the burden shifts to the non-moving

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party to produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins.

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Co., Ltd., 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or

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denials of the adverse party's evidence, but instead must produce admissible evidence

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that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at

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1076. If the non-moving party does not produce evidence to show a genuine issue of

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material fact, the moving party is entitled to judgment. See Celotex, 477 U.S. at 323.

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Generally, when a defendant moves for summary judgment on an affirmative

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defense on which he bears the burden of proof at trial, he must come forward with

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evidence which would entitle him to a directed verdict if the evidence went

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uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992).

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The failure to exhaust administrative remedies is an affirmative defense that must be

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raised in a motion for summary judgment rather than a motion to dismiss. See Albino v.

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Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary

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judgment for nonexhaustion, the defendant has the initial burden to prove “that there

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was an available administrative remedy, and that the prisoner did not exhaust that

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available remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to

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the prisoner to come forward with evidence showing that there is something in his
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particular case that made the existing and generally available administrative remedies

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effectively unavailable to him.” Id. The ultimate burden of proof remains with the

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defendant, however. Id. If material facts are disputed, summary judgment should be

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denied, and the “judge rather than a jury should determine the facts” on the exhaustion

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question, Id. at 1166, “in the same manner a judge rather than a jury decides disputed

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factual questions relevant to jurisdiction and venue,” Id. at 1170-71.

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In ruling on a motion for summary judgment, inferences drawn from the underlying

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facts are viewed in the light most favorable to the non-moving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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A verified complaint may be used as an opposing affidavit under Rule 56, as long

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as it is based on personal knowledge and sets forth specific facts admissible in

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evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995)

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(treating plaintiff's verified complaint as opposing affidavit where, even though

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verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of

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perjury that contents were true and correct, and allegations were not based purely on his

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belief but on his personal knowledge). Plaintiff’s pleading is signed under penalty of

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perjury and the facts therein are evidence for purposes of evaluating Defendant’s motion

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for summary judgment.

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B.

California’s Administrative Exhaustion Rules

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“No action shall be brought with respect to prison conditions under [42 U.S.C. §

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1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.”

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42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Ross v. Blake, 136 S. Ct. 1850,

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1856-57 (2016) (mandatory language of § 1997e(a) forecloses judicial discretion to craft

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exceptions to the requirement). All available remedies must be exhausted; those

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remedies “need not meet federal standards, nor must they be ‘plain, speedy, and

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effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in
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grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.;

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Booth v. Churner, 532 U.S. 731, 741 (2001). Section 1997e(a) requires “proper

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exhaustion” of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93

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(2006). Proper exhaustion requires using all steps of an administrative process and

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complying with “deadlines and other critical procedural rules.” Id. at 90.

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The State of California provides its inmates and parolees the right to appeal

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administratively “any policy, decision, action, condition, or omission by the department or

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its staff that the inmate or parolee can demonstrate as having a material adverse effect

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upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order

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to exhaust available administrative remedies, a prisoner must proceed through three

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formal levels of appeal and receive a decision from the Secretary of the CDCR or his

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designee. Id. § 3084.1(b), § 3084.7(d)(3).

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The amount of detail in an administrative grievance necessary to properly exhaust

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a claim is determined by the prison's applicable grievance procedures. Jones v. Bock,

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549 U.S. 199, 218 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010)

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(“To provide adequate notice, the prisoner need only provide the level of detail required

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by the prison's regulations”). California prisoners are required to lodge their

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administrative complaint on a CDCR-602 form (or a CDCR-602 HC form for a health-

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care matter). The level of specificity required in the appeal is described in a regulation:

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The inmate or parolee shall state all facts known and
available to him/her regarding the issue being appealed at
the time of submitting the Inmate/Parolee Appeal form, and if
needed, the Inmate/Parolee Appeal Form Attachment.
Cal. Code Regs. tit. 15, § 3084.2(a)(4).

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Exhaustion of administrative remedies may occur if, despite the inmate's failure to

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comply with a procedural rule, prison officials ignore the procedural problem and render

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a decision on the merits of the grievance at each available step of the administrative

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process. Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); e.g., Id. at 659 (although

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inmate failed to identify the specific doctors, his grievance plainly put prison on notice
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that he was complaining about the denial of pain medication by the defendant doctors,

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and prison officials easily identified the role of pain management committee's

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involvement in the decision-making process).

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V.

Analysis

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Defendants move for summary judgment on the ground that Plaintiff did not

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exhaust his claims in relation to the delay in physical therapy during the period from June

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10 to August 31, 2015. Defendants argue that Health Care Appeal Log No. WSP-HC-

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15047897 did not relate to physical therapy and that Plaintiff did not raise the issue of

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physical therapy in either his initial appeal or in any subsequent appeal. In support of

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their motion, Defendants have submitted evidence showing that Plaintiff did not properly

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exhaust administrative remedies in regards to physical therapy.

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The evidence shows that Plaintiff’s appeals only requested an MRI, morphine and

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surgery for his shoulder and do not address in any way his post-surgical care. While the

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appeals noted that physical therapy had been recommended prior to surgery and

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Plaintiff indicated that the physical therapy before the surgery had not been effective,

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Plaintiff never submitted any appeal regarding his post-surgical access to physical

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therapy, on which this claim proceeds.

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The Defendants have thus carried their burden to demonstrate that there were

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available administrative remedies for Plaintiff and that Plaintiff did not properly exhaust

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those available remedies. The undisputed evidence shows that California provides an

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administrative-remedies system for California prisoners to complain about their health

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care, and that Plaintiff used that California inmate-appeal system to complain about

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other issues in relation to the care he received for his shoulder injury, but not about the

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lack of physical therapy post-surgery.

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Plaintiff acknowledges that he only filed one appeal. This appeal did not exhaust

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his administrative remedies in regards to physical therapy. Since Defendants met their

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initial burden of so showing, the burden shifts to Plaintiff to come forward with evidence

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that something in his particular case made the existing administrative remedies
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effectively unavailable to him. See Albino, 747 F.3d at 1172. Plaintiff does not argue that

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remedies were unavailable, instead Plaintiff argues that the Ninth Circuit Court of

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Appeals order that vacated and remanded the claim in regards to Defendant Youssef’s

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action or inaction delaying Plaintiff’s physical therapy amounted to a ruling that the claim

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had satisfied the exhaustion requirement. (ECF No. 41.) However, the Ninth Circuit order

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does not address exhaustion. (See ECF No. 31.) It found only that the facts alleged in

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the complaint regarding the delay in physical therapy were sufficient to require

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Defendant Youssef to supply an answer. (Id.) It did not rule on the exhaustion

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requirement.

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Additionally, although Plaintiff does not specifically argue that the Health Care

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Request 7362 Forms that he submitted should be considered an attempt to exhaust, he

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includes them in his opposition to the exhaustion motion. (ECF No. 41, Ex. B.) These

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Forms, however, do not comply with the CDCR’s administrative grievance process. See

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Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). As noted supra, compliance

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with section 1997e(a) is mandatory and strictly construed. Woodford, 548 U.S. at 85-86;

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Sapp, 623 F.3d at 818. Plaintiff’s use of the 7362 Forms does not exhaust his

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administrative remedies.
Plaintiff’s claim against Defendant Youssef should therefore be dismissed for

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failure to exhaust administrative remedies.

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VI.

Conclusion

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’

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motion for summary judgment for failure to exhaust administrative remedies be

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GRANTED.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond
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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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

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IT IS SO ORDERED.
Dated:

January 9, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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