Giraldes v. Prebula, et al

Filing 220

ORDER signed by Judge Lawrence K. Karlton on 5/2/2013 ORDERING 213 Defendants' motion to dismiss Defendants Saukhla and Kearney is GRANTED. Defendants' motion to dismiss this action as a whole is DENIED. Defendants' motion to dismiss Plaintiff's claims against Defendants Gavia and Prebula is DENIED. A status conference is SET for 7/1/2013 at 02:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Reader, L)

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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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Plaintiff Larry Giraldes, Jr., a prisoner proceeding with

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appointed counsel, seeks relief under 42 U.S.C. § 1983, based on

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allegations that Defendants violated his Eighth Amendment rights

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by purposefully withholding medical care for several chronic

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conditions.

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Pending before the court is Defendants’ motion to dismiss

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Plaintiff’s Second Amended Complaint. See Defs’ Mot., ECF No. 213;

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Pls’ Second Am. Compl., ECF No. 212.

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For the reasons provided herein, the court DENIES, in part,
and GRANTS, in part, Defendants’ motion.
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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”).

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Level Decision denying a grievance was February 27, 2002.

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

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at 2.

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April 22, 2002.

The earliest Director
Decl.

The other two denials were issued on March 22, 2002 and
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 High Desert

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State Prison (“HDSP”).

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granted Plaintiff’s request to proceed in forma pauperis.

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ECF. No. 6.

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grievances after he filed his complaint, but before he was granted

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in forma pauperis status.

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motion to dismiss, arguing that Plaintiff had failed to exhaust the

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grievance process prior to filing his suit.

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Supp. of Mot. to Dismiss, ECF No. 16, at 1, 4-7.

On July 17, 2002, the Magistrate Judge
Order,

Thus, Plaintiff received final denials of his

On August 12, 2002, Defendants filed a

Defs.’ P. & A. in

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On January 2, 2004, the Magistrate Judge issued findings and

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recommendations that defendants’ motion should be denied because

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Plaintiff’s action was brought, for purposes of exhaustion under

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the Prison Litigation Reform Act, on July 17, 2002, when the court

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authorized him to proceed in forma pauperis, and not on November

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16, 2001, when he filed his original complaint. Findings and
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Recommendations, ECF No. 22.

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even though Plaintiff filed his lawsuit before the Director’s Level

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denials on his grievances were issued, Giraldes’ authorization to

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proceed in forma pauperis was issued after Plaintiff’s health-

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related grievances with the CDCR had been denied at Director’s

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Level.

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recommendations, which were adopted in full by this court on March

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26, 2004.

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Id. at 3-4.

The Magistrate Judge reasoned that

Defendants did not object to the findings and

Order, ECF No. 23.

On April 7, 2004, Defendants filed an answer to Plaintiff’s

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amended complaint.

Defs’ Answer, ECF No. 24.

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affirmative defense, Defendants argued that “[s]ome of plaintiff’s

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claims are barred because he has not exhausted the administrative

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grievance process.”

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defense, Defendants argued that “[u]nder the ‘total exhaustion’

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rule, the entire action is barred because plaintiff has failed to

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exhaust some of his claims.”

Id. at 3.

As their third

As their fourth affirmative

Id.

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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.

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Plaintiff had failed to exhaust his administrative remedies.

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January 24, 2006, the Magistrate Judge recommended that Defendants’

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motion

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Recommendations, ECF No. 98.

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declined to adopt the findings and recommendations because, “From

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

for

Defs’ Mot., ECF No. 62.

summary

judgment

be

They did not argue that

granted.

Findings

On

&

On March 24, 2006, this court

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scrutiny of the parties’ evidence and the motions pending before

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the court.” Order, ECF No. 102. This court therefore remanded the

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case

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consistent with the order.

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ruling on defendants’ motion for summary judgment.

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on April 10, 2006, Defendants appealed the order contending that

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this court found that they were not entitled to qualified immunity.

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Notice of Interlocutory Appeal, ECF No. 103.

