Benanti v. Matevousian
Filing
31
FINDINGS and RECOMMENDATIONS recommending that Defendants' Motion for Summary Judgment for Failure to Exhaust the Administrative Remedies be Denied re 23 MOTION FOR SUMMARY JUDGMENT ;referred to Judge O'Neill, signed by Magistrate Judge Stanley A. Boone on 8/22/18. Objections to F&R due by 9/27/2018 (Martin-Gill, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
MICHAEL BENANTI,
12
Plaintiff,
13
14
15
v.
MATEVOUSIAN, et.al.,
Defendants.
16
17
18
19
)
)
)
)
)
)
)
)
)
)
Case No. 1:17-cv-01556-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
REGARDING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
[ECF No. 23]
Plaintiff Michael Benanti is appearing pro se and in forma pauperis in this civil rights action
pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Currently before the Court is Defendants’ motion for summary judgment, filed June 5, 2018.
20
I.
21
RELEVANT HISTORY
22
This action is proceeding against Defendants D. Alitary, C. Castenada and Dr. Thomas Moore
23
for deliberate indifference to a serious medical need by failing to provide a prescription for an acid-
24
reflux medication.
25
26
27
28
1
1
As previously stated, on June 5, 2018, Defendants filed an exhaustion related motion for
2
summary judgment. Plaintiff filed an opposition on July 27, 2018, and Defendants filed a reply on
3
August 3, 2018. On August 22, 2018, Plaintiff filed a surreply.1
4
II.
5
DISCUSSION
6
A.
Statutory Exhaustion Requirement
7
Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with
8
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined
9
in any jail, prison, or other correctional facility until such administrative remedies as are available are
10
exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative
11
remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d
12
1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner
13
and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and
14
the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516,
15
532 (2002).
16
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under
17
which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at
18
216; Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014); Wyatt v. Terhune, 315 F.3d 1108, 1119
19
(9th Cir. 2003). The failure to exhaust nonjudicial administrative remedies is subject to a motion for
20
summary judgment in which the Court may look beyond the pleadings. Albino, 747 F.3d at 1170. If
21
the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without
22
prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
23
1
24
25
26
27
28
The Local Rules provide for a motion, an opposition, and a reply. Neither the Local Rules nor the Federal Rules
provide the right to file a surreply. The Court did not grant Plaintiff leave to file a surreply and does not desire any further
briefing on the motion. Accordingly, Plaintiff’s surreply should be stricken from the record. See Hill v. England, No.
CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366
F.Supp.2d 1190, 1197 (N.D. Ga. 2005)); U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009)
(district court did not abuse discretion in refusing to permit “inequitable surreply”); JG v. Douglas County School Dist.,
552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file surreply where it did
not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may
not be considered without giving the non-movant an opportunity to respond).
2
1
B.
Summary Judgment Standard
2
Any party may move for summary judgment, and the Court shall grant summary judgment if
3
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
4
judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at
5
1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,
6
whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of
7
materials in the record, including but not limited to depositions, documents, declarations, or discovery;
8
or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or
9
that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.
10
56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to
11
by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco
12
Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609
13
F.3d 1011, 1017 (9th Cir. 2010).
14
As set forth above, the defendants bear the burden of proof in moving for summary judgment
15
for failure to exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available
16
administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. If the
17
defendants carry their burden, the burden of production shifts to the plaintiff “to come forward with
18
evidence showing that there is something in his particular case that made the existing and generally
19
available administrative remedies effectively unavailable to him.” Id. “If the undisputed evidence
20
viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to
21
summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary
22
judgment should be denied, and the district judge rather than a jury should determine the facts.” Id.
23
C.
Summary of Federal Bureau of Prisons Grievance Process
24
The Federal Bureau of Prisons (“BOP”) has established an administrative remedy procedure
25
through which an inmate can seek redress of a complaint in relation to any aspect of his imprisonment.
26
See 28 C.F.R. §§ 542.10(a). The inmate must first ordinarily seek to resolve the issue informally with
27
prison staff using a BP-8 form. 28 C.F.R. 542.13(a); Nunez v. Duncan, 591 F.3d 1217, 1219 (9th Cir.
28
2010). If the complaint cannot be resolved informally, the inmate must present a formal
3
1
administrative remedy request at the institution of confinement using a BP-9 form. 28 C.F.R. §
2
542.14(a); Nunez, 591 F.3d at 1219. The BP-9 must be submitted within 20 calendar days following
3
the date of the date the grievance occurred, unless the prisoner can provide a valid reason for delay.
4
28 C.F.R. § 542.15(a); Nunez, 591 F.3d at 1219.
5
If the BP-9 request is denied by the warden and the prisoner is not satisfied, he must then file
6
an appeal to the Regional Director using a BP-10 form. 28 C.F.R. § 542.15(a); Nunez, 591 F.3d at
7
1219. The BP-10 must be submitted within 30 calendar days of the date the warden responded to the
8
BP-9, unless the prisoner provides a valid reason for the delay. 28 C.F.R. § 542.15(a); Nunez, 591
9
F.3d at 1220.
10
If the prisoner is dissatisfied with the Regional Director’s response, the last step is to submit an
11
appeal to the BOP General Counsel using a BP-11 form. 28 C.F.R. § 542.15(a); Nunez, 591 F.3d at
12
1219-1220. The BP-11 must be submitted within 30 calendar days of the date of the Regional
13
Director’s response to the BP-10, with the same exception of a valid reason for the delay. 28 C.F.R. §
14
542.15(a); Nunez, 591 F.3d at 1220.
15
The records of the administrative remedies filed by BOP inmates is maintained on the
16
SENTRY computer system, a national database that includes all administrative remedies filings made
17
by inmates incarcerated in BOP facilities. (Declaration of Jose Castenada Correa (“Correa Decl.”), ¶
18
7, ECF No. 23-2.) BOP assigns a unique number to each administrative remedy it receives. Id. ¶ 4.
