Mixon, Jr. v. Tyson et al
Filing
52
ORDER ADOPTING 50 Findings and Recommendations and GRANTING Defendants' 39 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies signed by District Judge Dale A. Drozd on 12/16/2019. CASE CLOSED. (Sant Agata, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
LENDWARD ALTON MIXON, JR.,
12
No. 1:16-cv-01868-DAD-BAM (PC)
Plaintiff,
13
v.
14
H. TYSON, et al.,
15
Defendants.
16
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(Doc. Nos. 39, 50)
17
18
Plaintiff Lendward Alton Mixon, Jr. is a state prisoner proceeding pro se and in forma
19
pauperis in this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United
20
States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
21
On October 30, 2019, the assigned magistrate judge issued findings and
22
recommendations, recommending that the motion for summary judgment filed on behalf of
23
defendants Metts and Jimenez be granted due to plaintiff’s failure to exhaust his administrative
24
remedies prior to filing suit as is required. (Doc. No. 50.) The findings and recommendations
25
were served on the parties and contained notice that any objections thereto were to be filed within
26
fourteen (14) days after service of the findings and recommendations. (Id. at 13.) On November
27
15, 2019, plaintiff timely filed written objections to the findings and recommendations. (Doc.
28
No. 51.)
1
1
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a
2
de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s
3
objections to the findings and recommendations, the court finds the findings and
4
recommendations to be supported by the record and by proper analysis.
5
The pending findings and recommendations conclude that plaintiff failed to exhaust his
6
administrative remedies prior to filing suit with regard to his claim for deliberate indifference to
7
his serious medical needs. (Doc. No. 50 at 12.) Specifically, plaintiff submitted two health care
8
inmate appeals related to his requests to be assigned to a lower bunk to accommodate his disabled
9
leg. (Id.) Plaintiff’s first health care appeal, SATF-HC-16063382, which referenced plaintiff
10
falling from his assigned upper bunk and requested assignment to a bottom bunk, was rejected on
11
June 3, 2016, however, a “rejection decision does not exhaust administrate remedies.” (Id. at 8–
12
9; see also Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(d)(3).) Plaintiff did not attempt to cure
13
the defects in his first inmate appeal that resulted in its rejection and no further submissions of
14
that inmate appeal were made by plaintiff. (Doc. No. 50 at 9.) Thus, the magistrate judge found
15
that plaintiff failed to exhaust his administrative remedies on his first health care related inmate
16
appeal. Plaintiff’s second health care inmate appeal, SATF-HC-16063767, which referenced
17
plaintiff’s second fall from his upper bunk and requested a lower-tier and bunk chrono, was
18
granted at the second level of review on September 21, 2016, but plaintiff submitted that decision
19
to the third level for review on October 5, 2016. (Id. at 9, 11–12). While plaintiff’s inmate
20
appeal to the third level was pending, he filed his original complaint in this action on December
21
14, 2016. Plaintiff’s inmate appeal was denied at the third level on January 17, 2017—after he
22
filed his original complaint in this action. (Id.) Accordingly, the magistrate judge found that
23
plaintiff also failed to exhaust his administrative remedies prior to filing suit with regards to his
24
second health care inmate appeal.
25
In his objections to the pending findings and recommendations, plaintiff asserts that
26
although he submitted his second health care inmate appeal to the third level of review, he was
27
not dissatisfied with the decision granting his requests at the second level of review. (Doc. No.
28
51 at ¶¶ 5, 8.) Rather, plaintiff contends that “[t]he statement to the director/third level was
2
1
seeking to inform the administration that plaintiff suffered from a permanent disability” and he
2
was “making a statement to the director’s level seeking clarity . . ..” (Id. at ¶ 8.) As noted by the
3
magistrate judge, however, after receiving notice that his requests to be assigned to a bottom bunk
4
on the ground floor were granted by the institutional (second) level of review, plaintiff submitted
5
a CDCR 602 HC appeal form for a third level review. (Doc. No. 50 at 11–12.) This form
6
directed plaintiff to explain why he is dissatisfied with the institutional level response, and he
7
stated that “temporary lower bunk lower tier chrono has been granted. I suffer from severe nerve
8
and musle [sic] damage which is permanent a temporary solution is not what this situation calls
9
for when I suffer from permanent damages.” (Doc. No. 39–4 at 26.) The undersigned agrees
10
with the magistrate judge’s conclusion that “the evidence before the Court establishes that
11
Plaintiff was not satisfied with the Institutional, or second, level grant of relief and that there was
12
some relief available at the Headquarters’, or third, level of review. (Doc. No. 50 at 12.)
13
Plaintiff’s inmate appeal was denied at the third level on January 17, 2017, and it was at that point
14
he had exhausted his administrative remedies. (Doc. No. 39–4 at 3, ¶ 9.) Because plaintiff filed
15
his original complaint in this civil action on December 14, 2016, the undersigned agrees with the
16
magistrate judge’s finding that plaintiff failed to exhaust his administrative remedies prior to
17
filing suit as is required.
18
19
Accordingly,
1.
20
21
The findings and recommendations issued on October 31, 2019 (Doc. No. 50) are
adopted in full;
2.
Defendants’ motion for summary judgment based upon plaintiff’s failure to
22
exhaust his administrative remedies, with respect to the claims presented in this
23
action, prior to filing suit as required (Doc. No. 39) is granted;
24
3.
This case is dismissed without prejudice;
25
4.
The Clerk of the Court is directed to close this case.
26
27
28
IT IS SO ORDERED.
Dated:
December 16, 2019
UNITED STATES DISTRICT JUDGE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?