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Ninth Circuit dismissed the appeal “[b]ecause the district court’s

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order contemplated further action on the summary judgment, [and was

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thus] not a final appealable order.”

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to

the

Magistrate

Judge

to

Id.

conduct

further

proceedings

The court did not issue a final
Nonetheless,

On May 6, 2008, the

Order, ECF No. 118.

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

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v. Summerhill, 449 F.3d 1047 (9th Cir. 2006).

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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.
After

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the

Ninth

Circuit

dismissed

In Vaden, the Ninth

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. Order, ECF No.

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130.

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that 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.

In their opposition to this motion, Defendants did not argue

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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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See Defs’ Opp’n, ECF No. 131.

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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. Findings & Recommendations, ECF No. 136. The Magistrate

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Judge recommended that Defendants’ motion for summary judgment be

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denied because of the presence of triable issues of fact.

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8,

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recommendations on the grounds that there were no facts in the

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record from which a reasonable jury could determine that they were

2010,

Defendants

filed

objections

to

the

On July

findings

and

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deliberately indifferent to Plaintiff’s serious medical needs.

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Defs’ Objections, ECF No. 137.

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Plaintiff’s failure to exhaust his administrative remedies prior

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to bringing this action.

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the Magistrate Judge’s recommendation that Defendants’ motion for

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summary judgment be denied in its entirety.

Defendants did not, however, raise

On August 31, 2010, this court adopted

Order, ECF No. 142.

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Nine months after the Magistrate Judge issued his findings and

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recommendations, on March 16, 2011, Defendants filed their pretrial

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statement requesting that the Magistrate Judge dismiss this action

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as

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Summerhill. Pretrial Statement, ECF 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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had passed on May 2, 2005.

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Order, ECF No. 50 (granting Defendants’ request to extend the time

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for filing their motion for summary judgment to May 2, 2005).

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Magistrate Judge also recommended denial of this request because

unexhausted

under

Ninth

Circuit’s

holding

in

Vaden

v.

Pretrial Order, ECF No. 159; see also

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The

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Defendants had waited three years to raise the exhaustion issue

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after the case had been remanded from the Ninth Circuit in 2008.

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Id.

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On June 16, 2011, Defendants moved for reconsideration of this

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court’s order denying their motion to dismiss for failure to

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exhaust, arguing that intervening authority had re-defined when a

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prisoner has “brought” his action for purposes of exhaustion under

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the Prison Litigation Reform Act (“PLRA”).

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164.

Defs’ Mot., ECF No.

On July 29, 2011, this court denied Defendants’ motion for

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reconsideration.

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Defendants had waived the affirmative defense of failure to exhaust

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administrative remedies because they had “failed to seek dismissal

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

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failed 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.”

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further

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explanation for this delay.”

noted

Order, ECF No. 172.

that

Defendants

had

This court found that

Id. at 6.
“failed

to

This court
present

any

Id.

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On January 25, 2012, Plaintiff filed a motion to reopen

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discovery for the limited purpose of retaining a medical expert,

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and to re-set pretrial dates. Pl’s Mot., ECF No. 189. On February

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24,

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discovery “for the limited purpose of retaining a medical expert

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to conduct a thorough review of plaintiff’s medical file and to

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provide a qualified opinion relating to the standard of medical

2012,

this

court

granted

Plaintiff’s

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motion

to

re-open

1

care.”

Order, ECF No. 192.

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Due to the court’s re-opening of limited discovery, on June

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1, 2012, this court issued a new status (pretrial scheduling)

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order, re-setting the trial for October 8, 2013, the discovery

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cutoff for January 29, 2013, and the law and motion deadline for

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March 29, 2013.

Order, ECF No. 202.

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On August 30, 2012, Defendants’ filed a renewed motion for

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reconsideration of this court’s March 29, 2004 order denying

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Defendants’ motion to dismiss for failure to exhaust.