19
This number consists of six digits, followed by a suffix, -F1, -R1, or –A1, which identifies the
20
administrative remedy as a BP-9, BP-10, or BP-11, respectively. Id.
21
D.
Undisputed Facts
22
1.
Plaintiff submitted a BP-8 seeking informal resolution of his claim for acid reflux
23
24
25
26
27
medication on October 4, 2017. (Compl. at 3, ECF No. 1.)
2.
BOP responded to Plaintiff’s BP-8 seeking informal resolution of his claim for acid
reflux medication on October 11, 2017. (Id. at 4.)
3.
Plaintiff submitted a BP-9 directly to the Regional Office complaining of his need for
acid reflux medication on October 11, 2017. (Correa Decl., Ex. 3.)
28
4
1
4.
BOP’s Regional Office rejected Plaintiff’s BP-9 as improperly sent to the Regional
2
Office on October 24, 2017. Plaintiff was instructed to “file [his] request or appeal at the
3
appropriately level via regular procedures.” (Correa Decl., Ex. 3.)
4
5
6
7
5.
Plaintiff did not submit any additional grievances through the BOP administrative
remedy process after October 11, 2017. (Correa Decl. ¶ 11.)
6.
Plaintiff was prescribed Omeprazole on October 27, 2017. (Declaration of Jennifer
Vickers, Ex. B, ECF No. 23-3.)
8
7.
Plaintiff filed this lawsuit on November 6, 2017. (ECF No. 1.)
9
E.
Defendants’ Motion for Summary Judgment
10
Defendants argue Plaintiff failed to exhaust the administrative remedies because although he
11
initiated the BOP administrative remedy process by submitting a BP-9, he abandoned the process after
12
obtaining the prescription that he requested.
13
In opposition, Plaintiff argues that he should be excused from exhausting the administrative
14
remedies. In response, Defendants argue that Plaintiff has not presented sufficient evidence to support
15
his argument that exhaustion should be excused in this instance.
16
The PLRA, requires that prisoners exhaust “such administrative remedies as are available”
17
before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake,
18
__ U.S. __, 136 S.Ct. 1850 (June 6, 2016) (“An inmate need exhaust only such administrative
19
remedies that are ‘available.’ ”). Exhaustion is mandatory unless unavailable. “The obligation to
20
exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no
21
longer the case, then there are no ‘remedies … available,’ and the prisoner need not further pursue the
22
grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth
23
v. Churner, 532 U.S. at 739).
24
circumstances in which an inmate need not exhaust administrative remedies. Ross v. Blake, 136 S. Ct.
25
at 1862. “The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need
26
exhaust only such administrative remedies as are “available.” Id.
27
28
In Ross, the Supreme Court reaffirmed that courts are not to create
“An inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies
him, in order to exhaust his administrative remedies.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir.
5
1
2010); see also Brown v. Valoff, 422 F.3d at 936-37 (9th Cir. 2005) (as there can be no absence of
2
exhaustion unless some relief remains available, movant claiming lack of exhaustion must
3
demonstrate that pertinent relief remained available, whether at unexhausted levels or through
4
awaiting results of relief already granted as a result of that process). Therefore, the question is
5
whether there were available remedies which would require Plaintiff to further exhaust the
6
administrative process prior to bringing suit.
7
In this instance, it is undisputed that Plaintiff was granted the relief he requested as he was
8
prescribed Omeprazole on October 27, 2017, just four days after his BP-9 grievance was rejected.
9
Defendants acknowledge that “[t]he only plausible explanation for [Plaintiff’s] failure to pursue the
10
administrative remedy procedure is that his grievance was ‘resolved’ on October 27, 2017, when he
11
received the prescription for free Omerprazole.” (Mot. at 6:18-20.) Defendants argue, however, that
12
the administrative remedy process was available to Plaintiff and there is no excuse for his failure to
13
fully comply with such procedure.
The Court finds that Plaintiff’s prescription for Omeprazole and placement in the chronic care
14
15
on October 27, 2017 effectively amounted to a grant of relief such that further administrative remedies
16
need not have been pursued because there was no other relief that could be granted and Defendants do
17
not argue otherwise. It is true and undisputed that Plaintiff’s sensitive BP-9 grievance was rejected on
18
October 24, 2017, with instructions to re-file a request at the appropriate level via the regular
19
procedures. However, it is unreasonable to find that such action would have served any purpose after
20
he was granted all the relief he requested on October 27, 2017. Indeed, in Ross, the Supreme Court
21
determined that “an administrative procedure is unavailable when (despite what regulations or
22
guidance materials may promise) it operates as a simple dead end—with officers unable or
23
consistently unwilling to provide any relief to aggrieved inmates.” Ross v. Blake, 136 S.Ct. at 1859.
24
Accordingly, the Court finds that Defendants have not met their burden of demonstrating that Plaintiff
25
was required to further exhaust the administrative process. Brown v. Valoff, 422 F.3d at 935.
26
Accordingly, Defendants’ motion for summary judgment on the ground that Plaintiff failed to exhaust
27
his administrative remedies should be denied.
28
///
6
1
III.
2
RECOMMENDATION
3
Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion for
4
summary judgment for failure to exhaust the administrative remedies be denied.
5
This Findings and Recommendation will be submitted to the United States District Judge
6
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after
7
being served with this Findings and Recommendation, the parties may file written objections with the
8
Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
9
Recommendation.” The parties are advised that failure to file objections within the specified time may
10
result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
11
(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
12
13
IT IS SO ORDERED.
14
Dated:
15
August 22, 2018
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
27
28
7
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?