Mosier v. Biter et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action, Without Prejudice, For Failure to Exhaust the Administrative Remedies, signed by Magistrate Judge Stanley A. Boone on 10/18/16. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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JAMES MOSIER,
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MARTIN BITER, et al.,
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Defendants.
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Case No.: 1:16-cv-01332-DAD-SAB (PC)
FINDING AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION,
WITHOUT PREJUDICE, FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES
[ECF No. 1]
Plaintiff James Mosier is appearing pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction;
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therefore, this matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302.1
Currently before the Court is Plaintiff’s complaint filed September 1, 2016.
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I.
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SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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Plaintiff declined United States Magistrate Judge jurisdiction on September 8, 2016. (ECF No. 7.)
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,
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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now
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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive
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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow
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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,
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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer
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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely
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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556
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U.S. at 678; Moss, 572 F.3d at 969.
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II.
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COMPLAINT ALLEGATIONS
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In 2011, Plaintiff was housed at the California Substance Abuse and Treatment Facility and
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State Prison (SATF) in Corcoran, California. After experiencing several seizures in early 2011, the
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medical staff at SATF sent Plaintiff to Dr. Pieneda, a private outside neurologist in Bakersfield for
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examination and consultation. On or about June 2011, Dr. Pienada diagnosed Plaintiff with partial
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complex epilepsy with uncontrollable seizure disorder. Dr. Pienada prescribed Plaintiff several
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different seizure medications, but the seizures continued to occur.
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As a result of being diagnosed with partial complex epilepsy with uncontrollable seizure
disorder, Plaintiff’s comprehensive accommodation chrono was amended to document this physical
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disability. The accommodation chrono restricted Plaintiff to ground level living quarters. The chrono
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is maintained in Plaintiff’s main file which is accessible by all custody staff, including the Defendants
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in this action.
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In 2012, Plaintiff’s primary physician, Dr. Brown, amended Plaintiff’s chrono to include the
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additional requirement that Plaintiff be provided with a helmet to protect him from injuries he might
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sustain as a result of the multiple uncontrollable seizures he was experiencing.
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On February 13, 2016, Plaintiff was housed in the administrative segregation unit in building
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D-6 at the North Kern State Prison (“NKSP”). Plaintiff was housed in the lower tier cell and assigned
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a lower bunk due to his uncontrollable seizures.
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Between February 13, 2016 and March 19, 2016, Plaintiff was rushed to the NKSP triage
treatment area by custody correctional officers at least five times because of a seizure.
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The administrative housing unit at NKSP where Plaintiff was housed had one fully functioning
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shower on the lower tier for use by ADA inmates, including Plaintiff. The ADA shower was equipped
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with side bars to assist ADA inmates and to prevent falls and resulting injury.
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On March 19, 2016, Defendant Hurley was one of the third watch correctional officers
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assigned to the administrative segregation unit. Defendant Hurley escorted Plaintiff to the treatment
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triage area on at least one prior occasion after he experienced a seizure and knew Plaintiff was an
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ADA inmate who was restricted to the ground level tier for his safety. According to the complaint,
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Defendant Hurley failed and refused to provide Plaintiff with access to the lower tier ADA shower,
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but ordered Plaintiff to use the upper tier shower which was not equipped for ADA inmates.
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Defendant Hurley then placed Plaintiff in handcuffs and escorted Plaintiff to the upper tier shower.
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Defendant Hurley then forced Plaintiff into the upper tier shower, closed the gate security door and
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locked Plaintiff in the shower so that he could not leave.
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After being locked in the shower by Defendant Hurley, Plaintiff began having a seizure. While
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Plaintiff was having an active seizure, Defendants Hurley, Flowers, Borquez and Sardinha, acting
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together and in concert, placed Plaintiff in handcuffs and leg and waist restraints, then physically
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dragged Plaintiff down the stairs to the ground level tier.
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As a direct and proximate result of the Defendants’ actions, Plaintiff suffered additional trauma
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to his skull from seizing and falling in a non-ADA equipped shower and bruises, scratches and other
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physical wounds from the Defendants’ actions.
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III.
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DISCUSSION
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A.
Exhaustion of Administrative Remedies
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Pursuant to the Prison Litigation Reform Act (PLRA) of 1996, “[n]o action shall be brought
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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available
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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v.
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Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief
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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.
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731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v.
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Nussle, 435 U.S. 516, 532 (2002).
Although the “failure to exhaust is an affirmative defense under the PLRA,” a prisoner’s
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complaint may be subject to dismissal for failure to state a claim when an affirmative defense appears
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on its face. Jones v. Bock, 549 U.S. at 202, 215; see also Albino v. Baca, 747 F.3d 1162, 1169 (9th
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Cir. 2014) (en banc) (noting that where a prisoner’s failure to exhaust is clear from the fact of the
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complaint, his complaint is subject to dismissal for failure to state a claim, even at the screening
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stage); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to
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nonexhaustion is a valid ground for dismissal[.]”), overruled on other grounds by Albino, 747 F.3d at
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1166.
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In California, a prison inmate satisfies the administrative exhaustion requirement by following
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the procedures set forth in sections 3084.1 through 3084.8 of Title 15 of the California Code of
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Regulations. An inmate “may appeal any policy, decision, action, condition, or omission by the
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department or its staff that the inmate…can demonstrate as having a material adverse effect upon his
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or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The regulations require the
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prisoner to proceed through all three levels of review. See Cal. Code Regs. tit. 15, § 3084.2(a). A
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decision at the third level of review, known as the director’s level of review, is not appealable and
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constitutes the third level of administrative review. Id.
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In the body of the complaint, Plaintiff states that he filed an administrative appeal, which was
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assigned appeal log number NKSP-D-16-01122, was partially granted at the first level of review. In
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the first level response, Defendant Flowers acknowledged that “an error was made by ASU staff when
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they placed [Plaintiff] into a top tier shower” but denied any claim for financial compensation for
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Plaintiff’s damages. Plaintiff’s administrative appeal for financial compensation is pending at the
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director’s level of review. However, Plaintiff is scheduled to be released from state custody on
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September 8, 2016, at which time Plaintiff contends the administrative appeal will be moot.
Plaintiff’s failure to exhaust his administrative remedies prior to filing suit is clear from the
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face of the complaint. Based on Plaintiff’s concession of nonexhaustion, this action must be dismissed
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without prejudice. Jones, 549 U.S. at 211; McKinney, 311 F.3d at 1199-1201; see also City of
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Oakland, Cal. v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009) (“[F]ailure to exhaust the
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administrative remedies is properly treated as a curable defect and should generally result in a
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dismissal without prejudice.”); Albino, 747 F.3d at 1170 (“Exhaustion should be decided, if feasible,
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before reaching the merits of a prisoner’s claim”); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (the “exhaustion requirement does not allow a prisoner to file a complaint addressing non-
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exhausted claims.”) (citing McKinney, 311 F.3d at 1199). Although the Court would typically grant
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Plaintiff leave to amend in light of his pro se status, amendment is futile in this instance because the
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failure to exhaust cannot be cured by the allegation of additional facts. See Lopez v. Smith, 203 F.3d
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1122, 1127 (9th Cir. 2000); see also Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d
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817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis for dismissal without
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leave to amend).
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IV.
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RECOMMENDATION
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Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed,
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without prejudice, for failure to exhaust the administrative remedies.
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This Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with this Findings and Recommendation, Plaintiffs may file written objections with the
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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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October 18, 2016
UNITED STATES MAGISTRATE JUDGE
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