Defs’ Mot.,

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ECF No. 205. Defendants argued, inter alia, that: (1) they had not

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waived the affirmative defense of failure to exhaust administrative

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remedies

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nonexhaustion in their answer”; and (2) “now that the Court has set

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a new dispositive motion deadline, the Court should entertain this

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renewed motion for reconsideration.”

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Att. 1, at 4.

because

they

“asserted

the

affirmative

defense

of

Defs’ P. & A., ECF No. 205,

On October 4, 2012, this court granted Defendant’s motion for

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reconsideration of the March 29, 2004 order.

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“given the court’s re-opening of discovery and re-setting of the

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law and motion deadline, as well as the fact that Defendants did

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raise their non-exhaustion argument in the answer to Plaintiff’s

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amended complaint, the court, upon reconsideration, finds that

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Defendants did not waive their affirmative defense that Plaintiff

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failed to exhaust his administrative remedies as required by the

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PLRA.”

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////

Order, ECF No. 209, at 8-9.

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The court found that

The court further provided:

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[T]he Ninth Circuit’s holding in Vaden v.
Summerhill, 449 F.3d 1047 (9th Cir. 2006),
indicates that Plaintiff brought this action on
November 16, 2001, when he filed his original
complaint, and therefore, before the Director’s
Level denials on Plaintiff’s grievances were
issued. Because Plaintiff “may initiate litigation
in federal court only after the administrative
process
ends
and
leaves
his
grievances
unredressed,” which Plaintiff failed to do in this
case, the court “must dismiss his suit without
prejudice.”
Vaden, 449 F.3d at 1051 (9th Cir.
2006) (citing Wyatt v. Terhune, 315 F.3d 1108, 1120
(9th Cir. 2003)).

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Id.

at

9-10.

The

court

then

complaint, without prejudice.
On

November

2,

2012,

dismissed

Plaintiff’s

amended

Id. at 11.
Plaintiff

filed

a

Second

Amended

Complaint.
On November 15, 2012, Defendants filed the instant motion to

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dismiss Plaintiff’s Second Amended Complaint.

Defendants argue,

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inter alia, that: (1) Plaintiff cannot cure his failure to exhaust

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before bringing this action by amending his complaint because no

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amendment can alter the fact that he brought this action before

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exhausting the administrative process; (2) neither of the two

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grievances that Plaintiff submitted from CMF gave notice of his

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deliberate indifference claims against Gavia and Prebula; and (3)

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the court should not permit Plaintiff to pursue claims against

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Defendants Saukhla or Kearney because the court granted summary

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judgment on the claim against Saukhla and Plaintiff never served

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Kearney with process.2

Defs’ Mot., ECF No. 213, Att. 1, at 6-16.

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Plaintiff has stated his non-opposition to Defendants’
motion to dismiss Defendants Saukhla and Kearney in this case.
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II.

ANALYSIS

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A. Amendment in Light of Plaintiff’s Failure to Exhaust

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In its most recent prior order, this court determined that

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Plaintiff failed to exhaust his administrative remedies, with

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respect to the allegations upon which this action proceeds, before

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filing the initial complaint in this action on November 16, 2001.

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The parties suggest that a preliminary issue for decision is

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whether Plaintiff satisfied the PLRA’s exhaustion requirement,

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pursuant to Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), when

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he exhausted his remedies in this action after filing the initial

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complaint, but before filing the Second Amended Complaint currently

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at issue.

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Prisoners are required to exhaust the available administrative

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remedies prior to filing suit.

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127 S.Ct. 910, 918-19, 166 L.Ed.2d 798 (2007); McKinney v. Carey,

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311 F.3d 1198, 1199-1201 (9th Cir. 2002).

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mandates that “[n]o action shall be brought . . . until such

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administrative remedies as are available are exhausted,” 42 U.S.C.

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§ 1997e(a), and “requires that a prisoner exhaust administrative

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remedies before submitting any papers to the federal courts,” Vaden

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v. Summerhill, 449 F.3d 1047 (9th Cir. 2006).

