Giraldes v. Prebula, et al

Filing 172

ORDER signed by Senior Judge Lawrence K. Karlton on 7/28/2011 DENYING 164 Motion for Reconsideration; Trial Confirmation Hearing set for 8/29/2011 at 11:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY GIRALDES, JR.,

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Plaintiff,

NO. CIV. S-01-2110 LKK/EFB
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v.

O R D E R

T. PREBULA, et al.,
Defendants.
/

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This case concerns a prisoner’s § 1983 action alleging that

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correctional staff purposefully withheld medical care for several

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chronic conditions. Defendants move for reconsideration of a 2004

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order of this court, which adopted the magistrate judge’s finding

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that the prisoner had exhausted his administrative remedies. For

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the reasons set forth below, this court denies defendants’ motion

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for reconsideration as waived.

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I. BACKGROUND

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Plaintiff Larry Giraldes, Jr. (“plaintiff” or “Giraldes”)

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filed and appealed at least three medically-related grievances with
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the Inmates Appeals Branch (“IAB”) of the California Department of

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Corrections and Rehabilitation (“CDCR”). The earliest Director

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Level Decision denying a grievance was February 27, 2002. Decl. of

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N. Grannis in Supp. of Defs.’ Mot. to Dismiss FAC, Doc. No. 17, at

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2. The other two denials were issued on March 22, 2002 and April

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22, 2002. Id.

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On November 16, 2001, Giraldes filed a civil complaint in this

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court alleging that defendants were deliberately indifferent to his

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serious medical needs when they transferred him to HDSP. On July

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17, 2002, the Magistrate Judge granted plaintiff’s request to

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proceed in forma pauperis. (Doc. No. 6). Thus, plaintiff received

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final denials of his grievances after he filed his complaint, but

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before he was granted in forma pauperis status.

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On August 12, 2002, defendants filed a motion to dismiss,

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arguing that plaintiff failed to exhaust the grievance process

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prior to filing his suit. Defs.’ Mem. Of P. & A. in Supp. of Mot.

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to Dismiss at 1, 4-7 (Doc. No. 16). On January 2, 2004, the

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Magistrate

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defendants’ motion should be denied because plaintiff’s action was

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brought, for purposes of exhaustion under the Prison Litigation

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Reform Act, on July 17, 2002, when the court authorized him to

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proceed in forma pauparis, and not on November 16, 2001, when he

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filed his original complaint. (Doc. No. 22). The Magistrate Judge

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reasoned that even though plaintiff filed his lawsuit before the

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Director’s Level denials on his grievances were issued, Giraldes’

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authorization

Judge

to

issued

proceed

findings

in

forma
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and

recommendations

pauperis

was

issued

that

after

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plaintiff’s health-related grievances with the CDCR had been denied

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at Director’s Level. Id. at 3-4. Defendants did not object to the

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findings and recommendations, which were adopted in full by this

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court on March 26, 2004 (Doc. No. 23).

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On April 28, 2005, defendants filed a motion for summary

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judgment on the grounds that defendants did not act with deliberate

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indifference to plaintiff’s rights and were entitled to qualified

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immunity. (Doc. No. 62). They did not argue that plaintiff had

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failed to exhaust his administrative remedies. On January 24, 2006,

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the Magistrate Judge recommended that defendant’s motion for

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summary judgment be granted (Doc. No. 98). On March 24, 2006, this

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court declined to adopt the findings and recommendations because,

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“From what the court c[ould] tell, disputed facts exist warranting

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closer scrutiny of the parties’ evidence and the motions pending

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before the court.” (Doc. No. 102). This court, thus, remanded the

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case

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consistent with the order. Id. The court did not issue a final

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ruling on defendants’ motion for summary judgment. Nonetheless, on

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April 10, 2006, defendants appealed the order contending that this

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court found that they were not entitled to qualified immunity.

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(Doc. No. 103). On May 6, 2008, the Ninth Circuit dismissed the

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appeal “[b]ecause the district court’s order contemplated further

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action on the summary judgment, [and was thus] not a final

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appealable order.” (Doc. No. 118). (Doc. No. 118).

to

the

Magistrate

Judge

to

conduct

further

proceedings

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While this case was on appeal, the Ninth Circuit decided Vaden

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v. Summerhill, 449 F.3d 1047 (9th Cir. 2006). In Vaden, the Ninth
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Circuit held that a prisoner action is “brought” to the court under

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the Prison Litigation Reform Act, 42 U.S.C. §1997e(a), when the

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complaint is tendered to the district clerk, not when the prisoner

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is allowed to proceed in forma pauperis. Id. at 1050.