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Jones v. Bock, 549 U.S. 199, 211,

Section 1997e(a)

In Rhodes v. Robinson, the Ninth Circuit made an exception to

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the general rule, based on the circumstances in Rhodes’s case.

On

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January 4, 2011, Kavin M. Rhodes, a prisoner proceeding pro se,

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Pl’s Opp’n, ECF No. 215, at 9.
Defendants’ motion to dismiss
Defendants Saukhla and Kearney is, therefore, GRANTED.
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filed a civil rights action pursuant to 42 U.S.C. § 1983 against

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prison guards for retaliating against him in violation of the First

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Amendment.

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2010).

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adding new claims “alleg[ing] that the same defendant guards

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perpetrated new retaliatory acts against [him] between January 2,

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2002,

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complaint, Rhodes alleged “that he had completed the grievance

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process available at [the prison] concerning the facts relating to

Rhodes v. Robinson, 621 F.3d 1002, 1003 (9th Cir.

On March 20, 2006, Rhodes filed a second amended complaint

and

November

15,

2003.”

Id.

In

the

second

amended

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the new claims alleged in the [second amended complaint].”

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1004. The district court dismissed Rhodes’ new claims based on his

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failure to exhaust administrative remedies before filing suit. The

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Ninth Circuit reversed the district court’s dismissal, holding that

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“Rhodes’ [second amended complaint] was, in fact, a supplemental

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complaint, regardless of the label attached to it by the pro se

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prisoner-plaintiff, permitted under Federal Rule of Civil Procedure

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15(d) because [the new] claims . . . arose after the initial

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complaint

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dismissed Rhodes’ new claims.3

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that Rhodes was in compliance with § 1997e(a) if he exhausted his

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remedies for the new claims prior to filing the second amended

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complaint.

was

filed,”

and

the

district

court

Id. at 1006-07.

had

Id. at

improperly

The court found

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Rule 15(d) provides, in part: “On motion and reasonable
notice, the court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be
supplemented.” Fed.R.Civ.P. 15(d).
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In this case, unlike in Rhodes, Plaintiff’s Second Amended

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Complaint was not a supplemental complaint, because Plaintiff did

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not bring new claims in the Second Amended Complaint which arose

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after

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Plaintiff’s claims against Defendants arose before the initial

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complaint was filed.

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required to exhaust his administrative remedies for the allegations

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in the Second Amended Complaint, prior to the filing of the initial

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complaint.

the

initial

As

complaint

had

been

filed.

Here,

all

of

Therefore, under § 1997e(a), Plaintiff was

previously

noted,

this

court

determined

that

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Plaintiff failed to exhaust his remedies, with respect to the

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allegations upon which this case proceeds, before the date he filed

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the initial complaint in this action.4

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A blind application of the rules set forth in McKinney and

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Vaden, failing to consider context, equities, and the particular

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and anomalous history of this case, would indicate that this entire

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action should be dismissed without prejudice. See Lira v. Herrera,

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In his opposition to Defendants’ motion to dismiss,
Plaintiff makes arguments indicating that his final level of
administrative appeal was unavailable due to his transfer to
another facility and due to improper screening of his
administrative grievances and, thus, Plaintiff’s administrative
appeals were effectually exhausted before filing suit in this
court. Pl’s Opp’n, ECF No. 215, at 3-4. Plaintiff did not raise
these arguments in his opposition to Defendants’ second motion for
reconsideration, see Pl’s Opp’n, ECF No. 206, and thus, the court
did not evaluate these arguments when it determined that, upon
reconsideration and given the holding in Vaden, Plaintiff’s claims
were unexhausted before filing suit in federal court. Defendants
correctly note in their Reply, however, that Plaintiff made these
arguments
in
opposing
Defendants’
initial
motion
for
reconsideration in 2011, see Pl’s Opp’n, ECF No. 166, at 2-6. In
reference to these arguments, the court provided, “Plaintiff
opposes reconsideration raising several meritless arguments.”
Order, ECF No. 172, at 5.
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427 F.3d 1164, 1170 (9th Cir. 2005) (citing McKinney, 311 F.3d at

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1200).5

This court declines to adhere to a rule devoid of reason.

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This case has proceeded for over eleven years, past both the

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discovery and the summary judgment stages, and is now ripe for

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trial. If this court were to dismiss Plaintiff’s action, Plaintiff

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would be barred from having his claims heard on their merits, due

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in equal part to the government’s failure to raise their argument

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of non-exhaustion for years after the holding in Vaden, and the

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Plaintiff’s reliance on prior decisions made by this court, which

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found, on more than one occasion, that Defendants had waived their

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exhaustion of remedies defense.

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At heart, then, is whether this court erred in finding that

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Plaintiff had failed to exhaust his administrative remedies, upon

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the most recent reconsideration of Defendants’ motion to dismiss

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and over ten years after this suit was initiated.

See Order, ECF

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5

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Even though Plaintiff received final denials of his
administrative grievances, dismissal of the entire action “without
prejudice,” as required by Lira and McKinney, would effectually
constitute a dismissal with prejudice because Plaintiff would
likely be barred by the relevant statute of limitations from
pursuing these claims in this forum again. See Cervantes v. City
of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (in a section 1983
action, providing that “[a]s with the limitations period itself,
we borrow our rules for equitable tolling of the period from the
forum state”); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir.
2004) (finding that California Code of Civil Procedure § 335.1
(West Supp. 2004) provides a two-year statute of limitations for
personal injury actions, which also applies to actions brought
under 42 U.S.C. § 1983); Taylor v. Kociski, No. 11-cv-189, 2012 WL
6878887, at *7, 2012 U.S. Dist. LEXIS 184813 at *22 (“California
law precludes application of the equitable tolling doctrine when,
following the dismissal of a case, a plaintiff simply re-files the
case in the same court.”) (citing Martell v. Antelope Valley
Hospital Medical Center, 67 Cal.App.4th 978, 985, 79 Cal.Rptr.2d
329 (1998)).
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1

No. 209.

It did.

2

Applying the “law of the case” doctrine, the court should have

3

found that the question of whether Defendants had waived their

4

affirmative defense of non-exhaustion had been conclusively put to

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rest by this court before Defendants brought their second motion

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for reconsideration in August of 2012.

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doctrine, a court is ordinarily precluded from reconsidering an

8

issue that has already been decided by the same court.

9

Bible, 983 F.2d 152, 154 (9th Cir. 1993) (citing Milgard Tempering,

10

Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990)).

11

The doctrine is a judicial invention designed to aid in the

12

efficient operation of court affairs and is founded upon the sound

13

public policy that litigation must come to an end.

14

v. Smith, 389 F.3d 944, 948 (9th Cir. 2004) (internal citations

15

omitted).

16

order to maintain consistency during the course of a single

17

lawsuit, reconsideration of legal questions previously decided

18

should be avoided.

19

804 F.2d 565, 567 (9th Cir. 1986)).

20

determines during pretrial motions become law of the case.

21

949 (citing United States v. Phillips, 367 F.3d 846, 856 (9th Cir.

22

2004), cert. denied, 125 S.Ct. 479 (Nov. 8, 2004)).

Under the law of the case

Thomas v.

United States

The doctrine serves to advance the principle that in

Id. at 948-49 (citing United States v. Houser,
Issues that a district court
Id. at

While courts have some discretion not to apply the doctrine

23
24

of law of the case, that discretion is limited.

Thomas, 983 at

25

155.

26

levels of the court or courts involved, a court may have discretion

Depending on the nature of the issue and on the level or

13

1

to reopen a previously resolved question under one or more of the

2

following

3

erroneous; (2) an intervening change in the law has occurred; (3)

4

the evidence on remand is substantially different; (4) other

5

changed circumstances exist; and/or (5) a manifest injustice would

6

otherwise result.