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After

the

Ninth

Circuit

dismissed

defendants’

appeal,

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defendants did not file any papers in connection with this case

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until January 2010, when the Magistrate Judge1 ordered a response

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to plaintiff’s motion for a preliminary injunction (Doc. No. 131).

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In their opposition to this motion, defendants did not argue that

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plaintiff was unlikely to succeed on the merits of his claims

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because they were not exhausted prior to his filing suit.

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On June 24, 2010, the Magistrate Judge issued findings and

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recommendations on defendants’ remanded 2005 motion for summary

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judgment

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defendants’ motion for summary judgment be denied because of the

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presence of triable issues of fact. On July 8, 2010, defendants

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filed objections to the findings and recommendations on the grounds

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that there were no facts in the record from which a reasonable jury

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could

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plaintiff’s serious medical needs. (Doc. No. 137). Defendants did

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not,

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administrative remedies prior to bringing this action. On August

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31, 2010, this court adopted the Magistrate Judge’s recommendation

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that defendants’ motion for summary judgment be denied in its

(Doc.

determine

however,

No.

that

raise

136).

they

The

Magistrate

were

plaintiff’s

Judge

deliberately

failure

to

recommended

indifferent

exhaust

to

his

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After the appeal to the Ninth Circuit was denied, this case
was re-assigned to a different magistrate judge.
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entirety. (Doc. No. 142).

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Nine months after the Magistrate Judge issued his findings and

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recommendations on their summary judgment motion, on March 16,

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2011, defendants filed their pretrial statement requesting that the

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Magistrate Judge dismiss this action as unexhausted under Ninth

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Circuit’s holding in Vaden (Doc. No. 153). On May 22, 2011, the

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Magistrate Judge issued a pretrial order recommending denial of

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this request because the deadline for filing dispositive motions

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passed on May 2, 2005, nearly six years ago. (Doc. No. 159, See

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Doc. No. 50). Also, the Magistrate Judge recommended denial of this

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request because defendants waited three years to raise this issue

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after the case was remanded from the Ninth Circuit in 2008. Id.

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Defendants move for reconsideration of this court’s order

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denying their motion to dismiss for failure to exhaust on the

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grounds that intervening authority re-defined when a prisoner has

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“brought” his action for purposes of exhaustion under the Prison

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Litigation Reform Act (PLRA). Plaintiff opposes reconsideration

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raising several meritless arguments. Nonetheless, defendants are

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on fair notice of the meritorious argument discussed the Magistrate

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Judge’s pretrial order that the affirmative defense was waived due

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to their failure to diligently raise it.

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II. STANDARD FOR A MOTION FOR RECONSIDERATION

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Pursuant to L.R. 230, a party seeking reconsideration of a

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district court’s order must brief the “new or different facts or

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circumstances . . . which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion. Generally
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speaking, before reconsideration may be granted there must be a

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change in the controlling law or facts, the need to correct a clear

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error, or the need to prevent manifest injustice. United States v.

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Alexander, 106 F.3d 874, 876 (9th Cir. 1997).
III. ANALYSIS

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As the Magistrate Judge noted in the pretrial order, the

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failure to exhaust administrative remedies is not jurisdictional.

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Pretrial Order (Doc. No. 159) (citing Wyatt v. Terhune, 315 F.3d

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1108,

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n.9

(9th

Cir.

2003)).

Rather,

it

is

a

waivable

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affirmative defense. Here, defendants failed to seek dismissal of

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this case following remand from the Ninth Circuit in 2008, failed

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to raise any concerns about exhaustion when objecting to the

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Magistrate Judge’s findings and recommendations in January and in

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July 2010, and only now, at the eve of trial, did they raise these

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concerns in their pretrial statement. Defendants have failed to

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present any explanation for this delay. Thus, the court finds that

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the affirmative defense of

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remedies is waived.
V. CONCLUSION

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failure to exhaust administrative

For

the

foregoing

reasons,

IT

IS

HEREBY

ORDERED

that

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defendants’ motion for reconsideration (Doc. No. 164) is DENIED.

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The court FURTHER ORDERS that a trial confirmation hearing shall

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be held on August 29, 2011 at 11:15 a.m., at which time the court

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shall set trial.

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IT IS SO ORDERED.

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DATED: July 28, 2011.
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