7

States v. Tham, 960 F.2d 1391, 1397 (9th Cir. 1991); United States

8

v. Estrada-Lucas, 651 F.2d 1261, 1263-65 (9th Cir. 1980)).

9

The

circumstances:

court

(1)

the

first

decision

was

clearly

Id. (citing Milgard, 902 F.2d at 715; United

granted

Defendants’

second

motion

for

10

reconsideration primarily based on the changed circumstances of a

11

re-set pre-trial schedule and a new dispositive motion deadline.

12

See Order, ECF No. 209.

13

adequately consider the remaining factors provided in Thomas.

14

this court had considered those remaining factors, it would have

15

found that: (1) the court’s prior findings that Defendants had

16

waived their affirmative defense of failure to exhaust were not

17

clearly erroneous, given the years following the Ninth Circuit’s

18

remanding of this case and the many opportunities that Defendants

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had let pass before asserting that Plaintiff had failed to exhaust

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his administrative remedies; (2) no intervening change in the law

21

had occurred between the court’s prior findings that Defendants had

22

waived their affirmative defense of non-exhaustion and Defendants’

23

second motion for reconsideration; (3) the evidence before the

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court upon second reconsideration was not substantially different;

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and (4) no manifest injustice would have resulted if the court had

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adhered to its prior findings because Plaintiff had, in fact,

At that time, however, the court did not

14

If

1

received final denials of his grievances at the administrative

2

levels and the case was ripe for trial. Thus, upon considering all

3

of the Thomas factors, the court should have found that, upon

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second reconsideration of this court’s March 29, 2004 order, it was

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precluded by the law of the case doctrine from reopening the

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previously resolved question of whether Defendants had waived their

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affirmative defense of non-exhaustion.

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Defendants now argue that the law of the case doctrine

9

requires the court to dismiss this entire action in adherence to

10

the court’s most recent finding that Plaintiff failed to exhaust

11

his administrative remedies. See Defs’ Reply, ECF No. 216, at 3-5.

12

However, upon considering the Thomas factors, the court here finds

13

that it is appropriate to reopen its most recent finding because:

14

(1) this court’s failure to consider all of the Thomas factors when

15

deciding Defendants’ second motion for reconsideration was clearly

16

erroneous; and (2) manifest injustice to Plaintiff would result if

17

this court were to dismiss the entire action.

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Again, the statute of limitations for Plaintiff’s claims has

19

passed and, upon dismissal of the action, Plaintiff would likely

20

be barred from bringing another action based on these claims in

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this forum, even though Plaintiff received final denials of his

22

administrative grievances and his action was found meritorious

23

enough to survive both a motion to dismiss and a motion for summary

24

judgment.

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this belated point in the litigation would be unjust because proper

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exhaustion would now be futile (where Plaintiff’s Director’s Level

A dismissal based on Plaintiff’s failure to exhaust at

15

1

grievances were already denied), and Plaintiff would be prejudiced

2

from having his claims litigated on their merits due to Defendants’

3

years of inaction and this court’s prior findings that Defendants

4

had waived their affirmative defense of nonexhaustion.

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In considering the remaining Thomas factors, the court finds

6

that no intervening change in the law has occurred between this

7

court’s October 4, 2012 order and Defendants’ instant motion to

8

dismiss;

9

different; and no changed circumstances exist from those before the

the

evidence

before

the

court

is

not

substantially

10

court on Defendants’ second motion for reconsideration.

11

the court finds it appropriate to reopen its October 4, 2012 ruling

12

that Plaintiff failed to exhaust his administrative remedies

13

because that finding was clearly erroneous given the history of the

14

case and would result in manifest injustice.

15

However,

To properly observe the law of the case, the court therefore

16

determines that it erred in its October 4, 2012 order.

Due to

17

their years of inaction, and the reasons provided by this court on

18

a number of previous occasions, Defendants have waived their

19

affirmative defense of non-exhaustion.6

20

Moreover, the Supreme Court has found that application of the

21

exhaustion doctrine is “intensely practical” and that the ultimate

22

decision of whether to waive exhaustion should be guided by the

23

policies underlying the exhaustion requirement.

Bowen v. City of

24
6

25
26

Due to the court’s previous error, it was likely unnecessary
for the court to dismiss Plaintiff’s amended complaint with leave
to amend. See Order, ECF No. 209. Nevertheless, this case is now
proceeding upon Plaintiff’s second amended complaint.
16

1

New York, 476 U.S. 467, 484, 106 S.Ct. 2022, 2032, 90 L.Ed.2d 462

2

(1986).

3

Supreme Court has provided that the goals served by the exhaustion

4

requirement include “allowing a prison to address complaints about

5

the program it administers before being subjected to suit, reducing

6

litigation to the extent complaints are satisfactorily resolved,

7

and

8

preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219,

9

127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citing Woodford v. Ngo, 548

10

U.S. 81, 88-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Porter v.

11

Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)).

12

If this court is to take the goal of efficient and improved

13

litigation seriously, it would be grossly inappropriate to dismiss

14

this entire action for non-exhaustion on the eve of trial, and to

15

foreclose the Plaintiff from litigation of the merits of his claim

16

at this stage in the proceedings.

17

In the context of the prison grievance process, the

improving

litigation

that

does

occur

by

leading

to

the

For these reasons, Defendants’ motion to dismiss Plaintiff’s

18

action is DENIED.

19

B. Notice in the Administrative Process

20

Defendants Prebula and Gavia move to dismiss Plaintiff’s

21

claims against them, arguing that none of Plaintiff’s grievances

22

gave them notice of the claims against them.

23

The Ninth Circuit has held that the primary purpose of a

24

prison grievance is to notify the prison of a problem.

25

Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).

26

include legal terminology or legal theories unless they are in some
17

Griffin v.

A grievance need not

1

way needed to provide notice of the harm being grieved.

2

grievance also need not contain every fact necessary to prove each

3

element of an eventual legal claim.

4

a grievance is to alert the prison to a problem and facilitate its

5

resolution, not to lay groundwork for litigation.

6

Johnson v. Johnson, 385 F.3d at 522, cited with approval in Jones,

7

549 U.S. at 219, 127 S.Ct. 910).

8
9
10
11
12

Id.

Id. (citing

In Plaintiff’s Second Amended Complaint, Plaintiff makes the
following allegations against Defendants Gavia and Prebula:
Animosity between Defendants Prebula and Gavia
began to get increasingly worse each time Plaintiff
would get a “write up” or be placed into Ad.Seg
with Prebula and Gavia threatening Plaintiff with
threats of transfer to a “warzone” due to
Plaintiff[’]s behavior.
. . . .

14

16
17

After being at CMF for seven years and after
numerous attempts by Defendants Prebula and Gavia[]
trying to get Plaintiff transferred, Defendants
Prebula and Gavia[] asked Defendant Saukhla to
draft a 128-C medical chrono that recommended
Plaintiff be transferred and that his “Category O”
be discontinued.

18
19

Defendant Saukhla did in fact draft a document for
Defendants Prebula and Gavia on May 24, 2001.
Defendant Andreasen cosigned it.

20
21
22
23

Defendants Prebula, Gavia, and Saukhla then held
onto said 128-C medical chrono until Plaintiff had
been released from Ad.Seg and when the regular
facility captain had gone on vacation or some other
relief that allowed Prebula to sit as “Acting”
Captain and hold an impromptu and incomplete “Unit”
Classification Committee on August 8, 2001.

24
25
26

A

The primary purpose of

13

15

Id.

Defendants Prebula and Gavia refused to provide
Plaintiff any of the due process rights guaranteed
to inmates at the August 8, 2001 “Unit”
Classification Committee by not giving him advance
18

1

4

notice of any adverse action being considered, not
providing him with any documents prior to the
hearing, not allowing him to make a statement of
his disagreement about transfer of his preference
as to where he wanted to be placed as well as the
committee not having the mandated members it was
supposed to have.

5

. . . .

6

Plaintiff had been placed into Ad.Seg for a SHUable
offense that precluded any transfer and even had a
notice from the records department that stated “The
above named inmate [] is not to be transferred
until . . . you receive written notification from
this office advising you that the CDC-804 should be
withdrawn.”
When Defendants Prebula and Gavia
discovered the above factors that individually
precluded Plaintiff’s transfer and had thwarted
their exhausted plan to transfer Plaintiff, they
arranged a “Special Transportation Unit” to take
Plaintiff to HDSP in the early hours of September
28, 2001.

2
3

7
8
9
10
11
12
13
14
15

If Plaintiff had not been placed in a “Special
Transportation Vehicle” on September 28, 2001, he
would have been seen by the Main Classification
Committee where the acts of Defendants[] Prebula,
Gavia, . . . and others[] had done [sic] in getting
Plaintiff’s transfer approved.

16
Pl’s Second Am. Compl., ECF No. 212, at ¶¶ 43, 47-50, 60-61
17
(emphasis omitted).
18
Plaintiff made the following assertions, inter alia, in his
19
prison grievances:
20
21

[Regarding a denial of surgery that had been
recommended by Dr. Johnson, a specialist from U.C.
Davis]

22
23
24
25
26

On 10-18-01[,] I was returned to Vacaville.
Despite this appeal being granted at the Second
Level, medical staff at C.M.F. refuse to comply
with the Memorandum. Appellant is forced to seek
judicial relief for the pain and suffering
throughout the time he was denied treatment for the
relief of pain, and surgery, as it is obvious that
this denial is deliberate, indifferent, and wanton.
19

1
2

This goes past mere negligence, as specialists have
made
their
recommendations,
diagnosis,
and
treatment plans clear.

3

Young Decl., ECF No. 214, Att. 2 (Inmate Appeal # CMF-01-01006).

4

I was seen in U.C.C. on 8-8-01, and put up for
transfer to a Non-Medical facility.
Because of
multiple surger[ie]s on my esophagus that resulted
in over 13 cm of my esophagus being removed, I
cannot tolerate solid foods . . . . [Request] need
for appropriate placement in an institution that
can provide all the treatments, medications, and
diet I am currently getting. . . . High Desert
cannot
provide
the
medications,
diet,
and
treatments, plus medical appliances, ordered by the
specialists prior to transfer.

5
6
7
8
9
10

. . . .

11

Transfer to a non-medical institution will result
in a threat to my health and safety, and could
cause other serious and irreparable harm, when I
don’t have immediate access to medical care.

12
13
14

Young Decl., ECF No. 214, Att. 2, (Inmate Appeal # CMF-01-1252).

15

Plaintiff’s grievances clearly indicate that he was contesting

16

his transfer to an institution at which he would fail to receive

17

necessary medical care.

18

alleged, in the Second Amended Complaint, to have been closely

19

involved in the decision to transfer Plaintiff, and Plaintiff’s

20

transfer formed the crux of his prison grievances, the court finds

21

that the allegations set forth in the prison grievances adequately

22

notified Defendants Gavia and Prebula of the problems for which

23

Plaintiff currently seeks redress.

24

Because Defendants Gavia and Prebula are

Defendants’ motion to dismiss Plaintiff’s claims against

25

Defendants Gavia and Prebula is, therefore, DENIED.

26

////
20

1
2
3

III. CONCLUSION
According, the court ORDERS as follows:
[1]

4
5

and Kearney is GRANTED.
[2]

6
7

10

Defendants’ motion to dismiss this action as a
whole is DENIED.

[3]

8
9

Defendants’ motion to dismiss Defendants Saukhla

Defendants’ motion to dismiss Plaintiff’s claims
against Defendants Gavia and Prebula is DENIED.

[4]

A status conference is SET for July 1, 2013 at 2:30
p.m.

11

IT IS SO ORDERED.

12

DATED: May 2, 2013.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
21